Allahabad High Court
Dr. Vipul Shah vs State Of U.P. Thru. Prin. Secy.(Home), ... on 30 May, 2016
Author: Sudhir Kumar Saxena
Bench: Sudhir Kumar Saxena
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH (AFR)(Reserved) Court No. - 23 Case :- U/S 482/378/407 No. - 1670 of 2016 Applicant :- Dr. Vipul Shah Opposite Party :- State Of U.P. Thru. Prin. Secy.(Home), Civil Sectt. & Ors. Counsel for Applicant :- Kapil Misra Counsel for Opposite Party :- Govt. Advocate,A P Singh Hon'ble Sudhir Kumar Saxena,J.
This petition has been filed under Section 482 of Cr.P.C. challenging the chargesheet dated 09.06.2015 and cognizance order dated 11.03.2016 passed by Chief Judicial Magistrate, Lucknow in Case Crime No. 246 of 2011, summoning petitioner under Sections 420/304 I.P.C.
Heard Sri Jyotindra Mishra, learned Senior Counsel assisted by Sri Kamlesh Mishra, learned counsel for petitioner as well as Sri. Sudhir Srivistava (complainant), in person.
It appears that petitioner had approached this Court by means of Writ Petition No. 8186 of 2011(MB) seeking quashment of the F.I.R. Division Bench of this Court while dismissing the said writ petition on 25.08.2011 observed that F.I.R. does disclose a cognizable offence and permitted petitioner to surrender before the courts below and move the application for bail which was to be considered expeditiously.
Matter was taken to Apex Court by means of S.L.P. no. 7122 of 2011 in which initially an interim order was passed but said S.L.P. was dismissed vide order dated 24.02.2016 which is being reproduced below:
"It is submitted at the Bar that the charge-sheet has already been filed in the matter, therefore, it is not a fit case for our interference to quash the FIR. Hence, the special leave petition is dismissed. However, it is open for the petitioner to urge all such contentions available for him in law at the time of considering of framing of charge by the trial court.
Further, as prayed, four weeks' time is granted to the petitioner to surrender and seek regular bail. If such an application is filed, the same shall be considered and disposed of in accordance with law expeditiously.
All pending application(s) stand(s) disposed of."
After dismissal of the S.L.P., learned C.J.M. Passed the order dated 11.03.2016 which has been impugned in this petition. C.J.M. has observed that prima facie there is sufficient ground to take cognizance and it cannot be said that there is no material to take cognizance. Consequently, application moved by petitioner challenging the cognizance order was rejected.
Before coming to merits of the case, it is necessary to give brief facts which are culled out from the F.I.R.
Nidhi Srivastava, wife of informant Sudhir Srivastava was admitted in Sahara Hospital, Lucknow on 17.10.2010 from where she was discharged on 21.10.2010. For redressal of shoulder pain treatment was done by Dr. Vipul Shah (present petitioner) who even after noticing the damage in liver (ALT 121) prescribed 'Lefra' (Leflunomide 10mg) alongwith other medicines and called again. On 05.11.2010, Dr. Shah advised her to continue the same medicines for one month and half. Dr. Shah did not advise any diagnostic test for liver enzymes nor he informed about adverse effects of Lefra. On 22.11.2010, she became ill again and since then she was getting treatment from different doctors. She was shifted to Fortis Hospital, Delhi on 23.11.2010. Dr. Ashok Kumar, Rheumatologist informed that liver of informant's wife has been damaged as a result of Lefra. Ultimately, she expired on 17.01.2011 in the Fortis Hospital itself. Cause of death was shown to be Lefra induced hepatitis drug. Then, informant wrote to Torrent Pharmaceutical Limited which informed that the patient having liver problems should not be prescribed Lefra. Moreover, Dr. Shah did not prescribe any liver guard. He was not competent to prescribe Lefra as he is only orthopedic Surgeon, as such, Dr. Shah has manifested medical negligence in treatment of complainant's wife causing her death. Moreover, Dr. Shah's credentials have been disputed by General Medical Council United Kingdom as well as United State of America. They categorically denied having licensed Dr. Vipul Shah. He is using forged certificate and claims to be an internationally acclaimed medical practitioner etc. On this F.I.R. dated 12.08.2011, case was registered at Crime No. 246 of 2011, under Sections 420/304-A (?) I.P.C., Police Station Kaiserbagh, District Lucknow. After investigation, chargesheet was submitted under Sections 304/420 I.P.C. on 09.06.2015. Cognizance was taken on the same day by C.J.M., rejecting the application filed by Dr. Vipul Shah challenging the cognizance. Both chargesheet and cognizance order dated 11.03.2016 have been challenged in this petition.
