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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.1924 OF 2010
Meena Kamal Saigal,
177, Kamakshi House,
Varde Marg, Bandra (West),
Mumbai - 400 050. ...Petitioner
Versus
1.The State of Maharashtra
2.The Commissioner of Police
for Mumbai, Opp.Crawford
Market, Mumbai.
3.The Senior Inspector of Police,
Mahim Police Station, Mahim,
Mumbai - 400 016.
4.Inspector Sunil Chandugude,
Posted at Mahim Police Station
and Investigation Officer in the
FIR registered against the
Petitioners husband
Shri Kamal Saigal ...Respondents
......
Mr.R.S.Desai i/b Mr.Kunal Bhange for Petitioner.
Mr.D.P.Adsule, A.P.P. for State.
Mr.Niranjan Mundargi with Mr.Y.R.Israni for Respondent No.4.
......
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CORAM:- A.M.KHANWILKAR AND
A.R.JOSHI, JJ.
JUDGMENT RESERVED ON :- MARCH 1, 2011.
JUDGMENT PRONOUNCED ON :- MARCH 16, 2011.
JUDGMENT (Per A.M.Khanwilkar, J.) :
1. This Petition has been filed by the wife of the petitioner
Kamal Saigal, who is accused in Crime registered as C.R.No.
214 of 2009 at Mahim Police Station for offences punishable
under Sections 420, 465, 467, 468, 470 r/w 120-B of the Indian
Penal Code.
2. By this Petition under Article 226 of the Constitution of
India, the petitioner has prayed for four reliefs. The first relief is
to direct the Commissioner of Police and the doctors at K.E.M.
Hospital to produce the petitioner’s husband before the Court
along with medical papers of Bhabha Hospital dated 22nd and
25th June, 2010 and all papers of K.E.M. Hospital, I.C.U. and
M.I.C.U. where the petitioner’s husband was undergoing
treatment at the relevant time.
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3. The second relief is to direct the Respondent No.2
(Commissioner of Police) to register a criminal case against
Respondent No.4 (Inspector Sunil Chandgude) and other police
men who have used third degree methods resulting in
petitioner’s husband becoming unconscious in the Mahim
Police Station while in custody. It is further prayed that the
criminal case to be registered against respondent No.4 should
be investigated by Senior I.P.S. Officer.
4. The third relief is to direct the respondent No.2
(Commissioner of Police) to transfer the investigation of F.I.R.
No.214 of 2009 to any other Police Station or Crime Branch
and relieve the respondent No.4 from investigating the said
case.
5. The last relief is to grant bail to the petitioner’s husband
in connection with F.I.R. No.214 of 2009, considering his
failing health.
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6. Insofar as relief claimed in prayer clause (d) to release
the petitioner’s husband on bail, the same does not survive for
consideration, as he is already released on bail, as mentioned in
order dated August 6, 2010. Even the first part of relief claimed
in terms of prayer clause (a) for direction to produce the
petitioner’s husband in Court, does not survive for
consideration. Insofar as the second part of relief in terms of
prayer clause (a) to direct the Commissioner of Police and
Doctors at K.E.M. Hospital to produce the medical papers are
concerned, the same is worked out, as during the course of
hearing of this Petition, relevant medical papers have been
produced before the Court. Accordingly, what survives for
consideration are reliefs (b) and (c) respectively.
7. Insofar as relief (b) is concerned, direction is sought
against the Commissioner of Police to register criminal case
against respondent No.4 Inspector Sunil Chandgude and other
police men of Mahim Police Station, who were responsible to
investigate the offence registered against the petitioner’s
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husband bearing F.I.R. No.214 of 2009 on the ground that the
police officers resorted to custodial assault on the petitioner’s
husband which resulted in petitioner’s husband becoming
unconscious, who was hospitalized for treatment. The
allegation in the Petition is that the petitioner’s husband was
assaulted while in custody on the night of 25th June, 2010. That
fact was reinforced by the disclosure made by the petitioner’s
husband after he regained full consciousness on 29th June, 2010.
