R IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE8h DAY OF JANUARY, 2018 PRESENT THE HON’BLE MRS. JUSTICE S.SUJATHA AND THE HON’BLE Dr. JUSTICE H. B. PRABHAKARA SASTRY W.P.H.C.No.100022/2017 BETWEEN: SMT. SHANKRAMMA POOJARI AGE:
36. YEARS, OCC: FRUITS VENDER, R/O: RAKKASAGI, TQ: HUNGUND, DIST: BAGALKOTE. ... PETITIONER (BY SRI. HEMANTHKUMAR L. HAVARAGI, ADVOCATE) AND:
1. THE STATE OF KARNATAKA RPTD BY ITS SECRETARY, DEPARTMENT OF HOME, VIDHANA SOUDHA, BENGALURU. THE DIRECTOR GENERAL OF POLICE AND INSPECTOR GENERAL OF POLICE, NRUPATUNGA ROAD, BENGALURU. THE DEPUTY COMMISSIONER BAGALKOTE DIST: BAGALKOTE, DISTRICT ADMINISTRATION BUILDING, NAVANAGAR, BAGALKOTE. THE SUPERINTENDENT OF POLICE BAGALKOTE, DIST: BAGALKOTE, NAVANAGAR, BAGALKOTE.
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9. THE DISTRICT HEALTH OFFICER BAGALKOTE DISTRICT BAGALKOTE, DISTRICT ADMINISTRATION BUILDING, NAVANAGAR, BAGALKOTE. THE CIRCLE INSPECTOR OF POLICE HUNGUND CIRCLE, HUNGUND, TQ: HUNGUND, DIST: BAGALKOTE. THE POLICE SUB-INSPECTOR HUNGUND POLICE STATION, HUNGUND, DIST: BAGALKOTE. THE POLICE SUB-INSPECTOR, POLICE STATION, ILKAL, TQ: HUNGUND, DIST: BAGALKOTE. THE KATHARE NURSING HOME & MULTI SPECIALTY HOSPITAL, BEHIND K.S.R.T.C. BUS STAND, ILKAL, RTD BY ITS DR.SUNITA ARUN KATHARI. TQ:HUNGUND, DIST: BAGALKOT10 SRI.VEERESH S/O BASAVANTAPPA MADARI, AGE:
33. YEARS, OCC: AGRICULTURE, R/O: HUNGUND, TQ: HUNGUND, DIST: BAGALKOTE.
11. SMT.RENUKA PARUTAGOUDA AGE: MAJOR, OCC: AGRICULTURE, R/O: NAGUR, TQ: HUNGUND, NOW AT OPP. LAKSHMI MILL, KARATAGI, TQ: GANGAVATI, DIST: KOPPAL.
12. SMT.SHARNAMMA PARATAGOUDA AGE: MAJOR, OCC: AGRICULTURE, R/O: NAGUR, TQ: HUNGUND. TQ:BAGALKOT (BY SRI. C. S. PATIL, GOVT. ADV. FOR R1 – R8; SRI. V. M. SHEELVANT, ADV. FOR R9; R10 - SERVED) ... RESPONDENTS3WPHC No.100022/2017 THIS WPHC IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA, PRAYING THIS COURT TO ISSUE A WRIT IN THE NATURE OF HABEAS CORPUS DIRECTING THE RESPONDENTS NO.4 TO12TO PRODUCE THE MISSING FEMALE BABY OF THE PETITIONER BEFORE THIS HON’BLE COURT, BORN ON0911.2016, THE BIRTH CERTIFICATE DATED1411.2016 ISSUED BY THE RESPONDENT NO.9, VIDE ANNEXURE-A AND ETC., THIS WPHC HAVING BEEN HEARD AND RESERVED FOR
ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, Dr.H.B.PRABHAKARA SASTRY J., MADE THE FOLLOWING:
ORDERIt is the summary of the case of the petitioner that she is a fruit vendor and that about 8 years back she fell in love with respondent No.10 and married him. While living at Hungund Taluk along with respondent No.10, who is her husband, she gave birth to a female child on the date 09.11.2016 in 9th respondent Nursing Home at Ilkal. One Dr. Sunita Arun Kathari of the said hospital also issued a birth certificate. The petitioner also paid the hospital bill of a sum of `13,500/- to the said doctor. Three days after the birth of the child to the petitioner, the respondents No.10 to 12 herein went to the hospital and assaulted the petitioner on 13.11.2016. Thereafter, the 4 WPHC No.100022/2017 petitioner was discharged from the hospital, but she was not handed over the female baby, which she had given birth to. Her request to respondent No.9 to hand over the baby went in futile. The petitioner approached respondent No.7 police station to lodge a complaint in that regard, but the police refused to receive the complaint. Thereafter, she approached respondent No.8 police who also refused to receive the complaint. The petitioner gave complaint to respondent No.5 – The District Health Officer. Thereafter, respondent No.8 created a false complaint in her name and took her signature forcibly on the said complaint depicting as though a female baby given birth by her was dead and the matter was settled between the parties. The petitioner has further contended that all these happened at the connivance of respondents No.9 to 12 and that respondent No.10, who by that time was maintaining a distance from her, does not wanted the baby to be owned by him. The petitioner has also stated that she has given milk to her female child from 5 WPHC No.100022/2017 09.11.2016 up to 14.11.2016 and Dr.Sunita has given treatment to her for about 6 days. Further stating that, in spite of her repeated request the respondent No.9 Nursing Home is not giving her the baby back, alleging that the baby has been wrongfully retained by them, the petitioner has prayed for issuance of writ of habeas corpus directing respondent Nos. 4 to 12 to produce the missing female baby said to have been given birth by her on 09.11.2016.
