IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14.9.2007 CORAM THE HON'BLE MR.JUSTICE P.D.DINAKARAN AND THE HON'BLE MR.JUSTICE R.REGUPATHI Habeas Corpus Petition No.1334 of 2007 Uma Manickam .. Petitioner Vs. 1. The Inspector of Police V-1, Villivakkam Police Station Villivakkam, Chennai. 2. Jayakumar 3. Ravikumar 4. S.R.Raja .. Respondents Petition filed under Article 226 of the Constitution of India praying for issue of Writ of Habeas Corpus directing the respondents to produce Deenadayalan, Son of Balu Reddiar, aged about 54 years, now under illegal custody of the respondents before this Court and set him at liberty. For Petitioner : Mr.Selvaraj For Respondent-1 : Mr.N.R.Elango Addl. Public Prosecutor O R D E R (Made by P.D.DINAKARAN,J.) This petition has an unpleasant history. We are grieved at the turn of events in this case, viz., making a normal man, a mentally ill person, in order to grab his property fraudulently, by perverting or subverting the provisions of the Mental Health Act, 1987 (for brevity, "the Act") which is enacted to consolidate and amend the law relating to treatment and care of mentally ill persons, to make better provision with respect to their property and affairs and for matters connected therewith or incidental thereto. https://hcservices.ecourts.gov.in/hcservices/ 2.1. The facts, so far as relevant, leading to the filing of the present petition are as under: The petitioner, claiming herself as a neighbour of the detenu – Deenadayalan has filed this habeas corpus petition seeking a writ of habeas corpus to direct the respondents to produce Deenadayalan, Son of Balu Reddiar, aged about 54 years, now under illegal custody of the respondents before this Court and set him at liberty. It is alleged that the detenu is kept under the illegal detention, under the guise of a reception order dated 24.8.2007 said to have been passed by the learned Judicial Magistrate, Tambaram, exercising the power conferred under Sections 22 and 24 of the Mental Health Act, at the instance of the third respondent herein, who is nonetheless the brother-in-law of the detenu (detenu's sister's husband) and the brother of the fourth respondent, a sitting M.L.A. of Tambaram Assembly Constituency. 2.2. In fact, the very same petitioner, on an earlier occasion, complaining that the said Deenadayalan was under the illegal detention of the third respondent herein moved H.C.P. No.1114 of 2007 seeking production of the detenu before this Court and to set the detenu at liberty. The third respondent herein contested the said H.C.P.No.1114 of 2007 submitting that the detenu was mentally retrenched and he was undergoing treatment in the Institute of Mental Health, Kilpauk. 2.3. After hearing all the parties, this Court, by order dated 9.8.2007 disposed of the said H.C.P.No.1114 of 2007, as under: "4. Some medical prescriptions were produced before us. We ourselves examined the detenu. The detenu has stated that he has been taken forcibly by four persons and subsequently, the second respondent had joined them. The detenu has further stated that even though, he is being treated in some Hospital, he has been treated only as an out patient and he does not have any mental derangement. We put to him general questions, for which, he answered and he appears to be a normal person. The detenu has further stated that he would not like to stay with the second respondent and he would like to stay in his own house available at Villivakkam. The detenu is set at liberty and he is free to stay, wherever he likes." 2.4. On 10.8.2007, the learned counsel who appeared for the petitioner in H.C.P.No.1114 of 2007, however, requested the Court to post the matter for being mentioned complaining that immediately after the detenu was set at liberty on 9.8.2007, on the same day evening, he was again taken by and kept under the illegal custody of the third respondent and his wife, who is nonetheless the sister of the detenu. 2.5. The matter was posted on 14.8.2007, and was adjourned to 17.8.2007 and then to 18.8.2007 at the request of the learned Additional Public Prosecutor. On 18.8.2007, as it was reported by the learned https://hcservices.ecourts.gov.in/hcservices/ Additional Public Prosecutor that he was not able to obtain all necessary instructions, the H.C.P.No.1114 of 2007 was closed as under: " This Habeas Corpus petition had been disposed of by an order dated 9.8.2007. Thereafter, the matter was listed under the heading "for being mentioned" as the learned counsel for the petitioner stated before Court that the detenu, Deenadayalan was not available in his house at Villivakam. Learned Additional Public Prosecutor had been requested to obtain instructions on this matter. Learned Additional Public Prosecutor is not able to obtain all necessary instructions. Be that as it may, no further order is required to be passed in this habeas corpus petition. It is open to the petitioner or any other interested person to seek appropriate remedy." 