Bombay High Court
Mukund Son Of Bapurao Shende vs State Of Maharashtra on 24 September, 2008
Author: A.H.Joshi
Bench: A.H.Joshi
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Writ Petition No. 482 of 2006
Mukund son of Bapurao Shende,
aged about 49 years,
occupation - Goldsmith,
resident of Jaihind Chowk,
Yavatmal, Taluka & Distt.
Yavatmal.
Versus
1. State of Maharashtra,
through Public Prosecutor,
Yavatmal.
2. Dr. Aruna wife of Bhalchandra
Ranade, aged about 54 years,
occupation - Medical
Practitioner,
resident of Civil Lines,
Yavatmal.
3. Dr. Bhalchandra son of Narhari
Ranade,
aged about 59 years,
occupation - Medical Practitioner,
resident of Civil Lines,
Yavatmal.
4. Mrs. Nirmala wife of Mahadeo
Vanzari, aged about 42 years,
occupation - service [nurse],
resident of Shivaji Chowk,
Yavatmal. .... Respondents.
*****
Mrs. Jyoti Dharmadhikari, Adv., for the petitioner.
Mr. V.A. Thakre, Additional Public Prosecutor for
respondent no.1.
::: Downloaded on - 09/06/2013 13:54:02 :::
2
Mr. Sunil Manohar, Adv., for respondent nos. 2 to 4.
*****
CORAM : A.H.JOSHI, J.
Date : 24th September,2008.
ORAL JUDGMENT :
1. Rule. Rule is made returnable forthwith and heard finally by consent of parties.
2. The petitioner, ig the complainant in a private complaint No. 204 of 1999, is a Goldsmith by occupation.
Respondent Nos. 2 and 3 are the spouse, and are in medical profession. The respondent no.4 is the Nurse working in the hospital run by respondent nos. 2 and 3.
Respondent Nos. 2 to 4 are named as accused in said complaint.
3. According to the petitioner-complainant:-
[a] On 25th June, 1996, his wife was hospitalized due to fever, which was not becoming normal, and hence she was brought to the hospital of respondent nos. 2 and 3. In consultation with one another, these accused gave her treatment on 26th June, 1996.
[b] The condition of health of petitioner's wife deteriorated and became serious. [c] His wife was given some medicines, the doses ::: Downloaded on - 09/06/2013 13:54:02 ::: 3 whereof were not properly administered and she ultimately died due to rash and negligent acts of the respondents in the line of treatment.
4. The petitioner filed First Information Report with the Police complaining death of his wife due to rash and negligent act in the treatment by the respondent nos. 2, 3 and 4.
5. Police did not take cognizance of complaint, and issued a Memo of Non-cognizable offence.
6. The post-mortem examination of dead body was conducted. The opinion about cause of death was reserved.
7. Police made a query to the Associate Professor of Forensic Medicine & Toxicology Department, who had conducted post-mortem examination, which appears to be about cause of death, and probably as to whether death could occur due to improper administration of medicines.
The query has been replied in the affirmative.
8. Since the cognizance of the incident, in question, was not taken by the police, petitioner filed a private complaint No.204 of 1999.
::: Downloaded on - 09/06/2013 13:54:02 ::: 49. Upon verification, i.e., affirmation on the complaint, by Order dated 29th July, 1999, the learned Magistrate took cognizance and directed issue of process for offence under Section 304-A of Indian Penal Code against all the accused persons.
10. In the evidence before charge, complainant's statement was recorded on 21st November, 2001. He has relied upon documents, namely Report of Post-mortem Examination, Histopathological Report Doctor from Forensic Department to query made by police and reply of the about cause of death. These documents are marked by the Trial Judge as Articles-A, B and C.
11. On 13th February, 2004, the learned Magistrate passed order, which reads as follows:-
"Order Complainant has examined himself before charge on 21.11.01 and 28.1.03 and thereafter he fails to produce further evidence, before charge, though sufficient time was granted on many occasions. Case is pending since 1999 and for evidence before charge since more than one year. After recording evidence of complainant. Therefore I hold that complainant is not interested in producing further evidence in support of his case before charge. Hence, evidence of complainant before charge is closed. Case to proceed further as per law.
