EZIEFULA SAMUEL UCHEGBU vs STATE OF NCT OF DELHI
$~70
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : 01.03.2024
+ W.P.(CRL) 3408/2023
EZIEFULA SAMUEL UCHEGBU ….. Petitioner
Through: Ms. Neha Kapoor and Mr. Kaushal Mehta, Advocate
versus
STATE OF NCT OF DELHI ….. Respondent
Through: Ms. Rupali Bandhopadya, ASC for the State.
CORAM:
HON’BLE MS. JUSTICE SWARANA KANTA SHARMA
JUDGMENT
SWARANA KANATA SHARMA, J (ORAL)
1. The present writ petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.) has been filed by the petitioner seeking release of the petitioner on parole for two months on medical grounds.
2. Learned Counsel appearing on behalf of the petitioner submits that the petitioner in this case has been in judicial custody for case arising out of FIR bearing no. 291/2011, registered at Police Station Tilak Nagar, New Delhi for offences punishable under Sections 302/392/397/411/120B/34 of IPC. Learned Counsel for the petitioner submits that the petitioner is suffering from Umbilical Hernia, UTI, difficult in urinating and has to undergo immediate surgery for removal of the hernia as he is facing constant pain on account of the same. It is stated that the petitioner was convicted for life and has completed 12 years in actual custody. The conviction awarded to the petitioner has been upheld by this Court on 28.03.2023. The petitioner has been suffering from acute pain from past three months and has, difficulty in urinating. He even suffered UTI and was detected with umbilical hernia for which he has recently been advised to undergo surgery by the doctors at DDU hospital. It is submitted that the entire treatment record of the petitioner from the jail shows that his medical condition has worsened over a period of time with no signs of improvement.
3. Learned Counsel for the petitioner further submits that the petitioner was being provided treatment inside the jail. However, there has been no improvement in his medical condition rather the pain has severely increased. It is further stated that the petitioner was advised for an ultrasound on 16.06.2023 by Deen Dayal Upadhyay Hospital, Hari Nagar which was conducted on 02.08.2023, after a substantial delay of two months. It is stated that the petitioner was thus diagnosed with Umbilical Hernia and the medical reports further confirm a 2.8 cm defect in umbilicus and the same needs to be removed through surgery as the pain is getting unbearable.
4. It is stated that the petitioner through his wife had sent an application dated 15.09.2023 by speed post seeking parole from Jail authorities on the, aforesaid ground and the copy of the application was also sent to Director General Prisons, Tihar Jail, New Delhi and Hon’ble Secretary, Govt. of NCT Delhi and since no order was passed on the application for grant of parole by the competent authority. After that, the petitioner had preferred a writ petition bearing no. 3026/202 before this Court, while disposing of the said writ petition vide order dated 16.10.2023 this Court had directed the competent authority to dispose of the application for grant of parole within 10 days from 16.10.2023. However, it is stated that the parole application of the petitioner was rejected on 15.11.2023 on the ground that his plea does not attract exceptional condition to qualify relief under rule 1121 of Delhi Prison Rules, 2018. It was also rejected on the ground that as per rule 1121 of Delhi Prison Rules, 2018, the petitioner has to have a valid permission to stay in India. It is however stated that in this regard the petitioner through his counsel had applied for new Visa/extension from FRRO Delhi, and that his application for grant of visa is under consideration.
5. It is now stated that the petitioner is seeking release on parole for removal of umbilical hernia and also undergo treatment for other ailments in a private hospital at his own expense and be released on medical emergency. It is also stated that he should be released on parole as he needs to establish social ties since he has been in continuous custody for more than 12 years. It is also stated that the wife of the petitioner who is residing with one of his friends is willing to stand surety for him and the petitioner is willing to surrender his passport in jail, it is thus prayed that he be released on parole.
6. Learned ASC appearing on behalf of the State submits that as per status report the present petitioner had been held guilty of murder and his conviction has been upheld by this court. It is also stated that the petitioner was also guilty of offence under section 14 of Foreigners Act. It is stated that Ms. X who he alleged to be his wife is not married to him and is his live-in partner. It is however stated that Ms. X is staying at a rented accommodation for the last one year. It is therefore stated that the petition be rejected.
