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Judgment
Huluvadi G. Ramesh, J.—The matter was heard at some length. While the learned Counsel for the Petitioner insisted that an independent Forensic Expert of his choice should be on board at the time of conduct Post-mortem, the said relief was vehemently opposed by the learned Additional Advocate General.
Reliance was placed on the decision of the Apex Court in People�s Union For Civil Liberties v. State of Maharashtra, 2014 (10) SCC 635, by the Petitioner, wherein the Supreme Court, on the basis of the United Nations Code of Conduct for Law Enforcement Officers, has culled out the Charter of the United Nations, which has opined that "affording the victim''s family and Legal Representative the right to request that an independent qualified representative be present during the Autopsy of the victim�s body
In the present case, it is the case of the Petitioner, since the victim had died while in custody, it is a case of Custodial Death warranting the presence of an independent person of the victim�s choice to be present at the time of Post-mortem, which would be in all fairness, which stand is opposed by the learned Additional Advocate General.
Be that as it may. On the above aspect, while I am of the view that it would be advisable to allow such independent Forensic Expert to be present at the time of conduct of the Post-mortem, as the same would be in no way prejudicial to the case of the prosecution and would in effect fortify the stand of the State about its fairness, my learned Brother, S. Vaidyanathan, J., however, subscribes to the view of the learned Addl. Advocate General that an independent person with Forensic knowledge would, in fact, lead to creating a doubt in the minds of the Public about the arbitrary nature of the conduct of the State machinery and suggested induction of one more Government Doctor in the Post-mortem Panel instead of an independent person of the choice of the Petitioner.
Since there exists a difference of opinion, with regard to the appointment of an independent person to be present at the time of Autopsy, between us, Registry is directed to place the matter before the Hon�ble Chief Justice for listing the matter before the Third Hon�ble Judge for his opinion on the above aspect. Not to conduct Autopsy till the decision is taken by the Third Judge.
N. Kirubakaran, J. [22.9.2016]
The original Writ Petition was filed seeking a Writ of Mandamus directing the 2nd respondent therein to take immediate and necessary steps to entrust the case, relating to the death of one Ramkumar in judicial custody to the Central Bureau of Investigation for investigation.
The Appellant herein, who is the father of deceased Ramkumar, was the Petitioner before the learned Single Judge. The deceased Ramkumar, who was in Judicial Custody, with regard to the murder of one "Swathi" on 24.06.2016 at Nungambakkam Railway Station, is said to have died on 18.09.2016. The Police stated that while in custody, the said Ramkumar, had bitten a live wire in the prison and committed suicide.
The version putforth by the Police is contested by the Appellant stating that the said Ramkumar was done to death, while in prison, by the Police officials. Lacking trust in the State machinery, the Appellant herein approached this Court in W.P. No.32885 of 2016 seeking a Mandamus to transfer the investigation relating to the death of Ramkumar to the Central Bureau of Investigation.
During the hearing of the Writ Petition, the learned Counsel for the Appellant/Petitioner waived the prayer for CBI Enquiry and sought only the presence of a Private Doctor, on behalf of the Appellant/Petitioner, at the time of Post-mortem of the body of Ramkumar along with Government Surgeons. The learned Single Judge, after hearing both the parties, while declining to accept the request of the Appellant to nominate a Doctor of his choice, directed the inclusion of one more Doctor from another Government Hospital along with the team of three other Government Doctors nominated for that purpose.
The aforesaid Order of the learned Single Judge declining to grant relief to the Appellant/Petitioner was taken up by way of an Appeal before a Division Bench of this Court. After hearing both the parties, the learned Senior Judge, leading the Bench, Justice Huluvadi G. Ramesh, opined that since the case pertains to Custodial Death, it would be advisable to allow an independent Forensic Expert to be present at the time of conduct of Postmortem as the same would be, in no way, prejudicial to the case of the prosecution and would, in fact, fortify the stand of the State about its fairness whereas the learned Puisne Judge, Justice S. Vaidyanathan opined that the presence of an independent person with Forensic knowledge would lead to creation of doubts in the minds of the Public about the arbitrary nature of the conduct of State machinery and suggested induction of one more Government Doctor in the Panel of Doctors constituted for the purpose of conducting Postmortem, instead of an independent person of the choice of the Appellant.
