JUDGMENT
1. Heard learned Counsel for the parties. Rule. The learned Counsel for the respondents state that the affidavit in reply filed by them from time to time be considered as their return in reply to the petition. It is further submitted that as this petition has been heard at the stage of admission itself and the Court has issued certain interim orders from time to time it can be finally disposed of and therefore, after hearing the learned Counsel for the parties we have reserved the judgment as we proposed to finally dispose of this petition, which now stands disposed of.
2. The petitioners are wife and husband, residents of Amgaon, Tahsil : Amgaon, District : Gondia. Petitioner No.1 Prabhabai works as labourer to earn her livelihood, whereas petitioner No. 2 i.e. her husband Gullu @ Fulsingh Nanhersingh Ragade is rickshaw puller. The petitioners are required to knock the doors of this Court as inspite of approaching all concerned they were unable to get justice and therefore, they have filed this petition seeking Writ of Mandamus or any other writ, order or direction from this Court to respondent/ State to order inquiry / investigation by the State C.I.D. in the matter of whereabouts of second child born to petitioner No. 1 in B.G.W. Hospital, Gondia on 09.04.2002 at 7.00 a.m. and seek direction that either the State traces out the missing newly born child of the petitioner and/or prosecute all those concerned with the kidnapping or disposal of the newly born child for the offences committed by them. In addition petitioners also pray to take disciplinary action against officers and other employees of B.G.W. Hospital at Gondia and police officials for the inaction and dereliction of duties in not investigating the matter and have also sought compensation from respondent Nos. 4 to 10 in the sum of Rs.Ten Lacs for loss of their newly born child.
3. It is the case of the petitioner that they are poor people falling below poverty line and earn their livelihood by manual work and pulling Cycle Rickshaw. They had a son of about 1-1/2 years when petitioner No. 1 conceived for second time in July, 2001 and she was due to deliver a child in the month of April, 2002 therefore, for want of basic amenities at Government Hospital, Amgaon, petitioner No. 2 was constrained to bring petitioner No. 1 to Gondia and admit her in B.G.W. Hospital, Gondia for delivery. It is the case of the petitioner that as they were not financially in a position to meet the expenses of delivery of the second child in any private Nursing Home and for want of proper facilities at Amgaon they were left with no choice but come to Gondia. As they found that B.G.W. Hospital, Gondia was a suitable place and therefore, petitioners came to Gondia in the night at about 12'o clock on 08.04.2002 wherein respondent Nos. 5 to 9 are employed in different capacities.
4. It is the case of the petitioner-mother that she delivered a strong and healthy male child at about 7.00 p.m on 09.04.2002 in B.G.W. Hospital, Gondia. At the time of delivery the child was weighing 3 to 3-1/4 kgs. was of fair complexion and was having good health. The child also sucked milk from (breast feeded by) the petitioner. The petitioner-mother further claims that after delivery none of the respondent Nos. 5 to 9 or any Medical Officer, Nurse or Attendant informed the petitioner that her child was having any complications or suffering from any decease or ill-health.
5. After delivery the petitioner was shifted to her bed from Delivery Ward alongwith newly born child and that she was with the child who was normal till 10.30 a.m. of 11.04.2002. On 11.04.2002 a nurse came to the bed of the petitioner and gave her an injection and at that time the newly born child was sleeping near her on her bed. After the injection was administered to the petitioner-mother she started loosing her consciousness and within 20-30 minutes she was totally unconscious. It is only after 1-1/2 to 2 hours when she resumed her consciousness, she noticed that the child was not with her on the bed and therefore, she was greatly shocked and surprised. On this she inquired from the nurse in the ward about her newly born child, who informed her that the child was taken to the doctors to give him some doses of medicines and drops. But since then she could never see her child inspite of her repeated inquiries from the nurses and staff of the hospital, who only gave her assurance that the child will be brought to her bed very soon. According to the petitioner-mother it was at about 3.00 p.m. that one nurse of the hospital came to the petitioner and told her that her newly born child died and therefore she can not stay in the ward and made her to leave the ward. Therefore, the petitioner went outside and sat below a tree within the campus of the hospital near varandah. It is the case of the petitioners that as there was no one to look after the elder son and petitioner No. 2 could not afford to make arrangement for stay at Gondia as he had no money, she left for Amgaon on 09.04.2002 at about 11.00 a.m. The petitioner No. 2 thereafter returned on 11.04.2002 at about 4.00 p.m. and found petitioner No. 1 sitting under tree. They were informed by the doctors, who were present on duty i.e. respondent No. 6 and other staff of the hospital, that the newly born child has died and they have cremated him at their own expenses, to which both the petitioners objected and did not believe it, as according to them, the child was born quite healthy stout and strong and did not suffer from any disease or deficiency and so there was no chance of his demise. Therefore, the petitioner