1 wp.1924.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1924 OF 2010 Meena Kamal Saigal, 177, Kamakshi House, Varde Marg, Bandra (West), Mumbai – 400 050. ...Petitioner Versus 1.The State of Maharashtra 2.The Commissioner of Police for Mumbai, Opp.Crawford Market, Mumbai. 3.The Senior Inspector of Police, Mahim Police Station, Mahim, Mumbai – 400 016. 4.Inspector Sunil Chandugude, Posted at Mahim Police Station and Investigation Officer in the FIR registered against the Petitioners husband Shri Kamal Saigal ...Respondents ...... Mr.R.S.Desai i/b Mr.Kunal Bhange for Petitioner. Mr.D.P.Adsule, A.P.P. for State. Mr.Niranjan Mundargi with Mr.Y.R.Israni for Respondent No.4. ...... 2 wp.1924.10.sxw CORAM:- A.M.KHANWILKAR AND A.R.JOSHI, JJ. JUDGMENT RESERVED ON :- MARCH 1, 2011. JUDGMENT PRONOUNCED ON :- MARCH 16, 2011. JUDGMENT (Per A.M.Khanwilkar, J.) : 1. This Petition has been filed by the wife of the petitioner Kamal Saigal, who is accused in Crime registered as C.R.No. 214 of 2009 at Mahim Police Station for offences punishable under Sections 420, 465, 467, 468, 470 r/w 120-B of the Indian Penal Code. 2. By this Petition under Article 226 of the Constitution of India, the petitioner has prayed for four reliefs. The first relief is to direct the Commissioner of Police and the doctors at K.E.M. Hospital to produce the petitioner’s husband before the Court along with medical papers of Bhabha Hospital dated 22nd and 25th June, 2010 and all papers of K.E.M. Hospital, I.C.U. and M.I.C.U. where the petitioner’s husband was undergoing treatment at the relevant time. 3 wp.1924.10.sxw 3. The second relief is to direct the Respondent No.2 (Commissioner of Police) to register a criminal case against Respondent No.4 (Inspector Sunil Chandgude) and other police men who have used third degree methods resulting in petitioner’s husband becoming unconscious in the Mahim Police Station while in custody. It is further prayed that the criminal case to be registered against respondent No.4 should be investigated by Senior I.P.S. Officer. 4. The third relief is to direct the respondent No.2 (Commissioner of Police) to transfer the investigation of F.I.R. No.214 of 2009 to any other Police Station or Crime Branch and relieve the respondent No.4 from investigating the said case. 5. The last relief is to grant bail to the petitioner’s husband in connection with F.I.R. No.214 of 2009, considering his failing health. 4 wp.1924.10.sxw 6. Insofar as relief claimed in prayer clause (d) to release the petitioner’s husband on bail, the same does not survive for consideration, as he is already released on bail, as mentioned in order dated August 6, 2010. Even the first part of relief claimed in terms of prayer clause (a) for direction to produce the petitioner’s husband in Court, does not survive for consideration. Insofar as the second part of relief in terms of prayer clause (a) to direct the Commissioner of Police and Doctors at K.E.M. Hospital to produce the medical papers are concerned, the same is worked out, as during the course of hearing of this Petition, relevant medical papers have been produced before the Court. Accordingly, what survives for consideration are reliefs (b) and (c) respectively. 7. Insofar as relief (b) is concerned, direction is sought against the Commissioner of Police to register criminal case against respondent No.4 Inspector Sunil Chandgude and other police men of Mahim Police Station, who were responsible to investigate the offence registered against the petitioner’s 5 wp.1924.10.sxw husband bearing F.I.R. No.214 of 2009 on the ground that the police officers resorted to custodial assault on the petitioner’s husband which resulted in petitioner’s husband becoming unconscious, who was hospitalized for treatment. The allegation in the Petition is that the petitioner’s husband was assaulted while in custody on the night of 25th June, 2010. That fact was reinforced by the disclosure made by the petitioner’s husband after he regained full consciousness on 29th June, 2010. The case of the petitioner is that the police officers, in particular, respondent No.4 who was the Investigating Officer was acting at the behest of complainant Tarun Kapoor who had registered case against the petitioner’s husband and other referred to in F.I.R. No.214 of 2009 at Mahim Police Station. On the fateful night of 25th June, 2010, the petitioner’s husband was not only brutally tortured and assaulted while in custody but was heavily drugged by the police to inflict some heavy mental or physical injuries on him. It is the case of the petitioner that the third degree methods were used to assault the petitioner’s husband while in police custody. 