There Is A Delay Of At Least 14 Hours In Recording FIR: Apex Court Says In RG Kar Hospital Murder-Rape Case; Directs CBI To File Fresh Status Report By Sept 17

The Supreme Court today directed the State of West Bengal to show the challan form (WB form 5371) indicating the details of the dispatch of the body for postmortem, in the rape and murder of a postgraduate trainee doctor at R.G. Kar Medical College & Hospital, Kolkata, on August 9, 2024.

The Bench of Chief Justice DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra said, "There is a delay of at least 14 hours in recording the FIR."

At the outset, Senior Advocate Kapil Sibal, appearing for the State of West Bengal, submitted that they have filed a status report of the investigation. He also informed the Bench that the doctors have not returned to work and 23 people have died in the meantime.

The CJI asked, "What about the CBI?"

Solicitor General (SG) Tushar Mehta, appearing for CBI, submitted, "My status report is ready." SG Mehta requested that a copy of the status report filed by the West Bengal police be given to the CBI as well.

To this, Sibal contended, "We have given the status report only to the court, in a sealed envelope. It has not been filed."

The Bench, on perusal of the status report filed by the CBI, asked the SG, "What is the distance between the residence of the principal of RG Medical College and Hospital?"

"15-20 minutes maximum," SG Mehta replied.

The Bench sought some clarification: "We want to know the time at which UD (unnatural death) 861/2024 came to be registered."

Sibal submitted, "Death certificate given at 1:47 PM, entry UD at 2:55 PM at police station."

The CJI further asked, "What is the General Diary (GD) entry by virtue of which UD 861 comes into existence?"

"GD 565, recorded at 2:55PM," Sibal submitted. However, the SG contended, "GD? GD was at 3:30pm; GD 565 is merely a medical report of 11:30 PM at night, I have the copy of it."

The CJI said, "There is CCTV footage to indicate what time the accused entered and existed in the seminar room; obviously there is footage after 4:30 in the morning," and asked Sibal whether the CCTV footage in its entirety had been handed over to the CBI.

The SG responded in the affirmative.

Pointing out the parts of the forensic report, terming it "serious," the SG informed the Bench that when the girl was found at 9:30 am, she was in a semi-nude condition, her jeans were removed and her undergarments were lying near her; there were injury marks on her body parts. He also submitted that the state police had taken samples and sent them to the Central Forensic Science Laboratory (CFSL) in Bengal. SG Mehta submitted that the CBI has taken a decision to send the samples to the AIIMS and other CFSLs.

The CJI said, "We have seen the further line of investigation; we do not want to comment upon it in open court. We would like a status report by Monday; let CBI proceed based on what they are exploring."

"Let the CBI proceed with the investigation and come back to us on next Tuesday with a fresh status report," the CJI said.

The SG informed the Bench that there are three lady companies of the CISF which are not provided adequate accommodation and take 1.5 hours to travel.

On being asked by the CJI where the CISF lady personnel are staying, Sibal submitted that most of the CISF troops are staying at hospitals; the rest are away.

The Court noted that a total of three companies of CISF have been deployed for the security of RG Kar Medical Hospital. "Mr. Sibal for the State of West Bengal has indicated that the provision for housing the personnel has been made...in the statement on record by the Union on the other hand, it is indicated that accommodation is (1) RMA Quarters; (2) RG Kar College; (3) Indira Maitri Sadan, which will be handed over by 3 pm today. We direct that a senior officer nominated by the State of WB and Senior officer nominated by CISF liaise the place of accommodation...the two officers shall ensure that the requisitions and necessary gadgets are provided today by 9 pm," the Court ordered.

One Counsel informed the Bench that postmortem could not take place after 6 pm anywhere in India. He submitted, "FIR at 11:45pm at night, in the last 27 years of my career, I have never seen a case like this."

SG Mehta pointed out that the postmortem report (PMR) does not say at what time it was conducted.

Sibal contended that everything is mentioned.

The Counsel contended, "The videograph was conducted by whom? It has to be mentioned that all 3 female doctors are part of the lobby....the mystery is that between 2:30 noon and 11:30 night, there were only 10 GD entries. Is it manufactured?"

Sibal submitted that the judicial magistrate (JM) examined it all, and a report may be sought from him.

The SG submitted that the CBI will be sending this to AIIMS for retesting.

Referring to the provision of the BNSS, the Counsel submitted that without the FIR, the forensics team cannot be constituted. He argued that there was a previous FIR that had been destroyed. He further submitted that the vaginal swabs have not been preserved at 4 degree centigrade. The Counsel also submitted that the legs of the deceased victim were found at a 90 degree angle, which can only happen when the hips are broken. He questioned whether an x-ray was done at all.

