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2008 DIGILAW 487 (GAU)

Bhupen Biswas v. State of Assam

2008-07-02

BROJENDRA PRASAD KATAKEY, J.CHELAMESWAR

body2008
JUDGMENT B.P. Katakey, J. 1. The unfortunate son of an under-trial prisoner, Kanak Biswas, who was in judicial custody in Guwahati Central Jail as an accused' in connection with Khetri P.S. Case No. 127/06 registered Under Section 302/34 IPC, by the present petition is praying for compensating the family of the under trial prisoner alleging negligence on the part of the respondents in extending the proper medical treatment. 2. The father of the petitioner, namely Kanak Biswas, aged about 60 years, was arrested in connection with Khetri P.S. Case No. 127/06 registered Under Section 302/34 IPC, on the basis of the FIR lodged by one Dipak Paul on 23.7.06, alleging killing of his daughter by her husband, father-in-law (Kanak Biswas), mother-in-law, sister-in-law and the brother-in-law. During investigation, the police arrested Kanak Biswas on 26.7.06 and under the order of the Court, when produced before the learned Magistrate, he was lodged in Central Jail at Guwahati under judicial custody. During his custodial detention in jail, he complained about his illness and within a span of two months from the date of his arrest, he was attended to by the jail doctors on 16.8.06, 14.9.06, 18.9.06, 20.9.06, 21.9.06, 23.9.06 and 24.9.06. On the last day of his examination by the jail doctor i.e. on 24.9.06, he was referred to the Guwahati Medical College & Hospital for better treatment, but unfortunately he died on the way to the said hospital and was declared brought dead by the doctors in the Guwahati Medical College & Hospital. The inquest was done by an Executive Magistrate on 24.9.06 and on the next day i.e. on 25.9.06, the post mortem examination was carried out at the Guwahati Medical College & Hospital. The dead body was, thereafter, handed over to the relatives of the deceased on the same day. The report of the post mortem examination reveals the cause of death as-death due to bilateral pulmonary tuberculosis. Amagisterial enquiry on the death of Kanak Biswas was ordered by the District Magistrate, Kamrup with an Executive Magistrate as the enquiry officer. Upon enquiry, the enquiry officer submitted his report on 23.4.07 with the finding that "diagnosis in the Central Jail was perhaps not exhaustive and accordingly the treatment was not given in the proper direction. Amagisterial enquiry on the death of Kanak Biswas was ordered by the District Magistrate, Kamrup with an Executive Magistrate as the enquiry officer. Upon enquiry, the enquiry officer submitted his report on 23.4.07 with the finding that "diagnosis in the Central Jail was perhaps not exhaustive and accordingly the treatment was not given in the proper direction. Treatment of pulmonary tuberculosis was not given during the confinement of the deceased in the Central Jail which proves failure on the part of the doctors." 3. The Inspector General of Prison, thereafter, called for an explanation from the two attending jail doctors and forwarded the explanations submitted by them to the appointing/disciplinary authority of the said two doctors, namely Dr. B.N. Sarma and Dr. Zahid Hussain. Show cause notices were thereafter issued to the medical officers concerned asking them to explain as to why the pulmonary tuberculosis with which the UTP Kanak Biswas was reported to have been suffering from, could not be detected and as to why the disciplinary proceedings should not be initiated against them for their negligence in duties, pursuant to which the concerned medical officers submitted their show cause reply. The authority thereafter decided to seek the opinion and the views of the Professor and Head of the Department of Tuberculosis and Chest diseases, GMCH in the matter, who accordingly submitted his report to the effect that as at no point of time the UTP complained of any of the symptoms of the pulmonary tuberculosis and it was quite natural on the part of the medical officers not to make any investigation in the line of tuberculosis and that many a times it is not possible even for the experts to diagnose pulmonary tuberculosis by clinical examination, the concerned medical officers could not be held responsible for not suspecting and investigating the UTP for pulmonary tuberculosis. The authority thereafter did not proceed further against those medical officers who examined the UTP Kanak Biswas while he was in jail custody. 4. We have heard Mr. S.S. Dey, learned Counsel for the petitioner and Mrs. B. Goyal, learned State counsel appearing on behalf of the respondents. Also perused the pleadings of the parties as well as the materials available on record produced by the learned State counsel. 5. 4. We have heard Mr. S.S. Dey, learned Counsel for the petitioner and Mrs. B. Goyal, learned State counsel appearing on behalf of the respondents. Also perused the pleadings of the parties as well as the materials available on record produced by the learned State counsel. 5. The facts narrated above are borne by the records produced by the respondents before this Court and are not disputed by the learned Counsel for the parties. It is the case of the petitioner in the writ petition that though the UTP Kanak Biswas, his father, during custodial detention in Guwahati Central Jail complained about his illness on several occasions, he has not been extended the proper medical care and as a result of which he died of pulmonary tuberculosis. The petitioner, therefore, has prayed for directing the respondents to pay compensation for the death of his father. The stand of the respondents in the affidavit filed is that the UTP Kanak Biswas never complained of any symptoms of pulmonary tuberculosis and he was attended to by the medical officers attached to the jail as and when necessary, but unfortunately he died on 24.9.06, while he was shifted to the Guwahati Medical College and Hospital for better treatment. It is the further case of the respondents that it may not always be possible to detect the symptoms of pulmonary tuberculosis even by the experts by clinical examination, unless of course the patient complains of some symptoms of such disease, which has not been done. Therefore, the respondents contended that there was no negligence on their part, more so when there was no occasion on the part of the medical officers to go for further investigation in the line of pulmonary tuberculosis, there being no complaint by the patient and the symptoms for which disease may not occur at all. 6. This Court vide order