Sd/-
[S.T.Agrawal], J.M.F.C., Yavatmal.
13.2.2004."::: Downloaded on - 09/06/2013 13:54:02 ::: 5
[quoted from the back of page no.12 of the R & P of Trial Court].
12. Thereafter, the Magistrate proceeded to peruse the record and passed order on 1st March, 2004 framing the charge, recording that the charge would be under Section 304-A read with Section 34 of Indian Penal Code.
13. Copy of order passed on 1st March, 2004, which is not filed with present petition, but is seen in Record & Proceeding, reads as follows:-
"However, in the present case, evidence of complainant though he is not expert, "his wife was died due to rash and negligent act of accused no. 1 to 3 in giving injection and tablet of Leyrigo to his wife, remain unchallenged. Therefore, at this stage, I hold that ruling cited by the learned advocate for accused is not applicable to the facts of the present case.
Admittedly at this stage, court has to see only, whether evidence brought on record by the complainant before charge, remain as it is and whether accused can be convicted on that basis if remain unchallenger.
From the evidence of complainant, before charge at this stage it is difficult to come to the conclusion that total evidence of complainant cannot be considered to prove rash or negligent act of the accused. It is admitted fact that during the treatment of wife of complainant by the accused, in their hospital, she was died. Therefore, I hold that at this stage complainant has made out prima facie case to frame the charge, against all accused u/s 304-A/34 of IPC. Accordingly I pass following order u/s 240 of Cr. P.C."::: Downloaded on - 09/06/2013 13:54:02 ::: 6
[quoted from the back of page no.23 of the R & P of Trial Court].
14. Learned Magistrate then framed the charge, which reads as follows:-
"That you on 25.6.96 and 26.6.96 at the hospital of Accused no.1 and 2, at Yavatmal, in furtherance of common intention, gave treatment to late Sou. Manjushree w/o Mukund Shende in rash and negligent manner due to which death of Manjushree Shende was took place, which is not amounting to culpable homicide and therefore you committed an offence punishable u/s 304-A r/w 34 of IPC within my cognizance.
I hereby direct that you be tried by this court on the charge of offence u/s 304- A/34 of IPC."
[quoted from the back of page no.26 of the R & P of Trial Court].
15. Being aggrieved by the order passed below Exh.1 deciding to frame the charge, the accused persons filed Criminal Revision Application before the Sessions Court, Yavatmal.
16. In the Revision Application, complainant has averred as follows:-
"2. It is submitted that the complainant examined himself only and closed his evidence before charge."
"3. There is no expert's evidence or proved documents on record to suggest or to prove prima facie even that the wife of the complainant died for the reasons given by the ::: Downloaded on - 09/06/2013 13:54:02 ::: 7 complainant."
17. By way of grounds, the accused persons pleaded as follows:-
"1. It is humbly submitted that the learned lower court ought to have seen that this complaint case and before charge is framed, the complainant is duty-bound to adduce evidence by examining the witnesses to establish a prima facie case for framing of the charge. The learned lower court ought to have seen that this is not a case on the Police report or complaint u/s 175 of Cr. P.C. and hence the norms of framing of charge, applicable to such cases are not applicable in the complaint case."
"2. The learned L.L.C. has committed an error in holding that there is prima facie case against the accused persons.
The learned lower court miserably failed to take into consideration that the evidence adduced is that of only complainant himself and that his statement that wife of the complainant died on account of rash and negligent act of the accused persons. This statement is only a surmise and opinion of a layman and not an expert.
To prove the cause of death even prima facie, it was necessary for the complainant to have examined to establish prima facie by expert evidence doctor who performed postmortem and also other Medical Officers cited as witnesses. ....."
[Sub-paragraphing is done for the purpose of convenience. Quoted from pages 7, 8, 9 and 10 of the record of Sessions Court].
18. The learned Sessions Judge has heard and decided Criminal Revision Application and allowed it by Judgment ::: Downloaded on - 09/06/2013 13:54:02 ::: 8 and Order dated 16th November, 2005. The complaint was thereby dismissed and accused were discharged.
This order of Sessions Judge allowing the Revision Application is challenged in the present Writ Petition.
