Court on Own Motion vs The State of Tripura and Others

Deepak Gupta, C.J.

This writ petition has been registered on the basis of a news item published in the ''Tripura Times'', dated 10th February, 2016 as well as the ''Dainik Sambad'', dated 11th February, 2016.

The news story in brief projects that a tribal girl was gang-raped by two youth on 26.01.2016. She was admitted to the G.B.P. Hospital for treatment. After she had been treated and had recovered she was not actually discharged from hospital and forced to stay back in the hospital because of nonpayment of ICU bills. Thereafter, according to the news reports, her family members had to mortgage their domestic animals and get her discharged from hospital after paying the charges amounting to about Rs. 5000/-.

We live in a social welfare State and victims of sexual abuse must be treated with sympathy instead of with callousness.

Taking into consideration the plight of the victims the Code of Criminal Procedure was amended more than three years back on 3rd February, 2013 and Section 357C was inserted which reads as follows:-

"357C. Treatment of victims.--All hospitals, public or private, whether run by the Central Government, the State Government, local bodies or any other person, shall immediately, provide the first-aid or medical treatment, free of cost, to the victims of any offence covered under section 326A, 376, 376A, 376B, 376C, 376D or section 376E of the Indian Penal Code (45 of 1860), and shall immediately inform the police of such incident."

A bare reading of this provision shows that a victim of sexual abuse falling under Section 326A, 376, 376A, 376B, 376C, 376D and section 376E are to be treated free of cost not only in Government hospitals but also in private hospitals.

On 17.02.2016 after taking note of the news item and the provisions of section 357C quoted hereinabove, we had sought the following informations from the respondents:-

"1. Whether after the amendment of the Code of Criminal Procedure in the year 2013, the Law Department of the State brought this matter to the notice of the Health Department?

If this matter was brought to the notice of the Health Department whether any notification in terms of Section 357C was issued earlier?

Whether instructions, if any were issued prior to the instructions issued on 16th February, 2016?

Whether any action has been initiated against the persons who have enforced recovery of Rs. 5000/- from the victim in the present case?"

Consequent to the orders passed by us, affidavits have been filed. We shall first deal with the affidavit filed by the Director General of Police. In this affidavit, it is stated that the Member Secretary of the Tripura State Legal Services Authority sent a communication dated 10.4.2013 addressed to the Director, Health and Family Welfare Department, Government of Tripura along with a copy of the gazette whereby the amended provisions had been inserted in the Code of Criminal Procedure. This communication was addressed by the then Member Secretary, Sri S.G. Chattopadhyay. The communication reads as follows:-

"No. F.1.A(42)-LAW/TSLSA/AGT/ESTT/11/520-28

April 10, 2013

To

The Director, Health & Family Welfare Department, Govt. of Tripura, Agartala.

Sir,

As you know, the State Legal Services Authority has been constituted under section 6 of the Legal Services Authorities Act, 1987. One of the functions of this Authority is to take, inter-alia, appropriate measures to ensure that the benefits and privileges of various enactments of our legislatures reach the people for whom those enactments are made.

Recently, our Parliament has passed "The Criminal Law (amendment) Act, 2013" amending various provisions of the Indian Penal Code, the Code of Criminal Procedure, the Indian Evidence Act and the Protection of Children from Sexual Offences Act which has already come into force through-out the country.

By this amendment Act (section 23), a provision beneficial to the victims of acid attack and rape has been incorporated in the Code of Criminal Procedure, 1973, by way of insertion of section 357C which provides as follows:

"357C. All hospitals, public or private, whether run by the Central Government, the State Government, local bodies or any other person, shall immediately, provide the first-aid or medical treatment, free of cost, to the victims of any offence covered under section 326A, 376, 376A, 376B, 376C, 376D or section 376E of the Indian Penal Code, and shall immediately inform the police of such incident."

I would, therefore, request you to kindly issue appropriate directions in order to ensure that the victims of acid attack and rape victims, as above, receive immediate medical treatment, free of cost, at such hospitals including the nursing homes throughout the State and the incidents are also immediately reported to police by the hospital authority as provided in the law. For your convenience a copy of "The Criminal Law (amendment) Act, 2013" as published by the Ministry of Law and Justice (Legislative Department), Govt. of India in the extra-ordinary issue dated April 2, 2013 of the Gazette of India is enclosed herewith.

With regards,

Yours'' Sincerely Sd/-(S.G. Chattopadhyay) Member Secretary"

This letter of the Legal Services Authority was brought to the notice of the Director General of Police and he vide letter dated 18.4.2013 circulated the Criminal Law (Amendment) Act, 2013 to all the Superintendent of Police in the respective districts with further instructions to circulate the same to sub-ordinate officers such as SDPOs and O/Cs of all the Police Stations under their jurisdiction for strict compliance. Copy of the communication was also sent to the Director, Health and Family Welfare Department, Government of Tripura and response was also sent to the Member Secretary, Tripura State Legal Services Authority. According to the affidavit filed by the Director General of Police, the copy of this Act was again recirculated to all sub-ordinates on 20.6.2015 with similar directions as given earlier. It is further stated that after receipt of the order dated 17.2.2016, the copy of this order has been circulated to all concerned.

We appreciate the steps taken by the Police Department and also appreciate the role of all the persons holding the post of Director General of Police during this relevant period who have not only circulated this but have given direction that this letter be obeyed in letter and spirit. We also place on record our appreciation for the active role played by the Member Secretary of the Tripura State Legal Services Authority.