suspected a foul play and on the same day went to Gondia Police Station and reported the matter in details. They also expressed their suspicion that probably their newly born child has been successfully removed from the custody of the mother i.e. petitioner No. 1 and is sold out. This report was given to Head Constable incharge of the Station Diary at the Police Station but in the meanwhile a phone call was received from B.G.W. Hospital and thereafter the Head Constable threatened petitioner No. 2 and asked him to leave the Police Station otherwise he would be locked in the lockup by registering offence against him. The Head Constable further threatened them that he had received complaint from doctors from B.G.W. Hospital that the petitioners are levelling baseless charges of selling their newly born child against the medical officers and staff of B.G.W. Hospital, Gondia and therefore, the police did not take any cognizance of oral report given by petitioner No. 2, who was left with no choice but to leave for their village. It is the case of the petitioners that petitioner No. 2 after returning to his village went to residence of Shri Mahadeoraoji Shivankar, Ex-Finance Minister of the State of Maharashtra, present sitting M.L.A. and narrated the whole unfortunate and sorrowful story about the newly born child. Shri Shivankar assured the petitioner that he will do needful in the matter by talking to all authorities and see that they get justice. But inspite of making all efforts to get back their child they did not receive any justice at the hands of authorities. The petitioners in support of their contention have annexed copies of police complaints, news items, documents of B.G.W. Hospital at annexures 1 to 13.
6. The fact that, petitioner No. 1 was admitted at B.G.W. Hospital, Gondia for delivery of child, is not in dispute. Birth Certificate issued by the office of Municipal Council, Gondia. Copy of birth certificate alongwith record are also annexed to the petition.
7. It is case of the respondents that inquiry into the matter came to be made by the police, probably after writ of this Court was served on them. In the inquiry they found that petitioner No. 1 had delivered a male child on 09.04.2002 at B.G.W. Hospital. At that time Dr. Sudhir Karlekar and Dr. Asha Agrawal were on duty. Dr. Asha Agrawal had also informed that health of petitioner No. 1 and her child was quite well. It is only after one Jahida Sheikh Ismail, a nurse in the maternity ward, informed to Dr. Avinash Gedam that the health of newly born child of the petitioner is not good, Dr. Avinash Gedam treated the newly born child but his condition got deteriorated and ultimately the child died at 20.50 hrs. on 09.04.2002 of which Dr. Gedam has taken entry in the register and issued Death Certificate. It is also revealed in inquiry that on 10.04.2002 petitioner No. 1 was informed that her child is dead and Dr. Asha Agrawal asked petitioner No. 1, whether she is accompanied by any relative but the petitioner No. 1 was not answering properly. According to Dr. Sudhir Karlekar at about 12.20 p.m. on 10.04.2002 Dr. Asha Agrawal informed Dr. Karkelar that petitioner No. 1 was not in a position to perform cremation of the child, therefore, with the help of a Sweeper viz. Rajkumar and a Rickshaw Puller Kishor Kathane, the dead body of the newly born child was buried in the burial ground. According to police, in their inquiry, they found petitioner No. 1 is suffering from mental disorder and in the circumstances, they did not register any offence till date of filing of their reply. It is the case of the police that the allegations made in the petition are based on suspicion and surmises and the petition has no merit and therefore, deserves to be dismissed.
8. Affidavits have also been filed in reply by other Respondents. Dr. Chandrabhan Nandanwar was at the relevant time, Resident Medical Officer, Government Civil Hospital, Gondia. According to him he has conducted inquiry on the complaint of petitioner No. 1 and submitted his report. According to Dr. Nandanwar, during his inquiry he has noticed that Smt. Prabha Ragade was admitted in B.G.W. Hospital, Gondia on 08.04.2002 at about 12.40 a.m. She has delivered a male child on 09.04.2002 at about 1.00 a.m. and it is on the basis of indoor case card he noticed that there were no complications in the delivery of the patient. According to him after delivery Smt. Prabha Ragade was not given any sedative till she absconded from the Hospital i.e. 11.04.2002. He has also referred to the case papers prepared by Dr. Gedam (Child Specialist), and found that according to records available in the hospital the child started gasping at about 8.30 p.m. on 09.04.2002 and therefore, Dr. Gedam was immediately summoned. He treated the child but the child died at about 08.50 p.m. due to aspiration pneumonia hypoxia encephalopathy with cardiac respiratory arrest. Since there were no relative with Smt. Prabha, dead body of the child was kept at a safe place and Dr. Asha Agrawal and Dr. Karlekar took a decision to bury the dead body of the child and as per their directions, Rajkumar Hatkayya (Sweeper) buried the dead body of the child. The fact was referred in the indoor case papers. Dr. Nandanwar came to the conclusion that Dr. Asha Agrawal and Dr. Karlekar failed in their duty to intimate this matter to police and also to their superior officer, however, he specifically mentioned that the death of the child of Prabha (petitioner) is a natural death and the child is not sold by any one. He denied the allegations of the petitioner regarding injection of sedative etc.