19. Heard submissions of both the sides. Perused the record.
20. The petitioner's submissions, in nutshell, are as follows:-
[a] The learned revisional court erred in entering in the field of appreciation of evidence in as much as the learned revisional court has appreciated the evidence as if it was sitting in appeal over the orders passed by Judicial Magistrate First Class, which it was not.
[b] The learned revisional court has disregarded documents produced on record only because the said documents were not proved at the stage of evidence before charge. This approach is erroneous, as this was not a stage of proof to the hilt.
[c] Learned Sessions Judge has ignored the facts, namely:-
[i] The petitioner had sought permission to examine witnesses 1] Dr. S.S. Gupta 2] Dr. U.S. Rathod, 3] Shri S.D. Malve, 4] Shri G.B. Shinde and 5] Shri S.N. Dhonkalwar ::: Downloaded on - 09/06/2013 13:54:02 ::: 9 which was granted.
[ii] The summonses were not be served by police. Complainant had applied for re-issue thereof.
[iii] The Hon'ble Trial Court was
pleased to disregard the prayer
for re-issue, and by its order
dated 1st March, 2004, close the
evidence before charge on the
ground that complainant had
examined himself on 21/11/2001 and 29/01/2003 and failed to adduce ig further evidence framed the charge.
and thereafter
[iv] It is, thus, a judicial act of
denial to bring further evidence.
[v] Complainant was not responsible in
failing to secure the attendance
of witnesses.
[vi] If at all the material on record
was not adequate, upon quashing
the charge, order dated 1 st
March,
2004 too should have been set
aside and case would have gone
back to the same stage, i.e.,
summoning of the witnesses to
prove post-mortem notes and query report and other matters.
[d] In absence of any merit in Revision Application and any fault of the petitioner, learned Sessions Judge erred in entertaining Revision Application, since, at any rate, the complaint cannot be dismissed, because failure ::: Downloaded on - 09/06/2013 13:54:02 ::: 10 to bring evidence is not attributable to the petitioner.
21. Petitioner has prayed for setting aside impugned order totally and alternatively that if charge is set aside, let the matter be relegated to the stage of summoning witnesses and then re-consideration of framing the charge.
22. Learned Adv. Mr. Sunil Manohar for respondent nos. 2,3 and 4 advanced submissions, which are noted under different heads below as Submissions on Facts and Submissions on Law:-
23. Respondents' Submissions on Facts :
[a] No explanation is offered for the delay, as the complaint is filed after three years and few months from the date of incident, which smacks of ulterior motives.
[b] Long pendency of complaint and poor pace of pursuit thereof in failing to take effective steps to bring the witnesses within a reasonable time is aimed at harassing and persecuting the accused persons, and therefore, the accused are tortured for a long period.
[c] The incident is of 1996 and the proceedings are continued till today, and one does not know how ::: Downloaded on - 09/06/2013 13:54:02 ::: 11 long the trial will be dragged.
[d] The contents of the complaint do not disclose the degree of criminal negligence, which is required for taking cognizance.
[e] The fact as to whether the doctor had acted with negligence to attract criminal liability is beyond comprehension of a layman -
complainant and hence his statement could not be adequate material to be believed to frame the charge.
[f] The complaint was not supported by any medical evidence or contents are not based on medical authority.
24. Respondents' Legal Submissions :
[a] Strict approach is needed while entertaining the complaint, since medical services are extremely essential for the society, and members of medical profession cannot be discouraged or deterred from rendering wholehearted services.
[b] If abuse is not prevented, the society will be deprived of good medical services. A bare error of judgment of a doctor has to be identified and not to be mistaken as an act of negligence.
[c] If the complainant says that the treatment was wrong, such error is not, by the very fact of allegation even accepting to be true, a matter of error of judgment in ::: Downloaded on - 09/06/2013 13:54:02 ::: 12 selecting or fixing up the line of treatment, which would not admit in its ambit the cases of error of judgment and, therefore, no complaint ought to be entertained barely on the say of the complainant or prosecution, and it ought to be supported by prima facie evidence of a degree of negligence capable to attract a criminal liability.
[d] Standard of proof of recklessness and deliberate wrong-doing has to be of higher degree of morally blameworthy conduct.
