Rosy Joseph vs The Director General Of Police
2021 Latest Caselaw 1622 Ker

W.P.(C)23630/2020
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               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                THE HONOURABLE MRS. JUSTICE SHIRCY V.

     FRIDAY, THE 15TH DAY OF JANUARY 2021 / 25TH POUSHA, 1942

                      WP(C).No.23630 OF 2020(C)


PETITIONER:

               ROSY JOSEPH,
               W/O JOSEPH,RESIDING AT PUTHEZHATHU
               HOUSE,KADALVATHURUTHU,GOTHURUTHU.P.O,
               ERNAKULAM.

               BY ADVS.
               SRI.B.KRISHNA MANI
               SMT.DHANUJA M.S
               SHRI.P.V.VIBIN

RESPONDENTS:

       1       THE DIRECTOR GENERAL OF POLICE,
               STATE POLICE HEADQUARTERS,
               VELLAYAMBALAM,THIRUVANANTHAPURAM,PIN CODE-695010.

       2       THE CITY POLICE COMMISSIONER,
               MARINE DRIVE WALKWAY,MARINE DRIVE,
               ERNAKULAM-682011.

       3       THE STATION HOUSE OFFICER,
               CHERANALLOOR POLICE STATION,
               CHERANALLOOR,ERNAKULAM-682034.

       ADDL. ASTER MEDCITY
       R4    KUTTISAHIB ROAD, SOUTH CHITTOOR, KOCHI-682027,
             REPRESENTED BY ITS AUTHORISED SIGNATORY AND THE
             CHIEF OPERATING OFFICER, MRS.AMBILY VIJAYARAGHAVAN.

               ADDL R4 IS IMPLEADED AS PER ORDER DATED 09-12-2020
               IN IA 1/2020.

               R1-3 BY SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER
               R4 BY ADV. P.JAYABAL MENON
               R4 BY ADV. SMT.REKHA AGARWAL

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
07-01-2021, THE COURT ON 15-01-2021 DELIVERED THE FOLLOWING:
 W.P.(C)23630/2020
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                                   JUDGMENT

Dated this the 15th day of January 2021

This writ petition is filed by the mother of a

minor girl seeking the following reliefs:

i) Issue a writ of mandamus or any other appropriate direction writ, or order directing the first respondent to lodge a crime in terms of Ext. P13 and proceed in accordance with the law by conducting a speed investigation.

ii) Issue a writ of mandamus or any other appropriate direction writ, or order directing the 2 nd respondent to conduct a speed investigation on Ext.P12 and proceed in accordance with the law by conducting a speed investigation.

iii) Issue a writ of mandamus or any other appropriate direction writ, or order directing the 3 rd respondent to conduct a speed investigation on Ext.P11 and proceed in accordance with the law by conducting a speedy investigation.

2. Heard the learned counsel for the petitioner,

the learned counsel for the additional 4th respondent and

the learned Senior Government Pleader.

3. The records would reveal that the daughter of

the petitioner is a physically and mentally challenged W.P.(C)23630/2020

minor girl. She had some deformity to her spinal cord

right from her birth itself. The 4th respondent had

published (Ext.P2) an advertisement to the effect that a

free medical camp has been organized by the Aster Medicity

Hospital in respect of ailments pertaining to curve in

spine (Scoliosis) neck etc in respect of children up to the

age of 18 years. The medical camp was conducted by the

Aster Medicity Hospital as per the advertisement and the

daughter of the petitioner was admitted on 06.05.2020 and

after pre-surgical check-up and evaluation of her health

condition, surgery was conducted on 08.05.2020.

4. The petitioner contends that after the

surgery, she realized that due to the negligence on the

part of the doctors who conducted the surgery, her daughter

has been paralyzed and disabled. Even now, her condition

has not changed and she is completely paralyzed. She was

admitted in the hospital in good condition but now stands

paralyzed due to the negligence on the side of the doctors

who conducted the surgery and hence the petitioner had

lodged a complaint before the Inspector, Cheranellore

Police Station on 19.09.2020 (Ext.P11). But the police

failed to take any action on her compliant. Thereafter,

she preferred a complaint before the City Police W.P.(C)23630/2020

Commissioner as no action was taken by the Inspector

Cheranellore Police Station on her complaint (Ext.P12). As

there was failure to proceed against the hospital

authorities, she was compelled to prefer a complaint before

the Director General of Police to proceed against the

Hospital authorities who conducted the operation on

08.05.2020. According to the petitioner the condition of

her daughter remains deplorable and she is totally

bedridden due to paralysis on account of the extreme

negligence of the doctors who conducted the surgery.