6 wp.1924.10.sxw 8. In response, affidavit of Smt.Aswati G. Dorje, Deputy Commissioner of Police, Zone-V, Mumbai dated 28th September, 2010 was filed to oppose this Petition. The theory propounded by the petitioner in the present Petition as also other communications sent by her to the Authorities has been countered being false and figment of imagination of the petitioner so as to falsely implicate the police officials who were investigating the offence registered against the petitioner’s husband. Even though the above said affidavit was filed on record, however, since the order dated 6th August, 2010 required the respondent No.2 Commissioner of police to file his affidavit, further affidavit came to be filed by the Commissioner of Police dated 8th October, 2010. In this affidavit, it is asserted that the report of the Forensic Laboratory relating to stomach wash of the petitioner’s husband clearly discloses that there was no traces of poison in the stomach of the petitioner’s husband. In this affidavit, it is further stated that the inquiry relating to the allegations against the Investigating 7 wp.1924.10.sxw Officer about the custodial assault on the petitioner’s husband was still incomplete and steps were taken by the inquiry officer to complete the same at the earliest. In the subsequent affidavit of the respondent No.2 Commissioner of Police dated 16th November, 2010, the outcome of the inquiry against respondent No.4 and other police officers of Mahim Police Station has been mentioned. The respondent No.2 has asserted that after completion of the inquiry, he thoroughly discussed the matter with inquiry officer Shri Satam and DCP Zone-V and endorsed the findings of the inquiry. He has reproduced all the relevant facts in that regard and reiterated the stand that the allegation about the ill-treatment to the petitioner’s husband while in police custody by the police officers was baseless and without any substance. In this affidavit, it is stated that the inquiry reveals that the urine sample of petitioner’s husband was examined in Hinduja Hospital where Benzodiazepine drug was found present in the measure of 360 ng/ml (nanogram) which is slightly more than that of the normal level. The respondent No. 2 has also adverted to the opinion of the Doctor that amount of 8 wp.1924.10.sxw Benzodiazepine found in urine indicates that ingestion of the same could not be a cause for falling unconscious. The affidavit adverts to all the relevant material to conclude that the allegation regarding custodial assault on petitioner’s husband on 24th June, 2010 and 25th June, 2010 or that the petitioner’s husband was administered poisonous substance by the police or by the complainant and his father to kill him or to grievously injure him, were false and without any substance since it was noticed that the stomach wash analysis did not reveal any contents of substance such as Benzodiazepine. 9. Considering the fact that the urine sample of the petitioner’s husband for the same period analysed by the Hinduja Hospital revealed that it contained Benzodiazepine drug in the measure of 360 ng/ml (nanogram), even though the doctor of the KEM Hospital who had treated petitioner’s husband claimed that petitioner’s husband gained consciousness at the hospital without any medication. We called upon the respondent No.2 Commissioner of Police to 9 wp.1924.10.sxw explain this anomaly. Accordingly, the further affidavit came to be filed by the respondent No.2 Commissioner of Police on 13th December, 2010, who in turn has relied on the opinion given by the Hinduja Hospital dated 10th December, 2010. The petitioner, on the other hand, in the rejoinder affidavit, has not only reiterated the allegations contained in the Petition but has also asserted that the petitioner’s husband was administered banned psychotropic substance by the police and the complainant and his father, which position is reinforced from the finding of Hinduja Hospital about presence of Benzodiazepine drug in 360 ng/ml (nanogram). 10. According to the petitioner, the inquiry conducted in respect of the allegations made by the petitioner against the police officers is a sham. It is stated that the document now pressed into service by the respondents are obviously fabricated so as to successfully counter the allegation of custodial assault on the petitioner’s husband. During the arguments, the Counsel for the petitioner placed emphasis on Exhibit D to the affidavit 10 wp.1924.10.sxw of respondent No.2 dated 13th December, 2010. The diary entry dated 27th June, 2010 refers to the report given by respondent No.4 at around 11.30 that petitioner’s husband was admitted in KEM Hospital and during inquiries, he was told that the ICU Ward doctor of the said Hospital has mentioned that for further treatment, the petitioner’s husband may have to be taken to JJ Hospital. This entry was criticized by the Counsel for the petitioner as afterthought and introduced to create background to justify the defence of the police officers. He submits that the petitioner’s