dated 13.6.08 summoned Dr. Pranab Baruah, Professor and Head of Department of Tuberculosis and Chest Diseases, Guwahati Medical College and Hospital, who in his report has opined that there was no negligence on the part of the medical officers attached to the jail in not suspecting and investigating the UTP for pulmonary tuberculosis. Accordingly, Dr. 6. This Court vide order dated 13.6.08 summoned Dr. Pranab Baruah, Professor and Head of Department of Tuberculosis and Chest Diseases, Guwahati Medical College and Hospital, who in his report has opined that there was no negligence on the part of the medical officers attached to the jail in not suspecting and investigating the UTP for pulmonary tuberculosis. Accordingly, Dr. Pranab Baruah personally appeared before this Court on 26.6.08 and has stated before the Court that though it is difficult to detect the pulmonary tuberculosis by clinical examination, the concerned UTP having reported to the doctor on a number of occasions during his short custodial detention in Central Jail at Guwahati, it was the duty of the attending doctors to record the weight of the patient and had it been recorded, the attending doctors could have suspect that the UTP concerned was suffering from tuberculosis and might have proceeded for further investigation, as the loss of weight is one of the symptoms of tuberculosis. Referring to the medical records maintained by the Guwahati Central Jail, it has further been stated by Dr. Baruah that the concerned medical officers had never at any point of time recorded the weight and the body temperature of the UTP, though he reported to the doctor on a number of occasions in the months of August and September, 2006, which ought to have been checked and recorded by the medical officers. 7. The records produced before this Court reveal that the UTP Kanak Biswas, the father of the petitioner, complained of illness and he was medically examined by the medical officers attached to the jail on 16.8.06, 14.9.06, 18.9.06, 20.9.06, 21.9.06, 23.9.06 and also on 24.9.06, on which date he was referred to GMCH for better treatment. As noticed above, not even on a single day the weight and the body temperature of the UTP was checked and recorded. Had it been done, the same could have given some indication to the medical officers attending him to go for further examination as to whether he has been suffering from any other disease other than the one he complained of. Had it been done, the same could have given some indication to the medical officers attending him to go for further examination as to whether he has been suffering from any other disease other than the one he complained of. It also appears from the record as well as the pleadings of the respondents that though the UTP complained about diarrhea as well as stomach ailment consistently and was suffering from anemia and also stated to be alcoholic, no effort has been made by the medical officers attending him to ascertain the cause of such complain requiring further advanced medical examination, apart from prescribing the antibiotics on 14.9.06, upon examination of the urine for the presence of sugar, which was reported to be nil, some vitamins and the medicines for reducing the pain and also infusing I.V. Dextrose 5%. It also appears from the medical record that on 14.9.06 his blood pressure was recorded as 160/90, which was gradually reducing i.e. on 18.9.06, 140/80 and on 20.9.06, 80/40. In spite of that the medical officers, as it appears, did not consider it necessary to go for further medical examination and went on prescribing medicines even without making a genuine effort to diagnose the cause of his sufferance. The report of the magisterial enquiry dated 23.4.07 further reveals that proper treatment was not given to the UTP Kanak Biswas for which the Executive Magistrate found fault on the part of the attending doctors. 8. The UTP Kanak Biswas being in Central Jail, pursuant to the order of the Court, it is the duty of the jail authority to extend all medical assistance required by the UTP. His detention in custody means the curtailment of his fundamental right of free movement only, but he cannot be denied the right to life as guaranteed under Article 21 of the Constitution of India. The right to life as enshrined in Article 21of the Constitution of India includes the right to live with human dignity and also the right to receive the proper medical treatment while in custody. Such right cannot be denied to an UTP on the ground that his movement has been curtailed by putting him in custody. The right to life as enshrined in Article 21of the Constitution of India includes the right to live with human dignity and also the right to receive the proper medical treatment while in custody. Such right cannot be denied to an UTP on the ground that his movement has been curtailed by putting him in custody. In the instant case, as discussed above, the UTP Kanak Biswas lost his life because of not extending the proper and adequate medical care to him, for which the family of the UTP is to be adequately compensated, under the public law remedy. 9. Keeping in view the facts and circumstances of the case, in our considered opinion, an amount of Rs.3 lakh (Rupees three lakhs) would be the appropriate amount of compensation to be awarded for contravention of the human rights as well as the fundamental rights of the deceased, guaranteed by the Constitution of India. Accordingly, the respondents are directed to deposit the said, amount of Rs.3 lakh before the Registrar General of this Court, within a period of 45 days from today, for payment to the widow of the deceased UTP, namely Kanak Biswas. We also direct the respondent authorities to conduct a fresh departmental enquiry relating to the negligence of the concerned two medical officers attached to the jail and to take, a decision in that regard, without being influenced by the report submitted by Dr. Pranab Baruah, Professor and Head of the Department of Tuberculosis and Chest Diseases, Guwahati Medical College and Hospital. It is also open to the respondents to recover the aforesaid amount from the concerned medical officers, in the event such enquiry ended against them. 10. The Registrar General of this Court is directed to release the aforesaid amount to the widow of Kanak Biswas, on being identified by learned Counsel. The writ petition is accordingly allowed with cost of Rs.5,000/- (Rupees five thousand) to be deposited by the respondents to the Legal Aid Fund of the Legal Aid Committee of this Court within a period of 15 days form today. Petition allowed.