Allegations and counter allegations have been made with respect to manipulation in the F.I.R. as well as with respect to fairness of investigation. Now, that chargesheet has been submitted under Sections 304/420 I.P.C., this Court does not think it necessary to deal with these allegations as they have now become fully irrelevant. And for this very reason, submission of closure report or changing investigations are not being noticed.
Submission of Sri Jyotindra Mishra, learned Senior counsel is that petitioner is an orthopedic Surgeon and has used his knowledge and discretion in prescribing the medicines for shoulder pain of patient. There was no intention of knowledge which could be attributed to petitioner so as to attract Section 304 I.P.C. Moreover, after getting treatment from petitioner, patient was taken to different doctors and hospitals and it cannot be said that cause of death could only be 'Lefra', prescribed by the petitioner.
Before adverting to the submissions advanced by learned counsel for the petitioner, some more details are necessary which did not find mention in the F.I.R. but available on record.
A complaint has been filed by Sudhir Kumar Srivastava (complainant) before NCDRC. Relevant extract of complaint is being reproduced below:
".......Ultimately she died also not due to any pre-existing disease but died due to drug induced hepatitis which resulted into her acute liver failure. This act of gross negligence was committed initially by Dr. Vipul Shah, M.S. (Orthopaedics), by prescribing Lefra, a hepatotoxic drug contraindicated in patients with impairment of liver function, which actually induced hepatitis, without having done the necessary tests for Rheumatoid Arthritis and which he was not authorised to prescribe because he was not a qualified Rheumatologist.
...............Subsequently the later doctors namely, Dr. Nirmal Kumar Jain, M.B.B.S., and D.T.C.D., Dr. Anil Saraswat, M.D. (Medicine) and Dr. Shailendra Jain, M.D. (Skin and V.D.), failed to take corrective treatment for drug Lefra elimination by administering Cholestyramine to washout already accumulated drug lefra even after having full knowledge of the fact that Nidhi had taken lefra for one month and in fact even after recording it as case of a drug reaction.
..............Doctors of Sri Ganga Ram Hospital, New Delhi diagnosed the disease wrongly as autoimmune Hepatitis and autoimmune Vasculitis instead of drug induced hepatitis and drug induced Exfolative dermatitis although the required hallmark Lab test (ANA) to diagnose Autoimmune Hepatitis was found to be negative in the very beginning and repeatedly found negative in subsequent tests also. Even though there was clear indication in the prior medical records that it could be drug reaction and repeatedly requested by the complainant to confirm the drug reaction, they did not give any attention. Instead of immediately initiating washout of accumulated drug Lefra, they prescribed several others medicines although they were fully aware of the WHO certified hepatotoxic drugs lefra (LefluNomide) and SAAZ DS (Sulfasalazine) having been taken by the patient for one month."
