Allahabad High Court
Dr. Anil Kumar Srivastava (Lunatic) ... vs State Of U.P. Thru Prin.Secy. Home ... on 1 June, 2020
Equivalent citations: AIRONLINE 2020 ALL 2080
Bench: Pankaj Kumar Jaiswal, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH In Chamber Case :- MISC. BENCH No. - 7935 of 2020 Petitioner :- Dr. Anil Kumar Srivastava (Lunatic) Thru Amulya Kashyap Respondent :- State Of U.P. Thru Prin.Secy. Home Lucknow And Ors. Counsel for Petitioner :- Smt. Shikha Srivastava,Abhinav Pankaj,Avneet Singh Counsel for Respondent :- C.S.C. Hon'ble Pankaj Kumar Jaiswal,J.
Hon'ble Saurabh Lavania,J.
When the matter was taken up today through Video Conferencing, Smt. Shikha Srivastava, learned Counsel for the petitioner, Sri Amitabh Rai, learned Additional Chief Standing Counsel for the State-respondent, appeared.
The instant writ petition has been filed for the following main reliefs:-
"(i) Issue, a writ order or direction in the nature of mandamus directing the opposite party no.4 to take Dr. Anil Kumar Srivastava immediately in its protection custody to get him admitted expeditiously in a mental health establishment of the state, after producing him before the competent/empowered Judicial Magistrate and adopting procedures laid under Mental Health Care Act, 2017, for availing an adequate treatment of his mental illness.
(ii) Issue, a writ order or direction in the nature of mandamus commanding opposite party No.1 and 2 to take an strict action and set up an inquiry against opposite party no.4 for the deliberate negligence and violation of law.
(iii) Issue, a writ order or direction in the nature of mandamus directing opposite party no.4 to exercise its power by adopting the procedures laid in figuring out the property and belongings of Dr. Anil Kumar Srivastava.
(iv) Issue, a writ order or direction in the nature of mandamus directing the opposite parties to provide an adequate facilitation to Dr. Anil Kumar Srivastava in combating the mental illness.
(v) Issue, a writ order direction in the nature of mandamus commanding opposite party No.2 and 3 to examine the periodicals of medical treatment being given to Dr. Anil Kumar Srivastava after being admitted to the mental health establishment."
It appears from the array of parties and the affidavit filed in support of the writ petition that for and on behalf of the petitioner-Dr. Anil Kumar Srivastava, the writ petition has been filed by Sri Amulya Kashyap, alleging himself as distant relative of the petitioner. As per Sri Amulya Kashyap the petitioner is a lunatic person.
Relevant facts pleaded in the writ petition for seeking the above quoted reliefs are as under:-
"(i) That Dr. Anil Kumar Srivastava is a qualified personality who used to be a Professor in Sant Longowal Institute of Engineering and Technology, Longowal, District Sangrur, Punjab, where he has served maximum count of his carrier span, but due to inappropriate promotion policy and harassment by the in-house institution body his mental state started getting deteriorated and taking the undue advantage of his mental state the in-house body of the institution connived and removed him from the service assigning resignation to be the reason of removal from service. It is further submitted that his all benefits and perks were seized stating it to be the in-house decision of the institution.
(ii) That after illegally removed from the service Dr. Anil Kumar Srivastava returned to his self earned home, wherein his old mother used to reside. Subsequently, when returned from Punjab, Dr. Anil Kumar Srivastava underwent metal choke and trauma due to which his mental health deteriorated to the fullest and he consulted a mental specialist and started following the medical prescription advised.
(iii) That during the course of mental treatment, the mother of Dr. Anil Kumar Srivastava expired which gave him another mental shock and made his mental condition worst. Afterwards, the same was cornered by his wife and children due to his mental health and was constrained to live alone in his self earned home where upto few months with the held of domestic workers the life was pushed forward. But, due to the worst mental condition of Dr. Anil Kumar Srivastava, the domestic workers left their jobs after making complaints to the jurisdictional police station stating the mental and physical condition of the same not fit for the society.
