Bombay HC grants bail to Varavara Rao on health grounds under writ jurisdiction despite a statutory ban [READ JUDGMENT]

The Bombay High Court through its order dated 22February 2021 granted temporary bail to Dr PV Varavara Rao, one of the accused in the Bhima Koregaon- Elgaar Parishad case. 

Mr Rao was booked under the Unlawful Activities Prevention Act (UAPA), 1967 for allegedly being a senior member of a banned organization-Communist Party of India (Maoist). He is accused to be actively involved in arranging funding and providing arms and ammunition to the cadre of the said organization to wage war against the established Government, causing the death of several security personnel and citizens. Section 43D (5) of UAPA, 1967 prevents a grant of bail to any accused booked under the act. 

There were an appeal and two writ petitions before the court for consideration concerning the grant of bail to Mr Rao. 

A division bench of the High Court consisting of Justices SS Shinde and Manish Pitale after hearing the matter held that an accused under UAPA can be granted bail solely on the ground of poor health if it is seen that sending the person back to the prison will endanger his life. The court observed that the undertrial's health could not be ignored just based on the seriousness of his offence. If the accused is sent back to jail it will amount to a violation of his rights under Article 21 of the Constitution.

Mr Rao housed in the Tajola Central Prison had to be hospitalised on several occasions. He is of the advanced age of 81 years and suffers from several pre-existing medical infirmities like piles, prostate enlargement, coronary artery disease, Oedema/Anasarca (swelling of feet), Hypertension, Sinusitis, Migraine and Vertigo. He also suffers from other age-related ailments like Cerebral atrophy, periods of delirium due to electrolyte imbalance and early-onset dementia.

The medical reports from Mr Raos several hospitalisations during the period of incarceration were considered by the court and taken on record. The court also noted the fact that Tajola Prison had only three Ayurveda Doctors and no nursing staff. The accused was under the care of other inmates.

The court observed that it cannot stand as a mute spectator as the undertrials health further deteriorates. The fact that the bail application has been rejected on merit because of the statutory bar will not affect the writ jurisdiction of the High Court under Article 226 of the Constitution. It held that:

we are of the opinion that this is a genuine and fit case to grant relief; or else, we will be abdicating our constitutional duty and function as a protector of human rights and right to health covered under right to life guaranteed by Article 21 of the Constitution of India

The National Investigation Agency contented the Courts observation by arguing that if bail was granted on the ground of poor health alone the court will be flooded with bail applications. The argument was rejected by the court stating that the chance of an increased number of litigations cannot be used to deny bail where it is genuinely called for.

Mr Rao was represented at the hearing by Senior Advocate Ms Indira Jaising.

The court has placed strict conditions for the temporary bail considering the serious nature of the allegations. Mr Rao is not to make public statements related to the proceedings and not to establish contact with the co-accused. He is to remain within the jurisdiction of the Special National Investigation Agency (NIA) court of Mumbai. Additionally, the contact information of the relatives with whom the accused will be staying are to be provided and he is to attend the court whenever summoned through exemptions can be sought. He is also to report at the police station through a fortnightly video call.

[READ JUDGMENT]