WP(MD)/25578/2018 of SUBBU Vs THE HOME SECRETARY, on 31 December 2018

Relief

ORDER

This Writ Petition is filed by the mother of one Ramesh, whodied in the hospital during treatment. The petitioner sought forWrit of Mandamus as against the respondents 3 and 6 to conductpostmortem of her son's body, namely, Ramesh, through two seniorprofessors from Forensic Department from other teaching Governmenthttps://hcservices.ecourts.gov.in/hcservices/Hospitals and under the full video coverage within a stipulatedtime.

2. Heard the learned counsel appearing for the petitioner andthe learned Additional Public Prosecutor appearing for therespondents.

3. The learned counsel appearing for the petitioner submittedthat the life of the petitioner's son could have been saved by theDoctors, if they would have detected the presence of HIV on the dateon which he donated blood. The learned counsel appearing for thepetitioner had also blamed the media in projecting the issue in sucha manner which according to him had driven the petitioner's son toconsume poison.

4. The case of the petitioner is that the petitioner's sonRamesh had donated his blood on 30.11.2018 in Sivakasi GovernmentHospital blood bank, in order to replace the blood, used for hisrelative at Sivakasi Government Hospital. The said blood which wasdonated by the petitioner's son was transfused to an anaemicpregnant woman in Sattur Government Hospital. After some time, whenhe tested his blood in private laboratory in Virudhunagar for thepurpose of getting job in abroad, it was reported that he is havingHIV positive and jaundice. Immediately, he approached SivakasiGovernment Hospital, where a new test was taken and they alsoconfirmed HIV positive. In the mean time, the lady, who wastransfused with the blood, has suffered from heavy diarrhea andfever and thereafter, she was admitted to the Sattur Governmenthospital, wherein it was reported that she is having HIV infection.The media had reported the matter and started asking him about hisHIV status. As shamed of the same, he consumed poison and admittedto Kamudhi Government Hospital on 26.12.2018. Thereafter, he wasshifted to Ramanathapuram Government Hospital and finally shifted toGovernment Rajaji Hospital, Madurai on 27.12.2018.

5. According to the petitioner, the doctors at GovernmentRajaji Hospital, Madurai provided treatment to her son immediatelyand thereafter, he was recovered to stable. Within three days oftreatment, the petitioner's son was back to his normal condition andthere was no warning of any danger to his life. On 29.12.2018 thepetitioner's son, namely, Ramesh had walked to the toilet on his ownbefore going to sleep. In the early morning of 30[th] December, 2018,around 05.00 A.M., three doctors and one nurse attended him and atthat time, Ramesh had complained of pain in his private parts. Thedoctor had administered two packets of a liquid through I-V and alsoadministered one bottle of blood. He was also administered with aninjection near his private part. After some time, Ramesh hadvomited blood and died within few minutes. The doctors tried torevive him, but they could not recover him. Around 07.00 A.M.,including the petitioner and others are asked to leave from theward. But the third respondent announced media as if her son diedat about 08.10 A.M. When the Ramesh died around 07.00 A.M., thethird respondent had informed the media as he died around 08.10 A.M,https://hcservices.ecourts.gov.in/hcservices/which raised a doubt for the petitioner. Hence, she gave a petitionto the third respondent to conduct postmortem by a team of doctors out of which two of whom should be from outside Madurai GovernmentMedical College and the entire postmortem shall be video-graphed.The request was not considered by the third respondent andtherefore, the petitioner has approached this Court by way of filingthis Writ Petition.

6. The petitioner did not raise any doubt with regard to thetreatment provided to her son and also not attribute any motive tothe third respondent as well as to the doctors of Government RajajiHospital. However, they are having a doubt that the petitioner'sson is the crucial witness to the case of the transfusion of the HIVpositive to the pregnant lady, who took treatment at SatturGovernment Hospital and at the time of death as indicated.

7. It is also pointed out that when the organizers ofPeople's Watch informed the District Collector, Ramanathapuram onhis official mobile on 30.12.2018 around 05.30 P.M., and till suchtime, he was not at all informed about the death. According to thepetitioner, the district administration, Ramanathapuram had agreedto the postmortem being carried out by a team of doctors.