The next affidavit filed is that of the Secretary In-charge of the Law Department. According to this affidavit, this amendment in the Code of Criminal Procedure which was brought about in the year 2013 was never brought to the notice of any other department by the Law Department.

We fail to understand why the Law Department was silent in the matter. It is the duty of the Law Department to advise the government in all legal matters. The amendments which were brought about by the Criminal Law (Amendment) Act, 2013 are extremely important. Even the definition of rape was amended by this very amendment. This amendment was brought about after the unfortunate "Nirbhaya" incident and on the basis of the recommendations made by Justice J.S. Verma Committee. It was the duty of the Law Department to have ensured that such an important amendment is brought to the notice of the police, the Health Authorities and all other concerned. The Law Department cannot wash its hands of the matter. Whenever any Act is amended which will have wide ranging effect like the 13th Criminal (Amendment) Act, it is the duty of the Law Department to ensure that these amendments are brought to the notice of other departments. People like doctors serving in the Health Department will obviously not be abreast with the latest developments in law. They are not expected to read the Indian Penal Code or the Code of Criminal Procedure. Therefore, the role of the Law Department is very important to ensure that whenever any amendments of this type are brought about, they are brought to the notice of the concerned departments. We direct that hereafter this shall positively be done by the Law Department.

As far as the affidavit of the Chief Secretary is concerned, his affidavit is nothing more but a continuation of the affidavit of the Director General of Police and states that the Police Department brought this amendment to the notice of the Health Department.

We have also been informed that after the occurrence took place, a notification has been issued on 16.2.2016 whereby directions have been issued that the provisions of Section 357C be strictly complied with.

We have also perused the affidavit of the Principal Secretary, Health to the Government of Tripura and in this affidavit it is stated that after the Police Department brought the amendment to the notice of the Health Department, this communication was brought to the notice of all the CMOs of the District, the Medical Superintendents by communication dated 17.6.2013.

We have carefully gone through the communication dated 17.6.2013. The same reads as follows:-

"No. F.13(3-8)-DFWPM/PHS/2011/1081-86 Government of Tripura Directorate of Family Welfare & P.M.

Dated, Agartala, the 17th June, 2013.

To

The Chief Medical Officer, West/Khowai/Sepahijala/South/ Gomati/Unakuti/North/Dhalai.

The Medical Superintendent, IGM Hospital/GBP Hospital/Kulai Dist. Hospital/ RGM Dist. Hospital/TS Dist. Hospital Tripura Medical College, Hapania.

Sub:- Providing free medical treatment to acid attack victims-regarding.

Sir,

Please find enclosed herewith a letter from Under Secretary, Government of India for providing free medical treatment to acid attack victims which will speak for itself.

You are therefore, requested to do the needful with instructing all the Medical Officers In-Charge of the health institutions under your jurisdiction.

Enclo: As stated.

Yours faithfully, Sd/-(Illegible) Director of Family Welfare & P.M. Government of Tripura, Agartala."

The heading of the letter only mentions "free medical treatment to acid attack victims". It does not make mention of victims of rape or other sexual offences. No doubt, in the letter enclosed which was sent by the Union of India to all the Principal Secretaries, there is mention of Section 357C but as far as the State of Tripura is concerned, it took a shortcut in the matter and instead of expanding the letter, the letter was made even shorter. This amendment and the letter of the Union of India made reference to the judgment of the Apex Court and this letter of the Union of India mainly deals with recovery of fines etc. It is not sufficient to just enclose a copy of the letter. We expect that in such cases the Principal Secretary, Health should have given separate directions in detail which have now been issued and which were also issued by the Director General of Police but which should have actually been issued by the Health Department.

We have also perused the affidavit of the Medical Superintendent of the Agartala Medical College and G.B.P. Hospital. In this affidavit, Dr. Subrata Baidya holding the said post has made a very candid confession that he was not even aware of the provisions of section 357C of the Code of Criminal Procedure. We appreciate his honesty in clearly admitting his fault and because he has submitted his unqualified apology we do not want to proceed further in the matter against him. We, however, hope and expect that he now realizes what is the importance of Section 357C and he ensures that this is brought to the notice of all concerned.

We have a State Judicial Academy and if the State desires, it can at any time approach the High Court or the Patron-in-Chief of the State Judicial Academy to impart instructions of such legal provisions to any officers of the State whether they be Doctors, Administrative Officers, Forest Officers, Revenue Officers etc. The State runs a Law Training Institute. It was the duty of the then Secretary, Law who was also the Chairman of the Law Training Institute to have ensured that these provisions are brought to the notice of all concerned and furthermore, he should have ensured that in the Law Training Institute some seminar/lecture/training programme is conducted wherein the doctors are trained with regard to these activities.

It is only because the then Member Secretary of the Tripura Legal Services Authority brought this amendment to the notice of the Director General of Police and the Health Department that some action was taken. The Legal Services Authority does not have the wherewithal to conduct trainings and this officer did his duty by informing the concerned departments, i.e. the Police and the Health Department about the amendment. However, the same cannot be said about the Law Department. Therefore, a copy of this judgment shall be kept on the service file of the Judicial Officer holding the post of Secretary, Law at the relevant time. A copy of the judgment be also sent to him so that he can put forth his version on the administrative side within 6(six) weeks from today.

The writ petition is disposed of accordingly.