2. This Court by its order dated 01.08.2017, directed the learned Government Advocate to accept notice for respondents No.1 to 8 and secure details with regard to the investigation said to have been carried out pursuant to the complaint of the petitioner, which was registered in Crime No.0033/2017; the need or otherwise to notify the remaining respondents was deferred to be considered thereafter. On 02.08.2017, the learned Government Advocate filed a memo along with the documents. After going through the same, this Court found it necessary to 6 WPHC No.100022/2017 direct notice to the private respondents as well, as such, emergent notice was ordered to be issued to respondents No.9 to 12.
3. On 02.08.2017, the petitioner filed an affidavit in the registry, wherein the deponent alleged some act of collusion between Dr.Sunita Arun Kathari of the respondent No.9 - Hospital with the respondent No.8 - Police Authorities and collusively attempting to hush up the case. She has also stated in the said affidavit that her frequent visit to respondents No.7 and 8 – Police Station to lodge a complaint went in futile, as such, she had to approach the Superintendent of Police at Bagalkot along with DSS member and it is only thereafter and at his instruction, respondent No.7 - Police pretending that they have registered the complaint, have registered a false complaint created by them depicting that the same was lodged by her. 7 WPHC No.100022/2017 4. On the very same day i.e., 02.08.2017, learned Government Advocate filed a memo along with photocopies of few documents said to be maintained by respondent No.9 Hospital, wherein under a document shown as progress sheet, it was shown that the female baby said to have been given birth by the petitioner died on 13.11.2016 at 8.30 p.m. and that in the presence of one Timmavva Jalagar and as per her wish and consent, the dead baby was packed and sent for Bagalkot Common Biomedical Waste Treatment Facility.
5. On 22.08.2017, respondent No.9 filed a synopsis and affidavit of one Dr.Sunita Arun Kathari. In the said Synopsis as well in the affidavit, though it was admitted that the petitioner was admitted in the respondent No.9 Hospital on 09.11.2016 at 5.00 am and the petitioner was pregnant and suffering with severe labour pain, also stated that on the very same day at 7.32 am, petitioner gave birth to a baby girl, which child at the 8 WPHC No.100022/2017 time of its birth has some respiratory problem. It is the further contention of the respondent No.9 that the condition of the baby worsened and the relatives of the patient, in spite of being explained with the worsening condition of the child and the complication, did not bother to get proper higher medical treatment, as such, on 13.11.2016 at about 8.30 pm, the baby was declared dead and the same was informed to the petitioner and her attenders. It is further stated by them in the synopsis as well as in the affidavit of Dr. Sunita that, since the petitioner and their relatives did not bother to carry the dead body with them, on 15.11.2016, with the consent of their employee, one Smt. Timmavva Jalgar, who was the relative of the petitioner, packed the dead body of the child and sent it to Bagalkot Common Biomedical Waste Treatment Facility, Bagalkot. It is also the statement of Dr.Sunita in her affidavit that the petitioner has made out a different story as an after thought. 9 WPHC No.100022/2017 6. On 29.08.2017, learned Government Advocate filed a memorandum along with few documents in the form of photocopies, which also included clearance in Form No.4 dated 11.03.2015 from Karnataka State Pollution Control Board, Bengaluru and the alleged statements said to have been given by Sri. Arjun Somappa Nelagi, Sri. Yalagooradappa Basappa Barker and Sri. S. V. Panchamukhi, before the respondent No.7 – Police.
7. In the light of the above developments, when the matter was called and heard on 30.08.2017 by this Court, prima facie finding that there is no material to believe that the baby was found dead on 13.11.2016 and that the clear picture of the incidents are not forthcoming and also the statement made from the 9th respondent’s side was not believable at that moment and on its facial value, this Court in order to find out whether the alleged baby was alive, directed the Superintendent of Police, Bagalkot, to get the investigation done under his 10 WPHC No.100022/2017 supervision by any Police Officer not below the rank of Assistant Superintendent of Police and submit his report directly to the Court. The matter was ordered to be listed on 18.09.2017. On that day, at the request of the learned Government Advocate, one more month’s time was granted to the police to comply the investigation and to file a detailed report.
8. On 23.10.2017, the learned Government Advocate filed a report of the Assistant Superintendent of Police in a sealed cover along with 5 CDs, out patient slips and the receipts. The sealed cover was opened in the open Court in the presence of the learned counsel appearing for the parties as well as in the presence of the Police Officer, who has conducted the investigation. The copies of the police report were directed to be supplied to the learned counsel appearing for the parties and the CDs were directed to be kept in safe custody of the Registry. The 11 WPHC No.100022/2017 petitioner was given opportunity to file her objections, if any, to the said report in the form of an affidavit.
9. On 07.11.2017, the petitioner filed her objections in the Registry to the report submitted by the Superintendent of Police, Bagalkot. In her objection, she specifically alleged that the Investigating Officer and his team have given torture to her and the Investigating Officer had sent the police van to her village for three times threatening the petitioner to compromise the matter. She also stated that there were lots of discrepancies in the alleged documents said to have been forming part of the investigation. She said lot of discrepancies are there in the statements of the witnesses said to have been recorded by the Investigating Officer and raising several questions about the investigation and its procedure, the petitioner requested to register a case against respondents No.6 to 12 including the Investigating Officer for creating and submitting a false report. 12 WPHC No.100022/2017 10. It is in the above developments in the matter, the case was heard on 12.12.2017, on the main petition itself and the matter was reserved for orders.
