Kerala High Court
Kerala Private Hospitals ... vs Adv.Sabu P. Joseph on 11 May, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
Thursday, the 11th day of May 2023 / 21st Vaisakha, 1945
RP NO. 379 OF 2021(S) IN WP(C) 10659/2021(S)
REVIEW PETITIONER/RESPONDENT NO.5:
KERALA PRIVATE HOSPITALS ASSOCIATION HAVING ITS REGISTERED
OFFICE AT KPHA HEAD QUARTERS,ASHIR BHAVAN ROAD,
KACHERIPPADY,ERNAKULAM,KOCHI-682018,
REPRESENTED BY ITS PRESIDENT,HUSSAIN KOYA THANGAL.
RESPONDENTS/PETITIONER AND RESPONDENTS 1 TO 4 & RESPONDENTS 6 TO
12 IN WP(C)No.10659/2021:
1.ADV.SABU P. JOSEPH ,AGED 46 YEARS,S/O.T.A.JOSEPH,
VICE-CHAIRMAN,LEGAL CELL,HUMAN RIGHTS FORUM,
REG.NO.186/IV/19,REGISTERED OFFICE AT
B NO:XX-638,CLASSIC TOWER,A M ROAD,PERUMBAVOOR-683542.
2.THE STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT OF
KERALA,SECRETARIAT,THIRUVANANTHAPURAM-695001.
3.DIRECTOR GENERAL OF HEALTH SERVICES,
DIRECTORATE OF HEALTH SERVICES,
GENERAL HOSPITAL JUNCTION,THIRUVANANTHAPURAM-695035.
4.INDIAN COUNCIL OF MEDICAL RESEARCH ,
V.RAMALINGASWAMI BHAVAN,
P O BOX NO.4911,ANSARI NAGAR,NEW DELHI-110029.
REPRESENTED BY ITS SECRETARY AND DIRECTOR GENERAL.
5.UNION OF INDIA, REPRESENTED BY ITS SECRETARY,
HEALTH AND FAMILY WELFARE,NIRMAN BHAVAN,NEW DELHI-110011.
P.T.O
6.STATE HEALTH AGENCY, REPRESENTED BY EXECUTIVE DIRECTOR,
ARTECH MEENAKSHI PLAZA,5TH AND 8TH FLOOR,OPP.GOVT.WOMAN
AND CHILD HOSPITAL,THYCAUD,THIRUVANANTHAPURAM-695014.
7.NATIONAL HEALTH MISSION REPRESENTED BY THE EXECUTIVE
DIRECTOR, NRHM BUILDING,GENERAL HOSPITAL,DIRECTORATE
OF HEALTH SERVICE, JAI VIHAR,KANNUKUZHY,
THIRUVANANTHAPURAM-695035.
8.KERALA MEDICAL SERVICES CORPORATION LTD.
REPRESENTED BY EXECUTIVE DIRECTOR,C.V.RAMAN PILLAI ROAD,
WOMAN AND CHILDREN HOSPITAL,THYCAUD,
THIRUVANANTHAPURAM-695014.
9.THE INDIAN MEDICAL ASSOCIATION(IMA),KERALA
REPRESENTED BY PRESIDENT,HEADQUARTERS,ANAYARA.P.O,
THIRUVANANTHAPURAM-695029.
10.QUALIFIED PRIVATE MEDICAL PRACTITIONERS ASSOCIATION,
REPRESENTED BY ITS PRESIDENT,FLOOR-V-E/F,
VALLAMATTAM ESTATE, RAVIPURAM,M.G.ROAD,KOCHI-682015.
11.CATHOLIC HEALTH ASSOCIATION OF INDIA,
REPRESENTED BY THE EXECUTIVE DIRECTOR,PASTORAL
ORIENTATION CENTRE, CIVIL LINE ROAD,PALARIVATTOM,
KOCHI-682028.
12.MUSLIM EDUCATIONAL SOCIETY ,BANK ROAD,CALICUT-673011,
REPRESENTED BY ITS PRESIDENT DR.P.A.FAZAL GAFOOR.
*ADDL. R13 IMPLEADED
13.THE STATE POLICE CHIEF, KERALA
*ADDL R13 SUO MOTU IMPLEADED AS PER ORDER DATED 09.09.2021
IN RP 379/21 IN WPC 10659/21.