(iv) That out of the wedlock of Dr. Anil Kumar Srivastava and Dr.(Smt.) Anjali Srivastava namely Ayush Srivastava and Slokam Srivastava were born and both of them live with their mother Dr.(Smt.) Anjali Srivastava on an anonymous place. They never tried to connect with Dr. Anil Kumar Srivastava after he lost control over his mind and neither on a humanitarian ground provided consortium towards Dr. Anil Kumar Srivastava health and whereabouts. They never inquired and pretended their concern on the challenging life being lead by Dr. Anil Kumar Srivastava.
(v) That Dr. Anil Kumar Srivastava is living alone with the mentally imbalanced condition and because of that is been cornered by the family and neglected by the society. Moreover, the same is ill treated by the society and group of people, due to which the same has turned visually impaired/blind, which has made his life more struggling and challenging and painful."
After considering the averments made in the writ petition and taking note of Mental Health Care Act 2017 as also the arguments raised by learned Counsel for the petitioner, this Court on 16.04.2020, passed the following orders:-
"We have gone through the writ petition filed on behalf of Dr. Anil Kumar Srivastava (Lunatic) through distant relative Amulya Kashyap.
It is stated in the writ petition that Dr. Anil Kumar Srivastava is lunatic and nobody is taking his care and there is an apprehension of getting infected by the spread virus commonly known as COVID - 19.
It is further stated in the writ petition that keeping in view the provisions as envisages under Article 21 of the Constitution of India as also under the provisions of Mental Health Care Act 2017 (hereinafter referred to as the 'Act'), the petitioner is entitled for protection from the concerned authority mentioned in the Act. Relevant provisions of the Act which are necessary are as follows:-
"Section 18. (1) Every person shall have a right to access mental healthcare and treatment from mental health services run or funded by the appropriate Government.
(7) Persons with mental illness living below the poverty line whether or not in possession of a below poverty line card, or who are destitute or homeless shall be entitled to mental health treatment and services free of any charge and at no financial cost at all mental health establishments run or funded by the appropriate Government and at other mental health establishments designated by it.
(8) The appropriate Government shall ensure that the mental health services shall be of equal quality to other general health services and no discrimination be made in quality of services provided to persons with mental illness."
Section 100. (1) Every officer in-charge of a police station shall have a duty??
(a) to take under protection any person found wandering at large within the limits of the police station whom the officer has reason to believe has mental illness and is incapable of taking care of himself; or
(b) to take under protection any person within the limits of the police station whom the officer has reason to believe to be a risk to himself or others by reason of mental illness.
(2) The officer in-charge of a police station shall inform the person who has been taken into protection under sub-section (1), the grounds for taking him into such protection or his nominated representative, if in the opinion of the officer such person has difficulty in understanding those grounds.
(3) Every person taken into protection under sub-section (1) shall be taken to the nearest public health establishment as soon as possible but not later than twenty-four hours from the time of being taken into protection, for assessment of the person's healthcare needs.
(4) No person taken into protection under sub-section (1) shall be detained in the police lock up or prison in any circumstances.
(5) The medical officer in-charge of the public health establishment shall be responsible for arranging the assessment of the person and the needs of the person with mental illness will be addressed as per other provisions of this Act as applicable in the particular circumstances.
(6) The medical officer or mental health professional in-charge of the public mental health establishment if on assessment of the person finds that such person does not have a mental illness of a nature or degree requiring admission to the mental health establishment, he shall inform his assessment to the police officer who had taken the person into protection and the police officer shall take the person to the person's residence or in case of homeless persons, to a Government establishment for homeless persons.
(7) In case of a person with mental illness who is homeless or found wandering in the community, a First Information Report of a missing person shall be lodged at the concerned police station and the station house officer shall have a duty to trace the family of such person and inform the family about the whereabouts of the person.
Section 101. (1) Every officer in-charge of a police station, who has reason to believe that any person residing within the limits of the police station has a mental illness and is being illtreated or neglected, shall forthwith report the fact to the Magistrate within the local limits of whose jurisdiction the person with mental illness resides.
(2) Any person who has reason to believe that a person has mental illness and is being ill-treated or neglected by any person having responsibility for care of such person, shall report the fact to the police officer in-charge of the police station within whose jurisdiction the person with mental illness resides.
(3) If the Magistrate has reason to believe based on the report of a police officer or otherwise, that any person with mental illness within the local limits of his jurisdiction is being ill-treated or neglected, the Magistrate may cause the person with mental illness to be produced before him and pass an order in accordance with the provisions of section 102.
