Delhi High Court
Social Jurist, A Civil Rights Group And ... vs Union Of India (Uoi) And Ors. on 12 October, 2007
Author: T.S. Thakur
Bench: T.S. Thakur, Veena Birbal
JUDGMENT T.S. Thakur, J.
1. More than seven years after she died in a UK hospital, baby Sunaina's dead body is still waiting in a local mortuary for a dignified cremation or burial in keeping with the faith in which she was born. The parents of the unfortunate child who passed away at a tender age of five months in the very same hospital where she was born have, it appears, fought a long and grim battle in the United Kingdom to prove their charge that the child died on account of medical negligence of the doctors working in the hospital. Two postmortems conducted in UK in quick succession certified the immediate cause of death to be extensive ischaemic myocardial necrosis, probably due to congenital heart anomaly. According to the report, the end came because of a heart failure and chronic lung disease and pulmonary hypertension. The first report based on the postmortem examination held on 30th October, 2000 gave the final summary of lesions and the cause of death as under:
FINAL SUMMARY OF LESIONS
1. Extensive ischaemic myocardial necrosis.
2. Pulmonary hypertension.
3. Multiple congenital anomalies (Edwards' syndrome; Trisomy 18) 3.1 Cardiac : ventricular septal defect, patnet ductus arteriosus, right ventricular hypertrophy 3.2 Diaphragmatic hernia (surgically repaired).
3.3 Microcephaly.
3.4 Cerebral abnormalities
4. Intrauterine growth restriction.
CAUSE OF DEATH 1a. Multiple congenital abnormalities 1b. Edward's syndrome (Trisomy 18)
2. A second report conducted at the request of detective superintendent Gibson by the Department of Forensic Medicine & Science, University of Glasgow gave the cause of death to be cardiorespiratory failure resulting from chronic lung disease and congenital heart and cerebral abnormalities. The report of Dr. Peter Vanezis, Department of Forensic Medicine and Science in the University of Glasgow reported the cause of death as under:
CAUSE OF DEATH The cause of death in my opinion is due to cardiorespiratory failure resulting from chronic lung disease, congenital heart and cerebral abnormalities as part of Edward's syndrome (Trisomy 18)
3. The conclusions drawn by the doctors conducting the post mortem did not, it appears, satisfy the parents of the child who instituted proceedings in UK in an attempt to establish that the child had died on account of medical negligence and not on account of any congenital or other disease. At the forefront in that campaign stood Ms. Neelu Chaudhari, a pharmacist by profession and an aunt of the deceased child who testified that the death was on account of the clinical negligence on the part of the doctors in the hospital who failed to give to the child medical and nursing care required by her, leading to her death by ranitidine overdoses and lethal potassium chloride poisoning. A copy of what is described as an expert report and witness statement filed by the petitioner as Annexure-H draws the following conclusion as to the cause of death of Baby Sunaina.
The above report finds the above named were negligent clinically and criminally in their medical, clinical pharmacy and nursing care provided to baby Sunaina Chaudhari leading to her death by ranitidine overdoses and lethal potassium chloride poisoning.
4. Having failed in their endeavor to prove the medical negligence of the doctors in UK, the parents of the unfortunate child have brought the body to India in the year 2007 after they were served with legal papers following court action by London Borough of Redbridge that if the parents did not make funeral arrangements for baby Sunaina's dead body within a period of 28 days, they would destroy the same. Back home in India started a new campaign with the parents of the deceased child addressing letters to the Prime Minister of India and the Government of India, Ministry of Health for an investigation into the death of their daughter including a postmortem to determine the real cause of her death. In quick response came a letter from the Joint Secretary, Ministry of External Affairs, Government of India dated 26th April, 2007 to the Director General of Health Services, Government of India asking him to take necessary action for authorizing the Government hospital to carry out the postmortem of the child's dead body. The Director General, Health Services in turn shot a letter dated 26th April, 2007 to the Principal Secretary (Health), Government of NCT of Delhi to get the postmortem conducted by Maulana Azad Medical College in Delhi. The Special Secretary took his time to respond by addressing a letter dated 16th May, 2007 to the Director General of Health Services asking for guidance for the benefit of the State Government on the issue so that a uniform policy could be followed by all the hospitals in similar circumstances.