[e] Somebody's life's misfortune could be accidents, for which, however, in absence of instances of culpable conduct constituting grounds for punishment to be tested and proved on a scientifically informed analysis, nobody can be morally responsible.
[f] Special emphasis is given on the observations contained in the case at Item No.1 - Jacob Mathew and special guidelines given in para 52 as to the manner in which the complaints against medical professionals should be dealt with.
[g] Reliance is placed on two reported Judgments, namely:-
[1] Jacob Mathew Vs. State of Punjab & another [(2005) 6 SCC 1], and [2] Dr. Suresh Gupta Vs. Govt. of NCT of Delhi & ::: Downloaded on - 09/06/2013 13:54:02 ::: 13 another [(2004) 6 SCC 422].
Analysis of Factual & Legal Submissions
25. Harassment, ulterior motive & delay. Points [a], [b] and [c] in paragraph 23 :
In order to test factual aspect as to ulterior motives and malafides, Court had put the query to learned Advocate Mr. Manohar to indicate from record or otherwise any malicious conduct of the complainant, however, barring delay in the complaint, no other circumstance is shown to have been brought on record. Learned Adv. Mr. Sunil Manohar, may be within his right wanted to be reserved, contended that those may constitute defence which the accused have not yet opened.
The aspect of delay would be considered while dealing with merits of case finally. By the very fact of or on the ground of delay, inference of malafides or ulterior motives cannot be drawn.
Petitioner's contentions and facts emerging from record and about the merits of complaint raised in Points [d], [e] and [f] of paragraph 23 :
26. By the imputation of negligence described in ::: Downloaded on - 09/06/2013 13:54:02 ::: 14 paragraph no.11, it is alleged that :-
[i] The dose of the medicine prescribed and administered to the wife of the petitioner was wrong.
[ii] The medicine was selected without taking care to make sure the diagnosis after blood examination.
[iii] The manner in which the medicine was administered was negligent.
[iv] Need of Circulatory stimulant drug/medicine in case of fall in blood pressure is a known medical ig contingency than an unpredicted emergency. Said drug/medicine ought to have been procured well in advance as a procurement on provision basis, which was not done, and the accused have thereby acted with negligence and without due care in failing to keep said medicine.
[v] No special care was taken, which was necessary in view of the pregnancy of the wife of the complainant, which amounts to negligence. [vi] The sum effect of sub-paras of paragraph 11 is description of criminal negligence.
27. The complainant supported his testimony on medical evidence, which is on record, marked as Articles B & C. It was necessary for the complainant to prove it strictly in the trial. What was required to be proved at this stage is that prima facie involvement.
::: Downloaded on - 09/06/2013 13:54:02 ::: 1528. Perusal of record reveals that the petitioner has taken efforts to secure attendance of the witnesses, and to avoid the delay. Steps taken, which are seen, are as follows:-
[i] The complainant filed application on 28th January, 2003 [Exh.54] and prayed for issuance of summonses to the witnesses named therein, namely [1] Dr. S.S. Gupta, [2] Dr. U.S. Rathod, [3] S.D. Malve, [4] G.B. Shinde, and [5] S.L. Donkudwar. This application has been allowed.
[ii]
Application dated 6th February,
application [Exh.58] for production of certain 2003 and documents have been rejected by order dated 24th March, 2003.
[iii] Then summonses issued to the witnesses for remaining present on 15th April, 2003 are seen at pages 85 to 88 of the record of Trial Court.
[iv] As summonses were yet unserved, petitioner filed application [Exh.64], and order for re-
issue of summons was passed on 13th June, 2003. The summonses were re-issued, copies whereof are at pages 98 to 100, and at pages 107 to 111.
29. Delay caused in pursuit of the complaint is thus seen due to :-
(i) Waiting for service of summonses to witnesses.::: Downloaded on - 09/06/2013 13:54:02 ::: 16
(ii) In spite of repeated requests and reminders, the report of accidental death registered by Police was not produced by the Sub-Divisional Magistrate, by order dated 20th June, 2002 passed below Exh.44-D, the judge ultimately declined to issue further directions.