The CJI asked SG Mehta, "When the body is dispatched, do you have that letter when it is dispatched for a postmortem? Do you have the Challan?...this form also has a column with remarks about what clothes and other things seized were sent to the doctors who conducted the postmortem".

The SG responded that it is not in the file given to the CBI by the State police. Additionally, Sibal also submitted that he could not find the document immediately. Sibal sought time to file the challan.

The CJI questioned, "Has the postmortem been done without the filling of the form?"

Justice Pardiwala said, "Look at the PMR, the constable is supposed to carry this challan...there is no reference of the challan used, you need to explain. Tomorrow, if this document is missing, you will have to explain why this happened."

Sibal submitted that they will file an affidavit.

Senior Advocate Mahesh Jethmalani contended that it's been almost a month now, and there is still no clarity on the time of the death.

The CJI said, "There is clarity when the death occurred.. also that she had a meal before death, there is a delay of 14 hours of filing the FIR."

After some submissions were made, the images of the deceased are still being circulated on social media. The Court directed, "All social media should forthwith remove all the images of the dead body of the deceased to protect the dignity and privacy of the deceased."

The Bench said, "During the course of the hearing that the court has been apprised...the SG stated that the above challan is not part of file handed to CBI for investigation. It is submitted by one of the petitioners before the High Court that the form was produced before the High Court in the course of hearings. The form is unavailable with Mr. Sibal and Astha Sharma."

"A copy of the form duly filled in should be produced before the court in the next hearing," the Court directed.

Further, Senior Advocate Vivek Sood requested the Court: (1) to make available distress calls and CCTV be installed in all hospitals; (2) management of the hospital should be the complainant; (3) there should be some badge or wrist to ring alarm in case of violent incident.

The Court said, "We would expect the WB to file on record the safety measures on site even before the National Task Force (NTF) filed its report."

Sibal pointed out the report of the West Bengal health department.

The CJI said, "If 4447 CCTV cameras were there installed, then why would this incident take place? Tell us at RG Kar what equipment has been installed, not just the funds, what progression took place? Tell us by next day, on what steps on the ground are taken. Let the district collectors engage with the heads of the medical colleges and ensure steps are taken by the next week."

The Court noted that during the course of hearing grievance made by West Bengal regarding the mass abstention from work of resident doctors of medical colleges across the state for 28 days, as a consequence of which health care is facing severe disruptions.

The Bench directed the State of West Bengal to take steps to create a degree of confidence in the minds of the doctors that concerns regarding their safety should be duly catered to. "The police shall ensure that necessary conditions are created for ensuring the safety of all doctors (including provisions for separate duty rooms; toilet facilities; installation of CCTV cameras)," the Court said.

The Court further said, "The State in its affidavit, indicated that funds have been sanctioned for carrying out the safety measures... this shall be monitored by the District Collectors. In order to create a sense of confidence, we state that in the event that doctors come to work by 5 pm tomorrow, no adverse actions.....if there is continuous abstention from work despite the facilities given, there will be likelihood of action in the future."

"We know what is happening on the ground, but doctors must now come back to work, they (junior doctors) cannot say senior doctors are working, so we will not work; we have put everyone on notice. If doctors do not resume work, then we cannot stop the government from taking disciplinary action...We are committed to ensuring that doctors resume their work. They are part of a system designed to provide essential services, and while we will do our part in providing the necessary facilities, it is crucial that they reciprocate with their dedication and service," the CJI remarked.

After a lengthy hearing, the Court scheduled the matter for further hearing on September 17. The matter will be taken up after the miscellaneous matters.

Pertinently, on September 3, the Ministry of Home Affairs (MHA) had filed an application before the Apex Court stating that Central Industrial Security Force (CISF) personnel do not have proper accommodation and basic facilities in West Bengal.

"Due to non-availability of accommodations, security gadgets, and paucity of transportation, duty personnel are facing a lot of difficulties in performing duties coming from various locations, especially the lady contingent," the MHA stated. The MHA had further stated that the matter of lack of any accommodation, including separate accommodation for female personnel, shortage of transport, logistics, and inadequate security infrastructure/gadgets, etc., was taken up with the Chief Secretary, Government of West Bengal. However, the MHA has stated that they got no response from the state government.

"This non-cooperation is not expected from a State government in a tense situation such as the present one. The safety of doctors, and women doctors in particular, must be the top priority for the State of West Bengal," the MHA had said. Terming the inaction of the State of West Bengal as "symptomatic of a systematic malaise", the MHA had said that despite repeated requests, there is non-cooperation with central agencies operating under court orders.