5. Desperate to push the matter further, baby sunaina's mother submitted a representation to the President of India for his intervention. The Secretary to the President, in turn, wrote a letter dated 29th June, 2007 to the Commissioner of Police wondering if anything could be done in the case. On receipt of the said letter, the Commissioner of Police, Delhi by his letter dated 25th July, 2007 requested the Principal Secretary (Home), Government of NCT of Delhi to look into the matter personally. The result was that the Deputy Secretary (Home), Government of NCT of Delhi by letter dated 30th July, 2007 requested the Special Secretary, Health & Family Welfare, Government of NCT of Delhi to take appropriate action. The Special Secretary then informed the mother of the deceased child that since baby Sunaina had died in UK, any investigation or redressal of grievance has to be undertaken by the relevant authorities in UK only and not in India, except to the extent permissible under Section 166B of the Code of Criminal Procedure. The request for conducting a postmortem was on that ground declined. The letter reads:
DEPARTMENT OF HEALTH & FAMILY WELFARE GOVT. OF NCT OF DELHI 9TH LEVEL 'A' WING DELHI SECTT. IP ESTATE NEW DELHI - 2 To, Ms. Sadhna Chaudhari B-61, Inder Puri, Delhi - 12.
Madam, Please refer to your letter dated 5th June, 2007 & 27th July, 2007 addressed to the Chief Minister, Delhi and letter dated 4th June, 2007 addressed to Minister of Health, Delhi regarding postmortem arrangements for baby Sunaina Chaudhary.
From the documents on record, it transpires that the death of baby Sunaina occurred in the United Kingdom on October 26th, 2000. In the normal course, any criminal investigation or redressal of grievance has to be undertaken by the relevant authorities in the United Kingdom, where the death has occurred, and it cannot be undertaken in India. In respect of such incidents, investigation in India can only be undertaken under Section 166B of the Code of Criminal Procedure 1973. The scope of such investigation is confined to the examination of any person or production of any document or thing in relation to an offence under investigation in the foreign country or place.
Under these circumstances, it is not possible to accede to your request for conduct of a Postmortem on the body of baby Sunaina Chaudhari at Maulana Azad Medical College, Delhi.
Yours faithfully, Sd/-
(N. Balachandran) Spl. Secretary (H&FW)
6. This letter was sometime later superseded by a communication dated 24th August, 2007 whereby the Government of NCT of Delhi instructed the Dean, MAM College, New Delhi to conduct a postmortem on the body of baby Sunaina Chaudhari in the MAM College, Delhi and to convey the postmortem report to the mother of the child Smt. Sadhna Chaudhari under intimation to the Director General, Health Services, Government of India and to the Home Department with reference to the earlier correspondence.
7. In obedience to the above instructions, the Dean, MAM College forwarded the matter to the Department of Forensic Medicine in the MAM College, New Delhi where the same was discussed in a departmental faculty meeting that unanimously resolved that conducting a postmortem would not only be illegal but would also set a highly undesirable precedent. A communication to that effect was sent by Dr. S.K. Khanna, Director, Professor and Head of the Department, Forensic Medicine to the Dean, MAM College, New Delhi. While the matter was under examination by the college authorities, the present writ petition was filed in public interest by the petitioner Social Jurist and Smt. Sadhna Chaudhari, mother of the deceased child for the following reliefs:
(a) Issue appropriate writ, orders or directions to the Respondents authorities to forthwith frame appropriate rules, regulations, policy or guidelines for investigations in India, where deaths have occurred outside India;
(b) Issue appropriate writ, orders or directions to the Respondents authorities to forthwith undertake a full investigation into the death of baby Sunaina Chaudhari, including a full postmortem on the body of baby Sunaina presently stored as Penzy Morgans Mortuary, Pahar Ganj, New Delhi.
(c) issue any further order or direction as this Hon'ble Court may in the facts and circumstances deem fit and proper in favor of the petitioner and against the respondents authorities and;
(d) allow the present PIL with costs.
