Madras High Court
Sumathi vs The State Of Tamil Nadu on 9 August, 2021
W.P. Nos.18899 and 21260 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
ORDER RESERVED ON : 07.02.2022
ORDER PRONOUNCED ON : 22.02.2022
CORAM:
THE HONOURABLE MR. JUSTICE P.N.PRAKASH
and
THE HONOURABLE MR. JUSTICE A.A.NAKKIRAN
W.P. Nos.18899 and 21260 of 2021
Sumathi
W/o.Natarajan Petitioner in both W.Ps.
Vs.
1. The State of Tamil Nadu
represented by its Secretary
Home Department
Fort St.George
Chennai - 600 009
2. The Deputy Inspector General of Prison
Egmore
Chennai - 600 008
3. The Superintendent of Prisons
Central Prison - I, Puzhal
Chennai - 600 066 Respondents in both W.Ps.
Prayer in W.P.No.18899 of 2021:
Writ Petition filed under Article 226 of the Constitution of India
praying to issue a writ of certiorarified mandamus calling for the records
1/24
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W.P. Nos.18899 and 21260 of 2021
made in impugned order No.7834/Tha.Ku.1/2021 dated 09.08.2021 passed
by the third respondent herein and quash the same as illegal and direct the
second respondent to grant 30 days ordinary leave to the detenu Natarajan
S/o.Ramsamy, aged 55 years, Convict No.7834, who is now confined at
Central Prison, Puzhal, Chennai - 600 066.
Prayer in W.P.No.21260 of 2021:
Writ Petition filed under Article 226 of the Constitution of India
praying to issue a writ of mandamus directing the respondents to consider
the representation of the petitioner dated 23.09.2021 by releasing the detenu
Natarajan, S/o.Ramasamy, Convict No.7834, now confined at Central
Prison-I, Puzhal, Chennai - 600 066, under Rule 633 of the Tamil Nadu
Prison Rules, 1983.
For petitioner Mr.R.Sankarasubbu
[in both W.Ps.]
For respondents Mr.R.Muniyapparaj
[in both W.Ps.] Additional Public Prosecutor
COMMON ORDER
P.N.PRAKASH, J.
Since the parties involved in the two instant writ petitions are the
same and also in view of inter connectivity of the issues involved, both the
writ petitions are considered and decided by this common order.
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2. Heard Mr.R.Sankarasubbu, learned counsel for the petitioner
and Mr.R.Muniyapparaj, learned Additional Public Prosecutor, appearing
for the respondents/State.
3. When orders were reserved in these matters on 07.02.2022,
these two writ petitions had become infructuous, inasmuch as, the detenu
herein, viz., Natarajan (Convict Prisoner No.7834), had died on 04.10.2021
itself. Yet, since Mr.R.Sankarasubbu, while prefacing his submissions,
accused this Court of judicial murder and the Prison authorities of executive
murder of Natarajan, in the Government Stanley Medical College and
Hospital on 04.10.2021 while the latter was undergoing imprisonment, it
became imperative for us to pore over all the records and narrate the
sequence of events, as under, chronologically.
4. On 13.07.1997, the members of Tamil Nadu Liberation Army,
who believe in bringing about the separation of Tamil Nadu from the Indian
Union by resorting to violence, looted the Andimadam Police Station, in
connection with which, a case in Andimadam P.S.Crime No.234 of 1997
was registered and 14 accused, including Natarajan [A14] faced trial in
S.C.No.2 of 2002 in the Special Court for Bomb Blast Cases, Poonamallee,
for the offences under Sections 120-B, 148, 450, 395, 395 r/w 397, 307 and
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332 IPC, in which, by judgment and order dated 29.11.2019, Natarajan was
convicted of the offences under Sections 120-B, 147, 450 and 395 IPC and
was sentenced to various terms of imprisonment, the maximum being 10
years rigorous imprisonment. During the investigation of the case, it appears
that Natarajan was arrested and admitted in prison on 29.06.2000 and the
details of his incarceration are as under:
1. Date of admission in prison : 29.06.2000
2. Date of release on bail from remand : 21.08.2006
3. Date of conviction : 29.11.2019
4. Date of re-admission in prison : 29.11.2019
5. Challenging his conviction and sentences, Natarajan filed an
appeal in Crl.A.No.20 of 2020 and also Crl.M.P.No.408 of 2020 u/s.389
Cr.P.C. for suspension of sentence and bail and they were under
consideration at the time of his demise on 04.10.2021. It may be pertinent to
state here that the appeal in Crl.A.No.20 of 2020 and the bail petition in
Crl.M.P.No.408 of 2020 have been filed by none other than
Mr.R.Sanakarasubbu, who is also the counsel on record in the instant two
cases.
