Alka Sundarlal Bhosale vs State Of Maharashtra And Ors
2023 Latest Caselaw 11243 Bom

2023:BHC-AS:33407-DB


                sa_mandawgad                                               66criwp520-22.doc



                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                    CRIMINAL APPELLATE JURISDICTION

                                     WRIT PETITION NO. 520 OF 2022

                Smt. Alka Sundarlal Bhosale
                Age : 45 years, Occupation: Labour,
                Residing at : Hingani, Taluka- Kopargaon,
                District- Ahmednagar                                  ...Petitioner.
                        V/s.
                1.     The State of Maharashtra
                       through its Department of Home,
                       Mantralaya, Mumbai

                2.     Inspector General of Prison
                       C/o Dy Inspector General of Prisons (HQ),
                       2nd Floor, Old Central Building, Pune-1
                       State of Maharashtra

                3.     Deputy Inspector General of Prison
                       & Correctional Services Central Region,
                       Aurangabad

                4.     Superintendent of Prison
                       Nashik Central Jail, Nashik Road
                       Nashik, District - Nashik

                5.     Deputy Superintendent of Prison
                       Nashik Central Jail, Nashik Road,
                       Nashik, District- Nashik

                6.     Jailor of Prison,
                       Nashik Central Jail, Nashik Road,
                       Nashik, District- Nashik

                7.     Sub-Divisional Officer,
                       Yeola, Sub-Division Yeola,
                       Yeola- Kopargaon Road,
                       Taluka - Yeola, District Nashik




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8.   The Collector, Nashik
     Collector Office,
     At Nashik

9.   Sub-Divisional Police Officer
     Shirdi Division, At - Shirdi

10. Police Inspector, Kopargaon
    Taluka - Kopargaon, District -
    Ahmednagar                                    ...Respondents.

Mr. Ajit Hon for the Petitioner.
Ms. M.H. Mhatre, APP for the Respondent-State.

                             CORAM : A.S. GADKARI &
                                     SHARMILA U. DESHMUKH, JJ.

Reserved on : 17th October, 2023.

Pronounced on : 2nd November, 2023.

JUDGMENT : (Per SHARMILA U. DESHMUKH, J.)

1. By this Petition filed under Article 226 and 227 of the

Constitution of India, the Petitioner - the wife of the deceased, seeks an

inquiry into the death of her husband-Sundarlal Rohidas Bhosale, who

was an under-trial prisoner at Nashik Central Prison, Nashik Road,

Nashik. Pursuant to an order permitting amendment, additional prayer

has been added for quashing and setting aside the report dated 30 th

June, 2021 submitted under Section 176 (1-A) of Cr.P.C. and for

direction to conduct fresh inquiry in respect of the death of the

deceased.

2. The facts of the case are that, the deceased-Sundarlal was

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arrested in CR No.I-107/2018 registered with Kopargaon Police Station,

District Ahmednagar for the offences under Sections 395, 396, 397, 120-

B, 412 and 414 of the Indian Penal Code, 1860 and under the Arms Act.

The deceased was remanded to police custody till 19 th September, 2018

and thereafter to judicial custody and was lodged in Nashik Central

Prison at Nashik Road. Subsequently, the provisions of the Maharashtra

Control of Organised Crime Act, 1999 were invoked against the

deceased. Whilst in judicial custody, the Petitioner expired on 30 th

August, 2020.

3. Heard Mr. Ajit Hon, learned Advocate for the Petitioner and

Ms. M.H. Mhatre, learned APP for the Respondent-State.

4. Mr. Hon, learned Advocate for the Petitioner submits that,

when the Petitioner used to visit the victim at Nashik Central Prison,

Nashik, the deceased had complained that, he was not feeling well and

that no adequate medical treatment was given to him. He would further

submit that, no intimation was received by the Petitioner or the family

members as regards the ill-health of the deceased, nor any details as

regards the medical treatment were made available to the Petitioner and

suddenly, the Petitioner alongwith her mother was called upon at Dhule

to take the dead-body of the victim. He would further submit that, the

Petitioner and the family members were not ready to take the dead-body

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of the deceased and sought an inquiry. However, the thumb impression

of the Petitioner's mother-in-law was forcefully obtained on the receipt

and the dead-body was handed over. He would submit that, the death of

the deceased has been caused due to negligence and failure to make

available the appropriate medical treatment to the deceased. He would

further submit that, no appropriate inquiry under Section 176 (1-A) of

Cr.P.C. was conducted in respect of the death of the deceased. According

to him, the death of the Petitioner's husband has occurred whilst in the

custody of the Respondent-State and as such, the Respondent-State is

liable to pay compensation for the death of the deceased.

5. Ms. Mhatre, learned APP has pointed out the Affidavit dated

26th September, 2023 filed by Mr.Umaji T. Pawar, Deputy Inspector

General of Prisons and Correctional Services, Central Region,

Aurangabad. It is stated therein that, on 15th January, 2019, 21st January,

2019 and 29th January, 2019, the deceased-Sundarlal was given medical

treatment for Dysnea i.e. difficulty in breathing, cold and for weakness.

That the Medical Officer had conducted the blood checkup of the

deceased on 15th February, 2019 and was given treatment as and when

required. That on 30th August, 2020, upon the complaint of the deceased

as regards chest pain, the deceased was examined by the Medical Officer

and was urgently transferred to the Civil Hospital on the same day at

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6:30 a.m. On 30th August, 2020 at about 10:35 a.m., the deceased died

while under medical treatment at the Civil Hospital.