8. When the matter came before this Court on 3rd September, 2007, our attention was drawn by counsel for the Government of NCT of Delhi and the Government of India to the correspondence on the subject referred to earlier and also the legal issues regarding the proposed postmortem which were perceived to be a substantial impediment in the conduct of any such postmortem, in the absence of any request from any Government outside India for the holding of such a postmortem in terms of Section 166B of the Code of Criminal Procedure. Dr. S.K. Khanna, Director Professor and Head of the Department, Forensic Medicine who was also present on the said date submitted that if the whole purpose of the proposed postmortem was to find out whether baby Sunaina had died because of an overdose of potassium chloride as alleged by the mother of the deceased, the same cannot be at this point of time achieved having regard to the fact that after the death of an individual, the body itself releases a certain amount of potassium making it extremely difficult to determine whether the death had occurred on account of administration of the alleged heavy dose of potassium or for any other reason. It was also submitted by him that transportation of the dead body from UK to India involved injection of certain Chemicals in the body making any "analysis for determining the cause of death" so much more difficult and complicated.
9. Since the respondents had not filed any written response to the writ petition and the submissions made at the bar ran contrary to the view earlier taken by the Government, we directed the respondents to present their responses on affidavits which has been done by them. In the counter affidavit filed on behalf of respondent No. 4 and 5, it is inter alia stated that the postmortem that was demanded by the mother of the child was not a pathological postmortem inasmuch as there is a specific allegation of criminality made against the hospital where the child had died. Any postmortem in that view shall have to be a part of an on going investigation under Section 174 or 176 of the Code of Criminal Procedure. This would imply that the body will have to be accepted from the police for postmortem and handed back to them. Even the postmortem report shall have to be submitted to police as per the established procedure. Reliance was also placed by the respondents upon Section 166B, 174, 176 and 177 of the Code of Criminal Procedure to assert that in cases where an offence is committed in another country, an investigation may be carried out in India only as per Section 166B of the Code of Criminal Procedure provided a letter of request in that regard is received from the country where the offence is committed. In the absence of any such request, the investigating agency in this Country would have no jurisdiction to investigate the commission of an offence nor could any act, criminal or otherwise, be treated as an offence under the Indian Penal Code if committed in any place beyond the territorial limits of the country, if the offender is not an Indian citizen.
10. Appearing for the petitioners, Mr. Sengh argued that the Government of India having directed a postmortem and the Government of NCT of Delhi also having instructed the College concerned to do so, it was not open to the respondents to resile from that stand and cite legal impediments as a justification for the change in their respective stands.
11. Alternatively, it was submitted that while an investigation into any offence committed outside India by a non-citizen may not be permissible in this country except to the extent permitted under Section 166B of the Code of Criminal Procedure, this Court could enforce the human right of the mother to insist on a postmortem on the body of the deceased child to get an accurate and honest opinion about the real cause of her death. It was argued that this Court could direct the Government to enact a proper statutory provision in that regard so that the legal position in this country was analogous to the position of law in the United Kingdom where procedures and protocols have been prescribed for dealing with cases involving suspicious or violent deaths of UK citizens outside that country. Reference in support was made by Mr. Sengh to 'Death Abroad' an ACPO (Advisory) Reference Guide for Police Investigating Officers to Legislation, Procedures and Protocol.
12. On behalf of the respondents, it was argued by Messrs Nag and Midha that the instructions issued by the Government for a postmortem examination of the dead body of baby Sunaina were issued as a part of administrative routine without addressing the legal issues that were implicit in any such examination. It was contended that once the legal aspects were looked into, the Governments realized the mistake and modified their responses to the request received from the mother of the deceased child. It was argued that the very fact that certain instructions had been issued earlier did not estopp the Government of India or the Government of NCT of Delhi from re-examining the issue and taking a legally correct view. The affidavits filed by the Government were, according to the learned Counsel, based on an accurate view of the matter inasmuch as a postmortem de hors an ongoing investigation into an offence committed in this country was permissible only in case a request was received from another country in terms of Section 166B of the Cr.PC.
13. We have given our careful consideration to the submissions made at the bar. Section 4 of the IPC deals with the extent of Territorial Application of the Code and inter alia provides that the provisions in the IPC would apply also to any offence committed by any citizen of India in any place without and beyond India. It further provides that any person on any ship or aircraft registered in India wherever it may be would be covered by the provisions of the Code. It reads:
4. Extension of Code to extra-territorial offences. - The provisions of this Code apply to any offence committed by:
(1) any citizen of India in any place without and beyond India;
(2) any person on any ship or aircraft registered in India wherever it may be.