husband was taken to JJ Hospital pursuant to order dated 12th June, 2010. In other words, the said diary entry dated 27th June, 2010 is fabricated. Learned Counsel for the petitioner also criticized the opinion given by Head of the Department of Laboratory Medicine pursuant to the inquiry made by the ACP regarding Kamal Saigal’s report on toxic screening. According to the petitioner, even this report is fabricated and has been given due to the influence of the police officers. The said opinion reads thus: 11 wp.1924.10.sxw “This is in response to the enquiry made by Asst.Commissioner of Police regarding Shri Kamal Saigal’s report on Toxi screening. The answers to his queries are as follows: 1. Yes, the covering letter was sent with the urine sample from KEM hospital. It was received by us at 1.49 am on 26th June 2010 in the night as per our voucher no.14717377. 2. The urine sample was not sent in sealed condition and it is possible to get a positive result if a benzodiazepine is mixed in the urine sample enroute. However, I wish to draw your attention to the point that Injection Midazolam had been given during intubation as discussed with Dr.Dushyant from KEM Hospital by the Poison Center staff next morning. The presence of Midazolam injection would show up Toxi screening positive for Benzodiazepine.” 11. Learned Counsel for the petitioner argued that the above opinion goes to the extent of suggesting that the urine sample was tampered by the petitioner while taking the same for testing to Hinduja Hospital from KEM Hospital. It is not in dispute that urine sample of Kamal Saigal drawn on the night between 25th and 26th June, 2010 was handed over to the petitioner for getting it examined from private laboratory. The diary entry of 27th June, 2010 refers to even this aspect of the matter and it is noted that it was improper to hand over 12 wp.1924.10.sxw unsealed urine sample, that too, to the relative of the patient for getting it tested from private laboratory. It was argued that the theory propounded in the opinion that the urine sample must have been tampered by mixing Benzodiazepine enroute is preposterous. This reinforces the apprehension of the petitioner that the police are influencing even the doctors of the Hospital to fabricate documents to further their defence. Learned Counsel for the petitioner then argued that in the same opinion, it is suggested that injection Midazolam was given to the petitioner’s husband during intubation in KEM Hospital. The opinion further records that the presence of Midazolam injection would show toxic scrutiny positive for Benzodiazepine. According to the petitioner, the opinion so given by the Head of Department of Laboratory Medicine of Hinduja Hospital was nothing but a case of concoction and fabrication of record. Inasmuch as the discharge summary report makes no reference to administration of Midazolam injection even though the same is a chartered drug. This would belie the opinion given by the doctors of Hinduja Hospital, as 13 wp.1924.10.sxw also the defence of the erring police officials. 12. The learned Counsel for the petitioner then submits that the fact that the petitioner’s husband had suffered injuries have not been explained at all. Instead, the defence of the erring police officials that the injuries must have been caused while the petitioner’s husband was being taken to the hospital or in the hospital, is preposterous. The fact that the petitioner’s husband had suffered injuries is established from the medical reports and looking to the said injuries, the allegations of the petitioner that her husband was brutally assaulted while in police custody is reinforced. It was argued that as a matter of fact, considering that Benzodiazepine drug was found in the urine sample of the petitioner’s husband, coupled with the stand now taken by the respondents that it was the result of administering Midazolam injection during intubation at KEM Hospital but no reference of that fact is found in the medical papers itself, is a matter of concern and perhaps requires to be inquired into as the Midazolam is a chartered drug and could 14 wp.1924.10.sxw not have been administered to the petitioner’s husband in this manner. Administering the said drug in this manner would in fact constitute an offence under the NDPS Act. At the end of the arguments, Counsel for the petitioner placed reliance on the transcript of telephone conversation purportedly between the respondent No.4 and the complainant. It was argued that it was inconceivable that the police officer and the complainant would interact on telephone at such odd hours. Moreover, the contents of the recorded talk would clearly indicate their complicity. On the above arguments, it was contended that the relief in terms of prayer clause (b) be granted. 