Dr. Haritha H.S vs The State Police Chief
2024 Latest Caselaw 13729 Ker

Kerala High Court

Dr. Haritha H.S vs The State Police Chief on 28 May, 2024

                     IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                       PRESENT
                     THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
            TUESDAY, THE 28TH DAY OF MAY 2024 / 7TH JYAISHTA, 1946
                              WP(CRL.) NO. 385 OF 2024
   CRIME NO.212/2024 OF MANNANTHALA POLICE STATION, THIRUVANANTHAPURAM
PETITIONER:

              DR. HARITHA H.S
              AGED 30 YEARS
              D/O SINDHU,"SINDHU NIVAS", KERA B 7, KERALADITHYAPURAM,
              POWDIKONAM WARD & P.O,ULIYASHTHURA,
              THIRUVANANTHAPURAM CITY & DISTRICT, PIN - 695587
              BY ADV C.K.MOHANAN


RESPONDENTS:

     1        THE STATE POLICE CHIEF
              POLICE HEAD QUARTERS, THIRUVANANTHAPURAM, PIN - 695004
     2        THE COMMISSIONER OF POLICE

THIRUVANANTHAPURAM CITY, PIN - 695014 3 THE STATION HOUSE OFFICER MANNANTHALA POLICE STATION, THIRUVANANTHAPURAM DISTRICT, PIN - 695015 ADDL R4 JOSEPH CHACKO S/O GHEEVARGHEESE CHACKO, BETHEL VRA 55, VYAMBAKKONAM, MANNANTHALA.

(IMPLEADED AS PER THE ORDER DATED 28.05.2024 IN I.A.NO.1/2024) BY ADVS.

SHAIJAN C GEORGE VINAI JOHN TINCY MARIA SCARIA HASHMI V.Z. PP - M P PRASANTH

THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 28.05.2024 ALONG WITH B.A.NO.3364/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P.(Crl). No. 385 of 2024 &

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 28TH DAY OF MAY 2024 / 7TH JYAISHTA, 1946 BAIL APPL. NO. 3364 OF 2024 CRIME NO.212/2024 OF MANNANTHALA POLICE STATION, THIRUVANANTHAPURAM IN CRMC NO.802 OF 2024 OF DISTRICT COURT & SESSIONS COURT, THIRUVANANTHAPURAM PETITIONER/ACCUSED:

JOSEPH CHACKO AGED 63 YEARS S/O GEEVARGHESE CHACKO, BETHEL VRA 55, VAYAMBAKKONAM, MANNANTHALA, THIRUVANANTHAPURAM, PIN - 695015 BY ADVS.

SHAIJAN C.GEORGE VINAI JOHN HASHMI V.Z. TINCY MARIA SCARIA

RESPONDENTS/COMPLAINANT:

1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2 STATTION HOUSE OFFICER MANNANTHALA POLICE STATION, THIRUVANANTHAPURAM CITY, PIN - 695015 ADDL R3 DR. HARITHA.H.S D/O. SINDHU, "SINDHU NIVAS", KERA B 7, KERALADITHYAPURAM, POWDIKONAM WARD & POST, ULIYASHTHURA, THIRUVANANTHAPURAM CITY & DISTRICT (IMPLEADED AS ADDL R3 AS PER ORDER DATED 22/5/24 IN CRL MA 1/24) BY ADV C.K.MOHANAN SR PP - RENJIT GEORGE

THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 28.05.2024 ALONG WITH W.P.(CRL) 385/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P.(Crl). No. 385 of 2024 &

"C.R"

JUDGMENT/ORDER Dated this the 28th day of May, 2024

The writ petition (Crl) has been filed under Article

226 of the Constitution of India and the petitioner herein is

the defacto complainant in Crime No.212 of 2024 of

Mannanthala Police Station. The prayers in the writ petition

are as under:

I. To issue a writ of mandamus, or order, or direction to the respondents 1 to 2 to immediately handover/entrust the investigation of the Crime No.212/2024 of the Mannanthala Police Station to a upright Police Officer of the higher rank, preferably an officer of the IPS cadre.

II. Any other appropriate relief to the Petitioner as this Hon'ble Court may deem fit and proper in the interest of justice.

III. To dispense with the production of the translated copy of the vernacular documents produced in the writ petition;

2. The bail application has been filed under Section

438 of the Code of Criminal Procedure, seeking pre-arrest W.P.(Crl). No. 385 of 2024 &

bail by the sole accused in the above crime, where the

prosecution alleges commission of offences punishable

under Sections 354, 294(b) and 323 of the Indian Penal

Code as well as under Section 4(1)(i) of the Kerala

Healthcare Service Persons And Healthcare Service

Institutions (Prevention of Violence and Damage to

Property) Amendment Act, 2023.