In view of the difference in opinion, the matter was referred to My Lord The Honourable Chief Justice for listing the matter before a Third Judge and that is how, the matter has come before this Court.
Heard Mr. R. Sankarasubbu, learned Counsel appearing for the Appellant and Mr. C. Manishankar, learned Additional Advocate General appearing for the Respondents.
Mr. R. Sankarasubbu, learned Counsel for the Appellant would make the following the submissions:
(i) Firstly, the learned Counsel would contend that since the death of Ramkumar has occurred, while he was in Judicial Custody, there has been a failure on the part of the State to safeguard the right to life of the Accused/Remand Prisoner. Though the Accused is said to have committed suicide by biting a live wire, according to the learned Counsel, the live wire, which the accused is said to have bitten, carried only 220W and it could not have caused his death, in view of the connection of the circuit to Earth Leakage Circuit Breaker (ELCB in short);
(ii) Secondly, according to the learned Counsel, right from the date of arrest of the said Ramkumar on 02.07.2016, the Police was torturing him and in fact, the Police officials tried to slit his throat, while effecting arrest and in this regard, the Appellant herein, had lodged a Complaint against the Police Officials concerned in Sengottai Police Station on 19.07.2016;
(iii) Thirdly, the learned Counsel would submit that even while in custody, the said Ramkumar was not allowed to mingle with other remand prisoners and was kept in isolation continuously and harassed. In this context, he relied upon Paragraph Nos. 46 & 121 in the Judgment of the Honourable Supreme Court rendered in Sunil Butra v. Delhi Administration and others, etc., AIR 1978 SC 1675 to contend that under-trials were allowed to mingle with each other. The said paragraphs are extracted hereunder:
"46. The Tihar Jail is the scene and glimpse of it is good. Law is not a brooding omnipresence in the sky but a behavioural omnipotence on the earth, a do-don''t calculus of principled pragmatism. So, any discussion of Prison law problems must be preceded by a feci of the cell and surroundings. For this reason, we now set out the inspection notes left by Chief Justice Beg, who visited the �condemned cell� along with his two brothers on the Bench:
"We inspected the cell in which the Prisoner was confined. We were relieved to find that conditions there did not correspond to the picture which eloquent arguments of his Counsel before us conjured up in our minds. We had been led to believe that the Prisoner was kept in some kind of a dungeon with only a small hole through which light could penetrate only when there was enough sunshine. It was true that the Prisoner was living in a room with a cemented floor and with no bed, furniture or windows in it. The light came from a ventilator with iron bars on the wall at the back of the room and the wide gate of iron bars in front. The light was, however, enough. It is also true that there was no separate room for the Petitioner to take a bath in or to answer calls of nature. But, in this very room, the site of which given on a diagram furnished by the Jail Authorities, water and sanitary fittings were installed in one corner of the room. In front of the room there was a small verandah with pakka walls and iron gates separating each side of it from a similar verandah in front of an adjoining cell. The entrance into this verandah was also through a similar iron gate. The inner room in which the Prisoner was confined had also a gate of iron bars. All gates were with iron bars on frames so that one could see across them through the spaces between the bars. All these gates were locked. We learned that the Petitioner was able to come into the veradah at certain times of the day At that time only, he could communicate with other similarly kept Prisoner; whom he could see and talk to through the iron bars. In other words, for all practical purposes, it was a kind of solitary confinement.
We did not see a separate guard for each Prisoner in the row of cells for Prisoners sentenced to death. All these Prisoners were certainly segregated and kept apart. But it is difficult to determine, without going into the meaning of �solitary confinement�, as a term of law whether the condition in which the Petitioner was kept amounted to solitary confinement�. Probably, if small windows with iron bars were provided between one cell and another, the Prisoners could talk to each other also so that the confinement would no longer be solitary despite the fact that they arc kept in separate adjoining cells.