11. The learned Counsel for the petitioner in his argument reiterated the contention taken up by the petitioner in her writ petition and the affidavit filed thereafter and also on the grounds of objections raised by them to the report of the Investigating Officer filed in this matter. He further submitted that the records of the hospital by themselves speak that, while the petitioner was discharged from the hospital, the child was still alive. Further, there are no materials to show that the alleged dead body of the child was sent to Bagalkot Common Biomedical Waste Treatment Facility and the said body was disposed of by them. He also submitted that there is some threat to the life of the petitioner from the respondents, who are pressurizing the petitioner to withdraw the case and to compromise the matter with 13 WPHC No.100022/2017 them. The learned counsel expressed his suspicion that the child is still alive, but has been passed on to some third persons for the reasons best known to the respondents. He requested the Court to reject the investigation report submitted by the Superintendent of Police and to entrust the matter to CBI for inquiry.
12. The learned Government Advocate in his argument submitted that the documents collected by the Investigating Officer and also the statements recorded by him clearly establishes that the baby died on 13.11.2016 at 8.30 pm and that the dead body of the baby was sent to Bio Medical Waste Treatment Unit by the 9th respondent hospital. As such, the habeas corpus writ petition does not survive.
13. The learned counsel for respondent No.9 – Hospital in his argument vehemently submitted that the petitioner by herself has lodged a complaint with the police alleging her love affair with the respondent No.10. 14 WPHC No.100022/2017 No whisper of any complaint or allegation against the hospital was made by the petitioner in the said complaint. Thus, keeping quite for several months, belatedly and showing no reasons, a false complaint is made against the hospital by the petitioner. The learned counsel further submitted that, since the petitioner refused to take the dead body of her child, the hospital has no other way but to dispose the dead body with the consent of Timmavva, an employee of the said hospital, who incidentally was the relative of the petitioner and attending her. The learned counsel concluded his argument submitting that, if at all any mistake can be found in the act of the respondent No.9 Hospital sending the dead body to Bio Medical Waste Treatment Unit, the same would give rise to a separate cause of action to the petitioner to take appropriate legal action in accordance with law against the said respondent Hospital, but no action of any kind be taken under the present writ petition, whose scope is very much limited. 15 WPHC No.100022/2017 In this regard, the learned counsel also relied upon a judgment of this Court in the case of Meenakshi W/o. Sri. P. Anjn Vs. Superintendent of Police Mysore District Mysore- 1, The Police Sub-Inspector Hullahalli Police Station Hullah Alli Nanjanagudu Taluka Mysore District, P. Ashokan S/o. P. Inbiuchunnipilli reported in LAWS(KAR) 2012 8 474.
14. From the above narration of the versions as placed by both sides in this matter, the undisputed fact remains that the petitioner Smt. Shankaramma was admitted to the 9th respondent Hospital as a pregnant lady suffering with labor pain. It is also not in dispute that the said Shankaramma, the petitioner, gave birth to a female child in the respondent No.9 Hospital on the date 09.11.2016 at 7.32 am. It is also not in dispute that on 14.11.2016, the petitioner was discharged from the said hospital and that, when she came out from the hospital, she had no baby with her. According to the petitioner, she was refused to be handed over the baby born to her by the 16 WPHC No.100022/2017 Hospital Authorities. According to Hospital Authorities, the said baby was dead on 13.11.2016, and that in view of refusal of taking the dead body of the baby by the petitioner, the hospital had no other way but to dispose of the corpse of the baby. This rival contention of the petitioner as well the hospital is the important point to be considered in this writ petition.
15. According to the petitioner, the female child given birth to her was not delivered to her by the 9th respondent Hospital Authorities, whereas the respondent physically and mentally rely upon the complaint to the 7th respondent police said to have been lodged by the petitioner. In the said complaint, it is shown that the complainant has stated that the baby which she was given birth to died two days after its birth and that as informed to her by the doctor, the Hospital Authorities themselves have handed over that child to Hangal Kumareshwar Hospital, Bagalkot. Solely relying upon the said 17 WPHC No.100022/2017 complaint, the respondent No.9 Hospital contends that the complainant himself has stated at the earliest point of time before the police in the form of complaint, that the baby was dead and dead body was handed over to Bagalkot Bio Medical Waste Treatment Unit. However, it cannot be ignored that the petitioner, both in her present petition as well in her affidavit filed on 02.08.2017, has categorically stated that the said complaint was crafted by the police, as such, it does not depict the true and correct picture. Even in the said complaint also, the complainant/petitioner has not admitted that the alleged dead body of the child was handed over to Hangal Kumareshwara Hospital, Bagalkot (or to Bagalkot Bio Medical Waste Treatment Unit). It is because in the complaint the complainant has stated that she was told so by the doctors. Therefore, the contention of respondent No.9 that the complainant had admitted that the dead body was handed over to Bagalkot Bio Medical Waste Treatment Unit cannot be accepted at this stage. 