RG Kar Case: Supreme Court tells protesting doctors to resume work from tomorrow, state to ensure Safety

Kolkata: While considering the suo-motu plea on the rape and murder of a postgraduate trainee at RG Kar Medical College, Kolkata, the Supreme Court bench comprising the Chief Justice of India DY Chandrachud, Justice JB Pardiwala and Manoj Misra asked the protesting resident doctors in Kolkata to return to work by tomorrow.

Asking the State Government to ensure the doctors' safety including making arrangements for separate duty rooms, toilet facilities and installation of CCTV cameras, the bench further asked the counsel for WB Government to state on record that no punitive action would be taken against the protesting doctors if they resumed work.

Meanwhile, regarding the CBI investigation on the death of the Kolkata doctor, the Bench noted that the challan that was required to be filled before sending the deceased's body for Postmortem investigation was missing from record. 

The Court has asked to produce a copy of the duly filled form before the bench in the next date of hearing on 17.09.2024.

Supreme Court hearing on 09.09.2024: 

Counsel for the State of West Bengal, Advocate Sibal informed the Apex Court bench that they have filed the status report of the investigation. He further informed that 23 people have died since the doctors are still on strike and were not working. Meanwhile, the SG stated that he had not received the report.

CBI submits the status report of the ongoing investigation. Taking note of the report, which was submitted in a sealed envelope, the CJI questioned Solicitor General Tushar Mehta what was the distance between the residence of the Principal of RG Kar Medical College and Hospital. In response, the SG informed the bench that it takes 15-20 minutes maximum.

The CJI sought clarification on two aspects- one regarding the time at which the UD (unnatural death) 861/2024 was registered and what was the GD entry and the time of the GD entry under which GD 861 was registered.

Sibal informed that the death certificate was given at 1:47 PM, entry UD at 2:55 PM at police station. He further informed that the initial GD was 565 which was recorded at 2:55 PM. Although the SG objected to the timing referred to by Advocate Sibal, the latter insisted that it was the certified copy.

Further, Sibal informed that the time of the inquest was 4:20 - 4:40, Judicial Magistrate (JM) arrived at 4:10 and he conducted the inquest from 4:20 - 4:40 and it was videographer. As per Sibal, in between 8:30-10:45 evening, search and seizure was done and once the body was removed for postmortem then photos were taken.

The CJI questioned that if there is a CCTV footage to indicate the entry and exit time of the accused, obviously there should be footage after 4:30 in the morning and if the same footage in entirety was handed over to the CBI. SG submitted that yes it was submitted to the CBI.

Thereafter, the CJI further sought to know if the Calcutta Police handed the entire footage from 8:30 PM to 10:45 PM to CBI. SG submitted that 4 clippings were given, totalling to 27 mints in duration.

Sibal submitted that seizure 8:30 - 10:45 PM was given and in parts videos were given in hard disk, as there was technical glitch and it was stored in part, but given in full.

At this outset, the SG referred to the forensic report and submitted that one thing was admitted that when the girl was found at 9:30, she was in semi nude condition, jeans and undergarment removed, and there were injury marks on her body. He submitted that they took samples and sent to CSFL.

The Solicitor General submitted that the CBI decided to send the samples to the AIIMS and other CFSLs and argued that who took the samples became relevant. He further stated that samples were tested at CFSL in Bengal and pointed out that there were two specimens or two swabs.

The CJI noted in this context that the bench did not want to comment on the line of investigation in open court. Therefore, the bench directed the CJI to submit a status report by Monday and ordered CBI to proceed based on what they are exploring. 

The Apex Court bench noted that "Status report has been filed by CBI. Having perused the report, it appears that the investigation is in progress. We direct the CBI to file a fresh Status report by the next date of hearing... We will take it up on Tuesday." Regarding the course of investigation, bench observed that it did not want to guide CBI on its investigation.