The Petitioner did not complain of any discomfort other than being kept in �solitary confinement� and being made to sleep on the floor. He asked us to see another part of the Prison, where under-trials were kept. When we visited that part, we found dormitories provided there for under-trial Prisoners, who had beds there and their own bedding and clothing. They also had, in that part of the Prison, radio sets, some of which belonged to the Prisoners and others to the Jail. The under-trials were allowed to mix with each other, play games or do what they wanted within a compound."
(emphasis supplied)
.....
Condemned Prisoners like Batra shall be merely kept in custody and shall not be put to work like those sentenced to Rigorous Imprisonment. These Prisoners shall not be kept apart or segregated except on their own volition since they do not come under Section 30(2). They shall be entitled to the amenities of ordinary inmates in the Prison like games, books, newspapers, reasonably good food, the right to expression, artistic or other, and normal clothing and bed. In a sense, they stand better than ordinary Prisoners because they are not serving any terms of Rigorous Imprisonment, as such. However, if their gregarious wishes induce them to live in fellowship and work like other Prisoners they should be allowed to do so. To eat together, to sleep together, to work together, to live together, generally speaking, cannot be denied to them except on specific grounds warranting such a course such as homosexual tendencies, diseases, violent proclivities and the like. But if these grounds are to be the basis for revocation of advantages to the prejudice of the sentence he should be given a hearing in brief in essential compliance with the canons of natural justice."
The learned Counsel would further contend that even at the time of arresting the said Ramkumar, the Guidelines given in the judgment of the Honourable Supreme Court in D.K. Basu v. State of West Bengal, 1997 (1) SCC 416 were not followed.
(iv) Fourthly, the learned Counsel would submit that the Appellant is justified in doubting the fairness of the State machinery in conducting investigation as death had occurred when the said Ramkumar was in Judicial Custody. In this regard, he referred to the Guidelines issued by the National Human Rights Commission dated 21.11.2001 wherein it has been stated that a Local Doctor succumbs to Police pressure, which leads to distortion of facts and therefore, Post-mortem examination, to be done, in cases of Custodial Death, and the same should be videographed. Therefore, the Appellant seeks the presence of his nominee Doctor, namely, Dr. P. Sampathkumar, Head of Department, Forensic Sciences, Sri Ramachandra Medical College and Hospital, Porur, at the time of Autopsy. The learned counsel also relied upon the judgment of a Division Bench of this Court in Parthiban v. State and three others, H.C.P. No. 1541 of 2015 to contend that Dr. Sampathkumar, Vice Principal, Sri Ramachandra Medical College had earlier been permitted to conduct Post-mortem by this Court.
(v) Fifthly, according to the learned Counsel, the Police officials arc Accused and the State is an offender. As the victim died while in Judicial Custody, there is possibility of intimidation of Witnesses and tampering with documents. In this regard, he relied upon the judgment of the Honourable Supreme Court rendered in Niranjan Singh and Another v. Prabhakar Raja rant Kharote and Others, 1980 (2) SCC 559. Therefore, he would submit that to find out the cause of death, an expert of Appellant�s choice should be present, which will assist the prosecution also."
Besides, the learned Counsel for the Appellant relied upon the judgment of the Honourable Apex Court in People�s Union For Civil Liberties and Another v. State of Maharashtra and Others, 2014 (10) SCC 635 wherein certain Guidelines framed by the Universal Declaration of Human Rights (UDHR) have been referred to and one such Guideline speaks about affording the victim�s family and the Legal Representatives, their right to request an independent qualified representative to be present during autopsy of the victim�s body. Another judgment which has been relied on by the learned Counsel for the Appellant is the one rendered in Nilabati Behera v. State of Orissa, AIR 1993 SC 1960 to contend that convicts, prisoners or under-trials are not denuded of their fundamental rights under Article 21 and it is only such restrictions, as are permitted by law, which can be imposed on the enjoyment of the fundamental right by such persons and that there is a great responsibility on the Police or Prison Authorities to ensure that the citizen in its custody is not deprived of his right to life. A reference has also been made to a learned Single Judge�s Order in Baggiyam v. Collector and Another, W.M.P. No. 8712 of 1988 in W.P. No. 6000 of 1988, wherein the Respondents were directed to arrange for exhumation of the daughter of the Petitioners therein for conducting Post-mortem.