The case of the petitioner is that the police officers, in
particular, respondent No.4 who was the Investigating Officer
was acting at the behest of complainant Tarun Kapoor who had
registered case against the petitioner’s husband and other
referred to in F.I.R. No.214 of 2009 at Mahim Police Station.
On the fateful night of 25th June, 2010, the petitioner’s husband
was not only brutally tortured and assaulted while in custody
but was heavily drugged by the police to inflict some heavy
mental or physical injuries on him. It is the case of the
petitioner that the third degree methods were used to assault the
petitioner’s husband while in police custody.
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8. In response, affidavit of Smt.Aswati G. Dorje, Deputy
Commissioner of Police, Zone-V, Mumbai dated 28th
September, 2010 was filed to oppose this Petition. The theory
propounded by the petitioner in the present Petition as also
other communications sent by her to the Authorities has been
countered being false and figment of imagination of the
petitioner so as to falsely implicate the police officials who
were investigating the offence registered against the petitioner’s
husband. Even though the above said affidavit was filed on
record, however, since the order dated 6th August, 2010
required the respondent No.2 Commissioner of police to file his
affidavit, further affidavit came to be filed by the
Commissioner of Police dated 8th October, 2010. In this
affidavit, it is asserted that the report of the Forensic Laboratory
relating to stomach wash of the petitioner’s husband clearly
discloses that there was no traces of poison in the stomach of
the petitioner’s husband. In this affidavit, it is further stated that
the inquiry relating to the allegations against the Investigating
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Officer about the custodial assault on the petitioner’s husband
was still incomplete and steps were taken by the inquiry officer
to complete the same at the earliest. In the subsequent affidavit
of the respondent No.2 Commissioner of Police dated 16th
November, 2010, the outcome of the inquiry against respondent
No.4 and other police officers of Mahim Police Station has
been mentioned. The respondent No.2 has asserted that after
completion of the inquiry, he thoroughly discussed the matter
with inquiry officer Shri Satam and DCP Zone-V and endorsed
the findings of the inquiry. He has reproduced all the relevant
facts in that regard and reiterated the stand that the allegation
about the ill-treatment to the petitioner’s husband while in
police custody by the police officers was baseless and without
any substance. In this affidavit, it is stated that the inquiry
reveals that the urine sample of petitioner’s husband was
examined in Hinduja Hospital where Benzodiazepine drug was
found present in the measure of 360 ng/ml (nanogram) which is
slightly more than that of the normal level. The respondent No.
2 has also adverted to the opinion of the Doctor that amount of
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Benzodiazepine found in urine indicates that ingestion of the
same could not be a cause for falling unconscious. The affidavit
adverts to all the relevant material to conclude that the
allegation regarding custodial assault on petitioner’s husband
on 24th June, 2010 and 25th June, 2010 or that the petitioner’s
husband was administered poisonous substance by the police or
by the complainant and his father to kill him or to grievously
injure him, were false and without any substance since it was
noticed that the stomach wash analysis did not reveal any
contents of substance such as Benzodiazepine.
9. Considering the fact that the urine sample of the
petitioner’s husband for the same period analysed by the
Hinduja Hospital revealed that it contained Benzodiazepine
drug in the measure of 360 ng/ml (nanogram), even though the
doctor of the KEM Hospital who had treated petitioner’s
husband claimed that petitioner’s husband gained
consciousness at the hospital without any medication. We
called upon the respondent No.2 Commissioner of Police to
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explain this anomaly. Accordingly, the further affidavit came to
be filed by the respondent No.2 Commissioner of Police on 13 th
December, 2010, who in turn has relied on the opinion given by
the Hinduja Hospital dated 10th December, 2010. The
petitioner, on the other hand, in the rejoinder affidavit, has not
only reiterated the allegations contained in the Petition but has
also asserted that the petitioner’s husband was administered
banned psychotropic substance by the police and the
complainant and his father, which position is reinforced from
the finding of Hinduja Hospital about presence of
Benzodiazepine drug in 360 ng/ml (nanogram).