Following this, the Court took note of the arguments regarding the accommodation and CISF, which is in charge of ensuring safety and security of doctors at RG Kar Medical College and Hospital. When the CJI questioned what steps were taken by the WB Government for adequate safety measures for the doctor, Advocate Sibal submitted that a status report was filed.

Meanwhile, one senior counsel argued that the postmortem could not have taken place after 6 PM. He further questioned by whom the videographer was conducted, and if it was reiteratable or non-reiterable. He also argued that all the 3 female doctors who were present were part of ther North Bengal lobby and raised the questions regarding the temperature at which the specimen (vaginal swabs) had to be preserved.

The counsel also raised doubts that there were only 10 GD entries between 2:30 noon - 11:30 night and questioned if it was manufactured. Referring to the provisions of the BNS and the time of the FIR, he also argued that there had to be a previous FIR based on which the postmortem officials were called.

During the course of the arguments, Justice Pardiwala referred to the first line of a report and questioned the Solicitor General if they looked into it and if it was in the form of some interpolation or something. The SG submitted that the time difference was a matter of investigation.

Where is the Letter when the Body was dispatched for PMR? Questions CJI: 

Meanwhile, the CJI sought the letter when the body was dispatched for PMR. When Advocate Sibal submitted that the document could not be found immediately. 

"...because when the body is dispatched after the PMR, only the doctors doing the inquest would look at it, where is that filled out challan for the dead body, let the CBI give it to us," the CJI observed at this outset.

When the SG submitted that the challan was not in the file given to the CBI, the CJI asked the counsel for WB Government for the same and also referred to the form having a column with remarks what clothes and other things were seized were sent to the doctors who conducted the PMR.

Seeking time to place the challan on record, Advocate Sibal also submitted that they came to know that the JM came and filled it himself and there was no separate form. Thereafter, the CJI questioned if the PMR was done without the filling of the form?

"...look at the PMR, the constable is supposed to carry this challan...there is no reference of the challan used, you need to explain, tomorrow if this document is missing, you will have to explain why this happened," observed Justice Pardiwala. Thereafter, Advocate Sibal assured to file an affidavit on this.

Advocate Mahesh Jethmalani argued that even after one month of the incident, there is still no clarity regarding the death. At this outset, the CJI observed that there was clarity regarding when the death occurred and the time around the death also that she had a meal before death. Further, the bench observed that there was a delay of 14 hours in filing the FIR.

Regarding the challan, the CJI observed, "SG stated that during the above challan is not part of file handed to CBI for investigation. It is submitted by one of the petitioner before the HC that the form was produced before HC in course of hearings. The form is unavailable with Mr Sibal and Astha Sharma."

"(WB form 5371) the PRB form 54....a copy of the form duly filled in should be produced before the court in the next hearing," ordered the CJI, asking to look at form 5363 and keep it ready for further examination on the next date of hearing.

Safety of Doctors in Kolkata: 

During the course of the hearing, Senior Advocate Karuna Nandy requested for a status report on the safety of whistle blowers in the Sandip Ghosh Financial Irregularities Case arguing that these two matters were connected. 

Another counsel submitted that she had the names of the miscreants who came and tampered with the evidence. Advocate Luthra pointed out before the Court that people were being allowed inside the hospital without checking their ID cards. 

Taking note of this, the CJI observed that the CISF has to ensure and tighten up the measures of who can access the emergency ward and asked the CISF company to ensure that all the necessary safety and precautions were being taken.

Photos of the Victim should be removed from Social Media: 

Taking cognisance of the submission that the photographs of the victim doctor were still being circulated on social media, the CJI noted that the damage had already been done in circulation of those photographs and ordered that all photographs of the dead body had to be removed forthwith.

Advocate Sibal submitted that this should also include the seizure list. The CJI noted at this outset that this happened while the State was in charge of it. However, Advocate Sibal denied this and argued that it happened before it.

SC Seeks Report from WB Government to Ensure Doctors' Safety: 

Regarding the National Task Force's ongoing consideration, one of the counsels argued that distress calls and CCTV should be installed in all hospitals, management of the hospital should file the complaint and argued that there should be some badge on wrist to ring alarm in case of violent incident.

