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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 21st August, 2014
+ W.P.(C) 7230/2013 & CM.No.15550/2013 (for interim directions)
AVADH KAUSHIK ..... Petitioner
Through: Petitioner-in-person.
Versus
GOVT. OF NCT OF DELHI & ORS ..... Respondents
Through: Ms. Zubeda Begum, Adv. for GNCTD.
Mr. Saleem Ahmed, Adv. for DP.
AND
+ W.P.(C) 3000/2014 & CM No.6260/2014 (for interim directions)
K.B. JOSHI ..... Petitioner
Through: Mr. Avadh Kaushik, Adv.
Versus
GOVT. OF NCT OF DELHI & ORS ..... Respondents
Through: Ms. Zubeda Begum, Adv. for GNCTD.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.
1. W.P.(C) No.7230/2013 was filed as a Public Interest Litigation flagging attention to several deficiencies qua timely medical treatment of W.P.(C) No.s 7230/2013&3000/2014 Page 1 of 7 prisoners and the delays in intimation thereof to the relatives of the said prisoners. The cause of action for filing the petition was the death in judicial custody of a person and the delay in conducting postmortem. Notice of the petition was issued and vide order dated 19th November, 2013 directions issued for conducting the postmortem. Replies/rejoinders have been filed. However the petitioner appearing in person on 13th August, 2014 confined the arguments to the aspect of curing the delays in conducting the postmortem.
2. W.P.(C) No. 3000/2014 though not filed in public interest, was also filed seeking mandamus for constituting a Board of Doctors for conducting the postmortem relating to death of one person in a hospital in Delhi and complaining of delays therein. While issuing notice thereof also, postmortem was ordered to be conducted immediately. Thereafter the counsel for the petitioner therein confined the relief in that petition also to curing the delays in conducting of postmortem and since that question was already pending before this Bench in W.P.(C) No. 7230/2013, W.P.(C) No. 3000/2014 was also placed before this Bench only. The petitioner in W.P.(C) No. 7230/2013 is the counsel for the petitioner in W.P.(C) No. 3000/2014. W.P.(C) No.s 7230/2013&3000/2014 Page 2 of 7
3. The respondent GNCTD in its counter affidavits has listed the various steps already taken to ensure timely conduct of postmortem. It is informed that 13 hospitals of GNCT of Delhi are designated for conducting postmortem and medico legal examination; postmortem examination is conducted on all days of the week including Sundays and holidays and in exceptional cases where circumstances so require, on the request of Delhi Police, postmortem is also conducted by a Medical Board, consisting of three or more Doctors/available faculty members, constituted by the Health and Family Welfare Department, GNCT of Delhi. It is further informed that the procedure of constitution of Medical Board has been streamlined by the department for fair and even distribution of workload among five Government hospitals in Delhi which are equipped for the purpose and that in exceptional cases, where Medical Board is required to be constituted is expeditiously, it is so constituted.
4. It is yet further informed that, "on receipt of request from Delhi Police through the Home Department, the Health Department sends the authorization letter to the Head of Department of the Forensic Medicine of the concerned Medical College/Hospital depending upon the district to which the case pertains and based on that W.P.(C) No.s 7230/2013&3000/2014 Page 3 of 7 authorization, the HOD, Forensic Medicine Department of that hospital will constitute medical board from among the faculty of that medical college/hospital".
It is yet further informed that for cases of extraordinary and sensitive nature such as custodial/encounter deaths etc., the Health Department on receipt of request from Delhi Police/Home Department, constitutes Medical Board consisting of doctors drawn from different hospitals.
5. Mr. Avadh Kaushik, Advocate from his own experience at the Bar of such cases states that the delays in conducting the postmortem occurs on account of the aforesaid long procedure prescribed, through several channels. He states that as per the present procedure, after completion of inquest proceedings by the concerned Metropolitan Magistrate and after obtaining his directions, the Investigating Officer (IO) or concerned SHO is required to move a formal application for constitution of a Board of Doctors to conduct the postmortem, in the office of his immediate higher officer who is the concerned Assistant Commissioner of Police (ACP) who forwards the said application to the office of concerned Deputy Commissioner of Police (DCP) and this application thereafter is forwarded by the DCP‟s office to the Police Headquarters from where it is sent to the Government of NCT of W.P.(C) No.s 7230/2013&3000/2014 Page 4 of 7 Delhi (Secretary of Department of Home Affairs) who is the competent authority to constitute a „Board of Doctors‟. He has further informed that whenever the office of the Department of Home Affairs is closed on account of a holiday, the request cannot be processed further. He has further suggested preparation of Panel of Doctors from which the Board of Doctors can be constituted as and when required and/or constitution of a standing Board of Doctors so that the IO/SHO concerned may not be required to move the formal application first to the ACP, then to the DCP, then to the Police Headquarters and thereafter to the concerned Government Authorities and the IO/SHO should be entitled to directly approach the Board of Doctors constituted for that particular time.
6. Ms. Zubeda Begum, counsel for the GNCTD stated that the said suggestions shall be looked into.
7. However we were of the view that the matter be not kept pending any further for this reason. We are unable to fathom any lacuna / pitfall / scope for misuse in accepting the suggestions aforesaid.
8. We are in agreement that the IO/SHO should be empowered to without going through the ACP, DCP, Police Headquarter and the W.P.(C) No.s 7230/2013&3000/2014 Page 5 of 7 Department of Home Affairs, directly approach the concerned hospital/medical college for having the postmortem conducted so that there are no delays therein.
9. We however leave it open to the concerned authorities to, while issuing a direction to the said effect, prescribe compliance of such procedure as may be deemed necessary, to effectuate the same, without however at the cost of time.
10. We accordingly dispose of these petitions directing the respondent GNCTD / Delhi Police/ other concerned authorities to within 60 days hereof issue directions/orders/notifications as may be required to enable the IO/SHO to directly approach the concerned medical college/hospital for having the postmortem conducted, without being required to go through the channels hitherto before prevalent.
11. To obviate the delays in constitution of the Board of Doctors on a case to case basis, we further direct the concerned hospitals to issue appropriate orders for having a continuing panel of Doctors for conducting the postmortem and any one / two / three Doctors from which panel may constitute the Board, as the case may require. The concerned hospitals shall W.P.(C) No.s 7230/2013&3000/2014 Page 6 of 7 be entitled to, in their discretion lay down the appropriate procedure/step therefor, without again, causing delay.
12. Compliance be reported by filing a report in this Court with a copy to Mr. Avadh Kaushik, Advocate.
13. We dispose of these petitions with the hope that the authorities concerned shall act on our directions in utmost sincerity and ensure that the doors of the Court are not knocked again for having a postmortem conducted and/or raising a grievance of the delay in the same.
RAJIV SAHAI ENDLAW, J.
CHIEF JUSTICE AUGUST 21, 2014 M W.P.(C) No.s 7230/2013&3000/2014 Page 7 of 7