Josgiri Hospital Thalassery, Kannur v. District Police Chief, Kannur; Thalassery Station House Officer, Thalassery Police Station; Ragish Babu; Shana Sherin

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 02ND DAY OF MARCH 2021 / 11TH PHALGUNA, 1942** ## **WP(C).No.1058 OF 2021(F)** ## **PETITIONER:** **JOSGIRI HOSPITAL THALASSERY, KANNUR, REPRESENTED BY ITS ADMINISTRATOR, DR. SR. LILLISA SABS, ADMINISTRATOR, JOSGIRI HOSPITAL, THALASSERY-670101.** **BY ADVS. SRI.S.SUDHEESHKAR SRI.C.UNNIKRISHNAN (KOLLAM)** ## **RESPONDENTS:** |**1**|**DISTRICT POLICE CHIEF,**| |---|---| ||**KANNUR-670101.**| |**2**|**STATION HOUSE OFFICER,**| ||**THALASSERY POLICE STATION, KANNUR-670101.**| |**3**|**MR. RAGISH BABU,**| ||**ANANYA, NR. KOLARI TEMPLE, KAVUMBAGOM P.O.,**| ||**THALASSERY, KANNUR-670649.**| |**4**|**MS. SHANA SHERIN,**| ||**C/O. AYSHA, APSARAS, AKG ROAD, KOOLAM BAZAR,**| ||**MUZHAPPILANGAD P.O., KANNUR-670662.**| ||**R1-2 BY SRI PP THAJUDEEN, GOVERNMENT PLEADER**| ||**R3-4 BY ADV. SRI.M.V.AMARESAN**| ||**R3-4 BY ADV. SRI.S.S.ARAVIND**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.1058 OF 2021** **2** ## **JUDGMENT** Josgiri Hospital, Thalassery, is a 200 bedded hospital managed by the St.Joseph Province of Thalassery of the Adoration Congregation. Smt.Shafana, aged 33 years, was admitted in the hospital with labour pain. According to the petitioner, she suffered post surgical hemorrhage due to an atonic uterus and while undergoing hysterectomy suffered a cardiac arrest. The patient was immediately removed to the MIMS Hospital, Kannur, where she was declared dead. 2. The relatives of the patient were of the firm view that it was a case of medical negligence. They carried out a protest march and a dharna in front of the hospital. It is the case of the petitioner that they obstructed the passage of patients, staff and doctors and thus interfered with the functioning of the hospital. In the said circumstances, they lodged Ext.P1 complaint before the 2nd respondent. When no action was taken, they approached the 1st respondent and lodged Ext.P3. They contend that no assistance was granted by the police. The petitioner contends that the relatives of the deceased are holding placards and have stationed themselves in front of the hospital thus deterring the patients and staff. This has been continuing for the past more than 5 months. According to the petitioner, in addition to the inconvenience being caused, serious financial loss is **WP(C).No.1058 OF 2021** **3** being suffered by the hospital as patients on seeing the protest in front of the hospital are turning away. It is in the afore circumstances that the petitioner is before this Court seeking a direction to the respondents 1 and 2 to afford adequate and effective protection to the smooth functioning of the petitioner hospital without any obstruction from the respondents 3 and 4 or their men. 3. The 4th respondent has filed a counter affidavit wherein they have denied that the party respondents or anybody claiming under them have obstructed the ingress and egress or that they have interfered with the functioning of the hospital. It is contended that the untimely death of Smt.Shafana and the child in her womb was a clear case of medical negligence. Based on the complaint lodged by the relatives, Crime No. 1027 of 2020 has been registered under Section 174 of the Cr.P.C. It is contended that though the relatives of the deceased demanded that a copy of the case sheet be handed over, the same was rejected. They filed an application before the investigating officer and also before the Sub Divisional Magistrate. But, a copy of the same was not given to the relatives. In order to secure justice, the near relatives of the deceased, not more than ten in number, have been standing in the public street holding placards without uttering a word. They are not obstructing the ingress and egress and have not deterred the hospital staff or the patients. 