Kerala High Court
Sajayan V K vs The Superintendent Of Police on 29 March, 2023
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 29TH DAY OF MARCH 2023 / 8TH CHAITHRA, 1945
WP(CRL.) NO. 71 OF 2023
PETITIONER:
SAJAYAN V K,
AGED 58 YEARS
S/O. KARUNAKARAN,
VAVANIKKUNNEL HOUSE, KARIMBA P.O.,
EDAKKURUSSI, KERALA, PIN - 678597
BY ADVS.
RAHUL VENUGOPAL
SANDESH SOMAN
RESPONDENTS:
1 THE SUPERINTENDENT OF POLICE,
KOTTAYAM, PIN - 686002
2 THE INSPECTOR OF POLICE,
PAMBADI POLICE STATION,
KOTTAYAM, PIN - 686502
3 VIJEESH VIJAYAN,
AGED 40 YEARS
S/O VIJAYAN NISHA BHAVAN, PANGADA P O,
PANGADA KARA, PAMPADY VILLAGE,
KOTTAYAM, PIN - 686502
4 P K VIJAYAN.
AGED 74 YEARS
S/O KUNJOOTY NISHA BHAVAN, PANGADA P O,
PANGADA KARA, PAMPADY VILLAGE,
KOTTAYAM, PIN - 686502
BY ADVS.
GOVERNMENT PLEADER
ADVOCATE GENERAL OFFICE KERALA
T.G.RAJAN
MATHAI EAPPEN VETTATH(KAR/510/1984)
SHRI.ASOK M.CHERIAN, ADDL. ADVOCATE GENERAL
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION
ON 29.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ALEXANDER THOMAS & C.S.SUDHA, JJ.
===========================================
W.P.(Crl.) No.71 of 2023
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Dated this the 29th day of March, 2023
JUDGMENT
The prayers in the instant Writ Petition (Crl.), seeking for a writ of Habeas Corpus, are as follows:
" i) Issue a writ of Habeas Corpus or any other appropriate writ, order or direction directing respondents 1 and 2 to produce the detenue, P.K.Vijayan, the 4th respondent herein from the illegal custody of the 3rd respondent before this Hon'ble Court and set him at liberty;
ii) Issue a writ of Habeas corpus or any other appropriate writ, order or direction directing the 2nd respondent to dispose of Ext.P1 forthwith;
iii) Grant such other reliefs that this Hon'ble Court deems fit and necessary;
iv) Award costs and
v) Any other relief this Hon'ble Court deems fit."
2. Heard Sri. Rahul Venugopal, the learned counsel appearing for the petitioner, Sri. Asok M.Cherian, the learned Addl. Advocate General, instructed by Smt.Sabeena P.Ismail, learned Government Pleader appearing for official respondents 1 and 2 and Sri. T.G.Rajan, the learned counsel appearing for the contesting respondent No.3. Since the contesting respondent No.4, being the alleged detenu, is not a necessary or proper party in this proceedings for habeas corpus, notice to him is not necessary. We have interacted with the alleged W.P.(Crl.) No.71 of 2023 2 detenu today, directly through video conferencing mode.
3. The case set up in the above Writ Petition (Crl.) is to the effect that the petitioner herein, who is the son of the sister of the alleged detenu (Sri.P.K. Vijayan, aged 74 years, father of R-3 herein) and the detenu and his family members, consisting of his wife and son and son's wife and child (minor son), are living together in the same house in their native village at Pampady, Kottayam district. That there was serious disputes between the alleged detenu and his family members, more particularly his son, in regard to their family affairs and that R-3 and some others have manhandled the detenu etc. The crux of the allegations is that R-3 and some others have forcibily taken the alleged detenu to a private hospital at Thodupuzha, under the guise of psychiatric treatment, though, in fact, the alleged detenu is not having any psychiatric disorder and that the said confinement of the alleged detenu in the said private hospital at Thodupuzha is illegal and wrongful and therefore, a writ of habeas corpus be issued by this Court to get him released and to set him at liberty. This appears to be the sum and substance of the allegations in this writ proceedings for habeas corpus.