7. This Court has heard arguments addressed on behalf of learned counsel for the petitioner and learned ASC for the state and has also gone through the material placed on record.
8. This Court has gone through the medical treatment record which has been filed on record by Medical Officer in-charge Central Jail Dispensary, Tihar, which reads as under:
Subject: MEDICAL STATUS REPORT OF CONVICT INMATE PATIENT UCHEGBU EZIEFULA SAMUAL S/O UCHEGBU SAMUAL IN COMPLIANCE TO HIGH COURT OF DELHI ORDER NO: 3040/CRL. & DATED: 15/01/2024.
Sir,
This is to inform you that as per available medical record, it is hereby submitted that convict inmate patient Uchegbu Eziefula Samual s/o Uchegbu Samual is a known case of umbilical hernia, recurrent UTI, dysuria, blood in urine, hypertension, bronchial asthma and pain right flank on & off, for which he is under treatment from department of surgery/ medicine at DDU Hospital.
As per old medical history he has been diagnosed with small concretion (non-obstructing) in right kidney with history of pain in right flank and dysuria for last 4-5 years, for which he had been under regular follow up with jail visiting surgery SR and Dr. BSA Hospital before entering into CJ-02, Thar on 15/07/2022.
During his lodgment in CJ-02 inmate patient has presented in dispensary multiple times with complaint of burning micturition, dysuria, hematuria, pain right flank, pain right iliac fossa apart from shortness of breath with acute exacerbation (bronchial asthma), dental issues, hypertension and pain right side of abdomen, for which he had been attended by doctor on duty and concerned specialist inside and outside of jail.
Further on 17/05/2023, inmate patient presented at jail dispensary in emergency with complaint of right lumber pain, difficulty in passing urine with blood in urine for past one week, for which after providing primary treatment he was immediately referred to DDU Hospital for emergency intervention, wherein he was thoroughly examined, advised appropriate treatment and review in surgery OPD with certain investigations.
Thereafter on 22/05/2023, 16/06/2023, 05/07/2023, inmate patient was sent to department of surgery DDU Hospital with complaint of pain right lumber region and dysuria, for which he was provided appropriate treatment and advised for review with CECT whole abdomen and urine test.
As per urine examination conducted on 27/06/2023, there were 80-100 RBC/HPF (?obstructive uropathy) whereas CECT whole abdomen conducted on 02/08/2023 was suggestive of umbilical hernia as an accidental finding.
Thereafter on 18/09/2023, inmate patient was advised for surgery workup at department of surgery, DDU Hospital; for surgical correction of umbilical hernia.
Thereafter on 30/10/2023, inmate patient was sent to DDU Hospital for pre-anesthetic clearance, wherein after thorough examination he was found to have increased lymphocyte count for which he was referred for medicine clearance. Later on after conducting CBC few times every time he was found to have lymphocytosis, for which medicine specialist at DDU Hospital advised to get it done from DDU Hospital only.
It is to be submitted that his umbilical hernia surgery is pending due to medicine clearance in view of lymphocytosis, whereas during his latest visit to department of surgery DDU Hospital on 11/12/2023 he was advised for urology opinion as well in view of concurrent presentation of symptom related to urinary tract infection with? blood in urine.
Thereafter on 14/12/2023, inmate patient presented in jail dispensary with complaint of left flank pain on & off with blood in urine in morning, for which after providing primary treatment he was immediately referred to DDU Hospital for possible emergency intervention, wherein he was thoroughly examined, advised appropriate treatment and review in surgery OPD with certain investigations. USG KUB also done at DDU Hospital, wherein urinary bladder was echo free and no sign of hydronephrosis.
Thereafter on 06/12/2023, inmate patient was refereed to department of medicine, DDU Hospital wherein he gave complaint of persistent pain abdomen with urinary pain, for which he was provided appropriate treatment and to review with certain investigations.
