IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 15TH FEBRUARY 2010 / 26TH MAGHA 1931 WP(C).No. 32078 of 2009(Q) ------------------------------------- PETITIONER(S): ------------------------- DINYE T.X., AGED 40 YEARS, S/O. XAVIER, THYPARAMBIL HOUSE, AMBALAMEDU P.O., ERNAKULAM DISTRICT. BY ADVS.MR.JOY GEORGE SMT.PRAICY JOSEPH RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REP. BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR GENERAL OF POLICE, POLICE HEADQUARTERS, THIRUVANANTHAPURAM. 3. THE COMMISSIONER OF POLICE, KOCHI CITY, ERNAKULAM. 4. THE SUB INSPECTOR OF POLICE, HILL PALACE POLICE STATION, TRIPUNITHURA. 5. THE DIRECTOR, CENTRAL BUREAU OF INVESTIGATION, NEW DELHI. 6. THE SUPERINTENDENT, CENTRAL BUREAU OF INVESTIGATION, KATHRIKKADAVU, ERNAKULAM. R1 TO R4 BY GOVERNMENT PLEADER MR. S.U.NAZER R5 & R6 BY ADV. MR.M.V.S.NAMBOOTHIRY,SC, C.B.I. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/02/2010, THE COURT ON 15/02/2010 DELIVERED THE FOLLOWING: tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C). No. 32078 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of February, 2010. JUDGMENT This is a petition filed under Article 226 of the Constitution of India seeking a writ of mandamus or such other directions as are found necessary calling upon respondents 2 to 4 to take steps to get the laboratory results of the deceased and to ascertain the reason for the cause of death of petitioner's wife and complete the investigation of the crime registered by them. 2. Smitha, the wife of the petitioner died while undergoing treatment in R.C.M. Hospital at Thripunithura. She consulted the Doctor on 4.9.2008. She was allowed to go home after prescribing medicines. After consuming the medicines, it is stated that she began to vomit and felt very uncomfortable and uneasy. Her physical condition worsened and then she was admitted to R.C.M. Hospital at Thripunithura. According to the petitioner, no proper care was given to the patient WPC.32078/2009. 2 and the behaviour of the doctor and the staff was reckless and negligent. It is stated that medicines were given one after another and ultimately she was removed to the Intensive Care Unit. Blood began to ooze from her nose and ear and she finally passed away. Petitioner and others firmly believed that the death was caused due to the negligence on the part of the doctor, who treated her and the staff. 3. A complaint was lodged, copy of which is produced as Ext.P1. The fourth respondent registered crime for unnatural death as Crime No.1017 of 2008. FIR is produced as Ext.P2. It is stated that the Police Surgeon, who conducted the postmortem was of the opinion that the real cause of death could be ascertained only after chemical analysis report and laboratory investigation report were obtained. Copy of the postmortem certificate is produced as Ext.P3. Even after a lapse of an year nothing transpired in the matter and no steps were being taken by the investigating agency to probe into the matter. They simply WPC.32078/2009. 3 keep their hands tight saying that the laboratory report had not been made available. The petitioner says that he reliably understands that the fourth respondent is inclined to close the matter due to the influence of the persons who may be found liable. The petitioner bona fide believes that the investigation is not being properly done and is a mere eye wash. None of the doctors or other staff of the hospital have been questioned and no steps whatsoever have been taken by the investigating agency in this regard. Petitioner would say that it is quite unfortunate that the fourth respondent should adopt such an attitude. The petitioner therefore prays that in the interests of justice, respondents may be directed to take the matter seriously and conduct a proper investigation. 4. The fourth respondent in this case, who is the investigating officer, has filed a statement. After stating the facts, it is stated that he was the investigating officer. He says that he conducted the inquest and the body was sent for postmortem examination. Postmortem examination was WPC.32078/2009. 4 done by Dr. Liza John, T.D. Medical College, Alappuzha. The doctor, who conducted autopsy had reserved his opinion pending the report of the medical analysis. It is stated that the relatives and other witnesses were examined. He also claimed that the doctor, who had conducted the postmortem and the doctor in whose presence postmortem was conducted were also questioned. As per his opinion Smitha died due to severe fever. According to him, the doctor, who conducted postmortem examination had stated that the type of fever, from which Smitha was suffering is of such a nature that it is extremely difficult to survive. He says that the chemical analysis report is not received so far. But he says that going by the statement given by the doctor, who conducted the postmortem examination, he came to the conclusion that the death was due to severe viral fever. He therefore filed the final report on 5.9.2009 before the Sub Judicial Magistrate, Kochi. He claims to have done the investigation effectively. WPC.32078/2009. 5 5. To say the least, the stand of the fourth respondent is ridiculous. It is clear from his own statement that the doctor, who conducted the postmortem examination had reserved his opinion regarding the cause of death pending receipt of chemical analysis report and laboratory investigation report. There was no attempt from the side of the investigating officer to procure these documents and get a final opinion from the doctor. One fails to understand how he came to the conclusion that the death was due to fever when the doctor who conducted postmortem has not given his opinion regarding the cause of death. No explanation whatsoever is given as to why he had not made any effort to obtain the chemical analysis report and get a final opinion from the doctor, who conducted postmortem. He had also not disclosed the statements given by the doctors concerned. The investigation, to say the least, is very perfunctory , casual and indifferent. It is very unfortunate that it should be so. WPC.32078/2009. 6 6. There seems to be considerable force in the submission made by the petitioner that the conduct of the fourth respondent gives rise to serious suspicion. From his own statement it is clear that no investigation has been done, except taken statements from a few witnesses. Petitioner seems to be fully justified in his submission that no serious or sincere efforts have been taken by the fourth respondent to ascertain whether it was due to the negligence or recklessness on the part of the doctor or the staff of the hospital, which ultimately caused the death of Smitha. 7. In the light of the above circumstances, it has become necessary to issue directions in the matter calling upon another agency to conduct investigation in the case. The attitude of the local police being lukewarm, it is felt that investigation by them will not be sufficient. Hence the Crime Branch (C.B.C.I.D.) is directed to take up the investigation of the case within a month from today and report about the same to this court. WPC.32078/2009. 7 The writ petition is disposed of as above. P. BHAVADASAN, JUDGE sb.