6. Learned APP would submit that, the Magisterial inquiry

under Section 176 (1-A) of Cr.P.C. was duly conducted and the inquest

panchanama, postmortem report and video shooting of the postmortem

was placed before the Executive Magistrate. She points out the report of

the magisterial inquiry conducted under Section 176 (1-A) of Cr.P.C.,

which records that, the notice about the magisterial inquiry was sent to

the Petitioner to remain present on 29 th October, 2020 and 2nd

November, 2020. She would further point out the postmortem report

showing the cause of death as "cerebral edema with pulmonary edema".

She would submit that, there is no allegation of torture by the Petitioner

and that due to his ill-health the Petitioner's husband has expired.

7. We have considered the submissions and perused the records.

The issue before us is whether the death of the deceased was caused for

want of proper medical care and treatment. Annexed to the affidavit-in-

reply of the Respondent-State are the medical records which discloses

that on atleast 12-13 occasions, the deceased was treated at the Civil

Hospital, Nashik for various ailments. The concise statement can be

found at page No.54 of the Petition, which has been given by the Chief

Medical Officer, Nashik Road Central Prison. The deceased has expired

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while he was undergoing medical treatment at Civil Hospital at Nashik.

There is no allegation of ill-treatment at the hands of Jail Authorities.

Perusal of the postmortem report would indicate the cause of the death

as "cerebral edema with pulmonary edema". The postmortem report

does not reveal any internal or external injuries. There is no reason to

doubt the medical report. The Magisterial inquiry has been duly

conducted as contemplated under Section 176 (1-A) of the Code of

Criminal Procedure.

8. Perusal of the inquiry report indicates that, during the

inquiry, necessary documents were called for from the Superintendent of

Nashik Central Prison, and the Civil Surgeon, Civil Hospital, Nashik. The

postmortem report was also examined.

9. The following statements were recorded by the Sub-

Divisional Magistrate, while conducting the inquiry, as follows:

  Sr.          Name of the     Particulars of        Relevance of statement
  No.            witness          witness
     1   Mr.Toseef Shakil    (Under-trial inmate   Statement does not disclose the
         Shaikh              with the deceased)    case of ill-treatment to the
                                                   deceased-prisoner.
     2   Mr. Chetan Dilip    (Under-trial inmate   Statement does not disclose the
         Dumbre              with the deceased)    case of ill-treatment to the
                                                   deceased-prisoner.
     3   Shri Pradeep        Constable at Nashik He had taken the deceased for
         Rajendra Bhure      Road Central Prison, treatment in Civil Hospital.
                                   Nashik
     4   Dr. Shri Nilkanth     Doctor, Central     He had given treatment at the



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  Sr.          Name of the    Particulars of       Relevance of statement
  No.            witness         witness
         Ramrao Sasane;       Prison Hospital    time when the deceased
                                  Nashik         complained of chest pain.
   5     Dr. Sunita Aman     On Duty Medical     Was on duty at the relevant
         Tadvi,               Officer at Civil   time; declared the deceased
                             Hospital, Nashik,   dead.

10. As regards the contention that, the Petitioner who was the

wife of the deceased was not called upon to participate in the inquiry,

the report indicates that, not only a public notice was published for

inviting objection regarding the death of the deceased but a notice was

issued to the relatives of the deceased to remain present and as per the

office record, the Petitioner remained present on 29 th October, 2020 and

2nd November, 2020 and submitted her say making allegation against the

jail authority which has been denied in writing by the Superintendent

and Jailor, Central Jail, Nashik. The postmortem report does not indicate

that, there was any torture which has resulted in the death of the

deceased. The cause of the death is "cerebral edema with pulmonary

edema". There is no material produced on record to demonstrate that,

the death has been caused due to negligence on part of the jail authority

to provide timely medical aid to the deceased. On the contrary, the

record indicates that, on several occasions the deceased was provided

with timely medical aid as he complained of ill-health.

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11. Having regard to the above, we do not find any reason to

disbelieve the magisterial inquiry report conducted under Section 176

(1-A) of Cr.P.C. or that the death of the deceased was not a natural

death. The documents on record indicates that, timely medical aid was

made available to the deceased and there is no negligence on part of the

jail authority and as such, there is no question of grant of any

compensation as we do not find any negligence or failure on part of the

Respondents in performing their duties. Similarly, the procedure

contemplated under Section 176 (1-A) of the Cr.P.C. has been duly

followed with an appropriate opportunity to the Petitioner to participate

in the inquiry, which opportunity she has availed and after recording the

statements of all concerned, the conclusion which has been arrived at by

the Sub-Divisional Magistrate, reads as under:

"After going through the above discussion, the deceased prisoner Sundarlal Rohidas Bhosale, Age-44 years, At- Hingne Tal. Kopargaon, Dist.Ahamadnagar. died on 30/08/2020. There was no complaint of ill treatment or negligence in providing medical aid to the deceased prisoner. He died due to "Cerebral edema with pulmonary edema" as per final Post-mortem certificate. It was a natural death. There was no specific complaint received regarding the death of the deceased prisoner."

After perusing entire record, we find no reason to disbelieve

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the conclusion which has arrived at in the magisterial inquiry.

12. The Petition is devoid of merits and stands dismissed.

(SHARMILA U. DESHMUKH, J.) (A.S. GADKARI, J.)

9/ 9 Signed by: Sanjay A. Mandawgad Designation: PA To Honourable Judge Date: 03/11/2023 19:02:22