From the above, it is apparent that complainant claims that Dr. Vipul Shah prescribed Lefra. Thereafter, some negligence has been shown by Dr. Nirmal Jain, Dr. Anil Saraswat, Dr. Shailendra Jain and also by doctors of Ganga Ram Hospital, New Delhi. It is not said that Dr. Vipul Shah alone is responsible for the death of complainant's wife, although he may be responsible initially for prescribing contraindicated medicine Lefra. It further appears from the complaint that on 13.10.2010, patient developed high fever and recurrent vomiting at Etah as informant was posted as Branch Head, Axis Bank at Etah. On 14.10.2010, Dr. Mukesh Chandra Jain was consulted who treated patient for three days. He also prescribed blood test. On 17.10.2010, patient was admitted in Super Specialty Sahara Hospital, Lucknow where she was treated for four days. On 21.10.2010, she was discharged from the hospital in satisfactory condition with diagonosis of fever and thrombocytopenia. Even after discharge, patient felt acute pain in her right shoulder which was brought to the notice of concerned doctor of Sahara Hospital but that was not taken to be serious matter citing post viral effect and she was advised to take heating from pad and full rest. She was called for review after five days. On 23rd October, 2010, patient was taken to Dr. Vipul Shah, Orthopedic Surgeon (present petitioner), at F.I. Hospital, Lucknow. Complainant had been earlier also treated by Dr. Shah for lower back pain. Petitioner noticed the derangement of liver function and prescribed Lefra 10 mg twice daily alongwith Nimulid (Nimesulide) and SAAZ-DS (Sulfasalazine). She was advised to come after three days. On 5th November, 2010, petitioner was again consulted and said that pain has subsided. During this period, however, patient was advised to continue the same medicine for one month and half. Nimulid and termedol (?) were withdrawn. On 22.11.2010, patient developed headache and mild fever, she took two tablets of Seridon but with no relief. She also developed some skin rashes. On 23.11.2010, Dr. N.K. Jain, Physician and Chest specialist at Etah was approached who advised some diagnostic test and some liver test. After examining the report, Dr. Jain prescribed medicines for malaria and tablet Allegra for skin rashes. He advised to discontinue the medicines prescribed by present petitioner. On 27.11.2010, Dr. Anil Saraswat of Agra was consulted who advised patient's admission in the Pushpanjali Hospital, Agra. On 28.11.2010, complainant's wife was admitted in Pushpanjali Hospital, Agra where she was diagnosed with PUO (PYREXIA OF UNKNOWN ORIGIN), however, malarial pyrexia with Urticaria was also suspected. She remained there for four days and treated with steroid Solu Medrol and other medicines. However, her skin problems turned acute and she was unable to eat anything due to mouth sores, albeit, fever had subsided on 30.11.2010. On 29.11.2010, Dr. Shailendra Jain, Dermatologist of Pushpanjali Hospital had given the reason for skin rashes and prescribed medicines for it. On 02.12.2010, she was discharged from Pushpanjali Hospital with reduced fever. On 3rd December, 2010, Nidhi developed high fever in the morning. Dr. Anil telephonically advised to continue the medicines earlier prescribed in Pushpanjali Hospital in addition to Calpol but with no relief. On 04.12.2010, patient was again admitted in Pushpanjali Hospital, Agra. On the advice of Dr. Anil Saraswat, some tests were further conducted. She was diagnosed as a case of PUO with UTI with septicemia and fever with hepatitis. On 05.12.2010, noticing high level of ALT 1077, husband of patient contacted Dr. Vipul Shah telephonically who advised to consult doctor at Sir Ganga Ram Hospital, New Delhi. Dr. Anil Saraswat also referred her to SGRH, New Delhi. On 06.12.2010, she was attended by one doctor in SGRH where she was admitted in the evening. On 07.12.2010, Dr. Anil Arora, Chief Consultant, Gastroenterology Dept. attended her and Dr. Subhash Chand Bharija also came to see her. On 14.12.2010, skin biopsy report came which showed vasculitis, Lymphocyte type with the remark that the possibility of drug aetiology cannot be ruled out. On 17.12.2010, multi disciplinary team of SGRH diagnosed her as a patient of autoimmune vasculitis with Autoimmune Hepatitis with sepsis and steroid Solu Medrol was started for treatment. On 20.12.2010, after completion of Trans jugular Liver biopsy, she experienced breathlessness and developed pulmonary edema. Consequently, she was shifted in I.C.U. on Ventilator. On 21.12.2010, patient's condition become serious. Dr. Anil Arora advised complainant to consult Dr. Malviya, Rheumatologist/Immunologist of Indian Spinal Injuries Centre or Dr. Ashok Kumar of Fortis Hoispital.
