Kerala High Court
For Information Purpose Only vs Ajitha on 2 February, 2021
Author: K.Vinod Chandran
Bench: K.Vinod Chandran, M.R.Anitha
WP(Crl.) 23/2021 1/7
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Present:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
For information purpose only
nd th
Tuesday,the 2 day of February 2021/13 Magha,1942
WP(Crl.) No.23/2021
PETITIONER
AJITHA, AGED 48 YEARS, W/O SIVAN,
KODUVALIL HOUSE, ELAPPARA, IDUKKI-685 501.
RESPONDENTS
THE STATE POLICE CHIEF,
1. KERALA STATE POLICE HEADQUARTERS,
VAZHUTHACAUD, THIRUVANANTHAPURAM-695 010.
THE INSPECTOR GENERAL OF POLICE (PRISONS),
2. PRISONS HEADQUARTERS, POOJAPPURA,
THIRUVANANTHAPURAM-695 012.
THE SUPERINTENDENT, CENTRAL PRISON,
3. POOJAPPURA, THIRUVANANTHAPURAM-695 012.
ADDL. R4 IMPLEADED
THE DIRECTOR OF HEALTH SERVICES,
THIRUVANANTHAPURAM, PIN-695 035.
4.
ADDL. R4 IS SUO MOTU IMPLEADED AS PER ORDER DATED
02/02/2021 IN WP(CRL).
Writ Petition (criminal) praying inter alia that in the circumstances
stated in the affidavit filed along with the WP(Crl.) the High Court be
rd
pleased to direct the 3 respondent to produce the detenue, Syam Sivan,
Convict No.2194 at Poojappura Central Jail before this court and
immediately avail medical treatment.
This petition again coming on for admission upon perusing the
petition and the affidavit filed in support of WP(Crl.) and this Court's
order dated 27/01/2021 and upon hearing the arguments of SRI.GEORGE
RENOY, Advocate for the petitioner and of GOVERNMENT PLEADER
for R1 to R3, the court passed the following:
WP(Crl.) 23/2021 2/7
K.VINOD CHANDRAN & M.R.ANITHA, JJ.
----------------------------------
WP(Crl.) No.23 of 2021 & WP(Crl.) No.7 of 2021
----------------------------------
Dated this the 2nd day of February 2021
For information
K.Vinod Chandran, J.
purpose only
ORDER
We refer to our order dated 27.01.2021, where we made certain observations about the Medical Officer attached to the Central Prison Thiruvananthapuram. We found that in W.P(Crl.) No.7 of 2021 the Medical Officer had noted no visible marks or injuries on the subject convict, while the two Doctors deputed by us immediately thereafter noticed contusions and cane marks on the said convict (Tittu Jerome). Likewise in WP(Crl.) No.23 of 2021 the report of the Medical Officer, after bodily examination of three convicts (Shinu, Unnikkuttan and Syam Sivan), indicated no visible marks. In contrast, even the Secretary, DLSA who visited the Prison on our directions, indicated certain marks on the convicts.
2. Today we have before us the report of the two Doctors of the Government District Model Hospital, Peroorkada who examined the three convicts as per our order dated 22.01.2021 produced along with Memo dated 27.01.2021. We have marked those documents as Annexures C1, C2 & C3 in WP(Crl.) No.23 of 2021. The Medical Report with respect to the three convicts received from the Medical College are also marked as Annexures C4, C5 & C6 in WP(Crl.) No.23 of 2021. In our order dated 22.01.2021 we also noticed Ext.R3(b) report of the Medical Officer, Central Prison produced along with the affidavit of the Superintendent of Central Prisons, Thiruvananthapuram.
3. The history of all the cases are alleged to be assault by Jail officers on 01.01.2021. Annexure C1 is the Medical Examination Report of Syam Sivan carried out on 22.01.2021. On bodily examination, it has been noticed that the convict has tenderness in six areas in the body as well as five contusions. As far as Shinu is concerned, he has cane marks on his feet; five on the left foot and two on the right. He also has tenderness at three areas and five contusions, whose Medical Report is marked as Annexure C2. Annexure C3 is the Medical Examination Report of Unnikkuttan, which also indicates tenderness in six areas and five contusions. It is very surprising that the Medical Officer failed to notice WP(Crl.) 23/2021 3/7 this; which validates the submission of the learned Counsel for the petitioners that absolutely no medical examination was carried out by the Medical Officer attached to the Central Prison.