5. On receipt of notice in this writ petition,

the learned Senior Government Pleader and Special Public

Prosecutor has filed a statement to the effect that Crime

No. 667 of 2020 was registered before Cheranellore Police

Station on 12.11.2020 on the complaint filed by this

petitioner for the offences punishable under Sections 338,

506 read with Section 34 of Indian Penal Code. It is

further reported that the investigation of the case is well

in progress and the case is being investigated by the

Assistant Commissioner of Police, Ernakulam. The report

further reveals that the investigating agency has already

seized the treatment records pertaining to the treatment of

the minor girl from Aster Medicity Hospital and recorded W.P.(C)23630/2020

the statement of the doctors who conducted the surgery and

the hospital staff involved in providing treatment to the

minor girl. It further reveals that the investigating

agency has sought the assistance of the District Medical

Officer so as to constitute a panel of medical

professionals for expert opinion to verify whether any

complication developed due to the surgery and also to

ascertain whether the girl was paralyzed due to medical

negligence in the surgical procedure adopted by the doctors

and that the investigating agency is waiting for the

opinion of the experts in the field. From the averments

made in the petition, it is patently clear that the

opinion of medical experts is quite essential to proceed

with the investigation but at the same time it cannot be

delayed as the victim involved is a minor girl of a coolie

worker.

6. Since the relief sought for, is a direction

to register crime on the complaint of the writ petitioner,

and for speedy investigation by the investigating agency, I

think that this writ petition can be disposed of

exercising power under Article 226 of the Constitution of

India as follows:

W.P.(C)23630/2020

As crime has already been registered and

investigation has progressed considerably, the

investigating agency shall take all endeavour to complete

the investigation within a period of six months from

today, considering the special facts and circumstances and

that the victim involved is a minor and a mentally

challenged girl.

Sd/-

SHIRCY V.

JUDGE

sb W.P.(C)23630/2020

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF DISABILITY DATED 27/11/2019 ISSUED BY THE SUPERINTENDENT,TALUK HEADQUARTERS,HOSPITAL,NORTH PARAVUR.

EXHIBIT P2 TRUE COPY OF THE ADVERTISEMENT PUBLISHED BY THE ASTER MEDICITIY HOSPITAL,UTTISAHIB ROAD,CHERANELLOOR,SOUTH CHITTOOR.

EXHIBIT P3 TRUE COPY OF THE CERTIFICATE DATED 30/1/2020 ISSUED BY THE PRESIDENT,CHENNAMANGALAM GRAMA PANCHAYAT.

EXHIBIT P4 TRUE COPY OF THE CERTIFICATE DATED 7/2/2020 ISSUED BY THE VIKAR,HOLY CROSS CHURCH.

EXHIBIT P5 TRUE COPY OF THE INFORMED CONSENT FORM.

EXHIBIT P6 TRUE COPY OF THE RELEVANT PORTION OF MULTIDISCIPLINARY TEAM MEETING FORM.

EXHIBIT P7 TRUE COPY OF THE DISCHARGE SUMMARY ISSUED BY THE NEURO SURGERY AND SPINE SURGERY DEPARTMENT.

EXHIBIT P8 TRUE COPY OF THE DISCHARGE SUMMARY ISSUED BY THE PHYSICAL SCIENCE AND REHABILITATION DEPARTMENT.

EXHIBIT P9 TRUE COPY OF THE MEDICAL CERTIFICATE DATED 8/8/2020.

EXHIBIT P10 TRUE COPY OF THE FINAL BILL DATED 12/8/2020

EXHIBIT P11 TRUE COPY OF THE COMPLAINT DATED 17/9/2020 BEFORE THE INSPECTOR OF POLICE,(STATION HOUSE OFFICER), CHERANALOOR POLICE STATION.

EXHIBIT P12 TRUE COPY OF THE COMPLAINT DATED 13/10/2020 LODGED BEFORE THE CITY COMMISSIONER OF POLICE,ERNAKULAM.

EXHIBIT P13 TRUE COPY OF THE COMPLAINT DATED 13/10/2012 WAS LODGED BEFORE THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM .

EXHIBIT P14 TRUE COPY OF THE REPRESENTATION DATED W.P.(C)23630/2020

13/10/2020 BEFORE THE SECRETARY,DEPARTMENT OF HEALTH,GOVERMENT OF KERALA.

EXHIBIT P15 TRUE COPY OF THE REPRESENTATION DATED 13/10/2020 BEFORE THE SECRETARY,DEPARTMENT OF HOME,GOVERNMENT OF KERALA.

EXHIBIT P16 TRUE COPY OF THE REPRESENTATION DATED 5/8/2020 BEFORE THE CEO,ASTER MEDICITY HOSPITAL.

EXHIBIT P17 TRUE COPY OF THE COMMUNICATION DATED 12/8/2020.

EXHIBIT P18 TRUE COPY OF THE PHOTOGRAPH OF PETITIONER'S DAUGHTER BEFORE THE OPERATION.

EXHIBIT P19 TRUE COPY OF THE PHOTOGRAPH PURSUANT TO THE OPERATION.

EXHIBIT P20 TRUE COPY OF THE PHOTOGRAPH PURSUANT TO THE OPERATION.