Hence, the learned Counsel seeks the presence of Dr. P. Sampathkumar, Vice Principal, Sri Ramachandra Medical College, Porur, at the time of postmortem on the body of deceased Ramkumar.
On the other hand, Mr. C. Manishankar, learned Additional Advocate General would submit that-
(i) There cannot be any direction to include the Medical Expert of the Appellant�s choice to be present at the time of conducting Autopsy, as there is no legal right available to the Appellant.
(ii) As per Section 174(2)(v) of the Criminal Procedure Code, the body of the victim should be forwarded to the nearest Civil Surgeon or other qualified Medical man appointed by the State and therefore, it is the duty of the State and not the Appellant.
(iii) As per Section 176(1-A) of the Criminal Procedure Code, a Magisterial Enquiry has been ordered to go into the cause of death and when such being the position, without Post-mortem Report, the Enquiry Report cannot be made ready.
(iv) A mere apprehension cannot be a ground for inclusion of the Appellant�s Medical Expert in the team for conducting Autopsy.
(v) There is no allegation anywhere stated in the Affidavit or grounds that the Doctors are incompetent or biased against the Appellant and in the absence of such allegation, the Appellant cannot insist for the presence of his representative.
(vi) As per the Criminal Procedure Code, the Government Surgeons alone are entitled to conduct Post-mortem and if the Private Doctor is allowed to take part in the Autopsy, definitely it will cause problem to the team.
(vii) The Guidelines issued by National Human Rights Commission, which has been relied upon by the learned Counsel for the Appellant would be complied with by proper Videography by Police Videographer and therefore, there cannot be any grievance in this regard.
(viii) As far as the Judgment relied on by the learned Counsel for the Appellant reported in People�s Union for Civil Liberties and another v. State of Maharashtra and others, 2014 (10) SCC 635, is concerned, the said Judgment is in respect of Police encounters and therefore, the said Judgment is not applicable to the facts of the case.
(ix) Mr. C. Manishankar, learned Additional Advocate General relying on the Judgment reported in P. Murugan v. State of Tamil Nadu and 3 others, 1992 (1) MWN (Cr.) 156, would contend "that the Post-mortem to be conducted by the Doctors and the Report of the Sub-Collector, who conducts Enquiry in the case, are enough to know the cause of the death, which may be useful for proper and fair investigation to bring out the truth.
(x) As far as the Judgment relied upon by the counsel for the Appellant in H.C.P. No. 1541 of 2015, it is submitted by the learned Additional Advocate General that it was a honour killing case and therefore, the said Judgment is not applicable to the facts of the case.
Heard the learned Counsel on either side and perused the materials available on record.
Though so many contentions have been raised by both the Appellant and countered by the Additional Advocate General regarding arrest, non following of certain Guidelines, separation of the victim from other Remand Prisoners and the assault of the Police officials on the victim, at the time of arrest on 02.07.2016, the relevant issue which has been referred to this Court is only with regard to the right of the Appellant to have a Medical Expert of his choice to be present at the time of Autopsy to be conducted on the body of the deceased Ramkumar.
It is true that the son of the Appellant, namely, Ramkumar died in Judicial Custody in the Jail on 18.09.2016. The version of the Police is that the said Ramkumar snapped the live wire and committed suicide. A perusal of the Accident Register dated 18.09.2016 would reflect that Ramkumar died due to electric shock. According to the Appellant, the said death is said to have been caused because of the assault of the Police in the Jail, whereas the Police contend that it is a suicide. Only to bring out the truth about death, the Appellant seeks for an independent Medical Expert along with Medical team nominated by the Government to be present at the time of conducting Autopsy.