4. We had issued notice in this case on 25/01/2023 and the learned Prosecutor had taken notices for R-1 and R-2. Notices W.P.(Crl.) No.71 of 2023 3 were sent to R-3 and R-4 by special messenger, returnable within two days etc. Then, we also directed that the official respondents 1 and 2 will conduct appropriate enquiries and seek the assistance of a qualified Psychiatrist from Government service, to ascertain as to whether the alleged detenu, who is now admitted in the S.H. Hospital, Painkulam, Mailakombu, Idukki, is actually suffering from any mental illness, so as to warrant his hospitalization in a Psychiatric Hospital and apprise this Court of the same on the next posting day.
5. Later, the case was taken up for consideration on 27/01/2023. On that day, the learned Prosecutor had submitted that, pursuant to the directions issued by this Court as per order dated 25/01/2023, R-1 and R-2 have conducted enquiry and that they have taken steps to get the detenu evaluated by two Psychiatrists of the Government Medical College Hospital, Kottayam. The Assistant Professor of Psychiatry, Government Medical College Hospital, Kottayam had initially given an interim report and later, a Medical Board of the Government Medical College Hospital, Kottayam , consisting of the Professor and Head of the Neurology Department, Associate Professor, Psychiatry, Assistant Professor of Psychiatry and Clinical Psychologist, had also conducted a joint evaluation of the W.P.(Crl.) No.71 of 2023 4 alleged detenu and had given report dated 25/02/2023. In the initial report dated 10/02/2023 of the Assistant Professor, Department of Psychiatry, it has been opined that, on an examination, it is inter-alia found that the alleged detenu has persecutory ideas and he was irritable at times and that he was started on antipsychotics and mood stabilizers and general medical consultation was done for his diabetic status and that he needs psychometric evaluation and serial mental status assessment.
6. Later, the matter was taken up for consideration on 13/02/2023 and on that day we heard the submissions of the learned counsel for the petitioner as well as Sri. Asok M.Cheriyan, the learned Addl. Advocate General appearing for the official respondents and the learned counsel for R-3 (son of the alleged detenu). The order dated 13/02/2023 passed by this Court in this case reads as follows:
" Heard Sri.Rahul Venugopal, learned counsel appearing for the petitioner, Sri.Asok M.Cherian, learned Additional Advocate General, instructed and assisted by Sri.Saigi Jacob Palatty, the learned Public Prosecutor appearing for respondents 1 and 2 and Sri.T.G.Rajan, the learned counsel appearing for R-3.
2. Today when the matter has been taken up for consideration, Sri.Asok M.Cherian, learned Additional Advocate General, submitted that he is entering appearance in this case only today and may be granted some more time to get detailed instructions in the matter and has also submitted that pursuant to the directions issued by this Court on 27.1.2023, Department of W.P.(Crl.) No.71 of 2023 5 Psychiatry, Government Medical College Hospital, Kottayam, has furnished an interim report dated 10.02.2023 issued by the Assistant Professor of the said Psychiatric Department and the said report has been made available for perusal of this Court. The said report dated 10.02.2023 submitted by the Assistant Professor, Department of Psychiatry, Government Medical College, Kottayam, would indicate that the alleged detenu has been examined by the said Department and that as per the medical history, he alleges that his family members are trying to harm him to get his wealth and that he has a history of Diabetes Mellitus on treatment and history of alcohol use. Further, on examination it was found that he has persecutory ideas and was irritable at times and he was started on anti-psychotics and mood stabilizers and general medical consultation was done for his diabetic status and that he needs psychometric evaluation and serial mental status assessment etc.
3. To a query to Sri.Rahul Venugopal, the learned counsel appearing for the petitioner, as to whether the petitioner has any objection for the continued treatment of the alleged detenu in the Government Medical College, Kottayam, the learned counsel for the petitioner submitted, on the basis of the instructions of the petitioner, that the petitioner has no objection since the treatment is now being carried on in a Government institution. Learned counsel for the petitioner has also submitted, on the basis of instructions, that after interacting with the petitioner, the alleged detenu is satisfied with the treatment given to him by the Psychiatry Department of the Government Medical College, Kottayam.
4. The learned counsel appearing for R-3 would submit that the alleged detenu would require medical treatment and that the allegation raised by him that his family members are trying to grab his wealth etc, are factually incorrect and that his family members are only trying their level best, out of concern and love for him, to give the best possible treatment.
