Avadh Kaushik vs Govt. Of Nct Of Delhi & Ors
2014 Latest Caselaw 3835 Del

$~
*       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

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.

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

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

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

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

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