Kerala High Court
Xxxxxxx vs State Of Kerala on 5 June, 2024
Author: Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR. JUSTICE P.M.MANOJ
WEDNESDAY, THE 5TH DAY OF JUNE 2024 / 15TH JYAISHTA, 1946
WP(CRL.) NO. 580 OF 2024
PETITIONERS:
XXXXXXX
AGED 70 YEARS
(MASKED AS PER ORDER DATED 30.05.24 IN
WP(CRL.), PIN - 680005
BY ADVS.
DINESH MATHEW J.MURICKEN
K.A.ABHILASH
VINOD S. PILLAI
MOHAMMED THAYIB N.M.
NAYANA VARGHESE
RIA VARGHESE
AHAMMAD SACHIN K.
JERRY PETER
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY TO
GOVERNMENT, ROOM NO. 357 A, IST FLOOR,
MAIN BLOCK, SECRETARIAT,
THIRUVANANTHAPURAM CENTRAL.P.O,
THIRUVANANTHAPURAM DISTRICT, PIN -
695001
2 THE STATION HOUSE OFFICER
ALATHOOR POLICE STATION, ALATHOOR.P.O.,
PALAKKAD DISTRICT, PIN - 678541
3 THE STATION HOUSE OFFICER
OLLUR POLICE STATION, OLLUR P.O.,
THRISSUR DISTRICT, PIN - 670306
4 CRESENT MEDICAL CENTRE LTD.
CRESENT HOSPITAL,, 3/529, COURT ROAD,
ALATHUR, PALAKKAD DISTRICT, REPRESENTED
BY ITS ADMINISTRATOR, X XXX(MASKED AS
PER ORDER DATED 30.05.24 IN WP(CRL.),
WP(Crl.) No. 580 of 2024
2
PIN - 678541
5 THE MENTAL HEALTH REVIEW BOARD
GOVERNMENT MENTAL HEALTH CENTRE CAMPUS,
VONGINISSERLY, ARANATTUKARA.P.O.,
THRISSUR DISTRICT, REPRESENTED BY ITS
CHAIRPERSON, PIN - 680004
6 THE GOVERNMENT MENTAL HEALTH CENTRE
GOVERNMENT MENTAL HEALTH CENTRE CAMPUS,
VONGINISSERLY, ARANATTUKARA.P.O.,
THRISSUR DISTRICT, REPRESENTED BY ITS
SUPERINTENDENT., PIN - 680004
7 XXXXXXXX
(MASKED AS PER ORDER DATED 30.05.24 IN
WP(CRL.), PIN - 680005
BY ADVS.
SAIJO HASSAN
E.ADITHYAN
VISHNU HARI K.(K/740/2014)
BENOJ C AUGUSTIN(K/189/2004.)
RAFEEK. V.K.(K/134/2003)
DEVI.R.SENS(K/000671/2016)
V.P.REJITHA(K/899/2001)
NITIN S.(K/374/2024)
MEERA J. MENON(K/000860/2024)
ASWIN K.R.(K/101/2021)
DHEERAJ BABY(K/002187/2023)
OTHER PRESENT:
SRI. SHAMEER P.M -SR.PP
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR FINAL
HEARING ON 05.06.2024, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
WP(Crl.) No. 580 of 2024
3
JUDGMENT
Raja Vijayaraghavan, J.
The petitioner states that his brother, a certain Pappu, passed
away on 17.09.2023. Before his death, Pappu had entrusted the custody
and well-being of his wife to the petitioner. He contends that he has now
received information that the wife of the aforesaid Pappu, the alleged
detenu, has been admitted to the 4th respondent-hospital, in the
Psychiatric Department for more than six months. He contends that
though he had visited the 4th respondent-hospital to enquire about the
well-being of the alleged detenu, he was not permitted to have an
interaction with her. The specific contention of the petitioner is that the
confinement of the alleged detenu in the hospital is in violation of the
provisions of the Mental Health Care Act, 2017, and is illegal. It is on
these assertions that this Writ Petition is filed seeking the following
relief:-
i. Issue a writ of habeas corpus or any other appropriate writ or
direction to the 2nd respondent to produce the detenu, Leela,
wife of late Pappu, Kundoli House, Kuttanelloor, Thottappady,
Thrissur District, before this Honourable Court.
2. When the matter came up for consideration on 30.05.2024,
after considering the submissions advanced by Sri. Dinesh Mathew J
Murikan, the learned counsel, as well as the learned Government Pleader,
we passed the following order: -
"The learned Government Pleader takes notice for
respondents 1, 2, 3, 5 and 6. Issue notice by special messenger
to respondents 4 and 7.
2. Sri.Dinesh Mathew J.Murikan, the learned counsel appearing
for the petitioner submitted that the sister-in-law of the
petitioner, Mrs.X, is admitted in the psychiatric ward of the 4th
respondent hospital, for a prolonged period of not less than 180
days. The learned counsel points out that as per the provisions
of the Mental Healthcare Act, 2017, no person can be admitted to
a hospital for more than 30 days without following the procedure
as contemplated under section 90 of the Mental Health Act, 2017.