5. Hence, with the consent of both sides, it is ordered in the interest of justice that the alleged detenu may be continued as inpatient in the Psychiatry Department, Government Medical College Hospital, Kottayam and he may be given medical treatment as is necessary for his well being and psychiatric evaluation W.P.(Crl.) No.71 of 2023 6 and serial mental status assessment may also be effected as reported by the Department of Psychiatry.
6. The earlier report dated 26.1.2023 submitted by the Psychiatrist of the Government Medical College, Kottayam on 27.01.2023 has stated that the alleged detenu is suffering from bipolar affective disorder and Alcohol dependence syndrome and that he may benefit with inpatient care from a mental health care centre etc. Now the present report dated 10.2.2023 would show that he has been given anti-psychotics and mood stabilizers etc. The learned Additional Advocate General is requested to have detailed discussion with the Psychiatrists of the Government Medical College, Kottayam, and may ascertain as to the precise nature of the illness suffered by the alleged detenu and whether anti-psychotic medications etc., are necessary. So also, it should be ascertained as to whether the alleged detenu suffers mental illness as envisaged in Sec.2(s) of the Mental Health Care Act, 2017 and also the applicability of Secs. 89 and 90 and any other provisions of the above said Act to the facts of this case. Learned Additional Advocate General may ensure that a detailed statement is filed on behalf of the Psychiatry Department of the Government Medical College Hospital on the above said aspects.
7. Both sides will address this Court as to the applicability of various provisions of the Mental Health Care Act, 2017 to the facts of this case, on the next posting day.
List the case on 27.02.2023."
7. The further report dated 25/02/2023 of the Medical Board, consisting of three specialist doctors and clinical psychologists, has inter alia opined that the alleged detenu is suffering from delusional disorder and alcohol use disorder and that in addition, his personality, traits as evidenced by psychological assessments, and cognitive impairment could contribute to the W.P.(Crl.) No.71 of 2023 7 behavioural problems. Further, it was opined that, on the basis of the detailed history, serial mental status examinations and clinical psychology assessment, the risk of violence and aggression cannot be excluded, if he stays with his family members and regular treatment and follow up care from a mental health establishment, where facilities for in-patient care are also available, is recommended and facilities in the Government Medical College Hospital, Kottayam are limited to short-term care, where family members also stay with the patient in a cordial environment. Further, on 27/02/2023 we directed, after perusal of the abovesaid reports and statement of the witnesses, that the interest of justice will be advanced, if, for the time being, the alleged detenu is shifted from the present Private Hospital at Thodupuzha, Idukki District to the Government Medical College Hospital, Kottayam (Psychiatry Department), on an inpatient basis for expert evaluation by a Psychiatrist of that Government institution.
8. When the case was taken up on 27/02/2023 and after hearing the parties concerned, we have passed an order dated 27/02/2023 in this case which reads as follows:
" Sri.Asok M.Cherian, learned Additional Advocate General, instructed by Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for official respondents 1 & 2, would submit on the basis of instructions that the Kottayam Medical College Hospital had constituted a Special Medical Board consisting of Head of the Department, Neurology; an Associate Professor of Psychiatry; an Assistant Professor of Psychiatry and a Clinical W.P.(Crl.) No.71 of 2023 8 Psychologist, to evaluate the alleged detenu, who is now an inpatient in that hospital. The report dated 25.02.2023 of the said Medical Board has been made available to this Court, for perusal, by the learned Additional Advocate General. We have gone through the report in detail. In the report, it has been inter alia stated that, the alleged detenu has been given anti-psychotics and mood stabilisers and that, the impression of the Special Medical Board, after the evaluation is that, he is suffering from Delusional disorder and Alcohol use disorder and on the basis of the detailed history, serial mental status examinations and clinical psychology assessment, the risk of violence and aggression cannot be excluded if he stays with his family members and regular treatment and follow up care from a mental health establishment where facilities for inpatient treatment are also available is recommended. Further that, the facilities in Government Medical College Hospital, Kottayam, are limited to short term care, where family members also stay with the patient in a cordial environment, etc.