18 WPHC No.100022/2017 16. When the materials placed before this Court in the form of hospital records, statements of the charges and the alleged investigation reports conducted by the Assistant Superintendent of Police, Bagalkot are perused, the following points would come to the notice of the Court: i. The Hospital discharge card issued by respondent No.9 Hospital to the petitioner, the authenticity and contents of which has not been denied or disputed by the respondents, go to show that the petitioner was admitted to the 9th respondent Hospital on the date 09.11.2016 and she was discharged on the date 14.11.2016. In the same document, under the column “Delivery notes”, it is written as below: “FTND of alive female baby on 09.11.2016 at 7.32 am Wt.2.5 kg, no PPH seen Baby referred to Pediatrician” 19 WPHC No.100022/2017 Nowhere in the said discharge card it is mentioned that the baby died on 13.11.2016. Had the baby was dead as on 13.11.2016, nothing had prevented the hospital, rather the hospital had a duty to mention in the discharge summary, which was issued on or after 14.11.2016 about the death of the baby. Therefore, in the very important document which is a discharge card issued by the hospital, the Authorities of the hospital have not mentioned about the death of the baby, which gives rise to suspicion about the correctness in the statement of the hospital to the effect that the said baby was dead on 13.11.2016 itself. ii. Along with the memo field on 02.08.2017, along with documents filed by the respondents, copies of progress sheets said to have been maintained by the 9th respondent Hospital are also produced. The respondents have also produced a birth certificate 20 WPHC No.100022/2017 said to have been issued by the competent authority. In the progress sheet, it is mentioned that, in spite of resuscitation measures, the baby declared dead at 8.30 pm, patient and attenders informed. Below that, a signature said to be of one Smt. Timmavva Jalgar is shown. In the second progress sheet dated 15.11.2016, it is shown that in the presence of Timmavva Jalgar and as per her wish and consent, the dead body was packed and sent for Bagalkot Common Bio Medical Waste Treatment Facility. In the synopsis filed by the 9th respondent Hospital, dated 22.08.2017, as well 18.09.2017, it is mentioned that the baby was declared dead on 13.11.2016 at 8.30 pm and the same was informed to the petitioner and her attenders. Since they refused to take the baby, the dead body was roped and kept in refrigerator. On 14.11.2016, the petitioner was discharged, who disagree to take the dead body, however, agreed and gave consent to send the dead 21 WPHC No.100022/2017 body to Bagalkot Common Bio Medical Waste Treatment Facility. As per the progress sheet, it is the relative of the petitioner who gave her consent to send the body to Bagalkot Common Bio Medical Waste Treatment Facility, whereas as per the synopsis filed by the hospital, the consent of the petitioner was also there to that effect. Had there been consent of the petitioner, what prevented the hospital in obtaining the signature of the petitioner in the progress sheet and why it took the signature of the third person by name Timmavva, who was none else than the employee of the hospital, is not understandable. iii. The main allegation made by the petitioner is as against the respondent No.9 – Kathare Nursing Home, being represented by its doctor Dr.Sunita Arun Kathari. The said respondent neither in its synopsis of events dated 22.08.2017, nor in the particulars of 22 WPHC No.100022/2017 events in a chronological order filed by it on 18.09.2017, nor even in the affidavit of the said Dr.Sunita Arun Kathari dated 23.08.2017, anywhere it has mentioned about the relatives of the petitioner taking away with them the case sheet of the patient which is said to have been hanged to the bed of the petitioner in their hospital. However, for the first time the said doctor Sunita in her statement said to have been given before the Assistant Superintendent of Police, Bagalkot on 08.09.2017, has stated that, while the petitioner Shankaramma was in their hospital, her relatives not only refused to take the dead body of the child with them, but also took away the case sheet of the patient with them. Thus, it gives rise to suspicion about what prevented the said doctor to state the said important event at the earliest, either in the particulars of events, synopsis or in her affidavit dated 23.08.2017. Therefore, the argument of the learned counsel for the petitioner is that the alleged taking 23 WPHC No.100022/2017 away of the case sheet of the petitioner by the relatives of the petitioner is purely an after thought on the part of the respondent No.9 to strengthen their false defence in the case. The said suspicion thus created cannot be ignored. iv. According to respondent No.9 Hospital, on the date 13.11.2016 in the night, one Shankarlinga, said to be the brother of the petitioner, came to the hospital and took the dead body of the child with him without informing the Hospital Authorities. However, the Hospital Authorities contacted one Sanjeev Jalgar, a relative of the said Shankarlinga and secured the dead body of the child back. In that regard, the Investigating Officer is shown to have recorded the statement of the said Shankarlinga and Sanjeev Jalgar, showing that they have given statements in support of the statement of said Dr.Sunita that Shankarlinga took the dead body of the child with him 24 WPHC No.100022/2017 and the same was got returned to the hospital at the intervention of one Sanjeev. Without examining said Shankarlinga and Sanjeev, merely showing two computer print out sheets shown to be the statements of those two persons, cannot be believed that said Sanjeev and Shankarlinga have given their statements on the same light as shown in their alleged statements before the police. At this juncture, it also cannot be ignored that in none of the statements of Dr.Sunita, Sanjeev Jalgar and Shankarlinga, it is mentioned as to how come the office knew the telephone number of Sanjeev and alleged relationship of Sanjeev and Shankarlinga and also what prompted the Hospital Authorities to call Sanjeev. v. The statement of the doctor that one Shankarlinga took the dead body of the child with him without informing the Hospital Authorities also needs to be suspected for one more reason that no hospital 25 WPHC No.100022/2017 of such an infrastructure and facilities like as alleged with respect to respondent No.9 would be without proper security arrangements. When child delivery cases are one of the major activities in the said hospital (Gynecology activities), naturally hospital will have proper security staff and check and inspection methods to check the movements of the patient, newly born child and the visitors to the hospital. That being the case, in their hospital a newly born four days old baby can be easily taken away is highly unbelievable. At the same time, whosoever might have taken the baby, if they are not the parents of that child, the same may amount to a theft. In that regard, the Hospital Authorities were expected to lodge a police complaint regarding the incident. Admittedly, till date the hospital has not taken any such steps against the alleged person Shankarlinga. Therefore, the statement of the doctor before the Investigating Officer that one Shankarlinga had taken away with him the 26 WPHC No.100022/2017 dead body of the child cannot be accepted at its facial value at this stage. vi. In order to substantiate the contention of respondent No.9 that the dead body of the child was handed over to the