Dr. Arora also advised to visit Dr. Sanjeev Kapoor in Noble Medicare for the purpose of consulting Dr. A.N. Malviya. Dr. Sanjeev Kapoor expressed his inability to refer his case to Dr. A.N. Malviya citing his preoccupation. On 22nd December, 2010, complainant approached Dr. Bimlesh Dhar Pandey, associate of Dr. Ashok Kumar for the purpose of consulting Dr. Ashok Kumar who advised admission in Fortis Hospital. On 23.12.2010, patient was admitted in Fortis Hospital and kept on Ventilator. Dr. Ashok Kumar prescribed Cholestyramine and other necessary medicines for elimination of drug Lefra, however, deceased could not survive and she died due to multi organ failure, septicemia with septic shock and DIC on 17.01.2011.
From the above history which was placed before this Court, it is apparent that Dr. Ashok Kumar pointed out that Lafra, a hepatotoxic contraindicated medicine was cause of hepatitis. Patient was last seen by Dr. Vipul Shah on 05.11.2010. According to prosecution, thereafter, number of doctors at Etah, Agra and Delhi were consulted. Patient was admitted in SGRH and Fortis Hospital in Delhi. She was also admitted in Pushpanjali Hospital Agra twice. Remained in Sir Ganga Ram Hospital from 06.12.2010 to 22.12.2010 and in Fortis Hospital from 23.12.2010 to 17.01.2011. She remained in Pushpanjali Hospital, Agra for five days, for seventeen days in SGRH, New Delhi and for twenty five days in Fortis Hospital.
It is contended that Dr. Vipul Shah also prescribed a liver guard i.e. Carnisure for protecting liver and muscle. It is further contended that Dr. Shah had called patient after three days i.e. on 26th October, 2010 but patient did not come. It has come on record that Medical Council of India has found petitioner guilty of professional misconduct and he was suspended for two years. Finding him guilty of not proper patient management Dr. Vipul Shah was suspended for a period of three years. Consequently, name of Dr. Shah was ordered to be removed from the register for a period of three years. It is stated that order of Medical Council of India has been stayed by this Court vide order dated 24.06.2014 passed in Writ Petition No. 5227 of 2014 (MB) on the ground that Medical Council of India cannot permit filing of appeal beyond limitation. A committee was constituted by C.M.O., Lucknow who also found out no negligence but same is of no relevance at this stage.
According to prescription dated 23.10. 2010, patient was diagnosed with post viral myalgia which also mentions derange liver. Patient was prescribed Lefra 10mg tablet and tablet SAAZ alongwith Carnisure. On 17.10.2010, ALT level of patient was 179.0 which was raised (normal range is 0-42). It is apparent from the Sahara Pathology report dated 21.10.2010 that reading had come down to 121-131 which shows improvement in parameters. On 5th November, 2010, aloevera, glucosemine, Carnisure, SAAZ and ecozyme were prescribed. Nimulid and termedol were withdrawn.
From the death certificate, it is apparent that she died due to multi organ failure, septicemia with septic shock and DIC and antecedent cause was drug (Lefra) induced hepatitis.
Report of Torrent Pharmaceutical does show that lefra had to be prescribed by qualified Rheumatologist. Lefra is only for the treatment of rheumatoid arthritis. Report also indicates that Lefra is an immunomodulator and can cause hematological reactions including thrombocytopenia. Report clarifies that in some patient severe liver injury and liver failure has been reported, increased side effects may occur when given concomitantly with other drug like hepatotoxic potential i.e. nimesulide, chloroquine etc. It is not certain if Dr. Shah was qualified Rheumatologist. There is statement of Fortis Hospital itself which has been annexed with this petition as annexure -5. Reply sought by Dr. Shah whether he is 100% sure that problem was caused due to Lefra. Dr. Ashok Kumar replied to the effect that 'no' and Lefra was considered as a probable cause. Attempt was made to wash out the drug which led to amelioration in skin rashes. However, liver did not improve. It was also informed by the Fortis Hospital that no drug level test was done to confirm the antecedent cause.