Though the Appellant is of the apprehension that the Doctors will be biased in favour of the Police and the truth will not come out, the only relevant material, which has been placed before this Court is the Guidelines of the Universal Declaration of Human Rights (UDHR) for effective prevention and investigation of extra-legal, arbitrary and summary executions. In the Judgment reported in People�s Union for Civil Liberties and another v. State of Maharashtra and others, 2014 (10) SCC 635, cited supra, in Paragraph No.28, the Hon�ble Supreme Court has held as follows:
"28. The Universal Declaration of Human Rights (UDHR) has framed certain general principles on the effective prevention and investigation of extra-legal, arbitrary and summary executions. The principles so framed by the UDHR arc-intended to guarantee independence while investigating police killings and help in preventing potential for abuse, corruption, ineffectiveness and neglect in investigation".
At this juncture, it is relevant to extract hereunder provision 16 of the UDHR:
"Affording the victim�s family and Legal Representative the right to request that an independent qualified representative be present during the Autopsy of the victim�s body"
A perusal of the aforesaid provision would make it clear that it deals with affording victim�s family and Legal Representatives, the right to request an independent qualified representative be present during Autopsy on the victim�s body. If at all the Appellant has got any suspicion with regard to the calibre or fairness of the Doctors, the Appellant can ask for appointment of an independent qualified representative and not an independent qualified representative of his choice, as contended by the Appellant. As already pointed out, the victim died in the Judicial Custody and to know the cause, Autopsy is to be conducted by qualified Doctors. To discredit the fairness of the Doctors, no material has been placed either in the Affidavit or before this Court except the oral contentions made in the Court. Mere apprehension, as rightly pointed out by Mr. C. Manishankar, learned Additional Advocate General, cannot be the basis to suspect or discredit the Doctors, who are highly qualified. Resultantly, the Appellant cannot insist upon an independent qualified expert of his choice at the time of conducting Autopsy. Further, it would create practical problems for the Government surgeons nominated by the State. Moreover, conducting Autopsy is a very serious issue and no Third party can have any role even if he is highly qualified and it is not known as to how he would conduct himself at the time of Autopsy. Therefore, the request of nomination for qualified representative of Appellant�s choice at the time of conducting Autopsy on the body of Ramkumar was rightly declined by the learned Single Judge. Therefore, this Court agrees with the view taken by Mr. Justice S. Vaidyanathan, who opined that an independent person with forensic knowledge would in fact lead to creation of doubt in the minds of the public about the nature of investigation conducted by the State Machinery.
As per Section 174(2)(v), Cr.P.C. only the Police officials have forwarded the body of the deceased to the surgeons for Autopsy. Moreover, the Magisterial Enquiry under Section 176(1-A) has been ordered and the Magistrate could not conclude the Enquiry because Autopsy was not conducted.
The Privy Council in King Emperor v. Khwaja Nazir Ahmad, Indian Appeals Vol. LXXI 203, held that the Statutory duty of the Police to investigate the case cannot be interfered with and the relevant Paragraph is extracted as follows:
"In their Lordship�s opinion, however, the more serious aspect of the case is to be found in the resultant interference by the Court with the duties of the Police. Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the Police in matters which are within their province and into which the law imposes on them the duty of inquiry. In India, as has been shown, there is a Statutory right on the part of the Police to investigate the circumstances of an alleged cognisable crime without requiring any Authority from the Judicial Authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those Statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the Police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under Section 491 of the Criminal Procedure Code to give directions in the nature of Habeas Corpus. In such a case as the present, however, the Court''s functions being when a charge is preferred before it, and not until then. It has sometimes been thought that Section 561-A has given increased powers to the Court which it did not possess before that Section was enacted. But this is not so. The Section gives no new powers, it only provides that those which the Court already inherently possesses shall be preserved and is in served, as their Lordships think, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code and that no inherent power had survived the passing of that Act."