Bio-Medical Waste Treatment Plant run by M/s. Rural Development Foundation of BVV Sangh, Bagalkot, in the name of Common Bio- Medical Waste Treatment Facility, Bagalkot District, the respondent – police including the Assistant Superintendent of Police, who conducted an enquiry upon the directions of this Court, have relied upon the statements of Smt. Radhabai, Sri. Arjun Somappa Nelagi, Sri. Yalagooradappa Basappa Barker and Dr.S.V. Panchamukhi, in their support. The said Radhabai is said to be working as an attender in respondent No.9 Hospital. In her statement before the Assistant Superintendent of Police (ASP), she is shown to have stated that the 27 WPHC No.100022/2017 hospital delivered the dead body of the child separately packed in a wastage bag through her to the Bio-Medical Waste Treatment Plant, Bagalkot. The said witness has not stated as to how she dealt with that wastage bag containing the dead body of the child once it was given to her by the Hospital. Nowhere in her statement she has stated as to what she did with that pack, whether she carried the said bag to the waste treatment plant by herself or delivered it to anybody else, she has not stated. Thus, the doubt arises about the truthfulness in the statement of the said Smt. Radhabai, who incidentally is the employee of the very same hospital against which the allegations are made in this case. Arjun, S/o. Somappa Nelagi, showing to be a driver of Tata AC vehicle bearing registration No.KA- 29/A-5994, is shown to have stated before the respondent No.7 police on 25.07.2017 that the said vehicle belongs to him and that he has given that 28 WPHC No.100022/2017 vehicle on lease to the Waste Treatment Plant for collection of the bio-medical waste. Further, he himself works as a driver of the said vehicle. Accordingly, on 15.11.2017, he went to the respondent No.9 Hospital and collected two bags from the said hospital, one containing plastic articles like needles and other items and another pack containing placenta wastage pertaining to human body. Both the bags were sealed and himself joined by Yalagooradappa Barker, jointly burnt those two bags in the Waste Treatment Plant. The said Yalagooradappa referred in the statement of Arjun, claiming himself to be a coolie in the Waste Treatment Plant, in his statement dated 25.07.2017 before the respondent No.7 Police, has supported the statement of Arjun about them collecting the two wastage bags from respondent No.9 Hospital and burning both the bags in the Waste Treatment Plant. 29 WPHC No.100022/2017 The very same Arjun Nelagi and Yalagooradappa Barker in their another statement before the Assistant Superintendent of Police on 30.09.2017, have given a different version about the alleged disposal of waste bags. In their second statement dated 30.09.2017, with respect to the two wastage bags, they have stated that the first bag contains needles and plastic items and second bag was containing placenta, which was a wastage after delivery (of child). Thus, even according to them, neither of the wastage bags given to them was containing a dead body of a child. At the best, it was only a placenta, not the dead body of a child, which is said to have been died four days after its delivery. Secondly, no reasons are forthcoming as to how come hospital can retain a placenta for six days when the delivery of the child by the petitioner Shankaramma has taken place on 09.11.2016. 30 WPHC No.100022/2017 Thirdly, very same Arjun and Yalagooradappa, who in their statement dated 25.07.2017 are shown to have stated that both of them jointly have burnt both the wastage bags in the Waste Treatment Plant, are shown to have stated in their second statement dated 30.09.2017 that they learnt subsequently that since nobody carried the dead body of the child born to Shankaramma Poojari, the hospital had sent the dead body to Waste Treatment Plant for burning it. They have said it as hearsay information. Had really been the said dead body was delivered to these two persons by the hospital for burning it, then nothing had prevented these two persons to state before the Assistant Superintendent of Police on 30.09.2017 that it was themselves who had taken the said dead body as the wastage and burnt it. Instead, they have stated that they came to know that the hospital had sent the dead body to Waste Treatment Plant for burning it. 31 WPHC No.100022/2017 Thus, first statements of Arjun and Yalagooradappa are quite contradictory to their alleged second statements dated 30.09.2017 on a very important and vital aspect. Thus, their statements cannot be believed at all. Fourthly, the 7th respondent police is also shown to have recorded the statement of one Sri. I. S. Angadi said to be a project coordinator at Bio- Medical Waste Treatment Facility, Bagalkot on 23.08.2017. In the said statement, the said Sri. Angadi though has stated that Arjun was working in their treatment plant, though has referred to the Yalagooradappa, but has very clearly stated that it was Arjun alone, who collects the bio- medical wastes and brings it to their unit, where Yalagooradappa, the other staff, dispose them of. On 15.11.2016, the wastage brought by Arjun was disposed of by burning by the other staff Yalagooradappa Barker. Thus, according to him, 32 WPHC No.100022/2017 Yalagooradappa never goes out for collection of the waste and Arjun never burn the waste collected by him. The role of Arjun is only to collect waste and deliver it at treatment plant and the duty of Yalagooradappa is only to be at wastage plant and burn the wastage articles entrusted to him by the plant authorities. This clearly establish that the statement of Yalagooradappa before respondent No.7 on 25.07.2017 that he along with Arjun collects the wastage items from the hospital and that on 15.11.2016 also they collected the waste from respondent No.9 Hospital and they jointly burnt it, is totally false. At this juncture, it also cannot be lost sight of the fact that, the said Yalagooradappa, who in his statement dated 25.07.2017 has stated that Arjun has leased his vehicle to the treatment plant and that vehicle will be used for collection of wastage of plant, has stated that Arjun is also the driver of the 33 WPHC No.100022/2017 said vehicle, whereas the very same Yalagooradappa before the Assistant Superintendent of Police on 13.09.2017, is shown to have stated that he is the owner of the said vehicle and that he has leased the said vehicle to the hospital and now he runs the said vehicle as its driver. That means, not only there is no consistency in the statement of Yalagooradappa, but also a drastic contradiction on important aspects. Dr. S. V. Panchamukhi shown to be project coordinator, Bio-Medical Waste Management, Bagalkote, in his statement dated 23.08.2017 before the 7th respondent police is shown to have stated that on 15.11.2016, Arjun Nelagi and Yalagooradappa had brought Bio-Medical waste from Ilkal side from the 9th respondent Hospital and Yalagooradappa had burnt the said waste as they were in the packing condition. 