(iii) About four months' time was lost as the complainant then applied for adjournment by application dated 20th September, 2003, on the ground that the petitioner was called by CID for enquiry, the enquiry is in progress and that the hearing be adjourned, however, then the Petitioner filed a Pursis on 14th January, 2004 [Exh.79] and made it clear to the Court that he would like to examine the witnesses, as the CID was not likely to complete the enquiry.
(iv) Much time was lost in calling the Accidental Death Report from the Sub-Divisional Magistrate for which various reminders were issued by the Court.
30. On 1st March, 2004, the petitioner applied for issuance of summons, which was ordered to be placed on board on due date along with the matter which appears to be 31st March, 2004.
31. The background in which the charge was framed is that the learned Trial Judge found that the complaint was ::: Downloaded on - 09/06/2013 13:54:02 ::: 17 pending for a long time. Said complaint being amongst the oldest cases, the pendency must have agitated the Magistrate, who started pursuing the case from December, 2003.
32. It appears that after perusal of record that the Magistrate found that calling the witnesses and waiting till then would amount to loss of time without substantial advantage to the progress of trial at this stage. It seems that he, therefore, passed an order below Exh.1 on 13th February, 2004, text whereof is reproduced in paragraph 11 herein before, and directed to proceed with the hearing of the case, and by closing complainant's evidence by the order of the Court and impliedly without waiting for issue of summonses to the witnesses.
33. Perusal of first two paras of order passed on 1 st March, 2004 quoted in para 13 reveals that learned Magistrate has applied mind to the oral evidence on record and documents.
34. Record does show that yet the complainant had filed application [Exh.87] for issue of summonses, however, no summonses were issued thereafter by passing order on said application.
::: Downloaded on - 09/06/2013 13:54:02 ::: 1835. It is seen that based on the material on record in the shape of verification statement and other evidence as articles, the learned Trial Judge has passed order of framing charge.
36. It is also seen that earlier the case was adjourned from time to time at the request of accused persons assigning the ground that they are busy in attending professional work. These requests for adjournments and prayers for exemption attendance of the accused are umpteen in number. Attendance from personal of accused is seen caused sparingly and almost negligible.
37. It is revealing from what is obvious from records is that at least on three occasions, summonses were issued and the witnesses were not served. In the above referred background and considering the grounds raised in this petition, which are summarized in paragraphs 20 and 23 above, it is clear that the complainant wanted that his evidence may be supported by evidence of medical witnesses.
Therefore, he has made various applications for summoning the medical witnesses. In this process, considerable time has been lost.
38. It is not shown by the respondents, as well the ::: Downloaded on - 09/06/2013 13:54:02 ::: 19 record does not, in any manner, suggest that the complainant was negligent in pursuing the matter of issuing summonses to the witnesses. It would be unjust to blame and penalize the complainant for what is beyond his capacity and control. Courts cannot be oblivious to the fact as to how difficult it is to serve parties and witnesses with no much punctual, rather lethargic assistance, from the police in serving of the processes.
Criminal
ig Revision Application
Sessions Court by the Accused :
before
39. Per contra of what is noted and discussed herein before, the dissatisfied accused had averred in the Revision-Petition and took a plea, which is quoted above, namely that "complainant has closed the evidence.", and contended that no charge could have been framed, which found favour with Sessions Court.
40. A legal submission now advanced by respondents is that the basic jurisdiction exercised by Sessions Court was under Section 397 and unless the finding of the Sessions Court is shown to be perverse, no interference is called for, as present is a petition under Article 227 of Constitution of India read with Section 482, Criminal Procedure Code. This submission will have to be ::: Downloaded on - 09/06/2013 13:54:02 ::: 20 scrutinized, and this Court has to find out whether Sessions Court was right in exercising its jurisdiction, or has committed any error or illegality or transgressed its jurisdiction.
41. The Sessions Court was to exercise revisional jurisdiction to find out whether:-
[1] the complainant could have been blamed for failing to take steps to have the witnesses served? and;
[2] was the material available on record of the Magistrate was sufficient for framing charge?
Observations as to how Sessions Court has erred, conclusions and reasons thereto :
42. It is seen that a misguiding submission was made on behalf of the revision petitioners before the Sessions Court that the 'complainant had closed evidence', as record shows that the Magistrate had passed order dated 13th February, 2004 to proceed without waiting for service by blaming the complainant without due advertance to the record as indicated in foregoing paras 28 to 37.