10. According to the petitioner, the inquiry conducted in
respect of the allegations made by the petitioner against the
police officers is a sham. It is stated that the document now
pressed into service by the respondents are obviously fabricated
so as to successfully counter the allegation of custodial assault
on the petitioner’s husband. During the arguments, the Counsel
for the petitioner placed emphasis on Exhibit D to the affidavit
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of respondent No.2 dated 13th December, 2010. The diary entry
dated 27th June, 2010 refers to the report given by respondent
No.4 at around 11.30 that petitioner’s husband was admitted in
KEM Hospital and during inquiries, he was told that the ICU
Ward doctor of the said Hospital has mentioned that for further
treatment, the petitioner’s husband may have to be taken to JJ
Hospital. This entry was criticized by the Counsel for the
petitioner as afterthought and introduced to create background
to justify the defence of the police officers. He submits that the
petitioner’s husband was taken to JJ Hospital pursuant to order
dated 12th June, 2010. In other words, the said diary entry dated
27th June, 2010 is fabricated. Learned Counsel for the petitioner
also criticized the opinion given by Head of the Department of
Laboratory Medicine pursuant to the inquiry made by the ACP
regarding Kamal Saigal’s report on toxic screening. According
to the petitioner, even this report is fabricated and has been
given due to the influence of the police officers. The said
opinion reads thus:
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“This is in response to the enquiry made by
Asst.Commissioner of Police regarding Shri Kamal Saigal’s
report on Toxi screening.
The answers to his queries are as follows:
1. Yes, the covering letter was sent with the urine sample
from KEM hospital. It was received by us at 1.49 am on 26th
June 2010 in the night as per our voucher no.14717377.
2. The urine sample was not sent in sealed condition and it
is possible to get a positive result if a benzodiazepine is
mixed in the urine sample enroute.
However, I wish to draw your attention to the point that
Injection Midazolam had been given during intubation as
discussed with Dr.Dushyant from KEM Hospital by the
Poison Center staff next morning. The presence of
Midazolam injection would show up Toxi screening positive
for Benzodiazepine.”
11. Learned Counsel for the petitioner argued that the above
opinion goes to the extent of suggesting that the urine sample
was tampered by the petitioner while taking the same for
testing to Hinduja Hospital from KEM Hospital. It is not in
dispute that urine sample of Kamal Saigal drawn on the night
between 25th and 26th June, 2010 was handed over to the
petitioner for getting it examined from private laboratory. The
diary entry of 27th June, 2010 refers to even this aspect of the
matter and it is noted that it was improper to hand over
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unsealed urine sample, that too, to the relative of the patient for
getting it tested from private laboratory. It was argued that the
theory propounded in the opinion that the urine sample must
have been tampered by mixing Benzodiazepine enroute is
preposterous. This reinforces the apprehension of the petitioner
that the police are influencing even the doctors of the Hospital
to fabricate documents to further their defence. Learned
Counsel for the petitioner then argued that in the same opinion,
it is suggested that injection Midazolam was given to the
petitioner’s husband during intubation in KEM Hospital. The
opinion further records that the presence of Midazolam
injection would show toxic scrutiny positive for
Benzodiazepine. According to the petitioner, the opinion so
given by the Head of Department of Laboratory Medicine of
Hinduja Hospital was nothing but a case of concoction and
fabrication of record. Inasmuch as the discharge summary
report makes no reference to administration of Midazolam
injection even though the same is a chartered drug. This would
belie the opinion given by the doctors of Hinduja Hospital, as
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also the defence of the erring police officials.
12. The learned Counsel for the petitioner then submits that
the fact that the petitioner’s husband had suffered injuries have
not been explained at all. Instead, the defence of the erring
police officials that the injuries must have been caused while
the petitioner’s husband was being taken to the hospital or in
the hospital, is preposterous. The fact that the petitioner’s
husband had suffered injuries is established from the medical
reports and looking to the said injuries, the allegations of the
petitioner that her husband was brutally assaulted while in
police custody is reinforced. It was argued that as a matter of
fact, considering that Benzodiazepine drug was found in the
urine sample of the petitioner’s husband, coupled with the stand
now taken by the respondents that it was the result of
administering Midazolam injection during intubation at KEM
Hospital but no reference of that fact is found in the medical
papers itself, is a matter of concern and perhaps requires to be
inquired into as the Midazolam is a chartered drug and could
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not have been administered to the petitioner’s husband in this
manner. Administering the said drug in this manner would in
fact constitute an offence under the NDPS Act. At the end of
the arguments, Counsel for the petitioner placed reliance on the
transcript of telephone conversation purportedly between the
respondent No.4 and the complainant. It was argued that it was
inconceivable that the police officer and the complainant would
interact on telephone at such odd hours. Moreover, the contents
of the recorded talk would clearly indicate their complicity. On
the above arguments, it was contended that the relief in terms
of prayer clause (b) be granted.