8. The learned Additional Public Prosecutor appearing for therespondents had strongly opposed for the grant of relief that it isroutine affair for asking such relief in all the cases registeredunder Section 174 Cr.P.C. He would further submit that in thesurrounding area, the Government Rajaji Hospital, Madurai is thebiggest Government Medical College Hospital compared with Sivagangaiand Theni District and therefore, the senior most professors areworking only in Government Rajaji Hospital, Madurai. He had alsoproduced a circular, which has been issued by the Director ofMedical Education in conducting postmortem in the cases of HIVpatients. The said circular reads as follows:- “Postmortem should be conducted using (a) double gloves (upto the elbows level)

(b) double mask

(c) cap

(d) a plastic apron

(e) a pair of goggles to protect the eyes (f) gum boots Even though, the person is dead, the changes ofinfection from the dead body to others is 90% upto 72hours. Hence, if possible, the postmortem can be delayedup to that time; the body can be wrapped in a plasticcover and kept separately.During the postmortem examination, the tissuedamage (cutting or scaring) can be minimized, so “thatinfection through aerosel will be prevented.

9. The learned Additional Public Prosecutor had also produceda copy of the book “The Essentials of Forensic Medicines andhttps://hcservices.ecourts.gov.in/hcservices/Toxicology” and relied upon the contents regarding the video-graphon postmortem. In the said book, it is stated as follows:- “Video-graphy of autopsy is necessary only whenthe preliminary inquest by the Magistrate raises suspicionof any kind of foul play or where a complaint alleging anyfoul play has been made to the authorities or there is anyother suspicion of foul play. The cassette has to be sentto the Commission along with the P.M. report”.

10. During the course of argument, the third respondent hadappeared before this Court and also produced a written defencestatement, which reads as follows:-“2.Ramesh, 18 Years/Male, got admitted at ourhospital on 27.12.2018 at 01.15 a.m. got admitted foralleged consumption of rat killer paste (Ratol) poisoningwhich is liver toxin. He was treated with I.V.Fluids andother supportive measures.

3. Ratol poison contains Yellow Phosphorus. It causesAcute Liver failure. The patients are usually asymptomaticduring the initial 72 hours of ingestion, or they may havesigns and symptoms of gastrointestinal irritation. After 72hours they develop deranged liver function, acute hepaticfailure, coagulopathy. Patients who present late afterconsumption of the lethal dose develops fulminant hepaticfailure with mortality of 100%. He consumed poison on26.12.2018 at 07.30 a.m., and admitted in our hospital on27.12.2018 at 01.15 a.m. (18 hours after consumption ofpoison). There is no specific antidote for yellowphosphorus poisoning (Reference attached).

4. The patient was kept on observation. On 30.12.2018early morning at 03.30 a.m. Patient developed massive bloodvomiting and his peripheral veins were collapsed. Hence tocollect blood samples, femoral vein was punctured forcollecting blood sample. Femoral vein is present in theupper part of thigh, near the private part. After takingsample, to prevent bleeding, we asked his father tocompress the site with cotton. At 07.40 a.m., the patienthad cardiac arrest and Cardio Pulmonary resuscitationstarted and given for 30 minutes. Since there was noresponse, death was declared at 08.10 a.m.

5. Postmortem will be conducted by our AssistantProfessor usually. Video coverage in poison cases is notroutine. In poison cases, the viscera is removed and sentto Forensic Medicine Laboratory for identifying the poison.In this case, Senior Professors are efficient andexperienced available in our hospital. We are ready to doautopsy by our qualified efficient and Senior Professors inour Forensic Medicine Department.”

https://hcservices.ecourts.gov.in/hcservices/11.The learned Additional Public Prosecutor on instructionsfrom the third respondent had also submitted that there is a videofrom the third respondent had also submitted that there is a video camera available in the postmortem centre at Government RajajiHospital, Madurai and that would be sufficient to record thepostmortem. He would further submit that this is a special case ofHIV infection and it is highly dangerous to the doctors, who wouldconduct postmortem. That is why, several safety measures have beenprovided to conduct postmortem in the case of HIV patients. He hadalso expressed difficulty in getting video-graph in this case.