2. In the light of these aspects, prima facie, we feel that, the case of the alleged detenu may broadly come within the scope of Sec.100(5) of the Mental Health Act, 2017. The learned counsel for the petitioner had submitted on the basis of instructions that the petitioner has no objections in giving further treatment as an inpatient to the alleged detenu in the Government Medical College Hospital, Kottayam. In order to have a better picture, it is ordered that the Psychiatry Department of the Government Medical College Hospital, Kottayam may continue to treat the alleged detenu as an inpatient in that Department and after three weeks or so, a team of Psychiatrists of the said Department, may evaluate the case of the alleged detenu and give a report to this Court, as to whether the alleged detenu is fit in up to be discharged from medical care or he requires medical care and attention in a Psychiatry institution. So also, it should be reported to us by the said team of Psychiatrists, as to whether the alleged detenu is fit enough to interact directly with this Court through online mode. The abovesaid report of the Psychiatry Department, shall be made available to this Court, for perusal on the next posting day.
List the case on 24/03/2023."
9. Subsequently, the matter was again taken up for consideration on 24/03/2023 and order dated 24/03/2023 passed by this Court in this case reads as follows:
" We have heard Sri.Rahul Venugopal, learned counsel appearing for the petitioner (nephew of the alleged detenu), W.P.(Crl.) No.71 of 2023 9 Sri.Asok M.Cherian, learned Addl. Advocate General, instructed by Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for official respondents 1 & 2 and Sri.T.G.Rajan, learned counsel appearing for contesting respondent No.3 (son of the alleged detenu).
2. Sri.Asok M.Cherian, learned Addl.
Advocate General has made available, for our perusal, a copy of the report dated 20.03.2023 submitted by the Committee of Psychiatrists of the Government Medical College Hospital, Kottayam, in compliance with the direction in the order dated 27.02.2023. In the said report, it has been inter alia stated that the alleged detenu needs long term supervised medications, home based rehabilitative interventions and regular follow up with a Psychiatrist on outpatient basis, etc., and also that the alleged detenu is now fit enough to interact directly with the Court through online mode.
3. Copies of the abovesaid report dated 20.03.2023 submitted by the Committee of Psychiatrists have also been made available to the learned Advocate appearing for the petitioner and the learned Advocate appearing for R-3. Both of them seek some time to get instructions.
4. R-3 (son of the alleged detenu) may file an affidavit, stating as to whether or not he is willing to accommodate the alleged detenu, in case he is now discharged from the hospital and to comply with the medical requirements and to give him necessary psychiatric care, as opined by the Committee of Psychiatrists. So also, the petitioner may file an affidavit, stating as to whether he is willing for the said course of action. At any rate, the petitioner and R-3 will give necessary instructions to their respective Advocates on the abovesaid factual aspects.
5. Accordingly, it is ordered that the Government Medical College Hospital authorities, Kottayam, may arrange a video conferencing facility, to enable this Court to directly interact with the alleged detenu, at 10.15 a.m. on the next posting day. The petitioner (nephew of the alleged detenue), R-3 (son of the alleged detenu) as well as the other children of the alleged detenu, including his daughter, may be present before this Court on the next posting day, if they are interested.
List the case at 10.15 a.m. on 29/03/2023, for the above online interaction."
10. On the last posting day, the learned Additional Advocate General appearing for the official respondents had W.P.(Crl.) No.71 of 2023 10 submitted, on the basis of the instructions from the Psychiatry Department of the Government Medical College, Kottayam, that a committee of two Psychiatrists and a Clinical Psychologist of the Government Medical College, Kottayam have again evaluated the present medical condition of the alleged detenu and report dated 20/03/2023 of the said committee of Psychiatrists and Clinical Psychologist was given to us for perusal. The opinion/impression and recommendations of the said three member committee of Psychiatrists and Clinical Psychologist, as per the report dated 20/03/2023, reads as follows:
" No. G1/197/2023/MCHG Dated: 20.03.2023
MEDICAL REPORT OF Mr. Vijayan s/o Kunjooti
Reference
1. WP(Crl). No.71/2023 of Office of The Advocate General Kerala, Emakulam dated 27/1/2023
2. Letter from Inspector of Police, Pampady Police station dated 10/2/2023 to Superintendent Govt. Medical College Hospital Kottayam
3. Interim report sent on 10/02/2023
4. Medical Board report sent on 25/02/2023 (No. G1/197/2023 MCHG). 5. WP (CRL) NO. 71 of 2023 (S) dated 27/2/2023 from the Hon. High Court of Kerala,Ernakulam.
