WP(Crl.) No. 580 of 2024

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V`** ``` & THEHONOURABLEMR.JUSTICEP.M.MANOJ WEDNESDAY,THE5[TH]DAYOFJUNE2024/15THJYAISHTA,1946 ``` ## **`WP(CRL.) NO. 580 OF 2024`** ## **`PETITIONERS:`** ``` XXXXXXX AGED70YEARS (MASKEDASPERORDERDATED30.05.24IN WP(CRL.),PIN-680005 ``` ``` BYADVS. DINESHMATHEWJ.MURICKEN K.A.ABHILASH VINODS.PILLAI MOHAMMEDTHAYIBN.M. NAYANAVARGHESE RIAVARGHESE AHAMMADSACHINK. JERRYPETER ``` ## **`RESPONDENTS:`** ``` 1STATEOFKERALA REPRESENTEDBYTHECHIEFSECRETARYTO GOVERNMENT,ROOMNO.357A,ISTFLOOR, MAINBLOCK,SECRETARIAT, THIRUVANANTHAPURAMCENTRAL.P.O, THIRUVANANTHAPURAMDISTRICT,PIN- 695001 ``` - **`2 THE STATION HOUSE OFFICER ALATHOOR POLICE STATION, ALATHOOR.P.O., PALAKKAD DISTRICT, PIN - 678541`** - **`3 THE STATION HOUSE OFFICER OLLUR POLICE STATION, OLLUR P.O., THRISSUR DISTRICT, PIN - 670306`** - **`4 CRESENT MEDICAL CENTRE LTD. CRESENT HOSPITAL,, 3/529, COURT ROAD, ALATHUR, PALAKKAD DISTRICT, REPRESENTED BY ITS ADMINISTRATOR, X XXX(MASKED AS PER ORDER DATED 30.05.24 IN WP(CRL.),`** WP(Crl.) No. 580 of 2024 2 ``` PIN-678541 ``` ``` 5THEMENTALHEALTHREVIEWBOARD GOVERNMENTMENTALHEALTHCENTRECAMPUS, VONGINISSERLY,ARANATTUKARA.P.O., THRISSURDISTRICT,REPRESENTEDBYITS CHAIRPERSON,PIN-680004 ``` ``` 6THEGOVERNMENTMENTALHEALTHCENTRE GOVERNMENTMENTALHEALTHCENTRECAMPUS, VONGINISSERLY,ARANATTUKARA.P.O., THRISSURDISTRICT,REPRESENTEDBYITS SUPERINTENDENT.,PIN-680004 ``` ``` 7XXXXXXXX (MASKEDASPERORDERDATED30.05.24IN WP(CRL.),PIN-680005 ``` ``` BYADVS. SAIJOHASSAN E.ADITHYAN VISHNUHARIK.(K/740/2014) BENOJCAUGUSTIN(K/189/2004.) RAFEEK.V.K.(K/134/2003) DEVI.R.SENS(K/000671/2016) V.P.REJITHA(K/899/2001) NITINS.(K/374/2024) MEERAJ.MENON(K/000860/2024) ASWINK.R.(K/101/2021) DHEERAJBABY(K/002187/2023) ``` ``` OTHERPRESENT: ``` ``` SRI.SHAMEERP.M-SR.PP ``` ``` THISWRITPETITION(CRIMINAL)HAVINGCOMEUPFORFINAL HEARINGON05.06.2024,THECOURTONTHESAMEDAYDELIVERED THEFOLLOWING: ``` WP(Crl.) No. 580 of 2024 3 ## **JUDGMENT** ## **Raja Vijayaraghavan, J.** The petitioner states that his brother, a certain Pappu, passed away on 17.09.2023. Before his death, Pappu had entrusted the custody and well-being of his wife to the petitioner. He contends that he has now received information that the wife of the aforesaid Pappu, the alleged detenu, has been admitted to the 4th respondent-hospital, in the Psychiatric Department for more than six months. He contends that though he had visited the 4th respondent-hospital to enquire about the well-being of the alleged detenu, he was not permitted to have an interaction with her. The specific contention of the petitioner is that the confinement of the alleged detenu in the hospital is in violation of the provisions of the Mental Health Care Act, 2017, and is illegal. It is on these assertions that this Writ Petition is filed seeking the following relief:- - i. Issue a writ of habeas corpus or any other appropriate writ or direction to the 2nd respondent to produce the detenu, Leela, wife of late Pappu, Kundoli House, Kuttanelloor, Thottappady, Thrissur District, before this Honourable Court. 2. When the matter came up for consideration on 30.05.2024, WP(Crl.) No. 580 of 2024 4 after considering the submissions advanced by Sri. Dinesh Mathew J Murikan, the learned counsel, as well as the learned Government Pleader, we passed the following order: - “The learned Government Pleader takes notice for respondents 1, 2, 3, 5 and 6. Issue notice by special messenger to respondents 4 and 7. 2. Sri.Dinesh Mathew J.Murikan, the learned counsel appearing for the petitioner submitted that the sister-in-law of the petitioner, Mrs.X, is admitted in the psychiatric ward of the 4th respondent hospital, for a prolonged period of not less than 180 days. The learned counsel points out that as per the provisions of the Mental Healthcare Act, 2017, no person can be admitted to a hospital for more than 30 days without following the procedure as contemplated under section 90 of the Mental Health Act, 2017. The learned counsel would also refer to Section 19 of the Act, 2017 and it is pointed out that every person with mental illness has a right to community living and not to be segregated from society. Reliance is also placed on the observations and law laid down by the Division Bench of Delhi High Court in **Sangamitra** **Acharya and another v. State and others [ 2019 KHC 3452]** and it was argued that in order to ensure the right of the alleged detenu is not infringed and her constitutionally guaranteed rights under Article 21 of the Constitution of India is protected, it is only just and proper that the 5th respondent Mental Health Review Board be ordered to examine the alleged detenu and to report as to whether the continued treatment after the period of 90 days from the date of initial admission is strictly in accordance with the provisions of the Act and Rules. 