Himachal Pradesh High Court
Shashi Pal vs State Of Himachal Pradesh And Another on 7 July, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CrMMO No. 343/2015
Reserved on: July 5, 2016
Decided on: July 7, 2016
.
_________________________________________________________________
Shashi Pal ...........Petitioner
Versus
State of Himachal Pradesh and another ..........Respondents
_________________________________________________________________
Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge
Whether approved for reporting? 1 yes.
of
For the petitioner : Mr. N.K. Thakur, Senior Advocate
with Ms. Jamuna Kumari,
Advocate.
For the respondents
rt : Mr. Parmod Thakur, Additional
Advocate General, for respondent
No. 1.
Mr. Rajesh Mandhotra, Advocate,
for respondent No. 2.
_________________________________________________________________
Rajiv Sharma, Judge (oral)
This petition is directed against Order dated 15.9.2015 rendered by the learned Judicial Magistrate 1st Class (IV) Una, District Una, HP in Criminal Complaint No. 128-I-14 under Section 156(3) CrPC, whereby request of the petitioner for registering a case under Sections 166-B, 337 and 338 IPC, has been rejected. .
2. "Key facts" necessary for the adjudication of the present petition are that the petitioner is a permanent resident of villaeg Bharolian Kalan, Tehsil and District Una, Himachal Pradesh and has got a daughter named Alka Sharma. She is 20 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:46:32 :::HCHP 2years of age. On 19.4.2014, Alka Sharma complained of stomach pain and petitioner took her to Regional Hospital, Una and after giving some medicines, she was sent back. She was .
attended by Dr. Bansal. Again on 5.5.2014, Ms. Alka Sharma, complained about the pain and she was taken to the Regional Hospital Una. She was admitted in the hospital by Dr. Bansal.
Alka had been taking medicines as prescribed by Dr. Bansal.
of On 22.5.2014, in the midnight she again complained of pain in the stomach. On 23.5.2014 she was taken to hospital where Dr. rt Bansal advised some tests and after seeing the report of the tests, Ms. Alka was referred to respondent No. 2. Respondent No.2 advised ultrasound. Respondent No.2 observed that the patient had a problem of appendix which had burst. Operation was done on 23.5.2014. Thereafter, respondent No.2 told the petitioner that food pipe of patient was damaged and she was kept under observation till 25.5.2014. On 26.5.2014, respondent No.2 cleaned the operated surface and replaced the gauge. Till 31.5.014, respondent No. 2 never visited the patient despite repeated requests. On 31.5.2014, condition of the patient deteriorated. Dr. Dharoch referred the patient to PGI Chandigarh. Alka Sharma was taken to PGI Chandigarh. Head of Department, Department of General Surgery, Chandigarh supplied information on the request of petitioner on medical report of the patient. Medical report dated 27.2.2015 is at ::: Downloaded on - 15/04/2017 20:46:32 :::HCHP 3 Annexure P-1, relevant portion of which is reproduced herein below:
"Patient Alka (C.R. No. 201402864300) who was .
admitted through emergency services of PGIMER, Chandigarh on 31.5.2014 with diagnosis of faecal fiotula following surgery for appendicular perforation on 23.5.2014 in a hospital at RH, Una (HP). She underwent lapurtomy and ileotrass verse anastomosis in the above mentioned hospital. She was re-exaplored in emergecny of at PGIMER, Chandigarh at 31.5.2014 with a diagnosis of faecal fiotula where leak was found from the Ileotrass verse anastomosis with multiple perforation in the terminal ileum although the disclosure of caecum was rt intact. Therefore, right hemicolectomy was done with end ileostomy and also distal mucous fistula was made .
comparison of caecum is an uncommon differential diaprosis for acute appendicitis. Anastomotic leak is a known complication after any gastrointestinal anastomosis. Therefore, it cannot be affirmatively concluded that the treating doctor was negligent while performing his duties."
3. Petitioner's father made a complaint under Section 156 (3) CrPC for giving necessary directions to the SHO Sadar, Una, for registering an FIR under relevant sections/ provisions of law. Learned JMIC (IV), Una, dismissed the complaint on 15.9.2015 by making observation that the complaint filed by the petitioner was not supported by any affidavit and it can not be concluded that the doctor was negligent in performance of his duties as per expert report from PGI dated 27.2.2015.