Section 102. (1) When any person with mental illness or who may have a mental illness appears or is brought before a Magistrate, the Magistrate may, order in writing??
(a) that the person is conveyed to a public mental health establishment for assessment and treatment, if necessary and the mental health establishment shall deal with such person in accordance with the provisions of the Act; or
(b) to authorise the admission of the person with mental illness in a mental health establishment for such period not exceeding ten days to enable the medical officer or mental health professional in charge of the mental health establishment to carry out an assessment of the person and to plan for necessary treatment, if any.
(2) On completion of the period of assessment referred to in sub-section (1), the medical officer or mental health professional in charge of the mental health establishment shall submit a report to the Magistrate and the person shall be dealt with in accordance with the provisions of this Act."
Taking into consideration the entirety of the case, we direct respondent No. 4/Station Officer, Talkatora Police Station Rajajipuram, Lucknow to take Dr. Anil Kumar Srivastava (Lunatic)/petitioner to nearest public health establishment/hospital for examination as per the provisions of Section 100 of the Act, thereafter if the situation arises in regard to the mental illness of the petitioner and the condition as mentioned in Section 101 (1) of the Act are fulfilled, he shall send the report to the magistrate concerned, who shall thereafter pass appropriate order as per Section 102 of the Act and in that situation the respondent No. 4/Station Officer, Talkatora Police Station Rajajipuram, Lucknow shall take the custody of the house (H.No. 1/2 Block - F, Rajajipuram adjacent to City Montessori School, Lucknow, P.S. Talkatora, U.P.) 3/229 Sector - B Priyadarshini Yojana Sitapur Road Lucknow) of the petitioner, subject to further order passed by this Court.
List the matter when the Court is opened after lockdown.
Copy of this order shall be sent to the District Magistrate, Lucknow as well as Commissioner of Police, Lucknow through Senior Registrar of this Court for appropriate action."
On 24.05.2020 the order dated 16.04.2020 was corrected in following terms:-
"Keeping in view the aforesaid, the order dated 16.04.2020 requires correction.
The application for correction is allowed and in the 6th to 8th line from the bottom of the 3rd page of the order dated 16.04.2020, the address of the house of Dr. Anil Kumar Srivastava mentioned as H.No. 1/2 Block - F, Rajajipuram adjacent to City Montessori School, Lucknow, P.S. Talkatora, U.P.) 3/229 Sector - B Priyadarshini Yojana Sitapur Road Lucknow) shall be read as House No. 1/2 Block - F, Rajajipuram adjacent to City Montessori School, Lucknow P.S. Talkatora, U.P. Respondent No. 4/Station Officer, Talkatora Police Station Rajajipuram, Lucknow is also directed to verify the fact whether the House No. 1/2 Block - F, Rajajipuram, adjacent to City Montessori School, Lucknow, P.S. Talkatora, U.P. belongs to Dr. Anil Kumar Srivastava or not and also whether House No.3/229, Sector-B, Priyadarshini Yojana, Sitapur Road, Lucknow, P.S.-Madiyaon, U.P. belongs to Amul Kashyap and owned by his mother or not?
List after two weeks."
After passing the order dated 16.04.2020, modified/corrected on 24.04.2020, the matter was taken up on 18.05.2020 and on that date learned counsel for the State stated that the assertion made by the learned counsel for the petitioner, is wholly incorrect and wrong and made a request to file response by way of an affidavit and accordingly this Court granted time to file an affidavit.