2.6. As the whereabouts of the detenu were still unknown, the petitioner moved the present H.C.P.No.1334 of 2007. 3.1. When the matter came before this Court on 13.9.2007 for admission, the following order was passed: "Even though it is reported that the detenu, viz., Deenadayalan, has been admitted as an in-patient (I.P.No.2144, Ward No.6) in Mental Health Centre, Kilpauk, in view of the earlier order passed by a Division Bench of this Court, dated 9.8.2007 made in H.C.P.No.1114 of 2007, wherein it was found that the detenu appeared to be a normal person, we direct the respondent police to produce the detenu, after getting necessary orders from the Resident Medical Officer, Mental Health Centre, Kilpauk, before this Court by tomorrow (14.9.2007) at 10.30 a.m. 2. In the meanwhile, Registry is directed to call for a detailed report from the learned Principal District Judge, Chengalpet, with reference to an order passed by the Judicial Magistrate, Tambaram, exercising the powers contemplated under Section 22 and 24 of the Mental Health Act, referring the detenu, viz., Deenadayalan, to the Mental Health Centre, Kilpauk. The entire report along with the medical report from the Resident Medical Officer, Mental Health Centre, Kilpauk, shall be placed before this Court by tomorrow (14.9.2007) at 10.30 a.m." 3.2. When the matter came up for further arguments today (14.9.2007), the Registrar (Judicial) produced a report dated 13.9.2007 from the learned Principal District Judge, Chengalpattu enclosing a report from the learned Judicial Magistrate, Tambaram dated 13.9.2007. 3.3. Even though the learned Additional Public Prosecutor could not get necessary instructions from the respondents/ Police on an earlier occasion, when a serious complaint was made that the detenu was under https://hcservices.ecourts.gov.in/hcservices/ illegal custody of the third respondent, within 24 hours, the detenu was produced before us this morning from the Institute of Mental Health, Kilpauk supported with a reception order dated 24.8.2007 passed by the learned Judicial Magistrate, Tambaram. He also produced an Observation Report from the Director-Incharge of the Institute of Mental Health, Kilpauk. 3.4. The relevant portions of the report of the learned Judicial Magistrate dated 13.9.2007, report of the learned Principal District Judge, Chengalpattu dated 13.9.2007, and the Observation Report dated 14.9.2007 of the Director-Incharge, Institute of Mental Health, Kilpauk, read as under: (i) Report of the learned Judicial Magistrate, Tambaram, dated 13.9.2007 "... The above said petitioner Mr.Ravikumar filed an affidavit stating that Mr.Deenadayalan, S/o.Balu Reddy is his uncle and his age about 60 years and suffering from Mental illness for the past few years, he was also given medical treatment. In spite of the same, he was not completely cured and still he is suffering from mental illness. Therefore, he has to be admitted in the Mental Hospital for proper care and medical treatment or otherwise his health condition will become worse. Further the above said person attempted to commit suicide and throws dangerous weapons on seeing them and he also used to attack them without knowing what he was doing. Further he used to shout against persons and used to spit upon them. He also attempts to break the tube lights and bulbs and used to catch hold of the blouse of the ladies. Further he used to bring some garbage on collection from road side and use to spread them in the house which causes foul smell and affect the normal life of the inmates. Therefore, he requested to pass orders to admit the insane person Deenadayalan in the Government Institute of Mental Health and Hospital at Kilpauk, Chennai-10. The petitioner Ravikumar has sworn the affidavit as stated supra. In support of his petition, he files one Doctor's recommendation letter given by one Dr.Rameshkumar, M.B.B.S. F.A.G.E. Of Balaji Clini, No.110/A, N.M.K.Street, Ayanavaram, Chennai-23. Again, I have taken up the matter on 24.8.2007, Mr.Deenadayalan was also present in the court. I further submit that in the open court, I invited the said Deenadayalan nearby the dias, I put several questions to satisfy myself. Very often, he used to sit on the floor and complained that he could not able to stand. I further submit that more over, he has answered to the questions in the most irrelevant manner. He did not realise when saliva was oozing out from his mouth. The petitioner Ravikumar stated that the said Deenadayalan, is his uncle. I further submit that when I showed the petitioner to the said Deenadayalan and asked him who was he? https://hcservices.ecourts.gov.in/hcservices/ He said, I do not know who is he. Upon satisfied the answers given in such a way by Mr.Deenadayalan, I prepared a letter to the Director, the Institute of Mental Health, Kilpauk, Chennai-10, vide D.No.1551/07, dated 24.8.2007. Based