P.T.O.
ADDL. R14 IMPLEADED
14.DR.ARAVIND C.S., S/O.SREEDHARAN, AGED 50 YEARS,
RESIDING AT THIRUVANANTHAPURAM, GENERAL SECRETARY,
KERALA GOVERNMENT MEDICAL COLLEGE TEACHERS ASSOCIATION,
THIRUVANANTHAPURAM-695 011.
ADDL. R14 IS IMPLEADED AS PER ORDER DATED 19/01/2023 IN
IA.1/2023 IN RP 379/21 IN WPC 10659/21.
ADDL.R15 IMPLEADED
15. KERALA UNIVERSITY OF HEALTH SCIENCES
REPRESENTED BY REGISTRAR DR MANOJ KUMAR,
AGED 58 YEARS, S/O KUNJAN PILLAI,
MEDICAL COLLEGE P.O, THRISSUR, KERALA 680 596.
ADDL. R15 IS IMPLEADED AS PER ORDER DATED 10/05/2023 IN
IA 9/2023 IN RP 379/21 IN WPC 10659/21
Review petition praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to allow the above
the Review Petition, review the judgment dated 10/05/2021 in
WP(C)No.10659/2021, and to pass such other order or further orders as
this Honourable Court may deem fit and proper in the circumstances of
the case.
This petition again coming on for orders upon perusing the
petition, this Court's judgment dated 10/05/2021 in WP(C)10659/2021 &
order dated 10/05/2023 in RP.379/2021 and upon hearing the arguments
of SRI.SYAM DIVAN (SENIOR ADVOCATE) along with SRI.K. ANAND, Advocates
for the petitioner, ADVOCATE GENERAL & GOVERNMENT PLEADER for R2 & R3,
DEPUTY SOLICITOR GENERAL OF INDIA for R4 & R5, DR.S. GOPAKUMARAN NAIR
(SENIOR ADVOCATE) along with SRI.SURAJ T.ELENJIKKAL, Advocate for R9,
M/S.M.GOPIKRISHNAN NAMBIAR, K.JOHN MATHAI, JOSON MANAVALAN, KURYAN
THOMAS, PAULOSE C. ABRAHAM, JAI MOHAN & RAJA KANNAN, Advocates for
R10, SRI.S. KANNAN, SENIOR GOVERNMENT PLEADER for Addl.R13 and
of SRI.P.SREEKUMAR, ADVOCATE for Addl.R14 & STANDING COUNSEL for
Addl.R15, the court passed the following:
P.T.O.
DEVAN RAMACHANDRAN &
Dr.KAUSER EDAPPAGATH, JJ.
=========================
I.A.No.10 of 2023 in RP No.379 of 2021
==========================
Dated this the 11th day of May, 2023
ORDER
Devan Ramachandran, J.
Read order dated 10.05.2023.
2. The directions in the afore order are confirmed since
the learned Senior Government Pleader - Sri.S.Kannan says
no modifications are necessary, particularly because Section
2 of the Kerala Healthcare Service Persons and Healthcare
Service Institutions (Prevention of Violence and Damage to
Property) Act, 2012, covers medical students, interns, house
surgeons and every other person involved in the Health
Sciences Education.
3. As directed by us, the State Police Chief (SPC) has
appeared online, assisted by Sri.Ajith Kumar, Additional
Director General of Police (ADGP).
4. The SPC and ADGP explained in detail as to the
manner in which the incident, we focus upon herein,
I.A.No.10 of 2023 in RP No.379 of 2021
happened; but we must say that we are not concerned
about the same, as much as we are to ensure that no
further attacks are caused on any Health-care professional
in the future.
5. We are told that an investigation into the death of
Vandana Das is going on and we direct the SPC to ensure
that investigation is carried out in her name faithfully,
truthfully and diligently. He has assured that every step
in that regard will be taken.
6. The ADGP on his part, confirmed that though there
are protocols with respect to the manner in which accused
and other persons in custody of the Police are to be
presented before medical professionals or in hospitals,
they are not up to the mark at the present time and
require modification; and he offered that submissions in
this regard will be made by the next posting date. We
record the afore.