As already stated, as per the Criminal Procedure Code, the body of the victim has been referred to the Surgeons and in this regard the Government has nominated three Surgeons viz.,-
Dr. S. Selvakumar, Professor, Forensic Science, KMC, Kilpauk Chennai;
Dr. Manikandaraja, Assistant Professor, Forensic Science, KMC, Kilpuak, Chennai; and
Dr. K.V. Vinod, Assistant Professor, Forensic Science, KMC, OD (a Government Roaypettah Hospital, Chennai.
However, the learned Single Judge while passing the Order in the Writ Petition, nominated another Doctor from another Hospital viz.. Dr. Balasubramanian, Professor, Forensic Medicines, Stanley Hospital, Chennai along with three member team. Apart from that, Justice S. Vaidyanathan, also suggested induction of one more Doctor in the Post-mortem Panel instead of an independent person of the Appellant�s choice.
The Appellant is the father of the deceased Ramkumar who was accused of murdering Swathi, a Software Engineer and the said Ramkumar died in Judicial Custody. Though the apprehension of the Appellant is without any basis and not sustainable, only to clear the alleged apprehension, this Court directs the Director of All India Institute of Medical Sciences (AIIMS), New Delhi to depute a Forensic Expert, well experienced in conducting Post-mortem, to join the team of Four Member Medical Team to conduct Post-mortem on the body of the deceased Ramkumar, which now lies in the mortuary of Royapettah Hospital, Chennai. The four Government Surgeons and AIIMS surgeon as a team shall conduct Post-mortem on the body of the deceased Ramkumar on 23.09.2016 or 24.09.2016 or any other day, in any event, on or before 27.09.2016. Only to clear the cloud and in an endeavour to do complete justice, without discrediting or causing aspersion on the State Government Doctors, this Order is passed.
The State shall make special and necessary arrangements for the nominated Doctor of the AIIMS for travel by Air and the travel and accommodation at Chennai and also his return to New Delhi. It goes without saying that the State shall make all necessary security arrangements to avoid any untoward incidents during the presence of the Doctor at Chennai. The expenses, in this regard, will have to be borne by the State.
The Respondent-State is directed to pay a sum of Rs. 50,000/- (Rupees fifty thousand only) to the AIIMS Doctor as a token of appreciation for the service to be rendered by him to the State. After the Post-mortem, it is open to the State to handover the body of the deceased Ramkumar to his father Mr. R. Paramasivan.
The Reference made to this Court is answered as follows:
"This Court agrees with the view taken by Justice S. Vaidyanathan that the presence of an independent person with forensic knowledge would lead to creation of doubt in the public about the nature of the investigation made by the State machinery".
However, this Court includes one Doctor from AIIMS, New Delhi, along with four Government Surgeons to conduct Post-mortem.
N. Kirubakaran, J.
On Memo in W.A. No. 1181 of 2016
23.9.2016
Death is as real as birth. Dignity of the dead is something that cannot be compromised with. It is being said that "you can measure how "civilised a country by the way it treats its dead". When such is the respect and dignity to be shown to the dead, keeping the dead body for a long time, on one pretext or the other, is an insult to the departed soul.
One Ramkumar is the cause for the Order passed by this Court on 22.9.2016 in which this Court answered the reference made by the Honourable Chief Justice as hereunder:
The Reference made to this Court is answered as follows:
"This Court agrees with the view taken by Justice S. Vaidyanathan that the presence of an independent person with forensic knowledge would lead to creation of doubt in the public about the nature of the investigation made by the State machinery".
However, this Court includes one Doctor from AIIMS, New Delhi, along with four Government Surgeons to conduct Post-mortem."