13. Having considered the rival arguments and after going
through the pleadings and other material on record including
the original medical reports of the concerned hospitals as well
as the statements of the concerned doctors recorded by the
police, we would proceed to answer the controversy on hand.
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14. There is no dispute that accused Kamal Saigal was
arrested on 24th June, 2010 at around 10.30 hrs. in connection
with CR No.214/2009 of Mahim Police Station. The respondent
No.4 is the Investigating Officer who claims that the said
Kamal Saigal was required to be arrested and the police staff
had to enter the house from bathroom door forcibly and found
that the said Kamal Saigal was hiding himself behind the
cupboard. After his arrest, he was sent for medical examination
at Bhabha Hospital at Bandra on 24th June, 2010 itself at around
14.14 hrs. The medical report for the examination done in
Bhabha Hospital makes no reference to history of assault.
Dr.Sharad Manikrao Ruia was present on duty in Bhabha
Hospital between 14.00 hrs. to 20.00 hrs., who examined
Kamal Saigal. In his statement, he has mentioned that Kamal
Saigal was produced by the Offices of Mahim Police Station.
He gave alleged history of being under treatment of HIV and
pain in testicles and rashes on left leg and right hand. There
was no history of assault or fall. On examination, the doctor
found him conscious and he came walking and his pupils were
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normal and vitals were normal which includes blood pressure,
pulse, respiration. He further recorded that no fresh injury on
the body of the patient was seen. He has mentioned that he
administered injection of Voveran and Rantac being pain killer
and anti-acidic respectively. Necessary entries about the said
medical treatment given have been entered in the hospital
record. He has further stated that patient was then examined by
Surgical Department who in turn has not made reference to any
injury in the medical record. The patient was also examined by
Medicine Department where the patient complained of history
of fall and about trauma over knee. Even the Medical
Department did not refer to any injuries though it refers to
history of fall and trauma over knees, as no corresponding
injuries were seen or noticed.
15. The petitioner’s husband was then produced before the
Metropolitan Magistrate, 9th Court at Bandra on 24th June, 2010
at around 16.50 hrs. Once again, no history of assault was
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reported by said Kamal Saigal to the Magistrate. He was
remanded till 26th June, 2010 to police custody.
16. The petitioner’s husband was once again taken to Bhabha
Hospital for treatment at around 23.00 hrs. on 24th June, 2010.
The statement of Dr.Kirankumar Ramesh Dyawarkonda of
Bhabha Hospital also discloses that the patient gave history of
fall and trauma over the knee. On examination, he did not find
any injuries on his person and no injuries were mentioned on
casualty papers by him. The patient also gave history of
seropositive i.e. HIV +. Once again, the petitioner’s husband
complained of pain and was therefore taken to Bhabha Hospital
for treatment at 11.00 hrs. on 25th June, 2010. Once again, no
history of assault or any fall was given. Again, in the evening
of 25th June, 2010, as the petitioner’s husband complained of
pain he was taken to Bhabha Hospital at around 16.30 hrs. It
seems that for the first time, he complained of assault by the
police on 24th June, 2010. On examination, the medical report
indicates that clinically, he was found normal and no injury was
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noticed. However, he was referred to KEM Hospital for brain
CT scan. Accordingly, he was taken to KEM Hospital for CT
scan on the same evening at around 19.45 hrs. He was admitted
for treatment. The statement of Dr.Milind Namdeo Khadse of
Bhabha Hospital who had examined the petitioner’s husband on
25th June, 2010 mentions that the patient was referred to him by
casualty department for medical examination. The patient was
in police custody. He examined the patient who complained of
deviation of face to the left and slurring of speech. He has
stated that the patient was conscious and oriented. His Blood
Pressure was 100/60 and pulse 86 per minute. He found that the
patient was pale, respiratory system/respiratory rate was 12 per
minute. Other para meters were found normal but since patient
complained of deviation of face and slurring of speech, he was
referred to higher centre for CT scan, brain, which facility was
not available in Bhabha Hospital. Dr.Suresh Dattatraya Tikore
of Bhabha Hospital who examined Kamal Saigal on 25th June,
2010 has stated that the patient was produced in police custody
who gave history of seropositive (HIV+) with puttinen of face.