43. In the background that failure to call the ::: Downloaded on - 09/06/2013 13:54:02 ::: 21 witnesses could not be attributed as a blame to the complainant, even on assuming that a conclusion that material on record was not sufficient to frame the charge.
The course to be adopted by the Sessions Judge was certainly not to dismiss the complaint. Only course to be adopted by Sessions Court was to remand the case by setting aside the order of framing charge and direct service of summons, recording of further evidence and permit the Magistrate to pass an order according to law. The Sessions Judge has failed to record such finding and to take proper recourse, and preferred to have a resort to a short-cut.
44. The complainant can, in no circumstance, be blamed for failing to secure attendance of witnesses for which he had made serious attempts. Therefore, raising the ground referred to in foregoing paragraph No.39 itself led the Sessions Court to record a finding on that point.
45. A finding or conclusion, direct or indirect, holding negligence or failure on the part of complainant is either perverse or is akin to being perverse.
46. This judicial act of the Sessions Judge, undoubtedly, demonstrates that the impugned order has been passed in blatantly erroneous exercise of jurisdiction.
::: Downloaded on - 09/06/2013 13:54:02 ::: 2247. On both the questions noted in foregoing para No.41, this Court finds that it would be gravely unsafe and even unjust to brand the complainant to be at fault towards failure to secure the presence of witnesses in view of facts noted in foregoing paras 28 to 37.
48. This is a case where the Police did not take cognizance of the complaint which was filed before the Magistrate. After ig the private complaint reading the complaint and documents annexed thereto, such was filed, on as Post-mortem observations about cause of death and query report, the Magistrate found that it was a fit case for issue of process.
49. Probably had the law as laid down in Jacob Mathew's case [supra] been available at the time of issue of process [since it is a later judgment], the Magistrate may have chosen to issue a direction either under Section 202 on an enquiry under Sub-section [3] of Section 156. In that eventuality, police could have made a discreet investigation and could have arrived at a proper conclusion and then filed the final report.. However, now, after ten years, reverting back to that stage is too late, and would not assist the cause of justice.
::: Downloaded on - 09/06/2013 13:54:02 ::: 2350. It appears that the petitioner too craved for assistance of police and hence had applied to CID for enquiry which did not bear fruits. However, now sending the case for further enquiry would certainly guarantee further delay and would result in vexing both parties to the issue.
51. This is a case where the complainant was led by a judicial act of issue of process which was not taken ill by the accused, who preferred to appear and proceed with the case. Every effort was made by the complainant to secure presence of witnesses, which did not bear desired result, i.e., punctual service, and now the accused are claiming that the order of framing charge is bad because witnesses are not examined.
52. This Court always bears in mind that its extraordinary and inherent jurisdiction is not allowed to be invoked and exercised just for asking. Question, therefore, is whether present case is of that nature, or petitioner has made out a case for interference?
53. On facts, what this Court has seen is that the revisional jurisdiction was exercised without adverting to ::: Downloaded on - 09/06/2013 13:54:02 ::: 24 the record. The consequences which stand procured are not visualised. Impugned order results in throttling process of administration of Criminal Justice. Nothing can prevent this Court in passing orders as warranted by ends of justice. A litigant cannot be shown an exit without any fault on his part.
Has the accused demonstrated that it is a case of persecution of a members of medical profession?
54. Allegation of persecution for being required to face trial is based on strength of facts. Record of trial shows that on most of the dates, rather almost on all dates, the accused persons have not appeared in the Trial Court. They had filed applications for exemption of personal attendance on the ground that they are busy in treating serious patients or in surgical work, are on record.
55. At no point of time, any request is seen to have been made by the accused persons to the Trial Court so as to demonstrate any overt act or acts leading to harassment or acts of deliberate delay or even acts of negligence on the part of the complainant in pursuing the complaint. The accused have not shown that they have made any efforts to ::: Downloaded on - 09/06/2013 13:54:02 ::: 25 pray for expeditious disposal of the case. Yet, the cry alleging persecution is made, which is seen to be without any drop of tears.