13. Having considered the rival arguments and after going through the pleadings and other material on record including the original medical reports of the concerned hospitals as well as the statements of the concerned doctors recorded by the police, we would proceed to answer the controversy on hand. 15 wp.1924.10.sxw 14. There is no dispute that accused Kamal Saigal was arrested on 24th June, 2010 at around 10.30 hrs. in connection with CR No.214/2009 of Mahim Police Station. The respondent No.4 is the Investigating Officer who claims that the said Kamal Saigal was required to be arrested and the police staff had to enter the house from bathroom door forcibly and found that the said Kamal Saigal was hiding himself behind the cupboard. After his arrest, he was sent for medical examination at Bhabha Hospital at Bandra on 24th June, 2010 itself at around 14.14 hrs. The medical report for the examination done in Bhabha Hospital makes no reference to history of assault. Dr.Sharad Manikrao Ruia was present on duty in Bhabha Hospital between 14.00 hrs. to 20.00 hrs., who examined Kamal Saigal. In his statement, he has mentioned that Kamal Saigal was produced by the Offices of Mahim Police Station. He gave alleged history of being under treatment of HIV and pain in testicles and rashes on left leg and right hand. There was no history of assault or fall. On examination, the doctor found him conscious and he came walking and his pupils were 16 wp.1924.10.sxw normal and vitals were normal which includes blood pressure, pulse, respiration. He further recorded that no fresh injury on the body of the patient was seen. He has mentioned that he administered injection of Voveran and Rantac being pain killer and anti-acidic respectively. Necessary entries about the said medical treatment given have been entered in the hospital record. He has further stated that patient was then examined by Surgical Department who in turn has not made reference to any injury in the medical record. The patient was also examined by Medicine Department where the patient complained of history of fall and about trauma over knee. Even the Medical Department did not refer to any injuries though it refers to history of fall and trauma over knees, as no corresponding injuries were seen or noticed. 15. The petitioner’s husband was then produced before the Metropolitan Magistrate, 9th Court at Bandra on 24th June, 2010 at around 16.50 hrs. Once again, no history of assault was 17 wp.1924.10.sxw reported by said Kamal Saigal to the Magistrate. He was remanded till 26th June, 2010 to police custody. 16. The petitioner’s husband was once again taken to Bhabha Hospital for treatment at around 23.00 hrs. on 24th June, 2010. The statement of Dr.Kirankumar Ramesh Dyawarkonda of Bhabha Hospital also discloses that the patient gave history of fall and trauma over the knee. On examination, he did not find any injuries on his person and no injuries were mentioned on casualty papers by him. The patient also gave history of seropositive i.e. HIV +. Once again, the petitioner’s husband complained of pain and was therefore taken to Bhabha Hospital for treatment at 11.00 hrs. on 25th June, 2010. Once again, no history of assault or any fall was given. Again, in the evening of 25th June, 2010, as the petitioner’s husband complained of pain he was taken to Bhabha Hospital at around 16.30 hrs. It seems that for the first time, he complained of assault by the police on 24th June, 2010. On examination, the medical report indicates that clinically, he was found normal and no injury was 18 wp.1924.10.sxw noticed. However, he was referred to KEM Hospital for brain CT scan. Accordingly, he was taken to KEM Hospital for CT scan on the same evening at around 19.45 hrs. He was admitted for treatment. The statement of Dr.Milind Namdeo Khadse of Bhabha Hospital who had examined the petitioner’s husband on 25th June, 2010 mentions that the patient was referred to him by casualty department for medical examination. The patient was in police custody. He examined the patient who complained of deviation of face to the left and slurring of speech. He has stated that the patient was conscious and oriented. His Blood Pressure was 100/60 and pulse 86 per minute. He found that the patient was pale, respiratory system/respiratory rate was 12 per minute. Other para meters were found normal but since patient complained of deviation of face and slurring of speech, he was referred to higher centre for CT scan, brain, which facility was not available in Bhabha Hospital. Dr.Suresh Dattatraya Tikore of Bhabha Hospital who examined Kamal Saigal on 25th June, 2010 has stated that the patient was produced in police custody who gave history of seropositive (HIV+) with puttinen of face. 19 wp.1924.10.sxw The patient disclosed that he was assaulted by police constable a day before i.e. on 24th June, 2010. He noticed that the patient had low CD 4 count and