While answering the Reference, this Court included one Doctor from All India Institute of Medical Sciences (AIIMS), New Delhi along with the team of four Government Surgeons formed for the purpose of conducting Postmortem, which was directed to be done on 23.09.2016 or 24.09.2016 or any other day, in any event, on or before 27.09.2016. However, seeking extension of the date of Post-mortem, learned Counsel for the Appellant has filed a Memo on the ground that the Appellant proposes to file an SLP as against the Judgment dated 22.9.2016 passed by this Court in the above Writ Appeal and till such time, the body of the deceased Ramkumar has to be preserved in the mortuary of Rajiv Gandhi Government General Hospital.
Mr. R. Sankarasubbu, learned Counsel for the Appellant would submit that if the Post-mortem is done, the very purpose of filing an SLP would be defeated as the Appellant has got a right to seek an expert with Forensic Knowledge of his choice to be present at the time Post-mortem. According to the learned Counsel, it is necessary that an Expert of his choice has to be present at the time of Post-mortem as the Appellant doubts that his son Ramkumar was done to death, while he was in judicial custody, on by foul play and that no prejudice is likely to be caused to the Government by postponing the Post-mortem.
On the other hand, learned Additional Advocate General for the Respondents would submit that already, the prayer sought by the Appellant, namely, inclusion of a Forensic Expert of his choice, was already rejected by Three learned Judges of this Court and in fact, this Court directed to include a Doctor with Forensic Expertise from AIIMS, New Delhi. Secondly, law and order problem is caused and Police Force has to be always posted in the mortuary of Royapettah Hospital, where the dead body of Ramkumar is preserved, as various communal groups and Political parties are staging Dharnas and agitations. Thirdly, because of non-performance of the Post-mortem, the Post-mortem to be conducted on other dead bodies is also postponed.
Though the learned Counsel for the Appellant sought transfer of the body from the mortuary of Royapettah Hospital to the mortuary of Rajiv Gandhi Government General Hospital, where, according to him, there arc modem facilities available to preserve dead bodies, below 0� Degree Centrigrade, so that the body does not get decomposed, Mr. C. Manishankar, learned Additional Advocate General would submit that the facilities that are available in the mortuary of both the Hospitals are one and the same. The said submission made is recorded.
Mr. C. Manishankar, learned Additional Advocate General would submit that because of delay in Post-mortem, at a later date, the Appellant should not turn around and state that the Post-mortem Report docs not reflect the correct cause of death and the said submission of the learned Additional Advocate General cannot be ignored.
To a query put, Mr. R. Sankarasubbu, learned Counsel for the Appellant would submit that if the date of Post-mortem is postponed upto 30.9.2016, there would not be any protest or agitation and there would not be any law and order problem by anybody and even the strength of Police Force deployed in the Royapettah Hospital can be reduced. The said statement made by the learned Counsel for the Appellant is recorded.
Though the matter was mentioned by 5 p.m. in Open Court, this Court sent a word for the Additional Advocate General. After posting the matter in the list, the matter is heard at 7.15 p.m., in view of the urgency expressed by the learned Counsel for the Appellant.
The prayer for an independent Forensic Expert of Appellant�s choice has already been rejected, by three learned Judges of this Court. Originally, the team formed for the purpose of conducting Post-mortem consisted of three Government Surgeons and Justice T.S. Sivagnanam, who passed orders in the Writ Petition, in W.P. No. 32885 of 2016 on 19.9.2016, added one more Government Surgeon to the said team of Doctors. Thereafter, when the matter was taken on Appeal before a Division Bench, one of the two learned Judges, who constituted the Division Bench, namely, Justice S. Vaidyanathan, proposed a fifth Government Surgeon along with the team of four Government Surgeons. When the matter was referred to this Court, this Court, as suggested by Justice S. Vaidyanthan, ordered inclusion of a Doctor with Forensic Knowledge from AIIMS, New Delhi, instead of the additional Government Surgeon, as proposed by Justice S. Vaidyanathan. Therefore, the grievance of the Appellant has been more than redressed.