6. At the time of admission in the prison, Natarajan's general
health condition was screened by the Prison Medical Officer and as per the
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entries recorded in the initial screening form, it is seen that the prisoner's
health condition was normal and no abnormalities were found, except that
his front tooth was absent and prosthetic tooth was fitted in its place.
Further, at the time of admission also, he did not state that he was suffering
from Cancer because he himself did not know of it.
7. On 20.05.2021, Natarajan complained of backache and myalgia
and therefore, he was admitted in the Prison dispensary and he was given
symptomatic treatment. He was sent out for treatment in Ortho Department
and x-ray of his spine was taken in order to find out the cause of his
backache. He was prescribed analgesics for his backache. On 02.07.2021,
he was sent to the Cardiology Department, where, ECG and echo were
taken, but they were found to be normal. Since he continued to complain of
chest pain and backache, he was sent to the Government Stanley Medical
College and Hospital on 09.07.2021, where, various medical examinations,
including CT guided biopsy, were done on 27.07.2021, which revealed that
he was suffering from lung cancer while he was an inpatient in the said
hospital.
8. Sumathi, wife of Natarajan, was informed of the diagnosis.
Instead of seeking suspension of sentence and bail under Section 389
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Cr.P.C. on health grounds, his wife Sumathi addressed a representation
dated 22.07.2021 to the Prison authorities seeking three months leave and
also premature release on medical grounds. The said representation was
considered by the Superintendent, Central Prison - I, Puzhal and by order
dated 09.08.2021, it was rejected on the following grounds:
a. the Deputy Inspector General of Prisons has the
power to grant only 30 days ordinary leave; and
b. since Natarajan was convicted of the offence
under Section 395 IPC and sentenced to 10 years rigorous
imprisonment, he would not be eligible for ordinary leave in
view of Rule 22(b) of the Tamil Nadu Suspension of Sentence
Rules, 1982 (for brevity “the Sentence Suspension Rules”)
[wrongly typed as 22(b) instead of 21(b)].
9. For the sake of convenience, we extract Rule 21(b) of the
Sentence Suspension Rules:
“21. Non-eligibility for ordinary leave. - The following
categories of prisoners shall not be eligible for ordinary leave: -
(b) Prisoners sentenced under sections 392 to 402 of the Indian
Penal Code (Central Act 45 of 1860).”
10. Challenging the rejection order dated 09.08.2021,
W.P.No.18899 of 2021 was filed by Sumathi through Mr. Sankarasubbu,
seeking quashment of the impugned order as well for a mandamus seeking
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30 days ordinary leave. Even in the affidavit in W.P. No.18899 of 2021,
there is no mention of the fact that Natarajan's appeal and suspension of
sentence petition are pending in the High Court. W.P.No.18899 of 2021
came up for admission before this Court on 08.09.2021. The adjudication of
the proceedings on 08.09.2021 in W.P.No.18899 of 2021 in the daily order
sheet runs thus:
Mr.R.Muniyapparaj, learned Government Advocate
[Crl. Side] takes notice for the respondents. Post the
matter on 15.09.2021.
11. On 15.09.2021, counter affidavit was filed. However, this
Court directed the learned Additional Public Prosecutor to get instructions
about the present health condition of Natarajan and the treatment given to
him and adjourned the case to 22.09.2021.