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The patient disclosed that he was assaulted by police constable
a day before i.e. on 24th June, 2010. He noticed that the patient
had low CD 4 count and low platelet count. For that reason, he
referred the patient to Emergency Medical Registrar. On
examination by the Medical Registrar, the patient’s general
condition was found fair, limp normal, pulse BP normal, skin
was pale, all reflexes normal, respiratory rate was little low,
heart was normal, abdomen was soft, central nervous system
was normal. Even the statement of Dr.Vinod Bhanudasrao
Khade reveals that he had examined Kamal Saigal in casualty
ward of Bhabha Hospital and found him normal. He has stated
that patient did not give any complaint of assault or fall.
17. From the medical reports and the statements of Doctors
recorded from time to time, no history of assault was reported
till the patient was produced on 25th June, 2010 in Bhabha
Hospital. As mentioned earlier, he was produced before the
Magistrate on 24th June, 2010 as also taken to Bhabha Hospital
on four different occasions from the time after his arrest, as he
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kept on complaining about pain. No fresh injury was noticed. It
is, therefore, obvious that the complaint about assault in police
custody on 24th June, 2010 reported for the first time on 25th
June, 2010 before Dr.Suresh Tikore was for reasons best known
to him.
18. Be that as it may, the question is: whether Kamal Saigal
was assaulted while in police custody on the night of 24th/25th
June, 2010 and more particularly, administered large quantities
of drugs by the police and the complainant and his father as
alleged? When the patient was brought from Bhabha Hospital
for admission in KEM Hospital at around 11.30 p.m. on 25th
June, 2010, he was found unconscious. It is noted that no other
details are available, except that the patient was drowsy and
responding to painful stimuli. It was noticed that he had a
terminal and neck stiffness. As per the advise, stomach wash
for chemical analysis was done in addition to urine toxic
scrutiny test. Suffice it to observe that even on perusal of
medical reports of KEM hospital, there is no mention of
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injuries on 25th June, 2010 at 11.30 p.m. when the patient was
admitted to the hospital.
19. From the medical reports and the statements of Doctors,
it is noticed that no fresh injuries were found on the person of
Kamal Saigal when he was admitted in KEM Hospital on 25th
June, 2010 at 11. p.m. The patient was already suffering from
HIV+ and was being treated for the said ailment. He had
reported about pain in testicles and rashes on left leg and right
hand to Dr.Sharad Maniklal Ruia of Bhabha hospital on 24th
June, 2010 itself. No fresh injuries were noticed even though
the patient was handled by more than one doctor on different
occasions till he came to be admitted in KEM Hospital on the
advise of Bhabha Hospital on 25th June, 2010 at 11.00 p.m. It is
not the case of the petitioner that after Bhabha Hospital
recommended CT Scan to be done at KEM Hospital, her
husband Kamal Saigal was taken back to the police station and
while in police station, came to be brutally assaulted. Instead,
from the sequence of events, it is seen that after Bhabha
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Hospital advised patient to be taken to KEM Hospital for brain
CT Scan, he was brought to KEM Hospital at 19.45 hrs. the
same evening i.e. on 25th June, 2010 for CT scan. He was,
however, admitted in KEM hospital at 23.00 hrs. for treatment,
as he was found unconscious. Accordingly, the theory
propounded by the petitioner that the petitioner was assaulted
while in police custody, after due inquiry, the respondent No.2
Commissioner of Police has opined that the allegation about
assault in police custody is false and unsubstantiated. We are in
agreement with the said opinion. However, the petitioner
relying on the photographs annexed to the Petition would
submit that the same would indicate that the petitioner’s
husband had sustained injuries on his legs and hands. No doubt,
the photographs relied by the petitioner do reveal that
petitioner’s husband must have sustained injuries. However,
those photographs cannot be the basis to ignore the consistent
medical reports of different hospitals between 24th June, 2010
till 25th June, 2010 when the petitioner’s husband came to be
eventually admitted in KEM hospital at 23.00 hrs. None of the
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said reports, nor the statements of doctors who had examined
the petitioner’s husband, would remotely suggest that any fresh
injury was seen on the person of Kamal Saigal. It is not
possible to ignore that material merely on the basis of
photographs produced by the petitioner. As is noticed earlier,
soon after the petitioner’s husband was arrested by the police,
he was produced for medical examination in Bhabha Hospital.