Date of admission: 1/02/2023 IP No: 007869 W.P.(Crl.) No.71 of 2023 11 Identification marks:
1. Scar of 2 cm on lateral aspect of right eye.
2. Black mole below the left clavicle Mr. Vijayan was admitted in Ward 4 under Psychiatry.
Government Medical College Kottayam on 1/02/2023 as per the order of Honorable High Court of Kerala (ref:1). An interim report regarding the mental condition of the patient was sent on 10/02/2023 (ref:3). A medical board report was sent on 25/02/2023 (ref:4) and as directed by the court (ref:5) in patient care was continued for Mr. Vijayan and serial evaluation was done.
On serial mental status examinations he was conscious and oriented, his psychomotor activity and talk were within normal limits. His mood was euthymic. He continued to express infidelity delusions against his wife and persecutory ideas against his son. Mr. Vijayan was at times reluctant to take oral medications. During the sessions Mr. Vijayan expressed his desire to go with Mr.Sajayan, Mr. Jayarajan and Mr. Suresh who were Vijayan's sister's sons. When enquired about his children Mr. Vijayan expressed willingness to stay with his daughter if needed, but refused to go with his son. Sessions were conducted with Mr. Vijayan's wife, son, daughter, son in law and daughter in law. A separate session was conducted with Mr. Sajayan and Mr. Suresh. Mr. Jayarajan was not present during the sessions citing he had chicken pox. Vijayan's desire to go with them were communicated during the session. Mr. Sajayan and Mr. Jayarajan expressed readiness to take Mr. Vijayan with them if needed. The need for supervised medications and regular follow up was explained to Mr. Vijayan's family members. The possibility of Mr. Vijayan's behavioural symptoms worsening in case of stopping medications were also explained to the family members. During the hospital stay Mr. Vijayan was accompanied by paid bystanders. Inspite of the request for 2 bystanders only one bystander was available after 14/02/23 and there were multiple occasions where Mr. Vijayan was not accompanied by anyone. He was generally cooperative for evaluation, however was becoming irritable during the sessions when the family conflicts were brought up. Mr. Vijayan is currently on antipsychotic medications. Dosage was adjusted after monitoring the response and adverse effects. Clinical Psychological interventions were also done.
W.P.(Crl.) No.71 of 202312 Impression & Recommendation: Mr. Vijayan is suffering from Delusional disorder and Alcohol use disorder from which he is currently abstinent. In addition his personality traits (as evidenced by psychological assessments) and cognitive impairment could be contributing to the behavioural problems. On the basis of detailed history, serial mental status examinations and clinical psychological assessment Mr. Vijayan needs long term supervised medications, home based rehabilitative interventions and regular follow up with a psychiatrist on outpatient basis. Caregivers maybe given instructions to ensure regular follow up and continuation of pharmacological and rehabilitative interventions. Mr. Vijayan is currently fit enough to interact directly with the court through online mode."
11. In the said report, it is specifically mentioned that after the treatment so far given to the alleged detenu, he is now in a condition fit enough to enable this Court to directly interact with him through online mode. Further, crucially, it is also opined in the said report dated 20/03/2023 that now, what he requires is regular followup with a Psychiatrist on outpatient basis etc.
12. Accordingly, the case was adjourned to be taken up today, inorder to enable us to directly interact with the alleged detenu through video conferencing mode.
13. Today, the Government Medical College Hospital has arranged a video conferencing session to enable us to directly interact with the alleged detenu, who is now continuing as an inpatient there. We have also heard the submissions of the learned advocates, including the learned Addl. Advocate General appearing for the W.P.(Crl.) No.71 of 2023 13 official respondents.
14. We also initially directly interacted with two Psychiatrists and the Clinical Psychologist, who submitted their report dated 20/03/2023. During our separate interaction, all of them have told us that now, the alleged detenu is in a condition to be discharged and that his further treatment can be continued on the basis of long term supervised medications, home based rehabilitative interventions and regular follow up with a Psychiatrist on outpatient basis etc. We also queried to them as to his proclivity for violence etc. and we are given to understand that he has proclivity in that regard, especially with family members, who he does not like. We do not get into the details of these aspects, lest it may involve privacy issues. We also queried with the above expert professionals as to whether alcoholic abuse or excessive alcoholism has also contributed to his present mental state of affairs and his proclivity for violent behavior etc. We are given to understand that such excessive alcoholism or alcoholic abuse could also be a triggering factor for such proclivity. The distinct opinion given to us by these expert professionals, both in the written report dated 20/03/2023 as well as in the interaction made with this Court directly by them, is that now, the alleged detenu can be discharged and his further treatment is to W.P.(Crl.) No.71 of 2023 14 be done with all due care and attention on an outpatient basis with a qualified Psychiatrist.