Explanation. - In this section the word "offence" includes every act committed outside [India] which, if committed in [India], would be punishable under this Code.
[Illustration] A, [who is {a citizen of India}], commits a murder in Uganda, He can be tried and convicted of murder in any place in [India] in which he may be found.
14. A careful reading of the above provision would leave no manner of doubt that the Indian Penal Code would be applicable to offences committed outside India only if the person committing the offence is a citizen of India and to non-citizens if they commit an office on any ship or aircraft registered in India. Illustration to Section 4 makes it clear that person committing an offence in another country can be tried and convicted in any place in India at which he may be found. The Section it is noteworthy does not apply the code to offences committed against Indian citizens in places outside India unless the same are covered by Sub-section 2 of Section 4. Such being the position, no case can be registered for commission of any offence against an Indian citizen if the same is committed beyond the territorial limits of India unless of course he is found at any place in India, nor can there be any investigation of any such offence except to the extent the same is permissible under the Code of Criminal Procedure.
15. Section 166B of the Code of Criminal Procedure authorises investigation into an offence committed outside India provided the court or other authority in the country where the offence is committed makes a request to the Central Government for examination of any person or production of any document or thing in relation to any such offence under investigation in that country. On receipt of such a request, the Central Government is competent to forward the same to the Chief Metropolitan Magistrate or Chief Judicial Magistrate or such Metropolitan or Judicial Magistrate as may be appointed in that behalf who shall thereupon summon the person before him and record his statement or call the document or thing to be produced. The Government may also send the letter received from the foreign country to any police officer for investigation who may thereupon investigate into the offence in the same manner as if the offence had been committed within India. Section 166B may at this stage be gainfully extracted:
166B. Letter of request from a country or place outside India to a Court or an authority for investigation in India:
(1) Upon receipt of a letter of request from a Court or an authority in a country or place outside India competent to issue such letter in that country or place for the examination of any person or production of any document or thing in relation to an offence under investigation in that country or place, the Central Government may, if it thinks fit:
(i) forward the same to the Chief Metropolitan Magistrate or Chief Judicial Magistrate or such Metropolitan Magistrate or Judicial Magistrate as he may appoint in this behalf, who shall thereupon summon the person before him and record his statement or cause the document or thing to be produced, or
(ii) send the letter to any police officer for investigation, who shall thereupon investigate into the offence in the same manner, (2) All the evidence taken or collected under Sub-section (1), or authenticated copies thereof or the thing so collected, shall be forwarded by the Magistrate or police officers, as the case may be, to the Central Government for transmission to the Court or the authority issuing the letter of request, in such manner as the Central Government may deem fit.
16. It is not in dispute that no request has been made by the Government in UK or any authority in that country. Conduct of a postmortem examination de hors an investigation into a criminal offence is not in our view envisaged by the Code of Criminal Procedure. We say so on a reading of Section 174 of the Code of Criminal Procedure which deals with procedure to be followed by an officer in charge of a Police Station or an officer specially empowered by the State Government in that behalf when he receives information that a person has committed suicide or has been killed by another or has died under circumstances raising a reasonable suspicion that some other person has committed an offence. In terms of Sub-section 1 of Section 174, the officer is required to immediately give an intimation to the nearest executive magistrate empowered to hold an inquest, proceed to the place where the body of such deceased person is and in the presence of two or more respectable inhabitants of the neighborhood make an investigation and draw report of the apparent cause of death describing such wounds, fractures, bruises and other marks of injury as may be found on the body and stating in what manner or by what weapon or instrument such marks appear to have been inflicted. The report shall then be forwarded to the District Magistrate or the Sub Divisional Magistrate. In situations stipulated under Section 174(3)(i) to (v), the officer is also required to forward the body with a view to its being examined to the nearest Civil Surgeon or other qualified medical man appointed in that behalf by the State Government. One of the situations in which such a postmortem examination may be got conducted is a case where there is any doubt regarding the cause of death or where the police officer for any other reason considers it expedient to do so.