4. As directed by this Court, the Station House Officer, Thalassery police station has submitted a report. It is stated that Crime No.1027 of 2020 **WP(C).No.1058 OF 2021** **4** registered under Section 174 of the Cr.P.C. is being investigated by the Assistant Commissioner of Police, Thalassery. About 10 protesters have been standing on the public pathway in front of the gate holding placards and raising certain demands. Due to the above acts, the management has suffered loss and some of the employees had to be laid off. It is further stated that though the acts of the party respondents are creating inconvenience and embarrassment to the hospital, the party respondents have not so far entered into the hospital and they have not intimidated or attacked the hospital staff or patients. It is further stated that the Thalassery police have not taken any legal action against the protesters as it was found that they were conducting the strike in a public place in a peaceful manner and by observing the COVID protocol. 5. Sri.Sudeeshkar S, the learned counsel appearing for the petitioner, submitted that the right under Article 19(1)(a) and 19(1)(b) of the Constitution are circumscribed by the provisions of clauses (2) and (3) and therefore, the right needs to be balanced with other contrasting fundamental rights like Article 19(1) (g) and will also be subject to reasonable restriction. It is contended that expression of dissent or protest cannot be carried out in a public street obstructing the rights of others and can only be by respecting the rights of other individuals. Much reliance is placed on the observations of the Apex Court in **Amit Sahni v. Commissioner of Police[1]** to bolster his submissions. According to the learned counsel, necessary directions are to be issued to the police to 1 [(2020) 10 SCC 439] **WP(C).No.1058 OF 2021** **5** remove the protesters from the public street to ensure that no interference is caused to the running of the hospital. 6. Sri. M.V.Amaresan, the learned counsel appearing for the party respondents submitted that Article 19 confers on the citizens of India, the treasured right to freedom of speech and expression and the right to assemble peacefully and without arms under Article 19(1)(a) and (b) respectively. These rights would enable every citizen to assemble peacefully and express their dissent. It is contended that the party respondents and their near family members have been standing in public street peacefully holding placards demanding justice and their right to protest cannot be interfered with. 7. The learned Government Pleader submitted that no complaint has been received that the party respondents have threatened any person or caused any obstruction. It is submitted that only the near relatives mostly comprising women and children and some men have stationed outside the hospital premises raising certain demands. 8. I have considered the submissions advanced. The prayer sought for by the petitioner is for a direction to the respondents 1 and 2 to afford protection to the smooth running of the Josgiri hospital without being obstructed in any fashion by respondents 3 and 4 or any other person engaged by them. From the submissions, it appears that the relief has been molded in such a fashion that the petitioner wants this Court to issue directions to the police to remove the **WP(C).No.1058 OF 2021** **6** ## protesters stationed outside the hospital. 9. Holding peaceful demonstrations in order to air their grievance and to see that their voice is heard in the relevant quarters is the right of the people. Such a right can be traced to the fundamental freedom that is guaranteed under Articles 19(1)(a) and (b) of the Constitution. Article 19(1)(a) confers freedom of speech to the citizens of this country and, thus, this provision ensures that the party respondents could raise slogans, albeit in a peaceful and orderly manner, without using offensive language. Article 19(1)(b) confers the right to assemble and, thus, guarantees that all citizens have the right to assemble peacefully and without arms. Right to move freely given under Article 19(1)(d), again, ensures that the party respondents could take out a peaceful march. In the case on hand, it is evident that the few protesters numbering under ten are the near family members of a young woman who died on the hospital table while undergoing cesarean section. I have also