Death in custody that questions the functioning of justice system

Pune, Maharashtra: On January 24, 2021, Kanchan Nannaware (38), an undertrial in Pune’s Yerawada prison, succumbed to cardiac arrest and could not be resuscitated. Hailing from Chandrapur district of Maharashtra, Nannaware and her husband Arun Bhelke (48) were associated with activist groups dealing with student and tribal rights, and participated in political and cultural activities for rights of tribals. The Maharashtra Anti-Terrorism Squad termed them as members of the Golden Corridor Committee of Maoists, who were trying to recruit cadre from urban areas when in reality they were trying to eke out a living in Pune and avail of treatment for Nannaware’s heart ailment.

Nannaware was not convicted in the case, and had been awaiting trial for six years when she died in custody. Bhelke, who was also arrested with her and lodged in Yerawada prison, was not even informed about his wife's deteriorating health. It was a gross negligence on the part of the prison authorities, something that spells trouble for the entire criminal justice system. 

With the onset of the COVID-19 pandemic, a bail application (criminal bail application No. 765 of 2020, Kanchan Nannaware Vs State of Maharashtra) was moved in the Bombay High Court. While it was pending, Nannaware's health began to fail rapidly. So, an interim application no. 2136 of 2020 was moved for urgent relief. While this was being heard, Nannaware died after a brain surgery in Sassoon General Hospital, Pune. 

Senior Advocate Gayatri Singh who was arguing for Nannaware's bail then decided to file a writ petition to ensure justice for her. Thus, Criminal Writ Petition No. 432 of 2022 came to be filed in Bombay HC to enquire into the lapses in Yerawada jail as well as Sassoon Hospital.

In March 2022, Bhelke filed an affidavit challenging the magisterial inquiry conducted to ascertain the cause of his wife’s death. It said the inquiry was completely silent on the sequence of events that led to her death, acts of omission/commission on the part of public servants that contributed to her death, and whether medical care provided to her was adequate. 

“Mechanical cause of Nannaware’s death was bleeding in the brain, followed by a heart attack. Here was a person who came in with a heart condition. The prison authorities were well aware of this. By February 2020, they knew she needed a heart-lung transplant. It was a steadily deteriorating condition,” explains Advocate Sudha Bharadwaj, who is assisting Gayatri Singh along with Advocate Susan Abraham to fight the case on Bhelke's behalf.

Even inside the prison, Nannaware was not kept in appropriate conditions. “During the process of arrest, there is a medical check-up where past medical records and current health condition are examined. However, even after understanding that Nannaware had undergone two heart surgeries and was a prisoner with a sensitive health condition, the authorities kept her in a small and isolated cell in the Phansi Yard of Yerawada jail,” said Bhelke. 

“We were not allowed to meet each other because even though we were legally married, we used to sign our names differently for official purposes. They asked why she could not sign her name as Kanchan Bhelke. It took a lot of convincing to make them treat us like husband and wife,” he added.

Afterwards, they were allowed to meet only on certain occasions. However, after 2020, the frequency of contact reduced to court dates. Their main communication was happening through letters.

“In the Phansi Yard, her physical and mental health worsened and she would experience breathlessness in that claustrophobic condition,” said Bhelke. Later, the authorities moved her to general barracks where the prison cell was comparatively airy and had a fan.

When asked about the medical check-ups done at the point of prison entry, forensic medicine expert Dr Savior Suresh told 101Reporters that following the magistrate's order, the convict/accused should be taken to the government hospital, where the duty doctors fill up a proforma. 

"This is mandatory. If the accused/convict has any previous medical history of illness, they have the right to express this to the doctor during examination. The doctor should decide if the convict/accused should be sent to a higher centre/same hospital for treatment.”

He added that during holidays or odd hours, the case is presented before the magistrate at their residence. In such cases, the accused may not be presented before the magistrate and the remand order is passed based on the examining doctor’s report, in which there is a possibility that the junior examining doctor might be influenced by higher authorities to hide the actual medical condition. 

Dr Suresh further noted that the standard proforma is not sufficient to convey the medical condition completely to the judiciary. "Also, since the proforma is mandatory, it is used as a routine form filling practice without conveying the complications," he noted. 

Section 8, which substitutes Section 54 of the Code of Criminal Procedure, 1973, has laid down the rules regarding the examination of an arrested person:

“(1) When any person is arrested, he shall be examined by a medical officer in the service of Central or state governments and in case the medical officer is not available, by a registered medical petitioner soon after the arrest is made: Provided that where the arrested person is a female, the examination of the body shall be made only by or under the supervision of a female medical officer, and in case the female medical officer is not available, by a female registered medical practitioner. 

(2) The medical officer or a registered medical practitioner so examining the arrested person shall prepare record of such examination, mentioning therein any injuries or marks of violence upon the persons arrested, and the approximate time when such injuries or marks may have been inflicted. 