On 27.05.2020, the affidavit of compliance was filed in the registry of this Court. The relevant facts stated in para 3 of the affidavit of compliance are as under:-
"3. That the following facts are necessary for disposal of the present case:-
(i) That in deference to the order passed by the Hon'ble Court. Sri Rudra Tripathi, Sub Inspector was sent to the residence of the petitioner on 20.04.2020 and tried to meet him but he refused to open the gate and from his roof he had given his statement, which is as under:-
(ii) "श्री अनिल dqekj श्रीवास्तव पुत्र राधेश्याम श्रीवास्तव से सम्पर्क करने का प्रयास किया तो अनिल कुमार श्रीवास्तव ने अपनी Nत की jsfyax पर आकर बताया कि eSa अपना गेट नहीं खोलूगाa जो भी पूछना है मुझसे यही से पूछिये मा0 न्यायालय से प्राप्त रिट याचिका के संबंध में बताते हुए iwNk तो बताया कि मुझे किसी प्रकार की कोई शारिरिक व मानसिक परेशानी नहीं है मेरी पत्नी श्रीमती अंजली श्रीवास्तव विक्रम यूनिवर्सिटी उज्जैन में गणित की प्रोफेसर है और मेरा बड़ा लड़का आयूष श्रीवास्तव उम्र 25 वर्ष आई०टी0 सेक्टर mTtSu में नौकरी करता है तथा छोटा लड़का श्लोक श्रीवास्तव mez 24 वर्ष पढ़ाई कर रहा है । मेरी पत्नी व दोनों बच्चे इंदौर मध्य प्रदेश में रह रहे हैं । मार्च 2020 होली त्योहार में 5&6 दिन आकर मेरे पास रहे हैं और वर्तमान में इंदौर में है । कोरोना ldzae.k के चलते लाकडाउन ds कारण इस समय मेरी पत्नी व बच्चे नहीं आ पा रहे हैं । मेरी वार्ता होती रहती है । मेरी पत्नी अंजली श्रीवास्तव का मो0 नं0- 8305400078 व आयुष श्रीवास्तव dk मो0 नं0- 7089340931 तथा छोटे लड़के 'yksde का मो0 नं0 6287058939 है और मैंने कहीं भी किसी न्यायालय में किसी प्रकार की रिट नहीं की है । मकान के प्रपत्र को उपलब्ध कराये जाने के लिए कहा तो अनिल कुमार श्रीवास्तव द्वारा बताया कि हमारी पत्नी व बच्चे अब इंदौर से आयेंगे तो समस्त प्रपत्र प्रस्तुत क:गा ।"
(iii) Thereafter Sri Rudra Pratap Tripathi, Sub Inspector had contacted Dr.(Smt.) Anjali Srivastava and her two sons namely Sri Ayush Srivastava and Sri Shlokam Srivastava on their mobile numbers, which have been provided Dr. Anil Kumar Srivastava. All of them had stated that on the occasion of Holi i.e. 06.03.2020, whole family was present at Lucknow and thereafter they left for Indore, Madhya Pradesh, where Dr.(Smt.) Anjali Srivastava, wife of petitioner who is Reader in the Vikram University, Ujjain and Shlokam Srivastava studying in Devi Ahilya Vishvidyalya, Indore, studing in M.Sc. II Semester (Mathematics) and Sri Ayush Srivastava had obtained B.E. degree and presently preparing for GATE, Dr.(Smt.) Anjali Srivastava has categorically stated her husband Dr. Anil Kumar Srivastava is residing at his house i.e. LIG-1/2, Sector-1, Rajajipuram, who is a diabetic patient, is being treated in King George Medical University about complication in his retina. She has further stated that some of her relative who used to live in their residence, now trying to oust Dr. Anil Kumar Srivastava from their house with the help of antisocial elements in order to grab the same and she had further requested to Police to provide protection to her husband and also stated that as soon as lock down is lifted, she would immediately come to Lucknow to take her husband to Ujjain. The aforesaid statements, were recorded on 20.04.2020 and they had also sent their photocopies of Aadhar Card on whats-up of Sub Inspector, Sri Rudra Pratap Tripathi. A perusal of the Aadhar Card would reveal that Dr. Anil Kumar Srivastava is husband of Dr. (Smt.) Anjali Srivastava and father of Ayush Srivastava and Shlokam Srivastava. It is further clear from the aforesaid facts and circumstances that the family of petitioner Dr. (Smt.) Anil Srivastava has been stuck in Indore due to lock down, therefore, they are unable to visit to Lucknow at this point of time.
(iv) That further Sri Rudra Pratap Tripathi, Sub Inspector got the written statement of Dr.(Smt.) Anjali Srivastava, wife of petitioner, two sons namely Shlokam Srivastava and Sri Ayush Srivastava. It is further clear from the aforesaid facts and circumstances that the family of petitioner Dr. (Smt.) Anjali Srivastava has been stuck in Indore due to lock down, therefore, they are unable to visit to Lucknow at this point of time.