4. The learned counsel would also submit that as per Section 90 of the Act, 2017 the Medical Officer or the Mental Health Professional in-charge of the Mental Health Establishment is required to report all admissions or re-admissions under the provisions of the Act, within a period of 7 days of such admission WP(Crl.) No. 580 of 2024 5 or readmission to the concerned Board. According to the learned counsel, admission of a person with mental illness to a Mental Health Establishment beyond the period of 90 days can be permitted only after complying with the provisions of subsection (1) to (7) of Section 90 of the Act. 5. We find that the specific case of the petitioner is that the alleged detenu is undergoing treatment in the hospital for a period in excess of 90 days. In that view of the matter, there will be a direction to the 5th respondent to inspect all the records in the hospital relating to the alleged detenu and state before this Court as to whether the continued admission is strictly in accordance with the provisions of the Act. The 5th respondent shall also report whether the hospital has reported the relevant facts to the Board at the appropriate stage as mandated under the Statute. 6. Independently, the 4th respondent shall also place before this Court, the medical records as well as other documents justifying the continued admission of the alleged detenu in the aforesaid hospital. 7. The Registry is directed to mask the names of the parties in order to ensure privacy. Post on 04.06.2024.” 3. In terms of the directions issued by this Court, the Mental Health Review Board, Thrissur has visited the alleged detenu. In their report, it is stated that the alleged detenu, who is 75 years of age, was admitted to the hospital after the death of her husband on 16.11.2023 with complaints of sleeplessness, aggression, and memory disturbance. The Medical Board has examined the case records and has interacted WP(Crl.) No. 580 of 2024 6 with the Psychiatrist as well as the detenu. The Board has stated in the report that the detenu has shown substantial improvement in memory and reduction in aggressive behavior due to consistent medical intervention. The Medical Board has also reported that the patient stated that she felt secure only with her nephew Santhosh and it indicates the need for supportive and trusted companionship post-discharge. 4. We have also called for the medical reports from the Cresent Medical Centre to ascertain as to whether the alleged detenu is suffering from any psychiatric issues. The entire patient record file is placed before us. It appears from the patient records that after the death of the husband, the alleged detenu had shown some aggressive behavior. She was admitted at the hospital and treatment was provided. The treatment records suggest that the final opinion of the treating doctors is that she is suffering from Dementia and medicines for the same are being administered. The doctors have opined that the score in the cognitive assessment done on 08.11.2023 was 31/100 and on the reassessment of the cognition after providing medication, the score has WP(Crl.) No. 580 of 2024 7 risen up to 59/100. It is also stated therein that she would require lifelong medication and nursing care. 5. After considering the submissions advanced, and on perusal of the records, we are satisfied that the alleged detenu is suffering from Dementia and not any psychiatric ailment. The medicines that are being administered are for treating memory impairment with no psychotic symptoms. The alleged detenu has stated before the Medical Board that she feels secure only in the company of the 7th respondent and the Medical Board has opined that she needs his support and trusted companionship after her discharge from the hospital. 6. The Hon’ble Supreme Court in **Shafin Jahan[1]** , has observed that the pivotal purpose of a writ of habeas corpus is to see that no one is deprived of his/her liberty without sanction of law. It is the primary duty of the State to see that the said right is not sullied in any manner whatsoever and its sanctity is not affected by any kind of subterfuge. The role of the Court is to see that the detenu is produced before it, find out about his/her independent choice, and see to it that the person is released from illegal restraint. What is seminal is to remember that the song of liberty is sung with sincerity and the choice > 1 Shafin Jahan v. Asokan K.M., (2018) 16 SCC 368 WP(Crl.) No. 580 of 2024 8 of an individual is appositely respected and conferred its esteemed status as the Constitution guarantees. It is so as the expression of choice is a fundamental right under Articles 19 and 21 of the Constitution, provided the said choice does not transgress any valid legal framework. Once that aspect is clear, the inquiry and determination have to come to an end. 7. We are satisfied that the alleged detenu is not under illegal confinement. In that view of the matter, nothing further survives in this Writ Petition. This petition is closed. Sd/- **RAJA VIJAYARAGHAVAN V JUDGE** Sd/- **P.M.MANOJ JUDGE** APM/5/6/24 WP(Crl.) No. 580 of 2024 9 ## **`APPENDIX OF WP(CRL.) 580/2024`** ``` PETITIONEREXHIBITS ``` ``` ExhibitP1 ``` ``` TRUECOPYOFTHECOMPLAINTLODGEDBY THEPETITIONERBEFORETHE2ND RESPONDENTDATED15.05.2024 ```