From the above discussion, it is apparent that it cannot be said with certainty if Lefra taken for 18 days alone caused skin rashes, liver failure and septicemia. Patient was taken to Dr. Vipul Shah on 23rd October, 2010. Lefra was taken for 18 days. In the F.I.R., there is no mention of other medicines prescribed by Dr. Shah i.e. Nimulid (Nimesulide), SAAZ-DS (Sulfasalazine) and Carnisure etc. Dr. Shah may not be a Rheumatologist. He had treated complainant earlier with relief. Furthermore, discharge slip of Sahara Hospital shows that patient was suffering from thrombocytopaenia. Lefra was given her after discharge from Sahara Hospital.
This is a technical area and even experts cannot say with certainty as to what could be the causes or single cause for death. Judges are also not expert of this science. It has come thereafter patient was treated by Dr. Vipul Shah, number of doctors including super specialty doctors at Agra, Fortis and SGRH, New Delhi. According to informant, even those doctors could not make correct diagnosis and diagnosis made by SGRH, New Delhi was doubted by Fortis Hospital when super specialty Hospital differ on diagnosis, could a single act ought to be faulted for death, especially when this medicine was allegedly taken only for 18 days. She remained in various hospitals including two reputed hospitals nearly for two months. It is not on record that when she was admitted in SGRH or Pushpanjali Hospital, her liver had become completely damaged. There is no material whether she had taken all the medicines alongwith Lefra. Death was not instantaneous. Loaded dose of Lefra 100 mg was not prescribed, only 10 mg was prescribed. Death was caused nearly after two months and 20 days.
Is it possible to say with certainty that drug Lefra administered by Dr. Vipul Shah which patient took for 18 days, even if complaint case is accepted in toto, was the sole cause of liver damage and septicemia which could not be controlled by various hospitals detailed above.
Dr. Vipul Shah was suspended for three years by Medical Council of India for without properly explaining medicine's adverse effect. Moreover, he was not Rheumatologist. These material, prima facie, show that Dr. Shah had prescribed the medicines without properly informing the attendant with the side effects, may be or may not be in ignorance of its side effects. Can it be said that Dr. Vipul Shah was guilty of culpable homicide or will it be a case of gross criminal negligence. In the absence of any material showing that Dr. Shah had intention or knowledge that prescription of Lefra could cause death, could he be chargesheeted under Section 304 I.P.C.
Intention is an invisible fact which can be inferred from surrounding circumstances and pre and post conduct. Admittedly, complainant had earlier been patient of Dr. Shah who had treated his lower back pain with satisfaction. There was no enmity or reason for causing damage to liver. Moreover during the period wife was under treatment of different doctors, complainant kept on informing and consulting Dr. Shah. This displays faith on him. This could be an act of ignorance may be because of anxiety to show early relief, especially when parameters had progressed as is apparent from the report of Sahara Hospital. Doctor has to take number of decisions in the best interests of patient on the spot. Reaction of medicines on every body is different, in fact every body is different. As such, in the absence of any specific material, it could not be possible to charge a doctor with mens rea. He is supposed to keep best interests of patient in mind. Every medicine has some side effect. Sometimes in order to check greater damage or bring immediate relief, contraindicated medicines are prescribed and liver or kidney are taken care of by prescribing protective guards.
In the case of Carcinoma, drugs are prescribed which almost compromise the immunity of the body yet they are administered in order to save the life and liver and kidney guard medicines, enzymes,' bacterias for protecting elementary canal are prescribed. For preventing greater damage and for guarding other important organs of the body, some decision have to be left with the doctor and in such cases doctor cannot be faulted by Court. Needless to say that doctors are human. They only treat according to their knowledge, experience and wisdom. Criminal prosecution should not be initiated in every case of failure. This Court can very well visualize the agony of husband whose wife's condition was worsening day by day and he was running from doctor to doctor, hospital to hospital to save his wife. His efforts, helplessness do arouse emotional outrage. His mental agony, pressure and suffering are difficult to explain.