4. Mr. N.K. Thakur, learned Senior Advocate has vehemently argued that the Ms. Alka was not suffering from ::: Downloaded on - 15/04/2017 20:46:32 :::HCHP 4 appendicitis. She had been wrongly operated for the problem of appendicitis. According to him, as per report of the PGI, respondent No. 2 was negligent in duties. He further contended .
that the order passed by the court below was unwarranted and uncalled for and the matter is to be investigated by the police.
5. Mr. Rajesh Mandhotra, Advocate has supported Order dated 15.9.2015.
of
6. I have heard the learned counsel for the parties at length and also gone through the record carefully.
7.
rt
Alka Sharma was taken to the hospital
19.4.2014 and thereafter on 5.5.2014. She felt severe pain in on the stomach on 23.5.2014. She was operated upon by respondent No. 2 on 23.5.2014. Her health deteriorated. She was taken to PGI Chandigarh. She was operated upon with the diagnosis of faecal fiotula where leak was found from the ileotrass verse anastomosis with multiple perforation in the terminal ileum although the disclosure of caecum was intact.
Surgeon has undertaken right hemicolectomy with end ileostomy and also distal mucous fistula was made.
8. Mr. Rajesh Mandhotra, Advocate submits that his client on 26.5.2014 was out of station but he was in constant touch with Dr. Indu Bhardwaj. According to the contents of reply, patient was advised not to take food. However, ryles tube of patient was removed and some food was given to the patient against the advice of the doctor, which led to deterioration of the ::: Downloaded on - 15/04/2017 20:46:32 :::HCHP 5 condition of patient. It is evident from the report, reproduced above, that it was not a case of appendicitis, rather she was diagnosed in PGI for faecal fiotula where leak was found from the .
ileotrass verse anastomosis with multiple perforation in the terminal ileum although the disclosure of caecum was intact.
Right hemicolectomy with end ileostomy and also distal mucous fistula was done. Report of the PGI if read in its totality leaves of no manner of doubt that respondent No. 2 was prima facie negligent in diagnosing the disease and has operated the patient rt primarily for appendicitis though, as per report of PGI, there was faecal fiotula where leak was found from the ileotrass verse anastomosis with multiple perforation in the terminal ileum although the disclosure of caecum was intact. Court has also gone through annexure R-2 filed with the reply.
9. Whether the condition of Alka Sharma has deteriorated as argued by Mr. Rajesh Mandhotra, Advocate, after removal of food pipe or not, would be clear from the evidence adduced by the parties.
10. Contents of annexure P-3, complaint, prima facie disclose negligence of respondent No.2 while treating Ms. Alka Sharma. Learned Judicial Magistrate 1st Class has erred in law by dismissing the complaint only on the ground that no affidavit was filed.
11. Their Lordships of the Hon'ble Supreme Court in Priyanka Srivastava v. State of U.P. reported in (2015) 6 SCC ::: Downloaded on - 15/04/2017 20:46:32 :::HCHP 6 287 have held that application under Section 156(3) CrPC seeking direction for registration of FIR must be supported by an affidavit. Purpose of filing of such affidavit is to prevent .
abuse of process. Their lordships have further held that remedy available under Section 156(3) CrPC is not of routine nature.
Exercise of power thereunder requires application of judicial mind. Magistrate exercising said power must remain vigilant of with regard to nature of allegations made in application and not to issue direction without proper application of mind. Their rt lordships have held as under:
20. The learned Magistrate, as we find, while exercising the power under Section 156(3) Cr.P.C. has narrated the allegations and, thereafter, without any application of mind, has passed an order to register an FIR for the offences mentioned in the application. The duty cast on the learned Magistrate, while exercising power under Section 156(3) Cr.P.C., cannot be marginalized. To understand the real purport of the same, we think it apt to reproduce the said provision:
"156. Police officer's power to investigate congnizable case. -(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was no empowered under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned."
27. Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order. The present is a case where the accused persons are serving in high positions in the bank. We are absolutely conscious that the position does not matter, for nobody is above law. But, the learned Magistrate should take note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. It is also to ::: Downloaded on - 15/04/2017 20:46:32 :::HCHP 7 be noted that when a borrower of the financial institution covered under the SARFAESI Act, invokes the jurisdiction under Section 156(3) Cr.P.C. and also there is a separate procedure under the Recovery of Debts due to Banks and Financial Institutions Act, 1993, an attitude of more care, caution and circumspection has to be adhered to.