9. In so far as Dr. Jaiswal is concerned, he has come up with the case that he never worked as Medical Officer in Bai Gangabai Woman Hospital, Gondia, which is popularly known as 'B.G.W. Hospital' and therefore, his name deserves to be deleted.
10. So far as Dr. Karlekar is concerned, though he has admitted of having attended the child alongwith Dr. Asha Agrawal, who was Ward Incharge, it is his case that they have nothing to do with the treatment of the child and his death, as at the relevant time Dr. Avinash Gedam and Dr. Ashok N. Chourasia were the two doctors who were responsible for treatment of the child. Dr.Karlekar has tried to put blame on Dr. Asha Agrawal who, according to him, was instructed to inform the Police and that it was decision of Dr. Asha Agrawal, being incharge of the ward to cremate the child through hospital staff which he came to know subsequently. Dr. Karlekar rather made counter allegation that the petitioner has been trying to black mail than for no fault on his part.
11. An additional affidavit came to be filed by respondent No. 3 reiterating the same stand as in their earlier affidavit and it is their case that on receipt of complaint of petitioner No. 2 and further written intimation of Dr. Asha Agrawal and as per order by P.S.O. Gondia, inquiry was started. In the course of inquiry they have recorded statements of all concerned. It is also stated that Dr. Asha Agrawal and Dr. Karlekar took a decision to bury the dead body of the child and they have given instructions to bury the dead body to Rajkumar Hatataya and entry to that effect was also made in the indoor case papers. The Police were rather satisfied with the inhouse inquiry conducted by Dr. Chandrabhan Nandanwar and closed the case at their end.
12. A counter affidavit came to be filed by the petitioner pointing out falsity in the affidavit in reply filed by respondents and for seeking necessary action as sought in the petition.
13. On hearing the learned Counsel for respondents and learned Additional Public Prosecutor it was our endavour to ultimately go to the root of the matter so as to probe into the truth of the allegations made by the petitioners and if at all any case is made out against the respondents there is no reason why the State should not register offence against the respondents who are concerned with the treatment and disposal of the child.
14. We found that the State and the Police Authorities have been dragging their feet in the matter and therefore, specific directions were given to conduct further inquiry into the matter which is normally done in such cases as provided under Section 174 of the Code of Criminal Procedure.
15. We found that inspite of pursuing the matter the State did not choose to get an inquiry conducted by the District Magistrate or any officer so authorised by him and obtained report in the matter. We therefore, directed the police after seeking willingness of the petitioners to track down the dead body exhume it and send remains for forensic examination by our order dated 29th August, 2005. After much delay we were required to pass further orders on 22nd March, 2006 with specific directions to the Additional Public Prosecutor to seek instructions from the Director of Forensic Science Laboratory, Mumbai about carrying out comprehensive analysis about samples forwarded for examination if D.N.A. is not possible i.e. to ascertain origin of the bones which were found on digging the spot whether the child was burried, and forwarded to the Forensic Science Laboratory are of animal or human being-newly born child, and all related matters so as to obtain comprehensive report which can be used to give direction to facilitate inquiry into the matter, but unfortunately it has not served any purpose. The Forensic Expert has reported that even this limited examination of bones is not feasible.
16. Hence, the respondents have not succeeded in showing that any dead child was cremated on 11.04.2002 as claimed by them, and an investigation or enquiry in the matter is called for. We have no hesitation to come to the conclusion that the respondents are suppressing truth from this Court and Police Authorities are not willing to investigate the matter in accordance with law, though the case as presented before the Court, prima-facie makes out offence against the respondents i.e. Medical Officers and staff of B.G.W. Hospital under Sections 120-B, 359 and 361 of the Indian Penal Code in addition to other offences and unless such offences are registered and investigated on the basis of complaint made by the petitioners which is also reiterated in the petition it cannot lead us anywhere.