It was very difficult to endure this period and Court has full sympathy with the complainant but rigors of law can't be diluted so as to bring in criminal prosecution for murder.
Balancing act is expected from the Court. Medical profession and doctors have also to be saved from unnecessary litigation allowing them to discharge their duties fearlessly sans a lurking fear of Court/litigation and the ordeal it follows. He may be incompetent or negligent but not guilty of culpable homicide.
Sudhir Kumar Srivastava (complainant) has filed written statement and cited certain decisions. First case cited by complainant is a decision given by Division Bench of this Court given in the case of Dr. Arun Kumar Srivastava Vs. State of U.P. and others [writ petition no. 6587 of 2015 (MB)]. In this case, Bench observed that doctor had no training of leparoscopy surgery and he had done surgery in private hospital which was prohibited for the government doctor and patient was referred to private nursing home, albeit, all the facilities including ICU etc were available in Lohia Hospital. There was no emergency of immediate operation. In these facts, it was found that Section 304-A is not attracted. In this case patient had died due to extra ordinary bleeding as a result of injury to the inferior venacava.
In the case of State of Maharashtra Vs. Salman Salim Khan and another [(2004) 1 SCC 525], charge has been framed under Section 304-A of I.P.C. Hon'ble Apex Court upheld the judgment of the High Court directing to frame charge under Section 304-A I.P.C. and said that it is the discretion of Magistrate to alter it, if he comes with the conclusion that some graver offence is made out.
In the case of Mahadev Prasad Kaushik Vs. State of U.P. and another [(2008) 14 SCC 479], patient Buddha Ram had died within half an hour, immediately after accused administered three injections. Relevant paragraph nos. 26, 28, 29, 32 and 47 are being reproduced below:
"26. Before Section 304 can be invoked, the following ingredients must be satisfied (i) the death of the person must have been caused; (ii) such death must have been caused by the act of the accused by causing bodily injury; (iii) there must be an intention on the part of the accused (a) to cause death; or (b)to cause such bodily injury which is likely to cause death; (Part I) or (iv) there must be knowledge on the part of the accused that the bodily injury is such that it is likely to cause death (Part II).
28.The section deals with homicidal death by rash or negligent act. It does not create a new offence. It is directed against the offences outside the range of Sections 299 and 300, IPC and covers those cases where death has been caused without `intention' or `knowledge'. The words "not amounting to culpable homicide" in the provision are significant and clearly convey that the section seeks to embrace those cases where there is neither intention to cause death, nor knowledge that the act done will in all probability result into death. It applies to acts which are rash or negligent and are directly the cause of death of another person.
29. There is thus distinction between Section 304 and Section 304A. Section 304A carves out cases where death is caused by doing a rash or negligent act which does not amount to culpable homicide not amounting to murder within the meaning of Section 299 or culpable homicide amounting to murder under Section 300, IPC. In other words, Section 304A excludes all the ingredients of Section 299 as also of Section 300. Where intention or knowledge is the `motivating force' of the act complained of, Section 304A will have to make room for the graver and more serious charge of culpable homicide not amounting to murder or amounting to murder as the facts disclose. The section has application to those cases where there is neither intention to cause death nor knowledge that the act in all probability will cause death.
32. The learned counsel for the appellant-accused submitted that by no stretch of imagination, it can be said that the appellant while administering injections to deceased Buddha Ram said to have committed an offence punishable under Section 304, IPC. It can never be said that the death of Buddha Ram had been caused by the appellant by doing the act of giving injections with intention to cause his death or to cause such bodily injury as is likely to cause death. Likewise, it is impossible to think that the purported act has been done by the appellant-accused with the knowledge that in all probability, it would result into the death of Buddha Ram.
47.For the foregoing reasons, in our judgment, the appeal deserves to be partly allowed. So far as issuance of process for offences punishable under Sections 504 and 506, IPC is concerned, it is liable to be quashed and is hereby quashed. Likewise, process for an offence punishable under Section 304, IPC is ill-conceived on the facts of the case and the process could only be issued by the learned Magistrate to the appellant-accused for an offence punishable under Section 304A, IPC. The appeal is accordingly allowed to the extent indicated above."