34 WPHC No.100022/2017 When his statement is read along with the statement of Sri. I. S. Angadi before the same police on the same date, it can be seen that both are project coordinators in the very same Waste Treatment Plant. According to Sri. I. S. Angadi, it was Arjun Nelagi alone who had brought the wastage on 15.11.2016, whereas, according to Dr.S.V.Panchamukhi, it was both that Arjun Nelagi and Yalagooradappa Baraker, who had brought the wastage from respondent No.9 Hospital on the said day. As already observed above, there is inconsistency in the evidence of all these important witnesses including Sri. Arjun Nelagi and Sri.Yalagooradappa regarding the person who is said to have brought the waste from respondent No.9 Hospital and about the person who said to have burnt the said waste. Even the alleged statements of two project coordinators i.e., Sri. I. S. Angadi and 35 WPHC No.100022/2017 Dr.S.V.Panchamukhi also maintains the said suspicion alive. In addition to the above discrepancies, what cannot be ignored in the alleged statement of Sri.I.S.Angadi and Dr.S.V.Panchamukhi is that, both are in-charge of Bio-Medical Waste Management, Bagalkot. Though they have stated that bio-medical waste was burnt without opening the packets said to have been issued by respondent No.9, the Assistant Superintendent of Police, who conducted the investigation has not bothered to ascertain as to whether the said Bio-Medical Waste Treatment Plant has any responsibility or duty of ascertaining the nature of the alleged bio-medical waste to rule out the possibility of any dead body of a human being, like the one in the case on hand, are also sent as a waste for burning. In that regard, the statement of both Sri. I. S. Angadi and Dr.S.V.Panchamukhi is also silent. They have not taken any responsibility 36 WPHC No.100022/2017 of ascertaining their duty to ensure that their plant ought to have confirmed that any wastage that it disposed would not contain non-bio-medical wastes including human dead bodies. Therefore, the Investigating Officer ought to have considered this aspect and conducted the investigation on the said line, which he has not done. vii. The respondents No.1 to 9 in support of their contention that the child was dead and its dead body was entrusted to Common Bio-medical Waste Treatment Facility, Bagalkot and that the said treatment plant disposed of the said dead body by burning it, have produced Form No.4, which is an authorization issued by the Karnataka State Pollution Control Board dated 11.03.2015, authorizing the President, M/s. Rural Development Foundation of BVV Sangh, Bagalkot, to operate a facility for collection, reception, treatment, storage, 37 WPHC No.100022/2017 transport and disposal of bio-medical waste. The said certificate very specifically mentions that the operator was authorised to collect and dispose of only the Bio-Medical Waste and shall not collect any other waste without the approval of the Board. Even according to the respondents, the dead body of a human being is not a bio-medical waste. That being the case, how come the hospital can handover the dead body of a human being to a Bio-Medical Waste Treatment Plant and how come the said plant receives such human corpse for disposal is a doubt that has remained unsolved. It may not just a violation of a provision of the Act governing the Bio- Medical Waste Treatment Plant, but also may constitute into a criminal offence on the part of the respondent No.9 Hospital as well Bio-Medical Waste Treatment Plant. At the same time, the respondent police even after coming to a conclusion that the dead body of the child was disposed of by the said 38 WPHC No.100022/2017 Bio-Medical Waste Treatment Plant, also have not suo-motto taken any action against the said hospital and the treatment plant, also raises the eyebrow up. viii. The respondents No.1 to 9 along with their memo and affidavit among the documents, inter alia have also produced the photocopy of a birth certificate and a death certificate said to be pertaining to the same child in question. In the birth certificate, the date of birth is shown as 09.11.2016 and in the death certificate the date of death is shown as 13.11.2016. By the said certificate itself it cannot be concluded that the very same child died on 13.11.2016 for the reason that the said certificate will be issued by the competent authority only based on the details given by/submission made by the hospital. Both the certificates clearly shows that the date of registration of both the birth and death was on the very same 39 WPHC No.100022/2017 day, which was on 27.07.2017, which was two days after filing of the present writ petition. That means, the hospital, which owes a duty to report the birth and death that has taken place with it without any delay, has taken more than eight months to report the same to the concerned Registrar of Birth and Death Registration Unit, Ilkal. Therefore, it is also a document created by the 9th respondent Hospital as an after thought. ix. Dr. Sunita, representing the 9th respondent Hospital, who had not initially alleged about the few persons from the patient’s side taking away the case sheet, has belatedly and before the police, that too in her second statement before the police, has made allegations in that regard. According to the hospital, duplicate case sheets were prepared thereafter. If that were to be the case, when the hospital produced the documents at the 40 WPHC No.100022/2017 first instance before this Court as well, when the Government Advocate filed a memo along with documents before this Court, no whisper was made about the persons from the petitioner’s side taking away the original case sheets from the hospital or about the copies of the documents produced by them being the duplicate copies prepared subsequently. On the contrary, on all those documents, the very same Smt. Sunita Arun Kothari has put her signature as true copies. The reason for the same is not forthcoming. The most interesting part of those second set of documents is that, the said documents in the form of progress sheets also include the blood pressure rating, pulse rating and urine out quantity date wise and hour wise. Had the case sheet papers being taken away by the patient’s side till then, how come all these pulse readings hour wise and date wise progress, doctor visit reports etc., could be able to be re-written by the 41 WPHC No.100022/2017 hospital in subsequently created duplicate documents. Even this aspect also the Assistant Superintendent of Police has not considered. x. In many of the hospital records including the labour and delivery record, there are lot of corrections with regard to the dates mentioned in them. More particularly, in the labour and delivery record maintained by the hospital, there is correction of the date with respect to alleged bringing of the baby back from pediatrician Dr. Pavankumar Dharak and there is alteration of the date with respect to the alleged date of death of the baby. All these aspects further strengthen the doubt about the truthfulness in the alleged statement made by Dr. Sunita, which basically is at variance from her statement before respondent No.7 Police to her subsequent statement before the Assistant Superintendent of Police. 