At that time itself, he had reported about history of fall and
about trauma over knee. He was thereafter produced before the
Magistrate when no complaint of assault in police custody was
made by him. Suffice it to observe that the theory of assault
while in police custody is unsubstantiated and devoid of any
merits. As a result, the question of registering any criminal
offence against the police officers on duty at the relevant time
does not arise in the context of the said allegation.
20. There is another allegation against the police officers and
the complainant as well as his father namely; of having forcibly
administered drugs to Kamal Saigal while in police custody.
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Insofar as this allegation is concerned, the report of stomach
wash does not support the said allegation at all. Nothing
adverse has been found in the said report. The petitioner,
however, is strongly relying on the urine sample report given
by Hinduja Hospital which mentions that Benzodiazepine
drug was found present in the measure of 360 ng/ml
(nanogram), which is slightly more than that of the normal
levels. With regard to this anomaly, as aforesaid, further
affidavit has been filed by the Commissioner of Police who in
turn has relied on the opinion of Head Department of
Laboratory Medicine of Hinduja Hospital. We have already
extracted the said opinion in the earlier part of this order. What
is significant to notice is the assertion in the reply affidavit filed
by the respondent No.2 that the contents of Benzodiazepine in
the urine sample indicates that ingestion of same could not be
cause for falling unconscious. In other words, Kamal Saigal
when admitted to KEM hospital in unconscious state is not
attributable to presence of Benzodiazepine in his urine sample.
The cause of becoming unconscious must be his history of
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ailment of HIV+ or any other reason. The question is: how the
Benzodiazepine drug is found in the urine sample. That has
been now clarified by the statement of Dr.Dushyant Pradeep
Shingore, who had treated Kamal Saigal while in KEM hospital
on 25th June, 2010. In his statement, he mentions that when
Kamal Saigal was brought to KEM Hospital in EMS Ward, he
had attended the patient. On preliminary examination, it was
noticed that the patient was in sensorium altered condition, for
which airway protection was required to be done. For that
purpose, it was necessary to do endotracheal intubation.
Looking to the condition of the patient, it was decided that
before doing intubation, the patient should be sedated.
Therefore, injection Midazolam was required to be
administered to him. Accordingly, the same was given besides
the other injections. But due to inadvertence, that fact remained
to be recorded in the medical papers. The opinion of the
Department of Laboratory Medicine of Hinduja Hospital
clearly mentions that Midazolam injection would show a toxic
screen +ve for Benzodiazepine. This finding in the opinion
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given by doctors of Hinduja has not been challenged. The
argument, however, is that the opinion of doctors of Hinduja
Hospital is afterthought and fabricated. This argument clearly
overlooks that the opinion given by the doctors of Hinduja
Hospital is on the basis of the queries made by the ACP of
Police. The fact remains that intubation was required to be done
to give further treatment to Kamal Saigal. For that, Midazolam
injection was required to be administered by the doctors at
KEM Hospital. On account of administration of the said
injection, as per the opinion given by doctors of Hinduja
Hospital, it would show a toxic screen +ve for Benzodiazepine.