15. We interacted with the petitioner (nephew, son of the sister of the alleged detenu), R-3 (son of the detenu) as well as Smt.Nisha (daughter of the alleged detenu). On the previous occasion, we directed both the petitioner and R-3 to file affidavits, stating as to whether they are willing to take the alleged detenu to their home, in case he is discharged from the present hospital. During the course of the submissions, the learned counsel for R-3, on the basis of instructions, has told us that the present discharge of the alleged detenu from the Psychiatry Department of the hospital is not warranted, as he has proclivity for violence and that R-3 was not now in a position to take the alleged detenu to his house due to various valid reasons etc. R-3 has filed affidavit dated 27/03/2023 in this case. The affidavit of R-3 on the above query point is rather ambiguous. In the beginning part of the affidavit, R-3 has stated as follows:
" 1, Vijeesh Vijayan, 40 years, s/o Mr. PK Vijayan residing at Nisha Bhavan, Pangada PO, Pampady. Kottayam do hereby solemnly affirm and state as follows I am the 3rd Respondent and Mr. PK Vijayan is my father who is under treatment as in patient in Kottayam Medical College Mental Establishment since 2 months for his mental illness. My father is not fully nor conservatively recovered till date, but if 2 or 3 months more treatment as an in-patient is provided by the W.P.(Crl.) No.71 of 2023 15 same Medical Establishment at Kottayam Medical College, he may hope to be recovered fully and once my father is more or less recovered, myself and my family altogether will be so delighted to receive him back home to continue further domiciliary treatment, if needed to him forever, but not at this point of his aggressive and violent state of mind."
16. Further, paras 9 and 10 of the said affidavit of R-3 read as follows:
" 9. My father's elder brother and all relatives strongly advised me that my father is soon to be treated and petitioner has no right to interfere in my family matters. In fact this petitioner has been an infiltrator to destroy my family bondage since many months which is a gross violation of my human right. Since my father's temporary stay at Palakkad with the petitioner for hardly 25-30 days made my father in this present mental predicament and has to be treated as he is always violent and aggressive towards my mother, me and my wife. In this present aggressive risky state of mind of my father, neither me nor my sister can afford to take him home for any treatment out of fear since he is utterly violent and aggressive against us for the reasons best known to him only.
10. I am hereby humbly submitting before the Hon'ble court my willingness to treat my father in Kottayam Govt Medical College for 2 or 3 months more till almost recovery and it is my own responsibility as a son to take him then back home for further continuous domiciliary treatment for ever."
17. A reading of the said affidavit would clearly indicate that R-3 has taken the stand that, though he is willing to take the alleged detenu (his father) to his house, he is not in a position to take the alleged detenu now in his violent state. Hence, we specifically requested the learned counsel for R-3 to explain the clear stand of R- 3 and to this, the learned counsel for R-3 submitted that R-3 is present in the court today and that this Court may directly interact W.P.(Crl.) No.71 of 2023 16 with him.
18. The petitioner, who is the nephew of the alleged detenu, has filed affidavit dated 27/03/2023, in which it is stated, in para 3 thereof, that he and his family members are willing to accommodate the detenu, in case he is discharged from the hospital and to comply with the medical requirements and to give him necessary followup treatment, as required.
19. Paras 2 and 3 of the affidavit dated 27/03/2023 of the petitioner read as follows;
" 2. It is respectfully submitted that the detenu and my mother are very close to each other. Infact, immediately preceding 45 days before he was taken to S.H Hospital, he had come and stayed with us and was very peaceful and never had any issues. He is also close to me and my siblings. Myself and my brothers have visited Sri. Vijayan at the hospital on many occasions and he has always been very normal and had only apprehensions about going with his son as he physically abuses him.