(v) That further Sri Rudra Pratap Tripathi, Sub Inspector got the written statements of Dr. (Smt.) Anjali Srivastava, Ayush Srivastava and Shlokam Srivastava through whats-up number.
(vi) Sri Amul Kashyap had stated in the affidavit, which has been filed in support of the writ petition, that he is distant relative of petitioner, Dr. Anil Srivastava is factually incorrect, because he is real Bhanja and his mother Smt. Shikha Srivastava, Advocate is real sister of Dr. Anil Srivastava and the present writ petition has been filed without disclosing complete facts and circumstances of the case, for the reasons best known to him. The family of Dr. Anil Srivastava had never abandoned him, he is living at Lucknow because of his treatment at KIng George Medical University, Lucknow. Further, he is not completely blind and doing his daily chorus on his own and his meal comes from his neighbour and he only go out from his home to purchase milk and bread.
(vii) That from the above stated facts and circumstances, it is crystal clear that the present petition has been filed without authorization of Dr. Anil Srivastava, who is not a lunatic and during interaction with the police, nother had come that he is suffering from any mental disability, he is having full control of his mental faculty.
(viii) That it is relevant to mention here that whenever, the Police visited Dr. Anil Kumar Srivastava at his residence, he had stated that he is in constant touch with his family and some of his relative wants to grab his house, so he would not open the gate.
(ix) That from the interaction with Dr. Anil Kumar Srivastava, nothing has come forward, which indicate that he is a mental case and requires psychiatric treatment.
(x) That it is also relevant to mention here that the allegations leveled against the police in the writ petition are totally false and misleading. It is submitted that the deponent is personally monitoring the safety and security of Dr. Anil Kumar Srivastava and he would ensure any medical treatment, if it is required but as he is not lunatic, therefore, he cannot be admitted to a mental health establishment of the State."
Today, when the case was taken up the learned counsel for the petitioner, without seeking time to file response to the affidavit of compliance filed by Sri Dhananjay Singh, Station House Officer, Talkatora Lucknow, press the writ petition and argued that in view of the provisions of Act of 2017 and taking into account the specific averments made in the writ petition regarding mental illness of the petitioner namely Dr. Anil Kumar Srivastava the respondents be directed to provide adequate treatment to the petitioner, who in fact is lunatic person. It is also stated that under the Act of 2017, the respondents are under obligation to provide adequate medical treatment to the petitioner.
It is further stated that right to get medical treatment is covered under Article 21 of the Constitution of India and in view of the same also the indulgence of this court is required in the instant case.
Per contra, Sri Amitabh Rai, Additional Chief Standing Counsel appearing for State-respondent, on the basis of averments made in the affidavit of compliance, filed in the registry on 27.05.2020, submitted that the writ petition is misconceived. In fact, the story framed in the writ petition, is wholly incorrect rather concocted and the same is liable to be dismissed with costs.
Elaborating his arguments, learned counsel for the State further submitted that in compliance of the order dated 16.04.2020, on 20.04.2020 Sri Rudra Tripathi, Sub-Inspector went at the residence of Dr. Anil Kumar Srivastava-petitioner and he tried to meet him but he refused to open the gate and from his roof he had given his statement and as per his statement he is neither physically nor mentally ill and his wife Dr.(Smt.) Anjali Srivastava is a professor in Vikram University at Ujjain and his elder son namely Ayush Srivastava is serving in IT Sector in Ujjain and his younger son Sri Shlokam Srivastava is studying in Indor and his wife and both the sons were at Lucknow during the Holly vacation. It is further stated that Dr. Anil Kumar Srivastava himself has provided the phone numbers of his wife and his sons and also stated before Sub-Inspector, Sri Rudra Tripahti that he has not filed any writ petition.
Learned counsel for the State further submitted that Sri Rudra Tripathi thereafter contacted the wife namely Dr.(Smt.) Anjali Srivastava and two sons namely Sri Ayush Srivastava and Sri Shlokam Srivastava on their mobile numbers provided by Dr. Anil Kumar Srivastava and verified the facts. Wife of the petitioner-Dr. Anil Kumar Srivastava has categorically stated that petitioner, who is a diabetic patient, is being treated in King George Medical University, Lucknow on account of complication in his retina. She also stated that some of relative, who used to live in her residence, now trying to oust Dr. Anil Kumar Srivastava with the help of anti-social elements and on account of same she requested to provide protection to her husband and also stated that as soon as lockdown is lifted, she would immediately come to Lucknow to take her husband to Ujjain.
