Kerala High Court
Kamala Rajaram vs State Of Kerala on 23 June, 2005
Equivalent citations: 2006CRILJ1447, 2005(3)KLT617
Author: R. Basant
Bench: R. Basant
ORDER R. Basant, J.
1. Petitioner, a medical practitioner, faces indictment in a prosecution under Section 304A IPC. Cognizance has been taken on the basis of a final report submitted by the police after due investigation.
2. The crux of the allegations against the petitioner is that she was guilty of professional negligence in the matter of treatment of a patient, who unfortunately breathed her last after delivery.
3. The learned counsel for the petitioner contends that the nature of the alleged inadequacy in the professional conduct of the petitioner can by no stretch of imagination be held to be culpable rashness or negligence which alone can attract an allegation or charge under Section 304A IPC.
4. The learned counsel for the petitioner relies on the decision reported in Dr. Suresh Gupta v. Government of NCT of Delhi and Anr. and contends that at any rate, the alleged conduct of the petitioner while she allegedly treated the patient in question cannot qualify to be termed culpable rashness and negligence attracting a charge under Section 304A IPC. Even though it is said that the dictum in the said decision has been doubted and referred to a larger bench, the law remains what it is declared in the above decision and no later decision has been brought to my notice.
5. It is admitted that after the court took cognizance, petitioner had appeared before the learned Magistrate and has been enlarged on bail. Particulars of the offence have not been read over to the petitioner. I need only mention that before the learned Magistrate proceeds to read over the particulars to the petitioner accused, the learned Magistrate must consider whether such allegations have been raised against the petitioner and such materials placed before court as to expose the petitioner to a criminal prosecution under Section 304A IPC. It is not necessary or possible for this court in every case to consider all the allegations raised against the indictees and the materials collected against them to decide whether they deserve to stand trial. That question must initially be considered by the trial Magistrate who has the requisite materials before him before a charge is framed/discharged under Section 239/240 Cr.P.C or while considering whether there is any sufficient material to read over the particulars of the offence to the indictee at the stage of Section 251 Cr.P.C. If accusations and materials are not sufficient to attract culpability the indictee should not be compelled to unnecessarily stand the trauma of trial. In these circumstances, I am satisfied that this petition can be disposed of with specific directions to the learned Magistrate to consider the contention of the petitioner that there is no sufficient allegations or materials raised against her to justify her being compelled to face further proceedings.
6. How can this be done by the learned Magistrate? The offence alleged is one punishable under Section 304A IPC. It is a summons case. Procedure prescribed under Chapter XX has to be followed. There is no question of framing any charge at the stage of Section 251 Cr.P.C. There is only the requirement of reading over the particulars of offence to the indictee. A formal framing of charge is not required; but certainly the particulars of offence of which he is accused must be stated to the accused and his plea has to be recorded. Notwithstanding the fact that the formal requirement of framing of a charge is not there, the section pre-supposes that the learned Magistrate must consider whether such allegations are raised which amount to an offence. If no offence is made out, then there is no particulars of offence which have to be read over to the accused and therefore proceeding cannot proceed beyond Section 251 Cr.P.C. This appears to be implied from a reading of Section 251 Cr.P.C which I extract below:-
"Substance of accusation to be stated : When in a summons case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge".
7. At any rate, the present case is one covered under Section 258 Cr.P.C. and the learned Magistrate has power under Section 258 Cr.P.C. to stop further proceedings. The provisions of Section 251 read with Section 258 Cr.P.C. must necessarily be held to clothe the learned Magistrate in a case instituted on the basis of a police report with the power to discontinue proceedings at the stage of Section 251 Cr.P.C., if there be no sufficient allegations or materials to justify continuance of proceedings for an offence punishable under Section 304A IPC. In these circumstances, notwithstanding the dictum in Adalat Prasad v. Rooplal Jindal (2004 (3) KLT 382 (SC) = 2004 AIR SCW 5174), it has to be held that the learned Magistrate has, at least, in a prosecution in a summons case instituted otherwise than on a police report, the power to discontinue the proceedings at the stage of Section 251 Cr.P.C. by invoking his powers under Section 251 along with the powers under Section 256 Cr.P.C. That is explicit in the language of Section 258 Cr.P.C which I extract below:-
"Power to stop proceedings in certain cases:-- In any summons-case instituted otherwise than upon complaint, a Magistrate of the first class or with the previous sanction of the Chief Judicial Magistrate or any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge".
8. The larger question whether Section 251 would justify discontinuance of the proceedings in all summons cases whether instituted on a police report or otherwise need not be considered in this case. Suffice it to say that in a summons case instituted otherwise than upon a complaint, Section 251 read with Section 258 Cr.P.C. docs clothe the learned Magistrate with the requisite power to discontinue further proceedings and release the accused at the stage of Section 251 Cr.P.C or later if the learned Magistrate feels that the allegations and the materials placed before him do not justify continuance of the proceedings against the indictee. Directing continuance of proceedings when allegations and materials collected do not justify such continuance will be the worst form of injustice.
10. This petition is, in these circumstances, dismissed but with the above specific observations.