Thread by @barandbench

#BombayHighCourt will continue hearing the plea filed by #BhimaKoregaon accused Dr. Varavara Rao for grant of bail on medical grounds along with the plea filed by his wife seeking the Court’s intervention in view of the violation of his fundamental right to health.

In the previous hearing Bench of Justices SS Shinde and Manish Pitale ASG Anil Singh, appearing for the NIA, what would happen in case of an emergency if Rao is transferred outside Nanavati Hospital.

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Hearing begins.

ASG Singh continues his submissions on behalf of the NIA.

Singh begins reading from his reply to the application.

Justice Shinde interrupts stating they have read the reply.

Singh points out that he will read some portions for substantiating his arguments.

Continues reading

Justice Shinde tells ASG that the bail being sought is on medical grounds.

Singh: I am reading out to point out how serious the charges are.

Justice Shinde: Mr. Singh the charges are not yet framed. Speedy trial is also part of fundamental rights.

Singh: Milords may direct day to day hearing

Justice Shinde: There are more than 200 witnesses. There are so many applications. Have clone copies been provided?

Singh: Having more witnesses is no ground for bail. We do not have control over prisoners who are let out on bail.

Singh: There are serious offences against them. Police and military people have lost their lives for this.

Singh points out more facts from NIA’s reply.

Singh refers to a judgment of 2007.

Justice Shinde tells ASG that the reports submitted to them do not clarify if he has dementia or not. There was no further tests conducted to conclusively decide if Rao has dementia or not.

Justice Shinde states that his second report was done only after the court intervention.

Singh: How can we conduct tests if the neurologist did not say so?

Justice Shinde: How can we consider things like that? We cannot look at first report and not at last, or last and not at first. From first to last after considering everything, we are asking.

Singh: The last report states that he does not need indoor management

Justice Shinde: We cannot only consider the last report.

(Ask Sr Adv Anand Grover) why not do the test?

Grover: They have not done it because the report says there is no need for now. If required, could be done.

Then also we did not suggest because they may allege that we are trying to get a particular answer from the test.

Justice Pitale: Isn’t there an application pending on merits?

Grover clarifies that it is in fact an appeal from the Pune Court where the matter was going on before it comes to Mumbai.

Singh concludes his submissions by referring to the Gauhati court judgment which stated that provisions of the UAPA are in addition to Section 437 of the IPC, hence cannot be ignored.

Justice Shinde asks Sr Adv Grover what his response is to the statement of the State to transfer him to JJ hospital and not move to Hyderabad.

Grover: This statement implies that Taloja jail hospital is ill-equipped to deal with him. So now the question is whether Hyderabad or JJ Hospital?

Justice Shinde points out what about dementia.

Grover: That may not be a question now, but there is likelihood in the future.

Singh intervenes: Now that Chief PP Deepak Thakare has made a statement that he will be transferred to the Taloja hospital, how does the question of bail arise?

Grover submits judgments wherein on the likelihood of illness the prisoner was admitted to the prison hospital.

Justice Shinde: But in these cases, it was the responsibility of the State.. and here also they are willing to take responsibility.

Grover: Yes, there is no denying their exemplary action.

Justice Shinde asks Chief PP Thakare if the Nanavati bills have been cleared.

Thakare: Hopefully.

Justice Shinde asks Grover what suggestion from the bench he was mentioning.

Grover: The suggestion that Rao can be released on bail and keep within the jurisidiction of the NIA Court.

Grover: His relatives have to come here, leaving their work, etc.

Justice Shinde: But this you are talking of their convenience. We are talking of his health here.

Justice Pitale: And according to Thakare, you will not have to face this issue if he is kept in JJ.

Grover: I have an answer tot hat. But my suggestion is that he can be kept in Hyderabad for 3 months on a trial period with all conditions.

Justice Shinde: Mr. Grover you cannot dispute that the best of the treatment possible for him has been given to him.

Plus the best medical treatment will be given in Mumbai. From other states people come here for treatment.

Justice Shinde: There is apprehension that if Rao is released on detention then the other co-accused may take undue advantage.

Grover: Look at the conduct of this person, there are 24 serious cases against him, he has appeared for trial as any person should.

Grover: He is willing to stand another trial.

His own electronic evidence have been sent to FBI in the USA now. The trial is not going to start another 2 years.

Justice Shinde: We will hear this when we are hearing your matter on merits.

Grover: No I am only pointing out what will happen to him in the meantime.

Justice Shinde: We will expedite trial.

Grover: It will not work.

Grover: I am saying give trial bail for 3 months with all stringent conditions.

Justice Shinde: We cannot impose instructions like don’t go out and don’t talk to people.

Grover: The relatives have to come everytime.

Justice Shinde: Love and affection is no excuse here. If they have to come, they have to come.

Grover reads out a poem of Dr. Rao to portray his spirit to the court.

Grover: He is wiling to go on for trial. He wants to, to show that he has not done anything.

The other cases against him, he was acquitted. For him, this case is just another case.

Grover concludes his submissions by making a final request that the prayer for bail be granted and he should be allowed to go to Hyderabad.

Sr Adv Indira Jaising begins her rejoinder.

She asks the court to note that Rao is an undertrial prisoner.

She adds that fundamental right to health is in addition to the fundamental right to life under Article 21.

Jaising: His continuing incarceration is incompatible to his health.

This is a victimless crime, death penalty will not be attracted as he has not killed anyone.

Jaising: While stating that his crimes were serious, what were his crimes? Some evidence was found in a co-accused’s electronic files which mentions his names. But that is also a purported conspiracy.

Jaising: His reports does not give a prognosis, like in the previous reports.

As for the question of whether to keep him in Hyderabad or in Mumbai, another aspect to be looked into is the burden on the care-giver.

Jaising: There is whole new jurisprudence on that. But looking after a patient is very difficult. If they have to come to Mumbai to do it, they will do it, but the care will not be the same as in his house as in a hospital or a rented flat.

Jaising refers to a case of activist Kanchan Nanaware, who died in the prison hospital of Pune.

Jaising: When her medical application was filed, she was alive, for some reasons, her bail application was rejected. And now she has died.

Jaising concludes her submissions with a statistic that out of 365 days since last February, Rao has spent 149 days in prison.

Jaising: That should make his medical condition clear.

Court reserves the matter for orders.

Continues the previous interim of keeping Rao in Nanavati hospital till the pronouncement of judgment.

Court reserves the matter for orders. Continues the previous order of keeping him in Nanavati Hospital till the pronouncement of judgment.