Learned counsel for the State further submitted that the statements of both sons of the petitioner-Dr. Anil Kumar Srivastava are also not supporting the facts pleaded in the writ petition rather the same supports the version of Dr. Anil Kumar Srivastava.
On the basis of contents of affidavit of compliance, learned counsel for the State further submitted that Sri Rudra Tripathi, Sub-Inspector has got statement(s) of wife namely Dr.(Smt.) Anjali Srivastava and two sons namely Sri Ayush Srivastava and Sri Shlokam Srivastava of Dr. Anil Kumar Srivastava through whatsup. The statements are on record for kind perusal of this Court.
Learned counsel for the State further submitted that Sri Amulya Kashyap is not a distant relative of the petitioner and in fact he is real bhanja of Dr. Anil Kumar Srivastava and his mother Smt. Shikha Srivastava, Advocate, is real sister of petitioner Dr. Anil Kumar Srivastava and the present writ petition has been filed without disclosing the complete facts of the case.
Learned counsel for the State further submitted that taking into account the specific averments made in the para 3 of affidavit of compliance, which have not been controverted, the present writ petition is liable to be dismissed with heavy costs.
Heard learned counsel for the parties and perused the record.
The affidavit of compliance has been filed on the basis of statement(s) of Dr. Anil Kumar Srivastava, his wife namely Dr.(Smt.) Anjali Srivastava, his elder son namely Sri Ayush Srivastava and younger son namely Sri Shlokam Srivastava. The statements, on record, were recorded by Sri Rudra Tripathi, Sub-Inspector, as stated in the affidavit of compliance. The copies of Adhar Card of wife and both sons of Dr. Anil Kumar Srivastava are also on record. The statements of concerned persons can not be disbelieved in absence of any contrary reliable cogent evidence on record, which has not been placed on record by Sri Amulya Kashyap. Learned counsel for the petitioner has also not denied the fact that Sri Amulya Kashyap is real bhanja and his mother Smt. Shikha Srivastava is real sister of the petitioner.
It is settled law that the contents of uncontroverted affidavit should be taken as correct. In this regard the observations of the Division Bench of this Court made in para 5 of the judgment passed in the case of (Ravindra Pratap Yadav @ Mahajan vs. State of U.P. & Ors.) reported in 2004 (22) LCD 1445 are relevant, which on reproduction are as under:-
"5. Various others allegations have been made in the writ petition but in our opinion it is not necessary for us to go into same in view of the allegations in the counter-affidavit of the Nagar Nigam, Allahabad, respondent No. 4 to which no rejoinder affidavit has been filed and hence these allegations in the counter-affidavit have to be treated as correct."
The contents of affidavit of compliance, relevant portion of which is quoted hereinbefore, as also the statements of wife and two sons of Dr. Anil Kumar Srivastava, are clear in terms and do not support the facts pleaded in the writ petition for seeking the reliefs sought in the writ petition. On the other hand, it appears from statements of the concerned persons on record that Dr. Anil Kumar Srivastava is neither physically nor mentally ill and he does not require medical assistance/treatment, as stated in the writ petition. The averments made in the affidavit of compliance are uncontroverted, as in response to the same no rejoinder affidavit has been filed.
Taking into account the categorical averments made in para 3 of the affidavit of compliance, which have not been controverted by Sri Amulya Kashyap by filing an affidavit, we are of the view that the present writ petition is a motivated petition and has been filed for oblique purposes and further, the claim as stated in the writ petition is vexatious and moreover, the precious time of this Court as also the district administration has been wasted by Sri Amulya Kashyap by instituting and pressing this petition.
For the foregoing reasons, the writ petition is dismissed with costs of Rs.5,000/- which shall be deposited by Sri Amulya Kashyap in the registry of this Court within one month from today, failing which the same shall be recovered from Sri Amulya Kashyap as arrears of land revenue.
On receiving the amount aforesaid, Registry is directed to deposit the same in the Chief Minister's Distress Relief Fund-COVID CARE FUND.
[Saurabh Lavania,J.] [Pankaj Kumar Jaiswal,J.] Order Date :- 01.06.2020 Vinay/-