on which, I further submit that the Tambaram Police has registered a case u/s.23 and 27 of the Mental Health Act, 1987 in Cr.No.2388/07 against Mr.Deenadayalan received by this Court on 25.8.2007 at 1.30 p.m. The medical custody for an observation of Mr.Deenadayalan as an inpatient given for a period of 30 days which has been passed for the interest of Health and the person concerned." (emphasis supplied) (ii) Report of the learned Principal District Judge, Chengalpattu, dated 13.9.2007: "... Upon satisfying himself the Judicial Magistrate, Tambaram has prepared a reception order u/s.22, 24 read with 25, 28, 29 of Mental Health Act, 1987 addressed to the Director, Institute of Mental Health, Kilpauk, Chennai-10 in D.No.1551/2007, dated 24.8.2007 and the said Deenadayalan was detained in the said Institute for a period of 30 days by the Judicial Magistrate, Tambaram. The Judicial Magistrate, Tambaram has also stated that based on that detention order the Tambaram Police has registered a case under Sec.23 and 27 of Mental Health Act, 1987 in Crime No.2388/2007 against the said Deenadayalan which was received in his court on 25.8.2007 at 1.30 p.m. But the said detenu should have been detained for 10 days only under Section 28 of Mental Health Act, 1987 at a time and this procedure has not been followed by the Judicial Magistrate, Tambaram." (emphasis supplied) (iii) Observation Report dated 14.9.2007: "As per the reception order issued in the Court of Judicial Magistrate, Tambaram, Chennai, Mr.Deenadayalan was admitted on 24.8.2007. He was brought by Head constable Mr.Subramaniam (H.C.22961) and S.I. of Tambaram Police Station. He was accompanied by his brother in law Mr.Ravikumar. On the day of admission he was clean and tidy. He comprehended our questions and gave personal information and address. There were no perceptual or thought disturbances. He was found to be exhibiting spontaneous and excessive talk. He has no insight about his condition. He has eczema of both legs (skin condition) for which he is being given treatment by experts. https://hcservices.ecourts.gov.in/hcservices/ He was placed before admission committee on 31.8.2007. Provisional diagnosis of bipolar affective disorder (mania) was entertained. Currently Mr.Deenadayalan is under observation and under going psychological investigations and testings." (emphasis supplied) 3.5. The learned Additional Public Prosecutor also produced the reception order dated 24.8.2007 issued by the learned Judicial Magistrate, Tambaram, which reads as under: "IN THE COURT OF JUDICIAL MAGISTRATE, TAMBARAM RECEPTION ORDER FOR CONSERVATION OF A MENTALLY ILL PERSON (Issued u/s.22 and 24 r/w section 25 and 28 and 29 of the Mental Health Act, 1987) 1) It is reported that a male Deenadayalan Age: 60 S/o.Balu Reddy N. 3/7, Srinivasan Street, West Tambaram, Chennai-45 a) is a mentally ill patient b) is within the jurisdictional limit of the police station attached with this Court (Cr.No.2388/07 u/s.23,27 of Mental Health Act of Tambaram P.S.) c) is reported to be residing within the local limits of your jurisdiction. 2) He is a wandering mentally ill-patient and having no relative to give protection and safety to him. 3) I have enquired and examined him personally. I have the following reason to belief that the above said patient is not under proper care and control. 4) I reasonably believe that there is no person legally bound to maintain him. 5) I the undersigned Thiru S.Murugesan, M.Sc., B.L., Judicial magistrate, Tambaram specially empowered by the government to detain him in your psychiatric hospital for treatment as an in patient. 6) Therefore, you are hereby authorised to receive the detention of the alleged mentally ill person under proper medical custody https://hcservices.ecourts.gov.in/hcservices/ in an observation ward of your hospital as an inpatient for a period of 30 days for enabling any medical officer to determine whether a medical certificate in respect of that alleged mentally ill person can properly be given under clause (a) of sub-section (2) of Section 24 of the Mental Health Act, 1987. 7) This is an interim order which has been passed in the interests of the health and personal that person or for the protection of there. 8) This order shall be subject to any variation from time to time revocation at any time. Sd/- Judicial Magistrate Tambaram Place: Tambaram Date : 24.8.07 To: The Director The Institute of Mental Health Kilpauk, Chennai-10." 3.6. It is stated in the report dated 13.9.2007 submitted by the learned Judicial Magistrate, Tambaram that the detenu very often used to sit on the floor and complain that he was unable to stand; that saliva was oozing out from his mouth unknowingly; and that he was answering to the questions in an irrelevant manner on 24.8.2007. 