low platelet count. For that reason, he referred the patient to Emergency Medical Registrar. On examination by the Medical Registrar, the patient’s general condition was found fair, limp normal, pulse BP normal, skin was pale, all reflexes normal, respiratory rate was little low, heart was normal, abdomen was soft, central nervous system was normal. Even the statement of Dr.Vinod Bhanudasrao Khade reveals that he had examined Kamal Saigal in casualty ward of Bhabha Hospital and found him normal. He has stated that patient did not give any complaint of assault or fall. 17. From the medical reports and the statements of Doctors recorded from time to time, no history of assault was reported till the patient was produced on 25th June, 2010 in Bhabha Hospital. As mentioned earlier, he was produced before the Magistrate on 24th June, 2010 as also taken to Bhabha Hospital on four different occasions from the time after his arrest, as he 20 wp.1924.10.sxw kept on complaining about pain. No fresh injury was noticed. It is, therefore, obvious that the complaint about assault in police custody on 24th June, 2010 reported for the first time on 25th June, 2010 before Dr.Suresh Tikore was for reasons best known to him. 18. Be that as it may, the question is: whether Kamal Saigal was assaulted while in police custody on the night of 24th/25th June, 2010 and more particularly, administered large quantities of drugs by the police and the complainant and his father as alleged? When the patient was brought from Bhabha Hospital for admission in KEM Hospital at around 11.30 p.m. on 25th June, 2010, he was found unconscious. It is noted that no other details are available, except that the patient was drowsy and responding to painful stimuli. It was noticed that he had a terminal and neck stiffness. As per the advise, stomach wash for chemical analysis was done in addition to urine toxic scrutiny test. Suffice it to observe that even on perusal of medical reports of KEM hospital, there is no mention of 21 wp.1924.10.sxw injuries on 25th June, 2010 at 11.30 p.m. when the patient was admitted to the hospital. 19. From the medical reports and the statements of Doctors, it is noticed that no fresh injuries were found on the person of Kamal Saigal when he was admitted in KEM Hospital on 25th June, 2010 at 11. p.m. The patient was already suffering from HIV+ and was being treated for the said ailment. He had reported about pain in testicles and rashes on left leg and right hand to Dr.Sharad Maniklal Ruia of Bhabha hospital on 24th June, 2010 itself. No fresh injuries were noticed even though the patient was handled by more than one doctor on different occasions till he came to be admitted in KEM Hospital on the advise of Bhabha Hospital on 25th June, 2010 at 11.00 p.m. It is not the case of the petitioner that after Bhabha Hospital recommended CT Scan to be done at KEM Hospital, her husband Kamal Saigal was taken back to the police station and while in police station, came to be brutally assaulted. Instead, from the sequence of events, it is seen that after Bhabha 22 wp.1924.10.sxw Hospital advised patient to be taken to KEM Hospital for brain CT Scan, he was brought to KEM Hospital at 19.45 hrs. the same evening i.e. on 25th June, 2010 for CT scan. He was, however, admitted in KEM hospital at 23.00 hrs. for treatment, as he was found unconscious. Accordingly, the theory propounded by the petitioner that the petitioner was assaulted while in police custody, after due inquiry, the respondent No.2 Commissioner of Police has opined that the allegation about assault in police custody is false and unsubstantiated. We are in agreement with the said opinion. However, the petitioner relying on the photographs annexed to the Petition would submit that the same would indicate that the petitioner’s husband had sustained injuries on his legs and hands. No doubt, the photographs relied by the petitioner do reveal that petitioner’s husband must have sustained injuries. However, those photographs cannot be the basis to ignore the consistent medical reports of different hospitals between 24th June, 2010 till 25th June, 2010 when the petitioner's husband came to be eventually admitted in KEM hospital at 23.00 hrs. None of the 23 wp.1924.10.sxw said reports, nor the statements of doctors who had examined the petitioner’s husband, would remotely suggest that any fresh injury was seen on the person of Kamal Saigal. It is not possible to ignore that material merely on the basis of photographs produced by the petitioner. As is noticed earlier, soon after the petitioner’s husband was arrested by the police, he was produced for medical examination in Bhabha Hospital. At that time itself, he had reported about history of fall and about trauma over knee. He was thereafter produced before the Magistrate when no complaint of assault in police custody was