56. If any torture and persecution is suffered by the accused as argued, unfortunately for them, the same is not supported by record. If the case is sent back to the stage of service of summons on the witnesses before charge and the matter is re-enquired by the Magistrate, or he sends it for further investigation, it would add to further delay and added harassment if it be so.
57. While learned Adv. Mr. Manohar has placed reliance on Jacob Mathew's case, this Court has to be conscious and alive to those observations contained in the said Judgment which read as follows:-
47. .........................................
.... ....Indiscriminate prosecution of medical professionals for criminal negligence is counter-productive and does no service or good to society."
"52. ..................................... ....(i) A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor.
(ii) The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an ::: Downloaded on - 09/06/2013 13:54:02 ::: 26 independent and competent medical opinion preferably from a doctor in government service, qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying the Bolam test to the facts collected in the investigation.
(iii) A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him).
(iv) Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld."
[Quoted from paras 47 and 52 at pages 32 and 35 of the Judgment in case of Jacob Mathew Vs. State of Punjab [supra] and sub-paragraphs are done for the purpose of convenience in reading].
58. This Court has seen that Hon'ble Apex Court observes in same Judgment in Para 51 that while the doctors are not prosecuted, does not by itself mean or follow that there would be no complaint against the doctors. Text of paragraph 51 of Jacob Mathew's case can be referred by quotation as follows:-
"51. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant ::: Downloaded on - 09/06/2013 13:54:02 ::: 27 prefer recourse to criminal process as a tool for pressurising the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against."
59. In the circumstances of present case, at this stage, it would not be possible to conclude in favour of the accused by accepting that the complaint by the petitioner amounts to persecution and that, therefore, present petition should be dismissed.
60. The other side of the story is that if the matter is not investigated, tried and decided, it would result in a grievance of medical negligence of criminal nature going uninvestigated. On the other hand, this is a case where a complaint of medical negligence, the enquiry and trial is sought to be throttled by citing a precedent of Hon'ble Supreme Court which in itself consists of a caveat, which cannot be ignored.
61. This Court is satisfied that with Clause (i) [marked so for convenience in the quotation of para 52] of Judgment of Hon'ble Apex Court in Jacob Mathe's case, Court is duly satisfied. Clauses (ii), (iii) and (iv) [marked so for convenience in said quotation] have no application to present case. This petition, therefore, cannot be dismissed by adopting incomplete reading of Jacob Mathew's case.
::: Downloaded on - 09/06/2013 13:54:02 ::: 2862. In the result, this Court holds and concludes that petitioner's challenge that the learned Sessions Judge has passed order without adverting to the record and took an extreme view is just and reasonable ground and is well sustained.
63. In these premises and foregoing reasoning, present is a fit case for issue of writ and consequential directions sought for.
64. In the result, petition succeeds. The Judgment and Order impugned is set aside.
65. Now, the question is what shall be the course to be followed? As discussed earlier, when summonses to the witnesses were not issued, the case would ordinarily go back for calling the witnesses and examining them after setting aside charge.
66. It has already come on record that the complaint case is pending since 1999. Interests of either of the parties would be prejudiced by relegating the case back to the stage of examination of witnesses on whom summons was ::: Downloaded on - 09/06/2013 13:54:02 ::: 29 not served. It will thereby mean that after examining witnesses, once again the matter would be argued at the stage of framing of charge and thereafter with best legal equipment at hand, many rounds of revisions, further petitions it would take. Instead, if trial is proceeded, conclusion and ultimate justice would reach faster, whatever be the result of trial. This course would minimize prejudice to all parties.
67. In the result, the aspects of propriety, interest of justice etc., would demand that let the case proceed at the stage where it is. Let special efforts be taken to ensure presence of witnesses and have the trial completed.
68. In the circumstances, this Court holds it to be an act of justice to permit the trial to proceed on the basis of charge already framed and would elect said course.
69. It is hoped that proper steps would be taken to ensure presence of witnesses and have the trial completed expeditiously.
::: Downloaded on - 09/06/2013 13:54:02 ::: 3070. In the result, Rule is made absolute in terms of what is stated in paragraph nos.64 and 67 to 69 above.
JUDGE
-0-0-0-0- |hedau| ::: Downloaded on - 09/06/2013 13:54:02 :::