17. It would thus appear that postmortem examination of a dead body is an essential part of an investigation being conducted by an investigating officer competent to do so. There is no provision which envisages the conduct of a postmortem independent of an ongoing investigation into the commission of an offence. As a matter of fact, Section 188 of the Code of Criminal Procedure which is in pari materia with Section 4 of the Indian Penal Code envisages investigation and trial for an offence committed outside India only in cases where the offender is a citizen of India or where a person is not a citizen of India, the offence has been committed on a ship or aircraft registered in India. Proviso to Section 188 makes an inquiry into a trial of any such offence also subject to the previous sanction of the Central Government. Reference may also be made to Section 177 of the Code of Criminal Procedure which clearly provides that every offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed.
18. All these provisions therefore make it manifest that neither an investigation nor a trial into an offence committed outside India is possible within India unless the person committing the offence is an Indian citizen and in case he is not a Indian citizen, the offence is committed on a ship or aircraft registered in India. It is also evident that medical examination of the dead body to determine the cause of his death is a part of the investigative process and can be resorted to by the investigating officer provided he has the jurisdiction to investigate into the offence. In cases involving offences committed outside India by non-Indian citizens, such jurisdiction is limited to and dependent on whether the country or the authority competent in the country where the offence is committed has requested the Central Government to have the matter investigated under Section 166B of the Code of Criminal Procedure. If there is no such request, a police officer in India cannot register a case or investigate the commission of any offence that has taken place outside India. The respondents are, in the light of the above, legally correct in urging that even when they had addressed letters for conducting a postmortem examination of the body of baby Sunaina, such a postmortem was, on a proper consideration of the legal issues involved, impermissible in the absence of a formal letter of request from the Government or the authority competent in UK.
19. Mr. Sengh however feebly argued that one of the persons against whom the parents of the deceased child had made a complaint of medical negligence was a doctor of Indian origin, who continues to be a Indian citizen. There is nothing before us to support the submission that anyone of those against whom the parents have a grievance is a Indian citizen. But even assuming that one of those who are alleged to have been guilty of medical negligence was an Indian citizen, so long as he does not flee from that country to be found in India, there is no question of registering a case against him or conducting any investigation into the offence allegedly committed by him. Provisions of Section 188 of the Code of Criminal Procedure read with Section 4 of the Indian Penal Code make it clear that an investigation or trial of the offender who is an Indian citizen may be possible only if he is found in India. Section 188 reads thus:
188. Offence committed outside India. - When an offence is committed outside India:
(a) by a citizen of India, whether on the high seas or elsewhere; or
(b) by a person, not being such citizen, on any ship or aircraft registered in India, he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found:
Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government.
20. We have therefore no hesitation in rejecting the first limb of the submissions made on behalf of the petitioners that the police authorities could investigate the offence in India or that even independent of an investigation, a postmortem examination of the dead body can be conducted by the authorities.
21. That brings us to the question whether this Court ought to interfere and issue directions for the holding of a postmortem to protect the human right of the parents of deceased baby Sunaina. According to Mr. Sengh, the parents had the right to know the real cause of the death of their child and so long as the real cause was not discovered by a postmortem examination conducted scientifically and in an unbiased and objective manner, the parents could insist upon protection of their rights by demanding a mandamus against the Government of India to get such an examination conducted.
22. We will for the present proceedings assume that the 'Right to Know' the cause of death claimed by the parents of the deceased child is a human right. The question however is whether there has been any denial of that right and if so, by whom. The question also is whether the judicial process of this country can be invoked against the denial of a right by the agencies in any other sovereign country. Two postmortem reports conducted by the doctors in UK have identified the cause of death of the child. The parents of the child know about the conclusions arrived at by the doctors on the basis of their examination. There is therefore no denial of information nor any violation of any right to know claimed by the parents. What the parents contend is that the postmortem reports are not acceptable as they are not fair and that they are manipulated in an attempt to save the hospital form civil and criminal action which the parents would institute if the postmortem supported the theory of medical negligence. We do not think that that argument can hold any water in proceedings before a court of another sovereign country just because the parents or one of them happens to be a citizen of that country. If any mischief has been committed in an attempt to unfairly save the hospital or its doctors accused of neglect by the parents of the child, the remedy of the petitioner lay in seeking redress before the competent courts in the country where the offence was committed or the cover up of the offence had taken place. Transferring the body from the country where the parents have been residing for a considerable period to India to demand a postmortem examination only to go back to UK to institute proceedings against those allegedly guilty of causing death by negligence, does not appear to us to be an option available to the parents leave alone a legally sound one. The legal process in UK is both reliable and quick which ought to grant sufficient safeguard to those living and working in that country against medical negligence and against an attempt to hide, distort or cover up such negligence in any form whatsoever.