12. On 22.09.2021, learned Additional Public Prosecutor submitted
a report dated 17.09.2021 given by the Professor & Head of the Department
of General Medicine, Government Stanley Medical College and Hospital,
which reads as follows:
“Patient is a known case of Non small cell Carcinoma Left
Lung, Stage IV with secondaries in bilateral parietal and occipital
lobe of brain, skull, Lung and Spine (D2 - D6, causing paraparesis)
on Chemotherapy and Radiotherapy. Patient was initially admitted
under Radiotherapy unit and transferred to Intensive Medical Care
Unit (IMCU) on 05.09.2021 due to worsening respiratory symptoms
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and general condition. During the course of stay in the Hospital,
patient developed repeated episodes of Hypotension and shock
suggestive of adrenal metastasis and the patient was resuscitated
with IV fluids Inotropes. Patient is being treated with Nasal Oxygen,
IV Antibiotics, Steroids, chemotherapeutic drugs, IV Fluids and
periodically reviewed by team of Doctors from Departments of
General Medicine, Medical Oncology, Nephrology, Radiotherapy,
Neurology, Cardiology. At present patient continues to be in
Intensive Medical Care Unit with fluctuating vital signs and general
condition. Patient is under close monitoring.”
13. On the same day, we furnished a copy of this report to
Mr.Sankarasubbu, who submitted that the patient may be shifted to Cancer
Institute, Adyar, for further treatment for which this Court observed that if
Natarajan's family is willing to bear the cost of the treatment, this Court
would issue directions accordingly. Mr.R.Sankarasubbu, learned counsel,
took time for getting instructions and therefore, the matter was adjourned to
27.09.2021.
14. On 27.09.2021, Mr.Sankarasubbu submitted that Natarajan's
family cannot afford to bear the cost of treatment in the private hospital.
Therefore, this Court suggested to Mr.Sankarasubbu that a representation
could be given to the authorities for premature release on medical grounds
under Rule 633 of the Tamil Nadu Prison Rules, 1983 (for short “the Prison
Rules”) and adjourned the matter to 04.10.2021.
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15. As suggested by this Court, Sumathi, wife of Natarajan, gave a
representation dated 23.09.2021 to the Government seeking premature
release of Natarajan on medical grounds under Rule 633 of the Prison Rules
and followed it up by filing a writ petition in W.P.No.21260 of 2021 on
24.09.2021 seeking a mandamus to consider the said representation and
pass orders.
16. On 04.10.2021, both the writ petitions, W.P. Nos.18899 and
21260 of 2021 came up for hearing and at that time, the learned Additional
Public Prosecutor, had received instructions that Natarajan had breathed his
last on that day, i.e., 04.10.2021. However, this Court directed the
respondents to file their counter affidavit along with the medical records,
pursuant to which, the Superintendent of Central Prison, Puzhal, has filed a
counter affidavit dated 16.10.2021 along with the medical records in
W.P.No.21260 of 2021, setting out the entire facts and circumstances of the
case along with the supporting medical records.
17. Mr.Sankarasubbu reiterated his submission by contending that
had timely medical care been given to Natarajan, his life could have been
saved. In support of his contention, he placed reliance on the following
judgments of the Supreme Court and Bombay High Court and submitted
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that the right to life is a fundamental right under Article 21 of the
Constitution of India and this right has been infringed by this Court and the
Prison authorities and therefore, this Court should fix responsibility for this
on someone and award compensation to Natarajan's family.
i. Ahmad Umar Saeed Sheikh v. State of U.P.1;
ii. Ajab Singh and another v. State of U.P. and others2;
iii. Sunil Fulchand Shah v. Union of India and others3; and
iv. Dr.P.V.Varavara Rao vs. National Investigation Agency
and another4.
He also contended that the Government should have invoked Rule 40 of the
Sentence Suspension Rules to release Natarajan.
18. Mr.Sankarasubbu finally contended that since the death of
Natarajan had taken place while he was in prison, a Magisterial enquiry
should have been conducted in terms of Section 176 (1A), Cr.P.C. and this
Court may peruse the report and pass appropriate orders.
19. Per contra, Mr.R.Muniyapparaj, learned Additional Public
Prosecutor, reiterated the stand taken by the State in the counter affidavits
filed in both the writ petitions and submitted that there was no negligence
on the part of the Prison authorities whatsoever, as timely and best treatment
1 1997 SCC (Cri) 47
2 2000 SCC (Cri) 718
3 2000 SCC (Cri) 659
4 2021 SCC Online Bom 230
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W.P. Nos.18899 and 21260 of 2021
was given to the convict prisoner, the moment he was diagnosed of Cancer.