The learned counsel would also refer to Section 19 of the Act,
2017 and it is pointed out that every person with mental illness
has a right to community living and not to be segregated from
society. Reliance is also placed on the observations and law laid
down by the Division Bench of Delhi High Court in Sangamitra
Acharya and another v. State and others [ 2019 KHC
3452] and it was argued that in order to ensure the right of the
alleged detenu is not infringed and her constitutionally
guaranteed rights under Article 21 of the Constitution of India is
protected, it is only just and proper that the 5th respondent
Mental Health Review Board be ordered to examine the alleged
detenu and to report as to whether the continued treatment after
the period of 90 days from the date of initial admission is strictly
in accordance with the provisions of the Act and Rules.
4. The learned counsel would also submit that as per Section 90
of the Act, 2017 the Medical Officer or the Mental Health
Professional in-charge of the Mental Health Establishment is
required to report all admissions or re-admissions under the
provisions of the Act, within a period of 7 days of such admission
or readmission to the concerned Board. According to the learned
counsel, admission of a person with mental illness to a Mental
Health Establishment beyond the period of 90 days can be
permitted only after complying with the provisions of subsection
(1) to (7) of Section 90 of the Act.
5. We find that the specific case of the petitioner is that the
alleged detenu is undergoing treatment in the hospital for a
period in excess of 90 days. In that view of the matter, there will
be a direction to the 5th respondent to inspect all the records in
the hospital relating to the alleged detenu and state before this
Court as to whether the continued admission is strictly in
accordance with the provisions of the Act. The 5th respondent
shall also report whether the hospital has reported the relevant
facts to the Board at the appropriate stage as mandated under
the Statute.
6. Independently, the 4th respondent shall also place before this
Court, the medical records as well as other documents justifying
the continued admission of the alleged detenu in the aforesaid
hospital.
7. The Registry is directed to mask the names of the parties in
order to ensure privacy.
Post on 04.06.2024."
3. In terms of the directions issued by this Court, the Mental
Health Review Board, Thrissur has visited the alleged detenu. In their
report, it is stated that the alleged detenu, who is 75 years of age, was
admitted to the hospital after the death of her husband on 16.11.2023
with complaints of sleeplessness, aggression, and memory disturbance.
The Medical Board has examined the case records and has interacted
with the Psychiatrist as well as the detenu. The Board has stated in the
report that the detenu has shown substantial improvement in memory
and reduction in aggressive behavior due to consistent medical
intervention. The Medical Board has also reported that the patient
stated that she felt secure only with her nephew Santhosh and it
indicates the need for supportive and trusted companionship
post-discharge.
4. We have also called for the medical reports from the
Cresent Medical Centre to ascertain as to whether the alleged detenu is
suffering from any psychiatric issues. The entire patient record file is
placed before us. It appears from the patient records that after the
death of the husband, the alleged detenu had shown some aggressive
behavior. She was admitted at the hospital and treatment was provided.
The treatment records suggest that the final opinion of the treating
doctors is that she is suffering from Dementia and medicines for the
same are being administered. The doctors have opined that the score in
the cognitive assessment done on 08.11.2023 was 31/100 and on the
reassessment of the cognition after providing medication, the score has
risen up to 59/100. It is also stated therein that she would require
lifelong medication and nursing care.
5. After considering the submissions advanced, and on perusal
of the records, we are satisfied that the alleged detenu is suffering from
Dementia and not any psychiatric ailment. The medicines that are being
administered are for treating memory impairment with no psychotic
symptoms. The alleged detenu has stated before the Medical Board that
she feels secure only in the company of the 7th respondent and the
Medical Board has opined that she needs his support and trusted
companionship after her discharge from the hospital.
6. The Hon'ble Supreme Court in Shafin Jahan1, has
observed that the pivotal purpose of a writ of habeas corpus is to see
that no one is deprived of his/her liberty without sanction of law. It is
the primary duty of the State to see that the said right is not sullied in
any manner whatsoever and its sanctity is not affected by any kind of
subterfuge. The role of the Court is to see that the detenu is produced
before it, find out about his/her independent choice, and see to it that
the person is released from illegal restraint. What is seminal is to
remember that the song of liberty is sung with sincerity and the choice
Shafin Jahan v. Asokan K.M., (2018) 16 SCC 368
of an individual is appositely respected and conferred its esteemed
status as the Constitution guarantees. It is so as the expression of
choice is a fundamental right under Articles 19 and 21 of the
Constitution, provided the said choice does not transgress any valid legal
framework. Once that aspect is clear, the inquiry and determination have
to come to an end.
7. We are satisfied that the alleged detenu is not under illegal
confinement.
In that view of the matter, nothing further survives in this Writ
Petition. This petition is closed.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
Sd/-
P.M.MANOJ
JUDGE
APM/5/6/24
APPENDIX OF WP(CRL.) 580/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE COMPLAINT LODGED BY
THE PETITIONER BEFORE THE 2ND
RESPONDENT DATED 15.05.2024
