Prisoners who are terminally ill need sympathy should be allowed to breathe their last in Comforting Company

No Bar for writ under section 173(8) CrPC to transfer investigation to CBI: Calcutta High Court

Case: In re: Overcrowding in prisons

Citation: [WPA 7252 of 2018 With WPA 4510 of 1997 With WPA 5440 of 2020 IA No. CAN/1/2020 (Old No. CAN 3147 of 2020) With WPA 8573 of 2018]

Coram: The Hon’ble The Chief Justice Thottathil B. Radhakrishnan & The Hon’ble Justice Arijit Banerjee

While stressing that even prisoners are entitled to humane treatment, on 08 January the Calcutta High Court directed the State Government to hand over Terminally Ill Prisoners ,identified in its affidavit of 09 October 2020 to their next of kin so that they can be nursed and extended due comfort at their respective homes.

The Bench of Chief Justice Thottathil B. Radhakrishnan and Justice Arijit Banerjee, in suo-moto case (In re: Overcrowding in prisons), was dealing with the issue related to the manner in which Terminally Ill Prisoners (TIPs) are required to be dealt with.

Facts of the Case

Pursuant to Court’s earlier orders, an affidavit affirmed on 9 October, 2020 by the ADJ & IG of Correctional Services, West Bengal was filed in Court. This report related to the medical treatment that is being extended to the terminally ill prisoners of the Correctional Homes across West Bengal.

The administration listed TIPs and called them in the affidavit along with the details of the different correctional homes where they are housed. The details of the medical care given to them were also outlined in the affidavit in question. It has, however, been submitted before the Court that the medical attention received by the TIPs is insufficient and leaves much to be desired.

Observations of the Court

While noting that prisoners cannot be regarded as inhuman objects and must be made open to them in some basic facilities, the Court said,

“We are of the view that a prisoner suffering from terminal illness should be treated with sympathy and should be permitted to breathe his last in the comforting company of his family and friends, if, and to the extent, possible. For this purpose, in an appropriate case, the Government may shift a TIP to his home with a direction that he will be kept confined there.”

The Court further observed,

 “The jurisdictional police will keep a vigil that the concerned person does not step out of his home. The prison authorities may also require the next of kin of the TIP to execute personal bonds guaranteeing that the concerned TIP shall not leave his home. That way, the concerned TIP will receive the love and affection from his near and dear ones and will end his earthly mission with relatively more peace in mind.”

In extremely special cases, the Court stated that a person can be kept imprisoned in his own home. In very exceptional circumstances, subject to the satisfaction of the competent judicial authority and the State Executive on humanitarian and compassionate grounds, an under-trial prisoner or a convict who is serving his sentence in prison and who is staring at death from very close quarters, and counting his days in this world, could be handed over to his next of kins for keeping him confined within the four walls of his home.

The Court further said,

 “It needs to be emphasised, here and now that this view that we have expressed would take care of only very exceptional cases where such management of a TIP will be inexcusably conducive for that human being in the given set of facts and circumstances; and not otherwise.”

The Court also asks the West Bengal Government to follow the 2010 circular issued by the Union Ministry of Home Afffairs which talks about the manner in which terminally ill prisoners should be treated.

Directions issued by the State

The Court directed State Government to hand over Terminally Ill Prisoners to their next of kins, by adhering to the following directions:-

  • TIPs shall be kept confined in their respective homes and the respective jurisdictional police shall ensure that they do not move out of their homes except for visiting hospitals/clinics/medical centres for treatment.
  • The Authorities may obtain bonds or such other guarantees from the next of kins of the TIPs as the administration may deem necessary.
  • If the families of some of the TIPs may not be prepared or in a position, for financial reasons or otherwise, to accommodate them at their respective homes then the State will have to continue to keep such TIPs in the Correctional Homes but arrangements should be made so that they are extended due care and they receive requisite medical attention and are treated in a humane manner.
  • In appropriate cases, to be decided by the competent authority, a TIP may be sent to hospitals / medical care centres/welfare homes where he would be properly looked after and cared for at State’s expense.
  • If a TIP has been deserted by his family and friends, the Government must rise to the occasion and assume the role of the caretaker of that person.
Priyanshi Budholia
I am Priyanshi Budholia, a student of B.A.LL.B (Hons.) from Dharmashastra National Law University, Jabalpur. I always like to express my concern in research & writing skills as it enhances my skills for future endeavors in the legal field. I prefer to live in a dynamic environment where people help others to develop their skills.