.
30. In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without of taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue rt advantage in a criminal court as if somebody is determined to settle the scores.
31. We have already indicated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an the application under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.
12. Their Lordships of the Hon'ble Supreme Court in Ramdev Food Products (P) Ltd. v. State of Gujarat reported in (2015) 6 SCC 439 have held that power to direct investigation under Section 156 (3) CrPC is distinguished from power to ::: Downloaded on - 15/04/2017 20:46:32 :::HCHP 8 direct investigation under Section 202(1) CrPC. Their lordships have further held that where on account of credibility of information available, or weighing the interest of justice, it is .
considered appropriate to straightaway direct investigation, a direction under Section 156(3) CrPC is issued. Power under Section 202 CrPC is available for limited purpose to seek report from police to decide whether or not there is sufficient of ground to proceed in the case. Their lordships have held as under:
rt [14] The two provisions are in two different chapters of the Code, though common expression 'investigation' is used in both the provisions. Normal rule is to understand the same expression in two provisions of an enactment in same sense unless the context otherwise requires. Heading of Chapter XII is "Information to the Police and their Powers to Investigate"
and that of Chapter XV is "Complaints to Magistrate". Heading of Chapter XIV is "Conditions Requisite for Initiation of Proceedings". The two provisions i.e. Sections 156 and 202 in Chapters XII and XV respectively are as follows :
"156. Police officer's power to investigate cognizable case.
(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under section 190 may order such an investigation as above- mentioned.
202. Postponement of issue of process.- (1) Any Magistrate , on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under section 192, may, if he thinks fit, [and shall in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:::: Downloaded on - 15/04/2017 20:46:32 :::HCHP 9
Provided that no such direction for investigation shall be made, -
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or
(b) where the complaint has not been made by a Court, .
unless the complainant and the witnesses present (if any) have been examined on oath under section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub-section (1) is made by of a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant."
15. Cognizance is taken by a Magistrate under Section 190 (in Chapter XIV) either on "receiving a complaint", on "a police rt report" or "information received" from any person other than a police officer or upon his own knowledge.
38. In Devrapalli Lakshminaryanan Reddy & Ors. vs. V. Narayana Reddy & Ors, 1976 3 SCC 252 National Bank of Oman vs. Barakara Abdul Aziz & Anr, 2013 2 SCC 488 Madhao & Anr. vs. State of Maharashtra & Anr, 2013 5 SCC 615 Rameshbhai Pandurao Hedau vs. State of Gujarat, 2010 4 SCC 185, the scheme of Section 156(3) and 202 has been discussed. It was observed that power under Section 156(3) can be invoked by the Magistrate before taking cognizance and was in the nature of pre-emptory reminder or intimation to the police to exercise its plenary power of investigation beginning Section 156 and ending with report or chargesheet under Section 173. On the other hand, Section 202 applies at post cognizance stage and the direction for investigation was for the purpose of deciding whether there was sufficient ground to proceed.
13. It is a fact that the affidavit has not been filed with the application filed by the petitioner being ignorant of the procedure. However, the present petition has been duly supported by an affidavit. In normal circumstances, Court might have remanded the matter to the Judicial Magistrate 1st Class with a direction to permit the petitioner to file an affidavit alongwith the complaint. However, in the interests of justice, since affidavit has been filed with this petition, it would amount ::: Downloaded on - 15/04/2017 20:46:32 :::HCHP 10 to sufficient compliance and the matter need not be remanded back to the court below.
14. Accordingly, the present petition is allowed. Order .
dated 15.9.2015 rendered by the learned Judicial Magistrate 1st Class (IV) Una, District Una, HP in Criminal Complaint No. 128- I-14 is quashed and set aside. Station House Officer, Police Station Sadar, Una, District Una, Himachal Pradesh is directed of to register a case under Sections 166-B, 337 and 338 IPC against respondent No.2, forthwith and to complete the rt investigation within three months.
(Rajiv Sharma) Judge July 7, 2016 (vikrant) ::: Downloaded on - 15/04/2017 20:46:32 :::HCHP