In other words, the presence of Benzodiazepine in the urine
sample of Kamal Saigal is the natural consequence of
administration of injection Midazolam during the treatment
when he was admitted to KEM hospital. Therefore, the
allegation made by the petitioner that large quantity of drugs
were forcibly given to her husband by the police officers while
he was in police custody or by the complainant and his father,
is figment of imagination of the petitioner. As a result, the
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question of registering any criminal case against the police
officers, does not arise.
21. Accordingly, the allegation regarding physical assault
while in police custody or the allegation regarding
administration of large quantity of drugs to the petitioner’s
husband by the police officers or the complainant and his
father, have gone unsubstantiated. It necessarily follows that no
fault can be found with the opinion of the respondent No.2 and
consequently, the question of registration of criminal case
against the police officers does not arise.
22. We may now refer to the order passed by this Court on
5th February, 2010 in Criminal Writ Petition No.3226 of 2010.
The said order has been passed on the Writ Petition filed by the
grandmother of co-accused Mahesh Dua. Even in that Petition,
false and frivolous allegations were made against the police
officers, who were investigating the criminal case registered
against the accused persons including the petitioner bearing CR
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28 wp.1924.10.sxw
No. 214/2009. The Court rejected the said Writ Petition with
the following observations:
“1. In this petition, it is inter alia prayed that respondents 3
and 4 should direct production of petitioner’s grandsonMr.Mahesh Dua in the court. We are informed that
Mr.Mahesh Dua is not in police custody. He is wanted in
C.R. No.214 of 2009 of Mahim Police Station. In fact, some
other person has made anticipatory bail application on his
behalf, which is pending in the Sessions Court at Bombay.
Therefore, prayer for production of Mr.Mahesh Dua does not
survive.
2.
There are several allegations made against the police
particularly respondent 3, the Inspector of Police, Mahim
Police Station. The petitioners seek an order directing theCommissioner of Police to start inquiry against respondent 3.
We are informed that respondent 3 was suspended and
inquiry was conducted. However, the inquiry was closed and
the period of inquiry has been treated as duty period. If the
petitioner has any more grievances, he can approach theappropriate authority in the Police Department, if he so
desires. We make it clear that we have not expressed anyopinion on this aspect. After hearing learned counsel and
after reading the affidavit in reply, we are, however, of the
confirmed opinion that this petition is an attempt to
pressurize the police. Such attempt cannot be allowed tosucceed.
3. The petition is dismissed.”
(emphasis supplied)
23. This order has been allowed to become final. In our
opinion, this is another attempt made at the instance of other
accused Kamal Saigal. It appears to be the strategy of the
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29 wp.1924.10.sxwaccused persons to make false and frivolous allegations so that,
the investigation of the criminal case against them would be
hampered and derailed by putting the investigating team on the
defensive, which would subserve their personal interest. Having
rejected the allegations made by the petitioner in the present
Petition, even this Petition should follow the same suit.
Accordingly, the question of entertaining relief in terms of
prayer clause (b) does not arise at all.
24. That takes us to relief in terms of prayer clause (c). On
the basis of the above noted allegations, the petitioner prays
that the investigation of the CR No.214/2009 registered against
the petitioner’s husband be transferred to some other police
station or crime branch. In the first place, it is well established
that the accused cannot insist for investigation to be done by
one or the other investigating agency. More so, in the present
case, having rejected the allegations made by the petitioner, the
question of acceding to the request of transferring the
investigation of the case would result in awarding premium to
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30 wp.1924.10.sxw
the accused inspite of false and frivolous allegations made by
them against the present investigating team by way of
successive petitions. In our opinion, the petitioner should
necessarily fail in getting relief in terms of prayer clause (c) in
the fact situation of the present case.
25. Accordingly, the Petition is dismissed.
26. We refrain from imposing exemplary cost on the
petitioner for having filed this Writ Petition on the basis of
false, frivolous and vexatious allegations. Ordered accordingly.
27. Original medical record as well as police record be
returned to the learned A.P.P. forthwith.
(A.R.JOSHI, J.) (A.M.KHANWILKAR, J.)
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