3.7. However, we find from the Observation Report dated 14.9.2007 of the Director Incharge, Institute of Mental Health, Kilpauk that on the date of admission, viz., on 24.8.2007, when the detenu was brought by the Head Constable-Subramanian (H.C.22961) and Sub Inspector of Tambaram Police Station – Mr.Durai, accompanied by his brother-in-law, the third respondent herein; the detenu was clean and tidy; he comprehended the questions put forth by the Doctors; gave personal information and address; and there were no perceptual or thought disturbances; even though he was found to be exhibiting spontaneous and excessive talk, he had no insight about his condition; he had only eczema on both legs (skin condition) for which he was being given treatment by experts. 3.8. Even though, we have not summoned any Doctor from the Institute of Mental Health, Kilpauk, Dr.Anand Pratap, who is Ward Incharge appeared before this Court voluntarily and stated that the detenu was improving in mental condition. We are unable to understand under what circumstances or background Dr.Anand Pratap has chosen to make the above statement. https://hcservices.ecourts.gov.in/hcservices/ 3.9. From the clinical record of the detenu, observation report, as well as the report of the learned Principal District Judge, Chengalpattu and the learned Judicial Magistrate, Tambaram, and the Reception Order, it is apparent that the learned Judicial Magistrate, Tambaram, by passing the reception order dated 24.8.2007 directing the Director of Institute of Mental Health, Kilpauk to detain the alleged mentally ill person for a period of 30 days in paragraph (6) of the order, committed a serious error in law, as, Section 28(2) of the Act contemplates that the Magistrate may, from time to time, for the purpose mentioned in sub-section (1), by order in writing, authorise such further detention of the alleged mentally ill person for periods not exceeding ten days at a time. 3.10. That apart, as per the Observation Report and the Clinical Record, there is no need to admit the detenu as an inpatient in the Institute of Mental Health, Kilpauk by the Doctor concerned on 24.8.2007. 3.11. Under such circumstances, we felt that before arriving at any finding, it is apt to call for the original records from the learned Judicial Magistrate, Tambaram as well as the original records relating to Crime No.2388 of 2007 on the file of the Inspector of Police, Tambaram and the entire medical records relating to the detenu from the Institute of Mental Health, Kilpauk and the matter was taken up at 2.30 pm. 4.1. In view of the observation of the earlier Division Bench in the order dated 9.8.2007 made in H.C.P.No.1114 of 2007 that the detenu appeared to be a normal person, at 2.30 p.m., we put several questions to the detenu in the open court and he was answering all the questions clearly and cogently without any dilemma whatsoever. 4.2. The detenu thus stated that immediately after setting him at liberty on 9.8.2007 pursuant to the order of the Division Bench of this Court dated 9.8.2007 made in H.C.P.No.1114 of 2007, he was taken on custody by the third respondent and his wife, and was left at Madambakkam Orphanage having telephone number 22781060. He was then taken to S-16 Police Station by the third respondent and from there he was produced before the Judicial Magistrate, Tambaram on 24.8.2007 by the third respondent and from there he was taken to Institute of Mental Health at Kilpauk and today, the first respondent/Police produced him before this Court. 4.3. As per the records produced from the learned Judicial Magistrate, Tambaram, it is evident that the petition under Sections 23 and 27 of the Act was filed by the third respondent herein. The petition was moved by one Mr.M.Ramesh, counsel on behalf of the third respondent. The petition was prepared on 20.8.2007, and thereafter a correction was made to the date as 22.8.2007 and filed on 22.8.2007. Notice was ordered on 22.8.2007 returnable by 24.8.2007. On 24.8.2007, the learned Additional Public https://hcservices.ecourts.gov.in/hcservices/ Prosecutor made the following endorsement: "Perused the affidavit and petition. If the alleged person appears to be lunatic the learned Magistrate can directly pass a order to Home to take him for treatment to verify the same put some common questions to said lunatic person. If doubt arises send him for medical officer then pass suitable order." 4.4. It is apparent on the face of the record that the notice was not served on the Director, Institute of Mental Health, Kilpauk, Chennai, even though he was made as a party respondent and notice was ordered to him on 22.8.2007 returnable by 24.8.2007 5.1. Under the scheme of the Act, while Chapter IV – Part III(A) (Sections 20 to 22) prescribes the procedure to be followed for disposing an application for a reception order made by the Medical Officer in charge of a psychiatric hospital or psychiatric nursing home, or by the husband, wife or any other relative of the mentally ill person, Part III(B) (Sections 23 to 25) of Chapter-IV deals with the procedure to be followed when a mentally ill person is produced by the Police concerned, Part III (C) (Sections 26 to 29) of Chapter-IV deals with the provisions regarding admission and detention of certain mentally ill persons, and Part III(D) (Sections 30 to 36) of Chapter-IV deals with miscellaneous provisions relating to the procedure to the followed while passing reception orders under this Chapter. 