23. That leaves us with the only other question urged by Mr. Sengh touching upon the need for introduction of an appropriate legislation on the analogy of the Coroners Act, 1988 prevalent in UK. Coroners under the said Act are independent judicial officers each assigned to a particular territorial area and responsible for investigating the circumstances which gave rise to the death of persons whose bodies lie or are brought into their district. Section 8 of the Act provides that 'where a coroner is informed that the body of a person ('the deceased') is lying within his district and there is reasonable cause to suspect that the deceased (a) has died a violent or unnatural death - then whether the cause of death arose within his district or not, the Coroner shall as soon as practicable hold an inquest into the death of the deceased. The purpose and philosophy underlying the provision was explained by the Court of Appeal in England in R. v. West Yorkshire Coroner, ex parte Smith [1928] 3 All ER 1098 in the following words:
with all respect to the learned Judges of the Divisional Court, I do not accept their premise that there is no warrant in any of the legislation or at common law to support the proposition that an inquest can be held where both the cause of death and the death itself occurred outside the jurisdiction of the English courts. The presence of a dead human body in this country is a matter of significance. It creates a very real and legitimate interest in holding an inquiry. In the absence of a death certificate by an appropriate authority in this country, it may very well be considered essential at the very least to ascertain where the body came from, whether the deceased died in this country and, if so, how. This case is concerned with the finding of a body in this country. Mr. Smith (the appellant) has told us where it came from and, of course, I do not doubt his assertion. But neither the Divisional Court (part of the High Court) nor (the) Court (of Appeal) is the appropriate authority to accept or test this assertion. That is the function of the Coroner.
24. The above was followed by a decision in R. v. N. Humberside ex parte Jamieson [1994] 3 All ER 972 (Court of Appeal - judgment dated 25th April, 1994) where the purpose underlying an inquest by the Coroner was explained in the following words:
An inquest is a fact finding inquiry, conducted by a Coroner with or without a Jury, to establish reliable answers to four important but limited factual questions. The first of these relates to the identity of the deceased, the second to the place of his death, the third to the time of death. In most cases, these questions are not hard to answer but in a minority of cases the answer may be problematical. The fourth question and that to which evidence and inquiry are most often and most closely directed, related to how the deceased came by his death. (The rules of procedure) require(s) that the proceedings and evidence shall be directed solely to ascertaining these matters and forbids any expression of opinion on any other matter.
25. There is admittedly no comparable legislation in India nor has our attention been drawn to any by learned Counsel for the parties. The IPC and the Cr.P.C. cover the area but the provisions of the same are not in pari materia, no matter the provisions of Section 166B and 174 of the Cr.P.C. may be invoked by the officers competent to hold investigation into cases of murder, suicide or death in circumstances that give rise to suspicion. It is true that situations like the ones that made the Coroner's Act a necessity in UK may arise even in this country. The question whether we ought to have a comparable legislation is however a matter for the Parliament to consider, even if there is no legislation, there is no room for a writ court to issue a mandamus to the appropriate legislature to enact a law considered essential by the Court. It is trite that there can never be a mandamus to a legislative body to enact a particular law on the subject or to modify an existing law in a particular fashion. All that the court may possibly do is to recommend to the Law Commission to examine this aspect and see whether a legislation like the Coroner's Act, 1988 prevalent in UK is needed in this country and if it is, to consider whether a suitable proposal can be made to the Parliament in that regard. Beyond that, it is neither necessary nor proper for this Court to make any observation.
26. In the result, this writ petition fails and is hereby dismissed but in the circumstances without any order as to costs. A copy of this order shall be forwarded to Hon'ble Dr. Justice Lakshmanan, Chairman, Law Commission of India for perusal and such actions as may be considered fit in the circumstances.