3. The petitioner in the writ petition will be referred

as the 'defacto complainant' and the petitioner in the bail

application will be referred as the 'accused' hereinafter.

4. Coming to the facts of the cases, Crime No.212

of the 2024 has been registered as on 18.03.2024 on the

basis of the FIS given by the defacto complainant. The

allegation in the FIS is that, at 12.00 noon on 18.03.2024,

while the defacto complainant was at her clinic, a person

aged about 50 years entered into the consultation room of

the doctor and demanded 'Evakalp' tablet. When he was

informed that the same was not in stock, he abused the

defacto complainant using filthy words and caught hold on

her right breast and beated on the left breast. When the

defacto complainant resisted the same, the accused W.P.(Crl). No. 385 of 2024 &

snatched and broke her thali chain. Then, the above person

pushed her down and she was rescued by the medical

representatives and a patient. Recording the statement of

the victim FIR was registered alleging the above said

offences.

5. In the bail application, the accused seeks

anticipatory bail raising contention that he is absolutely

innocent and there was an exchange of words between the

defacto complainant and the accused, when the doctor

reported that 'Evakalp' tablet prescribed for his daughter

Soja R. Joseph, who consulted the doctor on 17.01.2024, for

whom the second tablet prescribed was Evakalp. The

learned counsel for the accused pointed out the above fact

while highlighting that the accused is innocent and the

allegations are false. He also submitted that since the

punishment provided for the offences alleged to be

committed by the accused is less than seven years, he was

given 41A Cr.P.C. notice by the Police and in response to the

same, he appeared before the Police and Annexure.A5 is

the acknowledgment given in this regard to show that he

appeared before the Police in between 10 - 12 hours on W.P.(Crl). No. 385 of 2024 &

21.03.2024. The learned counsel for the accused offered

co-operation in the matter of investigation, while pressing

for anticipatory bail to the accused.

6. Zealously opposing the bail plea at the instance

of the accused, the learned counsel for the defacto

complainant would submit that the accused is a wealthy

person having alliance with all political parties and he

willfully obstructed the duty of the defacto complainant

who has been practicing Ayurvedic medicine and subjected

her to molestation attracting the offences alleged in the

FIR. He pointed out that arrest and custodial interrogation

of the accused are necessary to accomplish meaningful

investigation. According to him, even though, soon after the

occurrence, the accused was entrusted to the Police by the

people in the locality, the Vanitha Assistant Sub Inspector of

Police, released him without recording arrest, for which, a

separate complaint also was lodged by the defacto

complainant.

7. The learned Public Prosecutor opposed grant of

bail to the accused and produced the case diary for perusal

of this Court to see the progress of investigation. The W.P.(Crl). No. 385 of 2024 &

learned Public Prosecutor also submitted that the prayers in

the writ petition cannot be allowed, since as per the

records, proper investigation has been going on. He also

stated that 164 statement of the defacto complainant was

recorded and CCTV footages also were taken into custody.

8. In this matter, the accused filed Crl.M.C.

No.802/2024 before the Additional Sessions Court-II,

Thiruvananthapuram, seeking anticipatory bail and the

learned Additional Sessions Judge, after elaborately hearing

the matter, dismissed the same.

9. On perusal of the statement given by the defacto

complainant, it is stated that, at 12.00 noon on 18.03.2024,

while she was at her clinic, a person aged about 50 years

entered into the consultation room of the doctor and

demanded 'Evakalp' tablet and when he was informed that

the same was not in stock, he abused her using filthy words

and caught hold on her right breast and beated on the left

breast and when she resisted the same, the accused

snatched and broke her thali chain. On perusal of the case

diary, the overt acts at the instance of the accused are

foreseeable and the offences punishable under Sections W.P.(Crl). No. 385 of 2024 &

354 of IPC as well as under Section 4(1)(i) of the Kerala

Healthcare Service Persons And Healthcare Service

Institutions (Prevention of Violence and Damage to

Property) Amendment Act, 2023, are non-bailable.

10. On perusal of the case diary along with report of

the Investigating Officer Sri.Biju K.R., Police Inspector,

Mannanthala Police Station, the investigation has been

progressing and it was found on investigation that the

allegations of the defacto complainant are true. He also

reported that it is necessary to record statements of the

other witnesses as part of investigation and it is necessary

to arrest the accused also.