He further submitted that the Prison authorities have no power to grant
ordinary leave during the pendency of appeal in the High Court, in view of
the law laid down by the Supreme Court in K.M.Nanavati v. State of
Bombay5.
20. This Court gave its anxious consideration to the rival
submissions.
21. Let us first decide on the correctness of the impugned order
dated 09.08.2021 in W.P. No.18899 of 2021.
22. Mr. Sankarasubbu contended that neither the authorities nor
this Court should be swayed by the gravity of the offence for which
Natarajan was convicted and that every convict prisoner would be entitled
to the protection under Article 21 of the Constitution of India, irrespective
of his antecedents.
23. One can have no quarrel on the aforesaid submission of
Mr.Sankarasubbu, as a right to protection under Article 21 of the
Constitution of India would undoubtedly permeate the prison walls and
afford protection to every class of prisoner, irrespective of the heinousness
5 AIR 1961 SC 112
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of the offence committed by him. Therefore, we are not carried away by the
fact that Natarajan was convicted for attacking a police station in
furtherance of a violent ideology. However, the fact remains that Natarajan
has been convicted of the offence under Section 395 IPC and by virtue of
Rule 21(b) of the Sentence Suspension Rules, extracted above, he would not
be eligible for ordinary leave. Therefore, we find no infirmity in the reason
assigned in the impugned order for denying ordinary leave to Natarajan.
24. Mr. Sankarasubbu's contention that the Government should
have invoked Rule 40 of the Sentence Suspension Rules and granted leave
to Natarajan is not sustainable, as a convict prisoner whose appeal is under
consideration in the appellate Court, cannot be granted leave at all under the
Sentence Suspension Rules. In this case, Natarajan's appeal in Crl.A. No.20
of 2020 and the petition seeking suspension of sentence and bail in
Crl.M.P.No.408 of 2020 were under consideration on the file of this Court.
This was brought to our notice by the learned Additional Public Prosecutor
during the hearing of the case and subsequently, in the counter affidavit
dated 16.10.2021 in W.P. No.21260 of 2021. At this juncture, felicitous it is
to refer to paragraph 21 of the judgment of the Supreme Court in Nanavati
(supra):
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“21. In the present case, the question is limited to the exercise by the
Governor of his powers under Article 161 of the Constitution suspending the
sentence during the pendency of the special leave petition and the appeal to
this court; and the controversy has narrowed down to whether for the period
when this court is in seizin of the case the Governor could pass the impugned
order, having the effect of suspending the sentence during that period. There
can be no doubt that it is open to the Governor to grant a full pardon at any
time even during the pendency of the case in this court in exercise of what is
ordinarily called “mercy jurisdiction”. Such a pardon after the accused person
has been convicted by the court has the effect of completely absolving him
from all punishment or disqualification attaching to a conviction for a criminal
offence. That power is essentially vested in the head of the Executive, because
the judiciary has no such “mercy jurisdiction”. But the suspension of the
sentence for the period when this court is in seizin of the case could have been
granted by this court itself. If in respect of the same period the Governor also
has power to suspend the sentence, it would mean that both the judiciary and
the executive would be functioning in the same field at the same time leading
to the possibility of conflict of jurisdiction. Such a conflict was not and could
not have been intended by the makers of the Constitution. But it was
contended by Mr. Seervai that the words of the Constitution, namely, Article
161 do not warrant the conclusion that the power was in any way limited or
fettered. In our opinion there is a fallacy in the argument insofar as it
postulates what has to be established, namely, that the Governor's power was
absolute and not fettered in any way. So long as the judiciary has the power to
pass a particular order in a pending case to that extent the power of the
Executive is limited in view of the words either of Sections 401 and 426 of the
Code of Criminal Procedure and Articles 142 and 161 of the Constitution. If
that is the correct interpretation to be put on these provisions in order to
harmonise them it would follow that what is covered in Article 142 is not
covered by Article 161 and similarly what is covered by Section 426 is not
covered by Section 401. On that interpretation Mr Seervai would be right in
his contention that there is no conflict between the prerogative power of the
sovereign state to grant pardon and the power of the courts to deal with a
pending case judicially.” (emphasis supplied)
25. The aforesaid passage was relied on by a Division Bench of
this Court in K.Rajamanickam and Others vs. State6, which was rendered
way back on 03.01.1991.