12. Considering the rival submissions, this Court is of theconsidered view that it is the duty of the Government to eliminatethe doubt from the victim and from the common man. In this matter,the media has given wide coverage to the issue and even according tothe petitioner, on account of the media coverage, the petitioner'sson was driven to consume poison. In such circumstances, it is theduty of Government to eliminate the doubt from the petitioner aswell as from the common man. Though the petitioner had raised somedoubt with regard to the intimation about the death by the doctorsto the Press as well as to the district administration, they havenot made any doubt with regard to the quality of treatment providedto the petitioner's son at Government Rajaji Hospital, Madurai.According to the petitioner, her son was immediately attended and onaccount of the treatment, he had also recovered to some extent andhe was able to do his normal works, but on sudden collapse, he diedon 30.12.2018.

13. It is pertinent to note that the Government Hospitals inNew Delhi have been directed to video-graph the postmortemproceedings in sensitive cases with a view to ensure transparency inthe police investigation. Even in Government Rajaji Hospital,Madurai, according to the third respondent, video camera isavailable in the postmortem centre and the third respondent, who isalso present before this Court had also agreed to give the footageof that video-graph to the petitioner. In order to eliminate doubt,the respondents have also come forward to conduct postmortem in thepresence of some other senior professors from other medical collegehospitals. However, their apprehension is that it should not betreated as a precedent and it will open a floodgate to all the casesso that their work would be paralysed. This apprehension of therespondents is also accepted by the learned counsel for thepetitioner and he had requested this Court to observe the same sothat it cannot be treated as precedent in all the cases registeredunder Section 174 Cr.P.C. The bona fide offer made by therespondents to conduct postmortem along with the AssistantProfessors from other colleges is welcoming fact, which wouldeliminate the doubt from the petitioner as well as the common man.

14. Under such circumstances, this Writ Petition is allowedwith the following directions:-

1. The postmortem shall be conducted as provided in thehttps://hcservices.ecourts.gov.in/hcservices/circularoftheDirectorofMedicalEducationinR.Dis.No.13005/PAI/08 dated 09.09.2018.

2. The third respondent shall avail service of the twoAssistant Professors from any of the neighboring medical collegesnamely, Sivagangai, Tirunelveli and Theni and conduct the postmortemon the body of Ramesh along with the senior professors of theGovernment Rajaji Hospital, Madurai.

3. The third respondent shall find out the possibility oftaking video-graph of the postmortem. In any case, there is nobodyavailable for taking video-graph, the third respondent shall ensurethe possibility of adding two more video cameras in the postmortemcentres to cover the postmortem in other angles also. In case, itis not possible within short duration, it may be intimated to thepetitioner in advance so that the petitioner shall arrange forvideo-graph. If the petitioner is offering for video-graph, itshall be permitted by the third respondent.

15. It is made clear that the relief sought for in this caseis granted by consent on the special circumstances of this case.This cannot be treated as a precedent in all the cases registeredunder Section 174 Cr.P.C. However, as the postmortem is a crucialfactor in proceeding with the case of homicide and suicide, theGovernment shall ensure the possibility of erecting the videocameras in all the postmortem centres to ensure the transparency.

/True Copy/

Sd/- Vacation Officer(CS-II)

Sub Assistant Registrar(CS-III)

To

1. The Home Secretary, Government of Tamil Nadu, Secretariat, Chennai-9.2.The Director General of Police, DGP Office, Mylapore, Dr.Radhakrishnan Salai, Chennai-5.

3. The Dean, Government Rajaji Hospital, Madurai-20.4.The District Collector, Ramanathapuram, Ramanathapuram District.

5. The Secretary, Health and Family Welfare Department, Secretariat, St.George Fort,https://hcservices.ecourts.gov.in/hcservices/ Chennai-600 009.

7

6. The Inspector of Police, Kamudhi Police Station, Ramanathapuram District.7.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.+3CC to M/s.Henri Tiphange, Advocate, SR.No.101984+1CC to the Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai, SR.No.101985

W.P.(MD)No.25578 of 201831.12.2018

ES/BK/SAR 3/31.12.2018/7P/12C