Meanwhile, the CJI asked the West Bengal Government to file on record the safety measures on site even before the NTF filed its report. When Sibal referred to the State Health Department's report, the Supreme Court bench questioned why the incident took place if 4447 CCTV cameras were installed. 

The CJI further questioned about the equipment that had been installed at RG Kar Hospital, not just the funds but what progress took place. "...tell us by next day on what steps on ground are taken. Let the district collectors engage with the heads of the medical colleges and ensure steps are taken by the next week," ordered the CJI.

23 Patients Died due to Doctors' Strike, Claims West Bengal Government: 

Referring to the West Bengal Govt's report, Advocate Sibal submitted that 23 patients died since the resident doctors were on strike and not coming back to work. He claimed that 6000 people were affected. 

Advocate Sibal referred to the Supreme Court's earlier observations asking the doctors to go back to work and prayed for the Court's order indicating that if the doctors did not go back to work, proceedings should be initiated.

Further, Sibal pointed out that protests were happening all over the place without police permissions. He argued that it was turning into something else as 41 police members were affected and one person permanently lost his eye. He also claimed that police was being denied treatment.

Doctors must go back to work, no punitive action if they return to work by tomorrow: SC

When the CJI questioned of all the doctors would return to work and not abstain, Advocate Luthra submitted that senior doctors were on duty and only junior doctors were not on duty. She also claimed that the doctors were getting threats. 

"...we can record that if doctors resume to work, no adverse action but if they do not resume work as doctors then we cannot restrain state govt from taking actions," the CJI noted at this outset.

Advocate Luthra further explained that severe doctors were facing bullying and threats and some of the doctors were giving voluntary treatment outside the hospital. She also submitted that women doctors require toilets, rooms to rest and safety precautions.

Meanwhile, Justice Pardiwala questioned how many resident doctors worked at a time at a given shift. Advocate Sibal submitted that he would find out. 

At this outset, the CJI noted, "...during course of hearing grievance made by WB regarding the mass abstention from work of resident doctors of medical colleges across state for 28 days, as consequence of which health care is facing severe disruptions."

Asking the State to create infrastructure to ensure safety of all doctors, the CJI ordered, "State of WB must create steps to create degree of confidence in the minds of the doctors that concerns regarding their safety and duly be catered to . The police shall ensure that necessary conditions are created for ensuring the safety of all doctors including provisions for separate duty rooms; toilet facilities ; installation of CCTV cameras."

Referring to the State's affidavit indicating that funds had been sanctioned for carrying out the safety measures, the CJI further observed, "...this shall be monitored by the District Collectors. In order to create sense of confidence we state that in the event that doctors come to work by 5 PM tomorrow, not adverse actions.....if there is continuous abstention from work despite the facilities given there will be likelihood of action in future."

"...we know what is happening on ground, but doctors must now come back to work, they cannot say senior doctors are working so we will not work, we have put everyone on notice," the CJI further observed, clarifying that if the doctors did not resume work that the bench could not stop the Government from taking disciplinary action.

The Chief Justice of India clarified that the Court wanted to ensure that the doctors resumed work as they were in a system to render service. "We will provide facilities but they have to reciprocate," observed the CJI, further noting on record that Advcate Sibal assured that if the doctors resumed work, no action including punitive transfers would be adopted against the doctors.

When Advocate Sibal raised the issue regarding the protests happening all across the State, the CJI noted that any protests cannot happen at the cost of duress.

Representation of the Dental Association in National Task Force: 

One of the counsels urged the bench to consider engaging a dental representative in the composition of the National Task Force (NTF). Taking note of the counsel's submissions, the bench asked to submit an email on behalf of the dental association to the portal.

Also Read: No Action Against Protesting Doctors, but They Must Go Back to Work: Supreme Court orders Centre, States to Ensure Safety