6 2015 (3) MWN (Cr.) 379 (DB)
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W.P. Nos.18899 and 21260 of 2021
26. Be it noted, Sections 426 and 401 of Cr.P.C. 1898, are in pari
materia with Sections 389 and 432 respectively of Cr.P.C. 1973. The legal
principle that has been set out in Nanavati (supra) is that when the
appellate Court has the power to grant suspension of sentence and bail,
pending appeal, the executive power of the State cannot extend to grant
parole or leave or suspension of sentence. Pertinent it is to state that the
Sentence Suspension Rules has been framed under Section 432(5) Cr.P.C.
Further, in consonance with the law laid down by the Supreme Court in
Nanavati (supra), the definition of the word “sentence” in Rule 2(4) of the
Sentence Suspension Rules has been designed as under:
“(4) “sentence” means a sentence as finally fixed on appeal or
revision or otherwise and includes an aggregate of more sentence than
one. Sentences in default of fine shall not be taken into consideration
while fixing eligibility for being released on leave.”
(emphasis supplied)
27. Superadded, during the hearing of the case in Manokaran vs.
State of Tamil Nadu7 on 01.10.2002, it came to the notice of the Supreme
Court that in the State of Tamil Nadu, the convict prisoners were being
granted parole/leave during the pendency of their appeal. This was frowned
upon by the Supreme Court and the Joint Secretary to the Government was
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W.P. Nos.18899 and 21260 of 2021
summoned. Apposite it is to extract the observations of the Supreme Court
in the said order dated 01.10.2002:
“Mr.J.A. Syed Abdul Khader, Joint Secretary to Government of
Tamil Nadu, Home Department, Chennai, is present in terms of the earlier
orders of this Court. Mr. Khader regrets that unfortunately a practice has
grown in the State of Tamil Nadu to act in the fashion as it has been
effected in the matter under consideration. Mr. Khader, however, assures
this Court that in future, the State Government would act strictly
according to the requirements of the statute and not de hors. The question
of continuity of there being any practice being followed henceforth would
not arise and the same has been discarded by the State Government.”
28. Following this, the office of the Additional Director General of
Prisons, issued an Office Memo No.43880/PS4/2002 dated 21.10.2002
which reads as under:
“The Superintendent is informed that the Supreme Court of
India in C.A. No.866/2002, has observed that the practice being
following in this State for granting leave to prisoners even for
short duration during the pendency of their appeal is not in
accordance with Tamil Nadu Suspension of Sentence Rules, 1982
and it is also contrary to the Constitution Bench judgment of
Supreme Court in K.M. Nanavati vs. State of Bombay AIR 1961
SC 112. The Supreme Court of India has therefore ordered that in
future no such short term release should be made by the competent
authority without informing the Court in which the prisoner’s
appeal is pending and that this order of the Court should be
scrupulously followed in future.
2. In this connection, the attention of the
Superintendent is invited to Government letter
no.66517/Prison.V/2000-15, Home Department dated 20.06.2002
communicated in this office endt.No.38245/PS4/2000 dated
04.08.2002 wherein the Government have clarified that for
suspension of sentence of a convicted person whose appeal is
pending, he has to approach only the Appellate Court or High
Court.”
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3. The Superintendent/Deputy Inspector General of
Prisons should therefore act in accordance with the above orders of
the Supreme Court of India and should desist from releasing any
prisoner on emergency or ordinary leave when his appeal is
pending before the appropriate Court without prior permission of
the Court. If any violation is noticed in this regard, the
Superintendent concerned will be liable for disciplinary action.
4. The receipt of this memo should be acknowledged.
BHOLA NATH
Additional Director General of Prisons”
29. As regards Rule 40 of the Sentence Suspension Rules, the same
cannot be invoked by the Government when Natarajan's appeal is pending.