3. It is submitted that myself and my family are willing to to accommodate the detenu, in case he is discharged from the hospital and to comply with the medical requirements and to give him necessary follow up treatments as required."
20. We have directly interacted with the alleged detenu, after interacting with the expert professionals. On being queried, the alleged detenu has told us about his age, family details etc. We also apprised him about the specific stand of the expert professionals that he requires psychiatric treatment and that, as of now, he could be discharged from the hospital and that he requires further careful W.P.(Crl.) No.71 of 2023 17 treatment, on an outpatient basis, with a qualified Psychiatrist and that, if he is discharged, he should co-operate with the caregivers concerned to ensure timely further psychiatric treatment, whichever is needed. We have also told him that the expert professionals have opined about his proclivity for violence and requested him to act with all responsibility and also to ensure avoidance of excessive alcoholism or alcohol abuse etc. From the tone and tenor of his submissions and his body-language, we could understand that the alleged detenu is willing to co-operate in that regard. We specifically queried as to whether he is willing to go with the petitioner or R-3 or with Smt.Nisha (daughter of the alleged detenu) and the alleged detenu has told us that he would prefer to be with the petitioner, who is his nephew and further that, he does not want to live with R-3.
21. On our interaction, R-3 told us that now, he is not in a position to take his father (the alleged detenu) to his house, in view of his violent proclivity and that he requires further in-patient care and treatment etc. We have told R-3 that we are not in a position to overrule the well considered professional opinion given by a committee of professional experts, consisting of Psychiatrists and Clinical Psychologist and that the said opinion is to the effect that the alleged detenu is to be discharged from the hospital as an in-patient W.P.(Crl.) No.71 of 2023 18 etc. From the stand of R-3, he was very firm that he is not in a position to take the father back now.
22. On our interaction with the petitioner, he has told us that he is fully willing to take the alleged detenu to his (petitioner's) house in Palakkad where his mother (sister of the alleged detenu) and the petitioner's wife and child are residing and that the petitioner's other siblings are also living in the immediate neighbourhood and that the petitioner and the other family members would give congenial love and care to the alleged detenu to take care of all his needs and his medical requirements and that he will be given necessary psychiatric treatment on outpatient basis and any other mode of treatment, as and when it is so required and that he will be given necessary medication etc.
23. We have also interacted with Smt.Nisha, the daughter of the alleged detenu, since it was reported in the earlier report dated 25/02/2023 that the Psychiatrists were personally told by the alleged detenu that he would like to reside either with the petitioner or with Smt.Nisha, alleged detenu's daughter. Smt.Nisha told us that she is not in a position to take the alleged detenu to her house, in view of his medical complications.
24. Sri.Asok M.Cherian, the learned Additional Advocate W.P.(Crl.) No.71 of 2023 19 General would submit, on the basis of instructions from the Psychiatric Department of the Government Medical College, that the facilities of that hospital for treatment, on a long-term basis, as an in- patient, are limited due to various reasons, including infrastructural facilities and also higher demand for treatment from various patients and therefore, the level of long-term in-patient treatment cannot be prolonged and further that, the professional opinion has now been clearly given that the alleged detenu would be discharged, subject to the abovesaid conditions.
25. Further, Sri.Asok M.Cherian, the learned Additional Advocate General would also submit that the prima facie observations made by this Court, in para 2 on page 2 of the order dated 27/02/2023, as if the present factual scenario may come within the scope of Sec. 100(5) of the Mental Health Act, 2017, may not be fully legally correct, inasmuch as the present scenario of admission of the alleged detenu initially in the private hospital at Thodupuzha and later in the Government Medical College Hospital, Kottayam (on account of the orders of this Court ), would mainly come within the purview of Sec. 89 (admission and treatment of persons with mental illness, with high support needs, in mental health establishment, etc.) read with Sec. 14(4)(b) etc., inasmuch as the initial admission of the W.P.(Crl.) No.71 of 2023 20 alleged detenu in the private hospital, at the instance of the relatives of the alleged detenu, like R-3, would come within Sec. 89(1) made at the instance of a relative, who would fall within the definition of nominator of the representative within the meaning of Sec.14(4)(b) etc. and that the further treatment given as per the direction of this Court in the Government Medical College Hospital, Kottayam, would come within the other provisions of Sec. 89 and that the time period of treatment for reaching the stage of Sec. 90 of the Mental Health Act, 2017, has not so far been reached etc. After hearing both sides, we are of the view that the learned Additional Advocate General is right in making the said submission and the prima facie observation made by this Court, in para no.2 on page 2 of the interim order dated 27/02/2023 passed by this Court in this W.P.(Crl.), will stand superseded and modified as above.