(3) Where an examination is made under sub-section (1), a copy of the report of such examination shall be furnished by the medical officer or registered medical practitioner, as the case may be, to the arrested person or the person nominated by such arrested person.” 

The National Human Rights Commission (NHRC) (points 9 and 10 dealing with sections 37 and 39) has laid down the medical rights of undertrials. According to Section 39 of the Prisons Act, 1894, in every prison, a hospital or proper place for the reception of sick prisoners shall be provided. The power of sending the prisoner to the hospital lies with the jail superintendent. The superintendent may, if in his opinion a prisoner requires special treatment in a hospital outside the prison, send him to such hospital subject to the prisoner or any relative or friend of the prisoner executing such bond and abiding by such other conditions, if any, as the state government may by rule or order prescribe. Any period during which the prisoner is undergoing treatment in such hospital or spent by him in going thereto or returning therefrom shall be deemed to be part of the period of his detention in the prison.

Bharadwaj said that they were presenting three points of argument to challenge the magisterial inquiry conducted into Nannaware's death. "The prison authorities and court are held responsible for the events that led to her death because Nannaware was in judicial custody. Simply noting the immediate cause of death is not enough."

As per the first argument, the prison manual has provisions for people coming in with critical health conditions. If the health is worsening, the jail superintendent and medical officer can write to the court, and the prisoners can be permitted to go home or can be kept in a cell with better conditions. If the jail authorities did not have enough resources to provide adequate medical care, they could have informed the court. However, they chose to downplay the severity of her condition until it got worse. The chief medical officer is responsible for providing an independent and professional report based on the prisoner's health. However, they denied medical bail on the grounds of the gravity of charges made under the Unlawful Activities (Prevention) Act.

The second point of argument was that Nannaware was a person with a heart condition. In prison, she was constantly complaining of headaches and vertigo. Subsequently, on January 12, 2021, she was taken to a hospital where she was advised to undergo operative intervention to correct Acute Subdural Hematoma. According to records, this surgery had a very high cardiac risk and included the risk of death on the table. Two days later, Nannaware was admitted to Sassoon Hospital on an emergency basis. Neither her husband nor any other relative was informed. The hospital sent a letter to the superintendent seeking consent for the surgery.  The superintendent falsely stated that no relative was present to give consent and signed himself a standard/proforma letter, which read “in the interest of saving the life of the prisoner as his/her relatives are not available for giving consent". 

“A separate consent letter was also purportedly signed by Nannaware, but we are contesting the integrity of this fact in the court. Nannaware’s signature does not exactly match. But even if she did sign, was she in the right mind? Because giving consent to this surgery was like signing her own death warrant,” explained Advocate Abraham. “Even the cardiologist who was asked to give clearance for this surgery stated that it involves high cardiac risk, including risk of death on the table,” she added.

Thirdly, the prison authorities kept Bhelke in the dark about his wife's condition. “No consent was taken from me before she underwent the surgery. On January 17, 2021, when I approached the jailer, he told that she underwent a surgery after getting a bleed in her brain. I asked him why they operated on her brain when she had a serious heart condition and had undergone two heart surgeries even before 2014, the year we both were arrested. The jailer said that it was the superintendent’s call,” explained Bhelke. 

Both Abraham and Bharadwaj believed that as Nannaware’s health began deteriorating after a point, the prison authorities knew they could not handle it. "Had her husband known about these happenings, his hue and cry would have captured attention,” they said.

On the provisions that can prevent violations that happened in Nannaware's case, they said, “There are sources like jail manual and independent opinions of medical officers, but there was an oversight on the part of prison authorities.” Visitor inspection and NHRC inspection are some of the provisions available on paper, which can monitor prisoners and their condition. However, they do not translate into ground reality. It is very hard for the voices of prisoners to be heard, Bharadwaj added.

“Our criminal justice system is failing. Just like there are Nelson Mandela rules, we can have Kanchan Nannaware rules and guidelines for a code that needs to be followed by prison authorities. This will force rule setting to avoid such deaths in future,” the advocates stated. Bhelke was convicted over his alleged links with the banned CPI-Maoist in 2022. His sentence was supposed to be for eight years, but as he was an undertrial since 2014, Jail Officer Dayanand Sorte passed an order releasing him in April 2023. As Bhelke and his advocates continue to fight for justice, the former plans to publish a compilation of letters that Nannaware wrote to him while in prison. 

“It will be a compilation of conversations between two companions about the political and social realities from the lens of a prisoner,” said Bhelke. After seeing Nannaware’s health worsening, he had suggested that she write about her life. She wrote three notebooks, but only one was handed over to Bhelke by the court. However, he still plans to complete the book and publish it.

Edited by Rekha Pulinnoli

(Pranoti Abhyankar is a Maharashtra-based freelance journalist and a member of 101Reporters.)

This story has been produced by 101Reporters, an independent news agency with a network of 3,000+ freelance journalists across the country, in collaboration with Crime & Punishment, Vidhi Centre for Legal Policy.