30. Coming to the submission of Mr. Sankarasubbu with regard to
the enquiry under Section 176 (1A) Cr.P.C., the scope of the Magisterial
enquiry under the said provision is to find out whether the death of a person
in custody was on account of any violence meted out to him or not. Such
allegations have not been levelled here and it is, therefore, not necessary for
us to call for a report of the Magisterial enquiry under Section 176(1A)
Cr.P.C. for deciding these writ petitions.
31. The fact that Natarajan was suffering from Cancer was not
known even to him as well to the petitioner, because, even in
Crl.M.P.No.408 of 2020 in Crl.A. No.20 of 2020, this ground has not been
raised. This fact came to light only after CT guided biopsy was done on
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27.07.2021, as could be seen from the in-patient treatment details signed by
three specialists, issued after his demise on 04.10.2021, which reads as
follows:
“Patient admitted with complaints of breathlessness and back pain
for one month duration. He was permitted in convict ward and evaluated
by the team of doctors from medical oncologist, radiation oncologist,
Neurophysician, General Physician, Nephrologist and Cardiologist.
Investigations:
CT Thorax: 13 * 7.4 cm. Mass in the posterior apical loble of left lung
with erosion of the fifth rib and another mass lesion 3.8 * 3.8 cm inn right
lower lobe and collapse of D3 and D4 vertebra and lytic lesion in D2 and
D6 and multiple mediastinal lymph nodes and bilateral lung nodules.
Impression suggestive of Bronchogenic Carcinoma with multiple
metastasis.
CT guided biopsy done on 27.07.21: Biopsy No.2662/21 which showed
features of non small cell lung cancer.
CT Brain: Multiple Brain secondaries in bilateral parietal and occipital
lobe with lytic lesion in the skull.
Treatment given: Palliative chemotherapy and palliative radiotherapy, I.V.
antibiotics, antiepileptics and supportive care
CARBOPLATIN AND ZOLEDRONIC ACID – 2 CYCLES (10.08.2021
& 17.09.21)
PALLIATIVE RADIOTHERAPY TO THE VERTEBRAL AND BRAIN
SECONDARIES – Seven Fractions (23.08.2021 TO 02.09.2021) at Rajiv
Gandhi Government General Hospital.
In spite of palliative and good supportive care, patient condition
deteriorated and was shifted to the intensive medical care unit and
constantly reviewed by team of doctors. On 04.10.2021, patient had one
episode of seizures following which patient condition was further
deteriorated. In view of poor GCS and fall in saturation, he was intubated
and started on mechanical ventilator. Patient had sudden cardiac arrest.
In spite of intensive resuscitation, patient could not be revived and was
declared dead on 04.10.2021 at 11.50 p.m.”
From Mr.Sankarasubbu's submissions,we are able to discern that the family
members of Natarajan were given free access to meet him in the
Government Stanley Medical College & Hospital during his hospitalisation.
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32. A reading of the above report shows that Natarajan suffered
from non small cell lung cancer. In order to satisfy our judicial conscience
as to whether this type of cancer would show its manifestations at the
preliminary stage, we did some research and found the answer in the book
“Principles & Practice of Lung Cancer”8. The relevant portion from
Chapter 23 of the said book – Clinical Presentation of Non-Small Cell
Carcinoma of the Lung by Antoinette J.Wozniak and Shirish M. Gadgeel,
reads thus:
“The clinical manifestations of lung cancer are varied. Patients are
usually asymptomatic in early stages of the disease. This is related to the
sparse pain fiber innervation of the lungs and the significant respiratory
reserve that both lungs provide. The lack of symptoms is particularly true
for lung cancers that originate in the periphery of the lungs.
Approximately 5% to 10% of lung cancer patients are asymptomatic at
presentation. These cancers are often detected during evaluation for an
unrelated medical problem or on a chest radiograph performed for
preoperative evaluation. Screening to identify a greater proportion of lung
cancer patients has been the focus of much effort over the last 3 decades,
and this may lead to an increase in the percentage of lung cancer patients
who are asymptomatic at diagnosis. In recent years, promising results
have been reported with the use of high-resolution computed tomography
(CT) scans. The applicability of CT scans or other methods as screening
tools for lung cancer remains to be determined.