17. In all probabilities the Hospital Authorities are suppressing the truth from this Court and considering their position and status they are enjoying in the society and influence which they can exercise on the Police Authorities we have no hesitation to order respondent/ State to entrust investigation in this case to State C.I.D., to be done through a Special Investigating Team of the State C.I.D. headed by an officer not below the rank of Superintendent of Police. Needless to say that it is only on proper investigation of the case, which may include custodial interrogation of the suspects and from all angles, so as to collect, direct, circumstantial medical and forensic material, then only one can arrive at a conclusion as to whether the child born to petitioner No. 1 is dead or alive and if so, what steps are required to be taken in the matter, otherwise the mysterious manner in which the child is disposed of would remain unsolved and culprits would go scot-free. We would also like to emphasis the importance of investigation in this case as a confidence building exercise by dispensing justice so that citizen continue to have faith in the justice delivery system.
18. In so far as the in-house inquiry conducted by Dr. Nandanwar and the stand taken by the Medical Officers and staff of B.G.W. Hospital, Gondia is concerned, we may observe that it is not difficult for the Medical Officers and staff of the Hospital to prepare a record in such manner which may mislead Police Authorities and therefore, S.I.T. of State C.I.D. should not be influenced by those findings arrived at in the inquiry and the stand taken by the Medical Officers and staff of the said hospital. The circumstances brought out on record clearly points needle of suspicion on them and they fall in the category of suspects. It is now job of the investigating agency to perform their task. We are quite confident that the State C.I.D. will meet our expectations and therefore, rather than disposing of the petition we are keeping it pending so as to monitor the investigation. The Court expects the State C.I.D. to submit its report to this Court within a period of six months from the date of pronouncement of this judgment.
19. In our opinion, it will not be proper, in so far as petitioners are concerned to deprive them of the compensation claimed by them for the sufferings undergone by them and for loss of their son immediately after he was born in the Government Hospital. We have no hesitation to arrive at a conclusion that it was the sole responsibility of Medical Officers and staff of B.G.W. Hospital at Gondia who ought to have taken all necessary precautions and care in respect of the health of the child and treatment if any and if at all the child had expired, as claimed by Dr. Gedam, who certified his cause of death, we fail to understand, why the hospital authorities rather than resorting to well settled principle of reporting the matter to the Police, who could have conducted inquiry under Section 174 of the Code of Criminal Procedure, hurriedly disposed of the dead body of the child. We find no reason to disbelieve the petitioners, who belong to poor strata of the society, we can understand their haplessness against the authorities. The very fact that even after this Court passed orders to exhume the dead body of the child and get it forensically examined and place before the Court comprehensive report nothing effective has been done which at least now leads to only conclusion that the place from which body was exhumed, where according to the staff of the hospital body of the child was cremated is either wrong or entire story is concocted, the Forensic report does not reveal that the remains were of newly born human child and it appears that the hospital authorities can always manipulate such things and onus shifts on them to establish as to in what manner the newly born child of the petitioners was disposed of. We, therefore, direct the State to pay a sum of Rs.Two Lacs by way of compensation to the petitioners, which, in our opinion, will be just and proper, within a period of six weeks from the date of pronouncement of this judgment alongwith cost of Rs.5,000/-towards legal expenses by depositing the same in this Court. On such amount of compensation being deposited the same shall be invested in Post Office Monthly Income Scheme, in nearest Post Office where petitioners reside, for a minimum period of six years, in the name of petitioner No. 1 who will be entitled to withdraw monthly interest on the said deposit and thereafter the amount of compensation and costs can be finally withdrawn by her.
20. We further direct the State through its Director of Health Services to conduct an independent inquiry into the matter against medical officers and staff of B.G.W. Hospital who were, at the relevant time, concerned with the admission, delivery and care of the child delivered by petitioner No. 1. It will be open for the State to recover amount of compensation from Medical Officer and staff of B.G.W. Hospital, Gondia if they are found negligent and guilty of dereliction of duty in handling the case and this will be in addition to the delinquents being prosecuted if the State C.I.D. choose to file chargesheet against them.
21. We further direct the State through its Home Department to conduct disciplinary inquiry against the police officers of City Police Station, Gondia for failure on their part to take cognizance of the report lodged by the petitioner against the medical officers and staff of B.G.W. Hospital, Gondia and take appropriate action against them.
22. Except for monitoring the investigation, for all other purposes the petition stands disposed of in the aforesaid terms. Rule made absolute accordingly.