Publish Guidelines for doctors to follow in Medical Investigations of Custodial Toruture cases: Kerala HC directs govt

Taking note of the submissions by the Government that a proceeding in this matter has already been initiated, the Kerala High Court bench comprising of Justice PV Kunhikrishnan directed the State to conclude the proceedings and pass and order as expeditiously as possible.

"The 1st respondent is directed to conclude the proceedings already initiated as evident from the averments in the counter affidavit filed by the 2nd respondent, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment," noted the Court.

The bench also clarified that until such an order is passed, the interim order of the HC shall operate where the court had mentioned that in the meantime, the doctors shall be free to conduct any medical tests as they opine to be appropriate for identifyingTorture internal injuries from possible custodial torture.

Such observations from the HC bench came in response to a petition filed by Government doctor who had sought clarifications regarding the procedure that the medical professionals need to follow for medical examination and investigation of persons under trial.

The confusion was related to two Government circulars passed following the suggestions by the Justice Narayana Kurup led Judicial Commission.

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Consequent to the custody death of a person, the Government had Justice Narayana Kurup as Judicial Commission to conduct an enquiry. On 05.01.2021, Justice Narayana Kurup filed report before the Government and suggested certain recommendations to be followed by the Police, Doctors and Jail Authorities.

The Judicial Commission has reported that, the failure in reporting the internal injuries of the accused is the reason for the custodial torture and custodial death and therefore recommended to implement the recommendations in the report.

The Government accepted the recommendations and directed to issue circular, as directed by the Commission. On 04.06.2021, the 4th respondent issued a circular.

However, contending that the circular had been issued without proper understanding of the Judicial Commission, the petitioner doctor approached the Kerala HC.

The Doctor submitted before the High Court that the recommendations mentioned in the circular only suggested that these tests should be conducted, only if the doctor found or suspect any internal injury after medically examining the person.

Meanwhile, pursuant to the Government circular, the Kannur Jail Superintendent issued a circular where it had been stated that before admitting the accused in Jail it has to verify renal profile, Creative Phosphokise (CPK), urine myoglobin and c-reactive protein (CRP), ultrasound scanning of the abdomen test of the accused, etc.

On June 14, 2021, the Director of Health of Kerala issued a second circular stating that the first circular is kept in abeyance until further directions.

The petitioner doctor has contended that after the second circular, the doctors are in dilemma. It has been submitted by the doctor that even if in the medical examination the doctors suspect serious internal injury, they may not conduct various tests to find out the same or refer the patient to the Medical Board for detailed examination, due to the absence of specific direction or circular from the Health Department.

Further the petitioner doctor stated that the police will insist for noting the external injuries only otherwise they will harass the Medical Practitioners, and for this reason on 08.07.2021, the petitioner filed representation before concerned authorities seeking clarification on whether the second circular was a bar in conducting various tests if the doctor found it necessary in the preliminary examination of the accused person. However, getting no response from the authorities, the doctor moved the High Court.

While considering the petition the HC bench back on July 19, had passed an interim order where it had granted the Government Pleader time of six weeks and clarified that in the meanwhile, the second circular will not preclude the doctors conducting medical examination of persons accused in criminal cases from ordering appropriate investigations as they deem fit, if there are indications or complaints of custodial torture.

In response the Government pleader submitted that after taking into consideration the reports of the State Police Chief, Director General, Prisons and Correctional Services, Principal Secretary of State Health Department and also after considering the representation of the petitioner, a meeting has been convened by the Additional Chief Secretary of Home Department on 14.07.2021 for discussing the matter of Medical Examination and Investigation of persons under trial.

"On the basis of suggestions put forth by the participants, it was decided to modify the relevant portion of the Government order dated 17.02.2021, preferably by insisting that higher investigations and tests can be carried out based on the recommendations of the medical officers, evaluating a custodial person so that two to three stages of investigations can be specified. It is also decided to obtain detailed and specific comments of the Health and Family Welfare Department to proceed further in amending the Government order," further mentioned the affidavit filed by the Government.

The Government further assured in the affidavit that the Amendment of the Government order shall be issued after considering all the suggestions came up in the meeting and looking into the prayer of the petition and further relying on the guidelines for Medico legal examination of arrested person as prescribed by the National Human Rights Commission.

Taking note into the submissions made by the Government, the High Court bench disposed the petition giving a direction to the State to conclude the proceedings and pass a final order within a time frame. Meanwhile, the interim order already passed can be continued, clarified the court.

"The 1st respondent is directed to conclude the proceedings already initiated as evident from the averments in the counter affidavit filed by the 2nd respondent, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment," noted the Court.

"Till a decision is taken by the 1st respondent, the interim order dated 19.07.2021 passed in this writ petition will continue," further added the Court order.