Most lung cancer patients who are symptomatic have advanced
disease. In a series of more than 600 patients, 27% presented with
symptoms related to the primary tumor. Most of the patients had either
symptoms related to metastatic disease (32%) or nonspecific constitutional
symptoms such as anorexia, fatigue, and weight loss (Table 23.1).
Outcomes of patients appeared to be better when they were asymptomatic
at presentation, whereas patients who presented with symptoms related to
metastatic disease fared the worst. Furthermore, patients with absence of
8 The official reference text on the IASLC,IV Edition,edited by Harvey I.Pass, M.D.,David P.Carbone,
M.D.,Ph.D.,John D.Minna, M.D.,David H.Johnson, MD, Giorgio V.Scagliotti, M.D. & Andrew T.Turrisi III,M.D.
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W.P. Nos.18899 and 21260 of 2021
symptoms and abnormalities on standard laboratory tests were very
unlikely to have scan evidence of metastatic disease.
A delay in reporting of new symptoms or change of existing
symptoms by lung cancer patients has been observed. In a series from the
United Kingdom, the median time between onset of symptoms and
patients seeking medical attention was 12 months. A further delay often
occurs since primary care physicians may not consider lung cancer in the
differential diagnosis. Various reasons account for the delay in
considering lung cancer as a diagnosis by physicians, including the
nonspecific nature of lung cancer symptoms and the fact that common
lung cancer symptoms are more often attributable to benign etiologies.
The impact of this observed delay on patient prognosis is unclear.”
Thus, from the above medical literature, it can be seen that lung cancer
would get diagnosed very late, for which, none can be blamed.
33. Coming to W.P. No.21260 of 2021, as adverted to in paragraph
14 (supra), it was this Court which suggested to Mr. Sankarasubbu to give
an application for release under Rule 633 of the Prison Rules and
accordingly, an application was given by the petitioner on 23.09.2021 and
W.P. No.21260 of 2021 was filed. Releasing a sick prisoner from the prison
cannot be routinely done, because, first and foremost, it is the duty of the
State to ensure that every sick prisoner is given the best treatment at the cost
of the State, as failure to do so, would infringe Article 21 of the Constitution
of India.
34. For releasing a sick prisoner under Rule 632 of the Prison
Rules, the Medical Officer should give a certificate that, in his opinion, the
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W.P. Nos.18899 and 21260 of 2021
prisoner is likely to die, if he remains in confinement, but, he will have a
reasonable chance of recovery, if he is released.
35. For release under Rule 633 of the Prison Rules, the
Superintendent of the Prison should give a certificate to the effect that the
convict prisoner will, if released, be suitably cared for by his friends or
relatives. The said rule also states that “the nature of medical relief which
the prisoner is likely to be able to command at his home, is an important
consideration which should not be overlooked.” In this case, when
Natarajan complained of backache, he was initially given treatment in the
Prison Hospital and thereafter, he was shifted to Stanley Medical College
and Hospital, which is a premier institution in the State and boasts of the
state-of-the-art facilities for treating victims of various ailments. In this
case also, the report dated 17.09.2021 shows that Natarajan was kept in the
Intensive Medical Care Unit as there were fluctuations in his vitals and was
being closely monitored by a team of doctors from the Departments of
General Medicine, Medical Oncology, Nephrology, Radiotherapy,
Neurology and Cardiology. This facility, obviously, cannot be commanded
by the petitioner in her house.
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W.P. Nos.18899 and 21260 of 2021
36. As stated above, this Court was ready to shift Natarajan to the
Cancer Institute, Adyar, but, the question was, who would bear the cost.