7. As far as the incident in question is concerned,
there can be little doubt that the killing of a young doctor
by a person who was in custody of the police -- be that as
an accused or in any other capacity -- points at a systemic
failure. The Police Officers above were also ad idem that it
I.A.No.10 of 2023 in RP No.379 of 2021
is the fundamental duty of any officer to guard a citizen,
even at the cost of their own lives. The preliminary
information that we have, which is gathered from the
statements filed on behalf of SPC and others, is that, for
some reason, Vandana Das was alone in the observation
room at the particular point of time, which opportunity
was seized by the accused to repeatedly stab her. This is a
gruesome incident, which, as we have already said in our
earlier order, should have never happened.
8. Obviously, therefore, protocols will have to be
immediately evolved as to the manner in which doctors,
healthcare professionals, students, interns, house
surgeons and such others are to be protected because,
otherwise, the faith in the system will surely erode.
9. We, therefore, direct the SPC to evolve sufficient
and effective protocols with respect to the manner in
which persons in custody - be that accused or otherwise -
are to be presented in hospitals and before medical
professionals as part of the criminal justice system or such
other; and, as we have already said in our earlier order, it
would be apposite to reflect upon the protocols that are
applicable in the case of the production of accused before
I.A.No.10 of 2023 in RP No.379 of 2021
a learned Magistrate. We must, however, say that even the
protocols with respect to learned Magistrates are
extremely lacking and it is only a matter of providential
grace that we have yet to come across a situation where
such an officer is attacked. The Police will have to
certainly pull up their socks on a war-footing.
10. As matters now stand, lack of protocols or
inefficiency of the same, can never be impelled as a reason
to justify another crime. We, therefore, direct that, for
the time being, every protocol applicable for production of
the accused or persons in custody of the Police before the
learned Magistrate shall apply in the case of the
production of such persons in the hospitals or before the
doctors or health care professionals concerned.
11. As far as the security in various hospitals,
particularly those in the Government sector, is concerned,
we have no doubt that it is the fundamental duty of the
SPC to ensure such. In fact, he also agreed to this and
submitted that he will place on record necessary
requirements and protocols in this regard, including
considering whether members of the State Industrial
Security Force (SISF) can be deployed for such purposes.
I.A.No.10 of 2023 in RP No.379 of 2021
Of course, we have to give the SPC some time to consider
all these aspects and inform us; but, in the meanwhile, we
are constrained to ensure that effective security is
provided in all hospitals in the manner as is legally
possible, so as to avoid any further incidents or attacks.
We remind the SPC, as we have already indited above, that
it is the fundamental obligation of the police force, headed
by him, to ensure that hospitals and the personnel who
man them are adequately and sufficiently protected on a
day-to-day basis, for the 24 - hour time frame.
12. At this time, Sri.Gopakumaran Nair - learned
senior counsel, instructed by Sri.Prasanth, intervened to
say that Government has been assuring his client - the
Indian Medical Association and others, that an Ordinance
will be brought in to amend the '2012 Act' appositely. He
prayed that directions be issued to them to do so quickly;
with an adscititious plea that Government be also directed
to consider the appointment of a Special Prosecutor for
trial of the case that we are concerned about.
13. Sri.S.Kannan - learned Senior Government
Pleader, in response, submitted that the afore requests of
the learned senior counsel will be certainly taken note of
I.A.No.10 of 2023 in RP No.379 of 2021
by the Government with all seriousness; and that, as far as
the Ordinance is concerned, discussions are going on with
all stakeholders and the prayers will be made known to
this Court by the next posting date.
14. We permit the Kerala University of Health
Sciences (KUHS) to make their suggestions, regarding the
Ordinance or the amendments - as the case may be, before
the Government, which shall also be taken into account
appositely.
15. Finally, Dr.Rajeev Joshi submitted that he has
certain IAs to which the Government has not yet
responded. We, therefore, direct the learned Senior
Government Pleader to look into these interim applications
and respond by the next posting date.
List on 23.05.2023.
H/o
Sd/- DEVAN RAMACHANDRAN,
JUDGE
Sd/- Dr. KAUSER EDAPPAGATH,
JUDGE.
stu
11-05-2023 /True Copy/ Assistant Registrar
