Elgaar Parishad case: Cannot keep aside humane considerations while deciding medical bail pleas, says HC

Asks NIA how many years undertrials can languish in jail

The Bombay High Court Monday said it had dealt with the medical bail applications of Elgaar Parishad accused, including late Father Stan Swamy, Varavara Rao and Hany Babu, and had acceded on the “humane considerations” to their request to be transferred to private hospitals of their choices despite opposition from the National Investigation Agency (NIA) and the state prison authorities.

The court, while hearing and tribal rights activist Swamy’s pleas posthumously, said it had “great respect” for his work and legally, whatever it was there against Swamy, was a different matter. The Jesuit priest had breathed his last at a private hospital in Mumbai on July 5.

A division bench of Justices S S Shinde and N J Jamadar was hearing appeals filed by Swamy against special court orders rejecting his bail pleas on medical grounds and merits. The court had kept pending the pleas to ascertain the veracity of claims by Swamy’s counsel of “apathy, negligence and lack of medical facilities” given by NIA and state prison authorities despite the octogenarian suffering from multiple ailments that required close monitoring.

On Monday, senior counsel Mihir Desai, representing Swamy, sought permission for Father Mascerenhas, the Parish priest of St Peter’s Church in Bandra and Swamy’s friend, to be allowed to participate in the mandatory magistrate inquiry into Swamy’s death.

Justice Shinde told Desai, “His (Swamy) medical bail plea was filed in May and we acceded to all your prayers. It is unfortunate that we never contemplated that this shocking thing would happen. What was on our mind (about the plea), we cannot disclose as we could not pass the order then (July 5). We’re speechless outside (of the court). It is only you who can clarify your position. On July 5, you’ve in clear and uncertain words stated you don’t have an issue with the court.”

Nobody, Justice Shinde said, mentions that the court had granted bail to Varavara Rao “despite vehement opposition”. “In another case (of Hany Babu), we sent the accused to the hospital of his choice. Whatever is possible in the matters, keeping in view legal parameters, (and) framework, we pass appropriate orders,” he added.

“We felt we cannot keep aside humane considerations. We normally do not have time, but I saw the funeral service (of Swamy) online… We have respect for his work. Legally, whatever was there against him is a different matter,” Justice Shinde added.

Desai reiterated that he had no grievances against the High Court and the Holy Family Hospital in Bandra, where Swamy was shifted on May 28, as per HC orders.

Advocate Sandesh Patil, appearing for NIA, meanwhile, said time and again it was unnecessarily projected that NIA and jail authority was responsible for whatever has happened and opposed further continuation of the medical bail plea.

In response, the bench said: “There is no control on who says what outside the matter. The concern is for how many years people will have to languish in jails? Not only in this case, but in other cases too. We are not blaming anybody in specific. But we have to answer this. Ultimately, speedy trial is considered a fundamental right as per SC judgements,” the bench said.

The court sought details of magistrate inquiry and posted the further hearing to July 23.

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