Though Provision 16 of Universal Declaration of Human Rights enables the victim''s family and Legal Representative the right to request an independent qualified representative be present during the Autopsy of the victim�s body, this Court held that the Appellant can indeed seek for the presence of an independent qualified representative, but it cannot be an independent qualified representative of his choice. Taking into consideration that the victim, who is accused to have caused the death of one "Swathi", died in Judicial Custody, to address the grievance of the Appellant, this Court included a Doctor from AIIMS, New Delhi. Justice should not only be done, but it should also seem to have been done. Therefore, considering the grievance of the father, who lost his only son, to render justice, this Court included a Doctor from AIIMS, New Delhi, in the team of four Government Surgeons, constituted for the purpose of conducting Post-mortem.
No one, that too, a person, who lost his only son and who is under a cloud of suspicion or has an apprehension regarding the cause of death of his son, should go empty handed, without any relief. Hence, at the risk of repetition, it has to be stated that this Court suggested a Doctor from AIIMS, New Delhi, to be included to the team of four Doctors formed for conducting Autopsy. When the Order was pronounced on 22.9.2016 , at about 6.30 p.m., the learned Counsel for the Appellant agreed for the Post-mortem to be done on 24.9.2016. Later, at his instance, the date was altered as 27.9.2016. As a second thought, again, he wanted the date to be changed as 26.9.2016 and finally, the learned Counsel wanted the date of Post-mortem to be fixed on or before 27.9.2016, for which the learned Additional Advocate General, had no objection, at that time. That is how, the date of Post-mortem, to be conducted on or before 27.9.2016, was fixed, on agreement by both parties.
Having made a request to fix the ultimate date as 27.9.2016 and having agreed for the same, the Appellant has made a mention today to postpone it till 30.09.2016, under the guise of moving the Honourable Supreme Court. No doubt, it is his Constitutional right to move the Honourable Supreme Court against the Order passed by this Court. At the same time, this Court cannot be oblivious of the law and order problem created by various parties, as stated by the learned Additional Advocate General before the Royapettah Hospital every day. The unfortunate death of a person cannot be used for any other purpose. This Court sympathises with the family of the deceased as well as the family of "Swathi", who was alleged to have been murdered by the deceased. Both the deaths are very unfortunate. Though life is bound to end and death is inevitable, it should be by an act of God.
The apprehension of the Appellant that the first Post-mortem alone would help to bring out the truth behind the cause of death cannot have any basis as the same is going to be videographed and even if there is any suspicion or any irregularity in the procedure adopted with regard to the Post-mortem done, it is always open to the Appellant to seek for a second Post-mortem.
Not only a living person, but a dead body also deserves its own dignity and respect. Holy Prophet said "Relate of your dead only that which is good and, refrain from speaking ill of them." Even the Honourable Supreme Court has directed the Centre to frame Guidelines for disposal of unclaimed dead bodies by DNA profiling naming it as "Dignity of the Dead". The said direction was given on 22.6.2016 in a Public Interest Litigation filed by one Vikas Chandra Guddu Babu seeking a direction to frame Guidelines in this regard.
Eventhough all the factors are against the Appellant and more relief than what is sought, has been granted by this Court, to the Appellant, still, the Appellant is not satisfied with the Orders and he proposes to work out his remedy before the Honourable Supreme Court. Though the Appellant''s son is accused of murdering a girl, his right to move the Honourable Supreme Court, as against the Orders passed by this Court, is always available, which he seeks to exercise. Though this Court is not convinced with any of the arguments made by the learned Counsel for the Appellant, interest of justice requires understanding the mindset of the Appellant, as a father, who apprehends that he lost his son, while in Judicial Custody, by alleged foul play and therefore, it is appropriate to postpone the date of conduct of Post-mortem on the body of deceased Ramkumar till 30.9.2016. But, at any rate, the Post-mortem shall be done on 1st October, 2016. Till such time, the body of deceased Ramkumar shall remain preserved in the mortuary of Royapettah Hospital.
This Order is given as a concession, only with a view to do complete justice, to the grieving victim''s family.