26. Accordingly, the upshot of the above discussion is that the initial hospitalisation of the alleged detenu, at the instance of R-3 and other family members of the alleged detenu, in the private hospital at Thodupuzha, cannot be said to be a wrongful confinement or illegal detention, inasmuch as it would come within the purview of Sec. 89(1) read with Sec. 14(4)(b) of the Mental Health Act, 2017. The various reports of the Psychiatrists and committee of Psychiatrists W.P.(Crl.) No.71 of 2023 21 would clearly show that the alleged detenu would come within the definition of mentally ill person, as defined in Sec. 2(s) of the Mental Health Act, 2017 and the procedure for admission would come within the scope and ambit of Sec. 89 of the Mental Health Act, 2017, as mentioned herein above. However, this Court has no alternative but to order that the alleged detenu be discharged as an in-patient from the Government Medical College Hospital, Kottayam, and the said hospital authorities may ensure that the alleged detenu is allowed to be taken by the petitioner herein to his residence. Further, it is ordered that the petitioner should give all due care and attention to the alleged detenu by way of personal care and medical care and the alleged detenu should be given further psychiatric treatment on an outpatient basis, with a qualified Psychiatrist and if a stage come for any in-patient treatment, that should also be ensured by the petitioner, depending upon the advice and line of treatment suggested by the qualified psychiatrist. If there is any controversy, then it shall be ensured that independent opinions of two psychiatrists be taken, instead of relying on the opinion of a single psychiatrist. Timely care and medication should regularly be given to the alleged detenu and the petitioner and his family members would be responsible for the same. We also queried to the learned W.P.(Crl.) No.71 of 2023 22 advocates as to whether any other additional direction should be given to ensure that the alleged detenu gets proper medical care and psychiatric treatment etc. Based on the instructions of the learned Additional Advocate General, it is ordered that the District Legal Services Authority, Palakkad, will ensure that the petitioner may give monthly reports to the District Legal Services Authority, Palakkad, about the treatment being given to the alleged detenu and along with the letter of the Psychiatrist concerned and also the nature of the medicines given to him etc. So also, the Secretary, DLSA, Palakkad, may also consider making a visit to the residence of the petitioner where the alleged detenu is to reside, once in two or three months, if he/she deems it fit, to ascertain about the well-being and the care that is given to the alleged detenu etc. If the Secretary, DLSA, is of the opinion that any further action is required, he/she may get orders from the Chairperson of the District Legal Services Authority, Palakkad, who in turn, if necessary, may direct the Secretary, DLSA, to get advice and instructions from the learned Additional Advocate General, who may thereafter examine the factual scenario and consider and give instructions to the competent authorities about any further action that may be required in any future scenario. If the learned Additional Advocate General is of the considered opinion that W.P.(Crl.) No.71 of 2023 23 any matter is to be brought to the notice of this Court for any purpose, including for seeking any further directions, he will be at liberty to do so and if any such report is filed in that regard, at the instance of the learned Additional Advocate General, the Registry may post this matter before this Bench on the judicial side, for consideration of any further orders, if required. We are issuing these directions only to ensure the welfare and interest of the alleged detenu, as he requires further psychiatric treatment. The Registry will forward copies of this judgment to the Chairperson, District Legal Services Authority, Palakkad, and the Secretary, DLSA, Palakkad, as well as the Secretary, Kerala State Legal Services Authority, Ernakulam, for necessary information.
No other orders and directions are called for. With these observations and directions, the above W.P.(Crl.) will stand disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE Sd/-
C.S.SUDHA, JUDGE Jms/29.03 W.P.(Crl.) No.71 of 2023 24 APPENDIX OF WP(CRL.) 71/2023 PETITIONER EXHIBITS Exhibit1 A TRUE COPY OF THE COMPLAINT DATED 19-1- 2023 FILED BY THE PETITIONER AND 5 OTHER NEAR RELATIVES OF THE DETUNE HAVE FILED BEFORE THE 2ND RESPONDENT