Bombay High Court High Court

Meena Kamal Saigal vs The State Of Maharashtra on 16 March, 2011

Bombay High Court
Meena Kamal Saigal vs The State Of Maharashtra on 16 March, 2011
Bench: A.M. Khanwilkar, A. R. Joshi
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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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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 grandson

Mr.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 the

Commissioner 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 the

appropriate authority in the Police Department, if he so
desires. We make it clear that we have not expressed any

opinion 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 to

succeed.

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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accused 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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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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