42 WPHC No.100022/2017 xi. Few of five compact discs (CDs) submitted to the Court by the Assistant Superintendent of Police along with his report is also not clear in its audio and there is no continuity in recording of one of the persons inquiry by woman police head constable. The said witness appears to be a staff of the respondent No.9 Hospital and the venue of recording appears to be either in the hospital or in the residence of that person. Apart from lot of breaks in the recording of the video, it is also crystal clear that she was fully tutored as to what to say in her statement and she was being prompted and directed by some other person who was behind the camera. Some prompting to the witness can also be seen in the process of her statement recording. However, it can be seen from her statement that the medical records including the progress sheets which were shown to her during the 43 WPHC No.100022/2017 enquiry has been stated by her as subsequently created documents. Similar to the above, the statements of other persons in CD Nos.1, 2, 3 and 4 are also not clear. In CD No.1, the person who was enquired appears to have stated few things about she being offered with some money in few lakhs of rupees and she refusing the same. In the second CD, which is the statement of a boy wearing jeans pant, the Inquiry Police Officer is heard to be asking him about the place where the dead body of the child was buried. Had the dead body is not buried but it is burnt by the Waste Management Plant, the police would not have asked the said question and the boy also would not have responded to it. In CD No.3, once again the very same lady, who was in CD No.1 appears to have given her statement, where also she being offered with few lakhs of rupees 44 WPHC No.100022/2017 to close the matter and it appears that she has refused such offer and demanded for the child. In CD No.4, which is also a statement of a lady in the presence of woman police head constable (child is found playing around that lady), she has stated probably about the threat given to her. It is heard that she was stating like: “……if you talk you will put inside…..” (ªÀiÁvÀ£ÁrzÀgÉ M¼ÀUÉ ºÁQÛä) “……why they did not give the child back…..” (CªÀgÀÄ £ÀªÀÄUÉ ªÀÄUÀÄ AiÀiÁPÉ PÉÆqÀ°®è) “……they called her for burial, but sent him back…..” (ªÀÄtÄÚ ªÀiÁqÀ®Ä PÀgÉzÀgÀÄ, DzÀgÉ ªÁ¥À¸ÀÄì PÀ¼ÀÄ»¹zÀgÀÄ) and “……it is not home, but it is police station…..” (EzÀÄ ªÀÄ£ÉAiÀÄ®è ¥ÉÆð¸ï ¸ÉÖõÀ£ï) When all the five CDs are viewed, the points that remains unanswered are:
45. WPHC No.100022/2017 a. As to why did not the Assistant Superintendent of Police himself inquired all the witnesses, whose statements are recorded in video, but why did he entrusted such a job to a lower police official like woman police head constable?. b. No details of place, date, time of videography has been recorded in the CD. c. The statement of Dr.Sunita appears to have not been recorded. She is the most important witness in this case because she is the doctor who declared the baby as dead and has taken a defence that the baby was sent to Waste Management Treatment. d. No statements of Management/ Administrator and Officers of Bio-Medical Waste Treatment Plant was recorded under videography. Thus, videographing of the statements also does not inspire any confidence to believe that the 46 WPHC No.100022/2017 Assistant Superintendent of Police has conducted the investigation properly.
17. From the above analysis, it is clear that all the respondents No.1 to 9, more particularly the respondent No.7 Police and the respondent No.9 Hospital are collusive in closing the case by depicting that the baby born to the petitioner on 09.11.2016 was dead and its dead body was disposed of through Bio-Medical Waste Treatment Facility at Bagalkot. It is in that regard, they got statements of their own people/hospital staff shown to have been recorded and they also have given different statements in different versions with respect to the same incident at difference times. The respondent Police as well the Investigating Officer (Assistant Superintendent of Police) also appears to have determined to help the respondent No.9 Hospital in closing the matter. The Investigating Officer also has not seized any of the documents and registers maintained by respondent No.9 Hospital and the 47 WPHC No.100022/2017 Bio-Medical Waste Treatment Plant during the course of investigation. However, one document produced by the Assistant Superintendent of Police along with his report is a letter by respondent No.9 Hospital to the 7th respondent Police and is dated 09.09.2017. That letter is a forwarding letter of the statement of the patients admitted with 9th respondent Hospital for delivery of the child during the period 08.11.2016 to 16.11.2016. Though it gives details of 34 patients, the name of present petitioner Shankaramma Poojari does not find place in it. Though name of one Sri. Shankaramma Raghavendra Goudar is shown at Sl.No.22, but the said Shankaramma as the name itself suggests, is the wife of Raghavendra Goudar, whereas the present petitioner is Shankaramma Poojari. Even according to the discharge card issued by the hospital, which has been referred to in the beginning of this judgment, the name of the patient is shown as Shankaramma Hanumanta Poojari and address is of R/o.Rakkasagi, whereas this Shankaramma Raghavendra 48 WPHC No.100022/2017 Goudar not only differs in her name of husband, but also place of residence is not Rakkasagi, but it is Hanamanal ST. At least on this aspect, the Assistant Superintendent of Police should have pondered upon. On the contrary, he counted the number of persons and shown that he has recorded all their statements in a stereo type and counting the number of heads, who are shown as persons given statements, he came to a conclusion that his investigation revealed that the child born to the petitioner was dead and it was disposed of by the Bio-Medical Waste Treatment Facility, Bagalkot.