11. In this context, it is relevant to refer the trend of

abusing, assaulting and manhandling doctors and hospital

staff for flimsy reasons and the said acts have now become

a common practice. Recently, when repeated instances of

such nature were noticed by the legislature, the legislature

was forced to amend the Kerala Healthcare Service Persons

And Healthcare Service Institutions (Prevention of Violence

and Damage to Property) Act, in the year 2023, by

incorporating Section 4, which provides for punishment for W.P.(Crl). No. 385 of 2024 &

such acts and making the offence as non bailable. Even

after introduction of the amendment, incorporating non

bailable penal provisions, the attack against doctors and

hospital staff not seen reduced and the present case is a

typical example for the same. Here, the specific allegation

as stated in paragraph No.4 of this order would go to show

that the prosecution case is well made out, prima facie,

and the Investigating Officer also wanted to arrest the

accused for effectively investigating the case.

12. Learned Public Prosecutor and the learned

counsel for the defacto complainant urged for arrest and

custodial interrogation of the accused to effectuate

meaningful investigation, in a case involving serious

allegations. In such a case grant of anticipatory bail would

impede the investigation. Therefore, the anticipatory bail

plea at the instance of the accused cannot be considered

and the same is only to be dismissed.

13. Coming to the prayers in the writ petition,

mainly, to entrust the investigation of this crime to an

upright Officer, the materials produced before this Court

would go to show that the investigation is going on without W.P.(Crl). No. 385 of 2024 &

scope for allegations, though the Investigating Officer failed

to arrest the accused. In this connection, it is to be noted

that periodically the accused filed anticipatory bail

applications before the Sessions Court and this Court and

that may be the reason for stalling of arrest of the accused.

Therefore, this Court is of the view that entrustment of the

investigation to another Officer is not warranted at this

stage and the present Investigating Officer can continue

the investigation. The Investigating Officer is directed to

effectuate fair and unbiased investigation in this matter.

In the result, B.A. No.3364 of 2024 stands dismissed

and W.P. (Crl) No.385 of 2024 stands disposed of as

indicated above. It is made clear that the defacto

complainant is at liberty to approach this Court, if she feels

again that the investigation is not on the proper line.

Sd/-

A. BADHARUDEEN JUDGE SK W.P.(Crl). No. 385 of 2024 &

APPENDIX OF WP(CRL.) 385/2024

PETITIONER EXHIBITS :

Exhibit P1 A TRUE COPY OF THE TOKEN AND THE ACCIDENT REGISTER -CUM- WOUND REGISTER DATED 18.03.2024 ISSUED BY THE DISTRICT MODEL HOSPITAL, PEROORKKADA Exhibit P2 A TRUE COPY OF THE FIR IN CRIME NO.

212 / 2024 OF MANNANTHALA POLICE STATION, THIRUVANANTHAPURAM DISTRICT Exhibit P3 A THE TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER TO 1ST RESPONDENT DATED 20-03-2024 ALONG WITH COPY OF THE RECEIPT Exhibit P4 A THE TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER TO 2ND RESPONDENT DATED 22-03-2024 ALONG WITH RECEIPT.

RESPONDENTS' ANNEXURES : NIL W.P.(Crl). No. 385 of 2024 &

APPENDIX OF BAIL APPL. 3364/2024

PETITIONER ANNEXURES :

Annexure 1 TRUE COPY OF THE FIR AND FI STATEMENT Annexure 2 TRUE COPY OF THE CONSULTATION SHEET Annexure 3 TRUE COPY OF THE COMPLAINT SUBMITTED BEFORE THE 2ND RESPONDENT ON 19.03.2024 Annexure 4 TRUE COPY OF THE RECEIPT ISSUED FROM THE MANNANTHALA POLICE STATION DATED 19.03.2024 Annexure 5 TRUE COPY OF THE NOTICE UNDER SEC. 41A OF CR. P.C. ALONG WITH ITS ACKNOWLEDGEMENT Annexure 6 TRUE COPY OF THE COMPLAINT SUBMITTED BEFORE THE CITY POLICE COMMISSIONER, THIRUVANANTHAPURAM DATED 21.03.2024 Annexure 7 TRUE COPY OF THE RECEIPT ISSUED BY THE COMMISSIONORATE OF POLICE DATED 21.03.2024 Annexure 8 CERTIFIED COPY OF THE ORDER IN CRL. M.C. NO. 802/2024 DATED 09.04.2024

RESPONDENTS' ANNEXURES : NIL