4. Today, we also have before us an affidavit sworn to by the Director General of Prisons & Correctional Services [referred to herein below as DGP] dated 29.01.2021. The deponent has waxed eloquent about the services of the Medical Officer in the Central Prison. In the second and third paragraphs of the affidavit the deponent has spoken about the For information purpose only general duties of a Medical Officer attached to a Prison and the dangerous and arduous nature of such duties. This often results in Medical Officers not opting for deputation to the Prisons; which service, the deponent equates to Rural Services. According to the deponent, Doctors seek deputation to such service for enjoying privileges after the period of deputation. We are not oblivious to the fact that there are at least some, who volunteer to work in rural areas considering the service aspect and many who take it as a safe haven; with less complications.
5. In paragraph 4 of the affidavit, the deponent has spoken on the Central Prison, Thiruvananthapuram being the most populated one, where dangerous prisoners of different categories are accommodated and the need for all prison officials, including medical staff to work in tandem, so as to maintain general discipline and ensure the legal rights of prisoners as also the morale of the staff. We do not doubt for a moment that there should be co ordination and co-operation between the staff in the prison including the Medical Officer. But the Medical Officer's duty is not so much to ensure the morale of the staff, as to guard zealously the right of the prisoners and ensure their well-being when undergoing sentence awarded by a competent Court.
6. We specifically refer to Chapter IX of the Kerala Prisons & Correctional Services (Management) Act, 2010 [for brevity, 'the Act of 2010']. The rights of prisoners include the right to live with human dignity [Section 36(a)], health and medical care [Clause (b)], protection against unlawful aggression on his person or against imposition of ignominy in any manner not authorised by law [Clause (e)], to protection against punishment or hardship amounting to punishment, except through procedure established by law and with due opportunity of defence [Clause g]. More importantly by Clause (k), a prisoner, despite his incarceration, is entitled to enjoyment of fundamental rights under Chapter III of the Constitution of India. The only exception is to those rights which become incapable of enjoyment as an incident of conviction and confinement. In this context, we refer to the Kerala Prisons and Correctional Services (Implementation) Rules, 2014 [for brevity, 'the WP(Crl.) 23/2021 4/7 Rules of 2014'], speaking about the Medical Officer in Chapter XXVI, delineating the various duties, which includes the health care of the prisoners.
7. We do not ignore the fact that the prisoners are often ill- behaved and are hostile and belligerent in their attitude towards prison officials; especially given their antecedents. But the Prison Officials would do well to remember that the sentence imposed on them is of imprisonment by the competent Court; which sometimes is of a rigorous For information purpose only nature, which only entails hard labour. The prisoners are when undergoing sentence, the duty of the Prison Officials is also to ensure that they serve the term awarded by the Court without any harm to their body and limb.
8. We reiterate that the rigorous nature of a sentence is only in the labour allotted to them in the prisons and not insofar as the punishments meted out to them, which, in this case, is alleged to be physical torture. If there is any mischief amounting to an offence committed by the prisoners, the punishment imposed should be as per the Act of 2010 and the Rules of 2014 framed there under. Chapter XXIX speaks of 'Prison Offences and Punishments'. The offences are enumerated under sub-section (1) to (42) and punishments, under sub section (1) and (2) of Section 82. There is also a specific procedure for conducting enquiries for the award of punishment as per Section 83. The punishment hence cannot extend to third degree measures, putting the life and limb of the prisoners to peril. If the allegations of physical torture are true; as prima facie the visible marks on the convicts would indicate, then it is a flagrant violation of the statutory directive and a blatant infringement of the rights guaranteed under the Constitution of India. A prisoner, howsoever gruesome the crime he is convicted for, does not forsake his right to live. In the rarest of rare cases where it is warranted, the Indian Penal Code provides for it, by hanging and not a lingering, slow death by agonizing torture.