Thereafter on 02/01/2024 & 19/01/2024, inmate patient was referred for urology consultation at Safdarjung Hospital, wherein he gave complaint of dysuria with occasional blood in urine, through examined prescribed appropriate treatment and asked for review with uroflowmetry and USG KUB.
It is further submitted that in view of his persistent urine related complaints and pending definitive diagnosis, date for USG KUB has been taken from Safdarjung Hospital and is scheduled for 03/02/2024. Despite his outside review at DDU & Safdarjung Hospital, inmate patient has kept visiting jail dispensary during OPD/Emergency hours multiple times for complaints related to pain abdomen, disturbed bowel habits, burning micturition on & off blood in urine and has been provided appropriate treatment each time.
At present inmate patient is suffering from ?UTI/kidney stone/dysuria along with umbilical hernia and receiving treatment from department of surgery DDU Hospital and department of urology, Safdarjung Hospital, whereas he has been advised for surgery for umbilical hernia at DDU Hospital but its fitness is pending due to urology clearance, which in turn depends on the outcome of USG KUB report, further he is a known case of bronchial asthma, for which he was under treatment with jail visiting medicine SR, deranged CBC, for which he is under evaluation from department of medicine DDU Hospital.
Whereas he is subjectively not showing improvement in his symptomatology but all the advice as received from concerned specialist from time to time regarding any investigation or review is being compiled at the end of prison health authorities.
This is for your kind information and onwards submission to Hon’ble high court.
9. This Court has also gone through the nominal roll filed on record and as per the nominal role, the petitioner has been sentenced to rigorous imprisonment for life and he has remained in judicial custody for about 11 years, his jail conduct has been reported to be satisfactory, the accused in the last 11 years has never been granted bail. The medical treatment record reveals that the petitioner is presently suffering from multiple ailments, umbilical hernia, recurring UTI, dysuria, blood in urine, hypertension, bronchial asthma and pain right flank on & off, including other details.
10. The medical element that petitioner has suffered from and continues to suffer from without showing any improvement in his symptoms despite medical treatment, in the hospital is not disputed. At the same time, it is also not denied that he has been taken to hospital multiple times. However, the petitioner continues to pass blood in urine. A surgery has been prescribed for umbilical hernia which could not be conducted due to the reasons stated in the medical report received and absence of urology clearance and the petitioner being a patient of asthma.
11. In these circumstances, when continuous medical treatment for the last two years has not resulted into any improvement but rather deterioration in the health of the present petitioner. This Court, purely on humanitarian grounds, is inclined to grant parole to the petitioner for a period of two months for the purpose of his medical treatment in a private hospital of his choice. However, at the same time even when petitioners application for extension of his visa is under consideration, his health condition cannot wait to take a call on the same.
12. This Court has also considered the argument of the learned ASC for the state who has opposed the application on the ground that Ms. Taline who is the alleged wife of the present petitioner is not married to him, but is a live in partner and therefore his representation before the court regarding Ms. Taline being his wife is incorrect. However, this court without going into the same is of the opinion that the marital status of Ms. Taline is of no importance to this court. As the courts only concern should be as to whether a person can stand surety for the petitioner and is a sound surety in the assessment of the Court.
13. In view there of this court is inclined to grant parole to the petitioner for a period of two months from the date of his release on the following terms and conditions:
i. The petitioner shall furnish a personal bond in the sum of Rs.10,000/- with one surety of the like amount, to the satisfaction of the Jail Superintendent.
ii. The petitioner shall furnish a telephone/mobile number to the Jail Superintendent as well as SHO of local police station, on which he can be contacted if required. The said telephone number shall be kept active and operational at all the times by the petitioner.
iii. Immediately upon the expiry of period of parole, the petitioner shall surrender before the Jail Superintendent.
iv. The period of parole shall be counted from the day when the petitioner is released from jail.
14. Accordingly, the present petition stands disposed of.
15. The judgment be uploaded on the website forthwith.
SWARANA KANTA SHARMA, J
MARCH 1, 2024/zp
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W.P.(CRL) 3408/2023 Page 2 of 9