5.2. For better appreciation of the statutory framework, it is apposite to refer Sections 20 to 30 of the Act, which read as under: "Section: 20 - Application for reception order: (1) An Application for a reception order may be made by - (a) the medical officer in charge of a psychiatric hospital or psychiatric nursing home, or (b) by the husband, wife or any other relative of the mentally ill person. (2) Where a medical officer in charge of a psychiatric hospital or psychiatric nursing home in which a mentally ill person is undergoing treatment under a temporary treatment order is satisfied that - (a) the mentally ill person is suffering from mental disorder of such a nature and degree that his treatment in the psychiatric hospital or, as the case may be, psychiatric nursing home is required to be continued for more than six months, or (b) it is necessary in the interests of the health and https://hcservices.ecourts.gov.in/hcservices/ personal safety of the mentally ill person or for the protection of others that such person shall be detained in a psychiatric hospital or psychiatric nursing home, he may make an application to the Magistrate within the local limits of whose jurisdiction the psychiatric hospital or, as the case may be, psychiatric nursing home is situated, for the detention of such mentally ill person under a reception order in such psychiatric hospital or psychiatric nursing home, as the case may be. (3) Subject to the provisions of sub-section (5), the husband or wife of a person who is alleged to be mentally ill or, where there is no husband or wife, or where the husband or wife is prevented by reason of any illness or absence from India or otherwise from making the application, any other relative of such person may make an application to the Magistrate within the local limits of whose jurisdiction the said person ordinarily resides, for the detention of the alleged mentally ill person under a reception order in a psychiatric hospital or psychiatric nursing home. (4) Where the husband or wife of the alleged mentally ill person is not the applicant, the application shall contain the reasons for the application not being made by the husband or wife and shall indicate the relationship of the applicant with the alleged mentally ill person and the circumstances under which the application is being made. (5) No person, - (i) who is a minor, or (ii) who, within fourteen days before the date of the application, has not seen the alleged mentally ill person, shall make an application under this section. (6) Every application under sub-section (3) shall be made in the prescribed form and shall be signed and verified in the prescribed manner and shall state whether any previous application had been made for inquiry into the mental condition of the alleged mentally ill person and shall be accompanied by two medical certificates from two medical practitioners of whom one shall be a medical practitioner in the service of Government. Section: 21 - Form and contents of medical certificates: Every medical certificate referred to in sub-section (6) of section 20 shall contain a statement. https://hcservices.ecourts.gov.in/hcservices/ (a) that each of the medical practitioners referred to in that sub-section has independently examined the alleged mentally ill person and has formed his opinion on the basis of his own observations and from the particulars communicated to him; and (b) that in the opinion of each such medical practitioner the alleged mentally ill person is suffering from mental disorder of such a nature and degree as to warrant the detention of such person in a psychiatric hospital or psychiatric nursing home and that such detention is necessary in the interests of the health and personal safety of that person or for the protection of others. Section: 22 - Procedure upon application for reception order: (1) On receipt of an application under sub-section (2) of section 20, the Magistrate may make a reception order, if he is satisfied that - (i) the mentally ill person is suffering from mental disorder of such a nature and degree that it is necessary to detain him in a psychiatric hospital or psychiatric nursing home for treatment; or (ii) it is necessary in the interests of the health and personal safety of the mentally ill person or for the protection of others that he should be so detained, and a temporary treatment order would not be adequate in the circumstances of the case end it is necessary to make a reception order. (2)