Mr.Sankarasubbu candidly stated that the petitioner cannot afford to bear
the cost. To be noted, the Government can be directed to bear the cost only
if the Government is not able to provide the required medical facility for a
particular ailment. When the Government Stanley Medical College and
Hospital, an institution of renown with hoary tradition, was providing the
best medical treatment to Natarajan, in the given circumstances, we cannot
shift him to Cancer Institute overnight with a direction to the Government to
foot the medical bill. Admittedly, Natarajan was in the Intensive Care Unit
in Stanley Medical College and Hospital and on our orders to shift him from
there, if he dies en route, we would be accused of committing a judicial
murder, which accusation even now we are facing from Mr. Sankarasubbu.
37. In the counter affidavit dated 16.10.2021 filed in W.P.No.21260
of 2021, it is stated as follows:
“10 It is further submitted that a representation from the
petitioner dt. 23.09.2021 was received to this office, requesting to
release the said prisoner under Rule No.633 if Tamil Nadu Prison
Rules, 1983 as the said prisoner in danger of death due to cancer.
It is submitted that in compliance a report from the Prison
Medical Officer was called for vide this office letter no.7834/R1/2022
dt. 27.09.2021 and it was under process as per the above said Rules.
But, unfortunately, the said prisoner has died on 04.10.2021.”
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W.P. Nos.18899 and 21260 of 2021
38. Superadded, as alluded to above, only if the Government is
satisfied that the nature of medical relief which Natarajan is likely to be able
to command at his home would be available, can an order under Rule 633 of
the Prison Rules be passed. When Natarajan's family has stated they cannot
afford to bear the medical expenses for the treatment in Cancer Institute,
which, when compared to other private hospitals, is abysmally low, how
could he be shifted to his home from the Intensive Care Unit in Stanley
Medical College and Hospital? If the Government Hospital does that, it
would amount to “medical murder”. Therefore, it is incumbent on the
Government Hospital to do everything possible to save the life of a patient
until he breathes his last and not wash their hands off midway. The rigour
of Rule 633 of the Prison Rules is very tough and an order of release has to
pass through different filters. Unfortunately, in this case, while the papers
were under process, Natarajan died.
39. Finally, coming to the accusation by Mr. Sankarasubbu against
us, we can easily turn the tables against him by holding that he has
suppressed the fact that a learned single Judge is in seizin of Natarajan's
appeal against conviction in Crl.A.No.20 of 2020 and the petition for
suspension of sentence and bail in Crl.M.P. No.408 of 2020 and that the
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W.P. Nos.18899 and 21260 of 2021
same are pending. Had he disclosed these as averments in the affidavit filed
in support of W.P. No.18899 of 2021, besides making a submission to that
effect when W.P. No.18899 of 2021 was taken up for admission on
08.09.2021, this Court would have requested the learned single Judge to
dispose of the application for suspension of sentence and bail on medical
grounds or inter alia, Mr. Sankarasubbu, being a seasoned lawyer, could
have easily obtained suspension of sentence and bail on medical grounds,
even without our intervention, instead of beating around the bush by
seeking legally impermissible reliefs like leave under the Sentence
Suspension Rules and release under Rule 633 of the Prison Rules. We do
not want to say this and cause embarrassment to him as our shoulders are
too broad to take his insinuations stoically.
40 We wish to bring down the curtains in these cases with the
following couplet from the chapter titled “Impermanence” from Tirukkural:
beUey; csbdhUtd; ,d;wpy;iy vd;Dk;
bgUik cilj;jpt; t[yF/
Fws; 6. mjpfhuk; 34 ? epiyahik
Meaning:
This world has the greatness that one who lived
yesterday is not alive today.
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W.P. Nos.18899 and 21260 of 2021
P.N.PRAKASH, J
and
A.A.NAKKIRAN, J
gm/cad
In the result, these two writ petitions fail and are accordingly,
dismissed, however, sans costs, with liberty to the petitioner to work out her
remedy, if any, in the manner known to law.
[P.N.P., J] [A.A.N., J]
22.02.2022
gm/cad
To
1 The Secretary
Home Department
Government of Tamil Nadu
Fort St.George
Chennai - 600 009
2. The Deputy Inspector General of Prison
Egmore
Chennai - 600 008
3. The Superintendent of Prisons
Central Prison - I, Puzhal, Chennai - 600 066
4. The Public Prosecutor
High Court of Madras
Chennai 600 104
W.P. Nos.18899 & 21260 of 2021
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