(emphasis supplied) In this case too instantaneous death had occurred and Section 304 I.P.C. was not found to be applicable.
The case of Bhushan Kumar and another Vs. State (NCT of Delhi) and another [(2012) 5 SCC 424] is on the requirement of Magistrate to give reasons while taking cognizance.
The case of State of Orissa and another Vs. Saroj Kumar Sahoo [(2005) 13 SCC 540] is pertaining to criminal negligence and demonstrates the High Courts' powers under Section 482 Cr.P.C. Relevant para of the judgment is being reproduced below:
"It is to be noted that the investigation was not complete and at that stage it was impermissible for the High Court to look into materials, the acceptability of which is essentially a matter for trial. While exercising jurisdiction under Section 482 of the Cr.P.C., it is not permissible for the Court to act as if it was a trial Court. Even when charge is framed at that stage, the Court has to only prima facie be satisfied about existence of sufficient ground for proceeding against the accused. For that limited purpose, the Court can evaluate material and documents on records but it cannot appreciate evidence. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. In Chand Dhawan (Smt.) v. Jawahar Lal and Ors., [1992] 3 SCC 317, it was observed that when the materials relied upon by a party are required to be proved, no inference can be drawn on the basis of those materials to conclude the complaint to be unacceptable. The Court should not act on annexures to the petitions under Section 482 of the Cr.P.C., which cannot be termed as evidence without being tested and proved."
This case does not apply on the facts of present case. In this case, it has been held that order of taking cognizance can be examined by this Court under Section 482 Cr.P.C. Relevant paragraph is being reproduced below:
"Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the report, the court may examine the question of fact. When a report is sought to be quashed, it is permissible to look into the materials to assess what the report has alleged and whether any offence is made out even if the allegations are accepted in toto."
In this case at hand, Hon'ble Apex Court was pleased to dismiss the S.L.P. as chargesheet has been filed. After dismissal of appeal, cognizance has been taken by learned Magistrate vide order dated 11.03.2016 which order has been challenged in this Court.
Submission of complainant that petition is not maintainable, does not appeal as cause of action has arisen on account of impugned order passed by C.J.M., taking cognizance on 11.03.2016.
Allegations of concealment or manipulation or influencing investigation or change of investigation officer, are not being examined as chargesheet has been filed.
In view of the above, this Court is of the view that C.J.M. while taking cognizance has not considered the material nor given any specific reason for taking cognizance under Section 304 I.P.C. In fact, his order is laconic and non-speaking. Application was filed before C.J.M. and therefore, while considering the application, he ought to have applied his mind to material on record.
In view of the discussion made above, from the record of prosecution this Court is prima facie of the view that there was no justification to take cognizance under Section 304 I.P.C. However, considering the facts and circumstances of the case, it cannot be said that offence under Section 304-A I.P.C. is not made out.
Even otherwise C.J.M. is not bound by opinion of I.O. He has to apply his mind to the papers submitted by I.O. and then take a decision of taking cognizance. He is not supposed to put his seal on the conclusion drawn by the I.O.
Consequently, this petition succeeds in part. Chargesheet is not quashed. Order taking cognizance dated 11.03.2016, under Section 304/420 I.P.C. is quashed. Case for taking cognizance under Section 304-A/420 I.P.C. is definitely made out.
C.J.M. is directed to pass fresh order in the light of observations made above within a week from the date a certified copy of this order is filed before him.
Petitioner is directed to appear before the learned Magistrate within two weeks from today. If he surrenders within two weeks from today and apply for bail, his prayer for bail will be considered by C.J.M. in accordance with law, expeditiously, in view of the law laid down by Hon'ble Apex Court in the case reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. It is open for C.J.M. to resort to all the processes against petitioner which are admissible in law, if he does not surrender within fifteen days.
It is clarified that observations made in the judgment will not influence the trial which will be decided on the basis of evidence adduced before the trial court. It is always open to Magistrate to alter the charge if he finds that a graver offence is made out.
Order Date :-30/05/2016 kkv/