18. Therefore, we are of the view that respondent No.7 Police and respondent No.9 Hospital including the Assistant Superintendent of Police have very carelessly and with an intention to help the respondent No.9 Hospital, have prepared the documents alleged to be the statements of several persons only to close the case in favour of the respondents. 49 WPHC No.100022/2017 19. The learned counsel for the 9th respondent Hospital in his argument relied upon the judgment of the Coordinate bench of this Court in Meenakshi W/o. Sri. P. Anjn Vs. Superintendent of Police Mysore District Mysore-1, The Police Sub-Inspector Hullahalli Police Station Hullah Alli Nanjanagudu Taluka Mysore District, P. Ashokan S/o. P. Inbiuchunnipilli reported in LAWS(KAR) 2012 8 474, wherein it was held that even if the petitioner in a writ of Habeas Corpus suspects that the alleged missing person was alive, in active connivance of the 3rd respondent therein, still it may not be necessary nor feasible for the High Court to investigate the matter as to the possible criminal acts that can be attributed to the third respondent. As such, petition for issue of writ in the nature of Habeas Corpus does not survive, particularly in view of the fact that the person was recorded to be dead even during November 2011. Though learned counsel for 9th respondent Hospital relied upon the said judgment, but it cannot be forgotten 50 WPHC No.100022/2017 that confining to the fact alleged before it, it was opined that the Writ Court found it not necessary and feasible to investigate the matter.
20. On the Other hand, the Coordinate Bench of this Court in Girimallappa Vs. State of Karnataka and Others, in WPHC NO.200001/2016, in its order dated 04.04.2016, while dealing with a Writ of Habeas Corpus with regard to a missing girl, was pleased to observe as below: “8. The kidnapping of the girl might have broken the heart of her parents and her other dear and near ones. We find it hard to imagine what has happened to the minor girl. We cannot hazard a guess as to whether she is alive or not, whether she is pushed into the slavery or flesh trade, whether she is put in any unsafe inhuman environment. Neither the girl nor her parents should harbour the feeling that they are the ‘orphans under law’, the expression which we borrow from the Hon’ble Supreme Court’s judgment in the case of Dharampal vs. State of Harayana and others in Criminal appeal No.85 of 2016 [S.L.P.(Criminal) No.6298 of 2015].. WPHC No.100022/2017 51 9. As observed by the Apex Court in Mithilesh Kumar Singh’s case (Supra), the following facts are relevant for giving a direction for the investigation by C.B.I.: i. ii. iii. sensibility of victims or their next kin, sensibility of issues like loss of human life, shabby and partisan investigation, etc.
10. Discovery of truth is the ultimate purpose. The Court should not be hesitant to direct the C.B.I. investigation to promote the cause of justice. Proper, fair and effective investigation is the backbone of the rule of law. Where non-interference of the Court would ultimately result in the failure of justice, the Court must interfere. Transfer can be ordered once the Court is satisfied on the available material that such a course will promote the cause of justice in a given case. As observed by the Apex Court in State of West Bengal’s case (Supra), the High Courts not only have the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly.
11. The power to transfer the investigation to C.B.I. is an extraordinary power, which is not to be exercised routinely. This Court does not direct the transfer of investigation just for the asking nor is transfer directed to satisfy the ego or vindicate the prestige of a party interested in such investigation. 52 WPHC No.100022/2017 12. In the case of Narmada Bai vs. State of Gujarat and others reported in (2011) 5 SCC79 the Apex Court has expressed the considered view that when the investigation is improper or is lacking credibility, the direction for investigation by an independent agency like C.B.I. is permissible.
13. Thus considering the factual matrix of the case and the Apex Court’s judgments to which reference are made hereinabove, we find it necessary and just to direct the transfer of investigation in Crime No.83/2014 from the State Police (Golgumbaz Police Station, Bijapur) to the Central Bureau of Investigation. The Director of C.B.I. shall ensure that the investigation is assigned to the officers competent to handle the same and take such follow-up action as is permissible in accordance with law. We also clarify that the State Police would however continue to investigate till C.B.I. takes over the investigation from the State Police. This clarification is issued because we do not want the investigation to be brought to the standstill in the period of transition, that is while switching over from the State Police to C.B.I. In any case, C.B.I. is bound to pick up the thread being left by the State Police. “ 21. In the instant case also, for the reasons mentioned above, we are of the view that, since the State Police appears to have not conducted the investigation 53 WPHC No.100022/2017 entrusted to them properly and it is the life of an alleged innocent child of four days old in question and following the decision of Hon’ble Supreme Court in Mithilesh Kumar Singh Vs. State of Rajasthan reported in (2015) 9 SCC795 it appears appropriate if the matter is investigated by the Central Bureau of Investigation. Accordingly, we find it necessary and just to direct transfer of investigation in Crime No.33/2017 from the State Police (Hunagund Police Station – respondent No.7) to the Central Bureau of Investigation. The Director of CBI shall ensure that the investigation shall be assigned to the competent officer with it, to conduct the investigation and take such follow up action as is permissible in accordance with law. The respondents No.6, 7 and 8 Police are directed to handover the investigation in the said crime forthwith to the Central Bureau of Investigation. The respondents shall not wait for any request to come in that regard form the CBI. 54 WPHC No.100022/2017 We also make it clear that we are not expressing any opinion on the merits of the case or the complexity of any one associated with the incident or with investigation directly or indirectly. The analysis made above and reason given hereinabove are only in finding out a prima facie material in the case which has resulted in opining to handover the investigation to the Central Bureau of Investigation. This petition is accordingly disposed of. No order as to costs. The Registry is directed to send a certified copy of this order forthwith to the Central Bureau of Investigation, New Delhi, bringing to their notice the direction given by this Court to them in this order. Sd/- JUDGE Sd/- JUDGE gab