gone through Ext.R4 series photographs of a few protesters standing in the public street by observing COVID protocol and holding placards. Even the petitioner has no case that the protesters have obstructed or blocked the public way or the ingress and egress into the hospital or that they have threatened or intimidated either the patients, hospital staff, management or any other person. The right to protest is a manifestation of the rights guaranteed to the party respondents and as long as they do not violate public order or trample upon the rights of others, I do not think any restrictions can be imposed. The principles laid down in **Amit Sahni** (supra), cannot be applied to the facts of **WP(C).No.1058 OF 2021** **7** the instant case. In Amit Sahni (supra), a large group of people had assembled in public and had blocked the street and had erected huge structures obstructing traffic. It is in the said circumstances that the Apex Court had occasion to hold that occupation of public ways for protest is unacceptable and the administration ought to take action to keep the areas clear of encroachments or obstructions. No such circumstance has arisen herein. The contention that the petitioner would lose their patients entailing loss of business cannot be a reason to interfere with the constitutional rights of the party respondents to hold peaceful demonstrations to air their grievance. In that view of the matter, the petitioner is not entitled to the relief as carefully worded. 10. However the right of the petitioner to approach the police, if the party respondents or any other person violates any law or commits breach of peace, is left open. Under no circumstances shall the party respondents or their men obstruct the way or intimidate or threaten the staff of the hospital or patients. If such a situation occurs, the petitioner may approach the police and lodge a complaint and the police shall inquire into the genuineness and initiate appropriate action. This writ petition is disposed of with the above directions. No costs. ## **Sd/-** ## **RAJA VIJAYARAGHAVAN V** ## **JUDGE** NS **WP(C).No.1058 OF 2021** **8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE COMPLAINT BEFORE THE 2ND RESPONDENT DATED 16/09/2020.** - **EXHIBIT P2 THE TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT DATED 09/11/2020 FROM THE OFFICE OF THE 2ND RESPONDENT.** **EXHIBIT P3 THE TRUE COPY OF THE COMPLAINT DATED 18/11/2020 FILED BEFORE THE 1ST RESPONDENT ALONG WITH THE RECEIPT.** - **EXHIBIT P4 THE TRUE COPY OF THE COMPLAINT BEFORE THE 2ND RESPONDENT AND ACKNOWLEDGMENT RECEIPT DATED 11/01/2021.** **EXHIBIT P5 THE PHOTOGRAPHS COLLECTED FROM THE FACEBOOK PAGE OF THE 4TH RESPONDENT'S GROUP NAMED JUSTICE FOR SHAFNA** - **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R4A TRUE COPY OF FIR IN CRIME NO.1027/2020 REGISTERED BY TELLICHERRY POLICE DATED 17.07.2020** - **EXHIBIT R4 B TRUE COPY OF POST-MORTEM CERTIFICATE DATED 13.07.2020 OF THE DECEASED SHAFANA ISSUED BY GOVERNMENT MEDICAL COLLEGE, KANNUR** - **EXHIBIT R4C TRUE COPY OF THE APPLICATION UNDER RIGHT TO INFORMATION ACT SUBMITTED BY AYISHA M. WHO IS THE MOTHER OF THE DECEASED, DATED 27.10.2020 BEFORE THE DYSP, THALASSERY.** **EXHIBIT R4 D TRUE COPY OF REPLY IN EXHIBIT R4 C ISSUED BY DYSP TO AYISHA M DATED 19.11.2020. EXHIBIT R4 E TRUE COPY OF THE APPLICATION UNDER RIGHT TO INFORMATION ACT SUBMITTED BY AYISHA M. WHO IS THE MOTHER OF THE DECEASED,** **WP(C).No.1058 OF 2021** **9** ## **DATED 25.11.2020 BEFORE THE SUB DIVISIONAL MAGISTRATE, THALASSERY** **EXHIBIT R4 F TRUE COPY OF REPLY IN EXHIBIT R4 E ISSUED BY RDO, THALASSERY TO AYISHA M. DATED 08.12.2020** **EXHIBIT R4 G TRUE PHOTOGRAPHS OF AGITATION HELD ON THE SIDE OF ROAD NEAR THE HOSPITAL ON VARIOS DAYS.** **EXHIBIT R4 H TRUE COPY OF THE NEWS ITEM PUBLISHED BY MADHYAMAM DAILY DATED 13.07.2020** **EXHIBIT R4 I TRUE COPY OF NEWS ITEM PUBLISHED BY MADHYAMAM DAILY DATED 17.07.2020** **EXHIBIT R4 J TRUE COPY OF NEWS ITEM PUBLISHED BY SIRAJ DAILY DATED 26.07.2020** **EXHIBIT R4 K** **TRUE COPY OF NEWS ITEM PUBLISHED BY MADHYAMAM DAILY DATED 11.10.2020** **EXHIBIT R4 L** **TRUE COPY OF NEWS ITEM PUBLISHED BY SIRAJ DAILY DATED 30.11.2020**