9. The deponent in paragraph 5 has spoken of the enduring need of an efficient Medical Officer in Central Prison, Thiruvananthapuram due to the fact that there is in existence a 50 bedded Inpatient Hospital attached to the Prison, which is also stated to be the only one of its kind, in the southern part of Kerala. Paragraphs 6 & 7 are good service entries showered upon the Medical Officer by the deponent. It is also stated by the deponent with some anguish, which is uncalled for, that due to our observations he has been "constrained" to request for a transfer of the Medical Officer from the Central Prison, Thiruvananthapuram. The DGP would do well to remember that the observations are of a Constitutional WP(Crl.) 23/2021 5/7 Court and it is not for the Officer to show resentment about such observations, in an affidavit filed before Court. Unfortunately not only is the choice of words unbecoming but he has also not chosen to deal with the specific issues pointed out by us. The tenor of the concluding paragraphs seems to be that the service of the particular Medical Officer is imperative in the Central Prison, which we feel is quite uncharitable for the innuendo implied on the State medical force; the personnel of which, while working under adverse conditions, had risen up For information purpose only commendably in the wake of the pandemic that has been scourging the State, the Country and the World for the past one year.
10. We are told that the Officers, who are said to be involved in the alleged incident of assault have been now suspended and disciplinary proceedings, are pending against them. The report filed by the Director General of Prisons dated 23.01.2021 produced along with memo dated 25.01.2021 speaks of the punishment awarded under Sections 81 (21) and 82 (1) of the Act of 2010 to the four convicts involved in the above writ petitions, who allegedly brought alcohol illegally into the prison. We direct the Superintendent of Prisons, Central Prisons & Correctional Services, Thiruvananthapuram to place before us the records of the enquiry conducted as against the alleged incident of smuggling alcohol into the prison, by Monday, the 8th of February, 2021, along with the Log Book maintained by the Medical Officer under Chapter XXVI of the Rules of 2014, which shall be transmitted to this Court by a Special Messenger.
11. Only considering the fact that the Medical Officer belongs to the Health Services Department and the DGP having expressed helplessness in carrying out an enquiry, despite Rule 171 of the Rules of 2014, we direct the Director of Health Services to authorise a sufficiently senior Medical Officer to conduct an enquiry into the specific allegations raised by the convicts as noticed by us in the various orders passed by us in this case with reference to the conduct of the Medical Officer attached to the Central Prison, Thiruvananthapuram. The Registry shall forward a copy of the writ petitions along with the Exhibits and Annexures, both marked by the parties and this Court, to the Director of Health Services, Kerala. We expect the Director of Health Services to place on record the report of enqiry within a period of three weeks from today.
'The Director of Health Services, Thiruvananthapuram, PIN 695035' is suo motu impleaded as the additional respondent in these writ petitions (Criminal).
Post on 08.02.2021.
Handover.
WP(Crl.) 23/2021 6/7Sd/-
K.VINOD CHANDRAN,JUDGE Sd/-
M.R.ANITHA,JUDGE /true copy/ For information purpose onlySd/-
ASSISTANT REGISTRAR WP(Crl.) 23/2021 7/7 ANNEXURE C1 - REPORT OF TWO DOCTORS OF THE GOVERNMENT DISTRICT MODEL HOSPITAL, PEROORKKADA IN REGARD TO SHINU, AGED 30 YEARS.
ANNEXURE C2 - REPORT OF TWO DOCTORS OF THE GOVERNMENT DISTRICT MODEL HOSPITAL, PEROORKKADA IN REGARD TO SYAM SIVAN, AGED 24 YEARS.
ANNEXURE C3 - REPORT OF TWO DOCTORS OF THE GOVERNMENT DISTRICT MODEL HOSPITAL, PEROORKKADA IN REGARD TO UNNIKKUTTAN, AGED 28 For information purpose only YEARS.
ANNEXURE C4 - MEDICAL REPORT FROM MEDICAL COLLEGE, THIRUVANANTHAPURAM IN REGARD TO TREATMENT OF MR.SHINU.C., AGED 30 YEARS.
ANNEXURE C5 - MEDICAL REPORT FROM MEDICAL COLLEGE, THIRUVANANTHAPURAM IN REGARD TO TREATMENT OF MR.SYAM SIVAN, AGED 24 YEARS.
ANNEXURE C6 - MEDICAL REPORT FROM MEDICAL COLLEGE, THIRUVANANTHAPURAM IN REGARD TO TREATMENT OF MR.UNNIKKUTTAN, AGED 28 YEARS.