Kerala High Court
Sathy M. Pillai vs Sarma on 31 March, 2005
Equivalent citations: 2005CRILJ2814, 2005(2)KLT954, 2005 CRI. L. J. 2814, (2005) 2 KER LT 954, (2005) 33 ALLINDCAS 417 (KER), (2005) 2 KER LJ 227, (2005) 3 CURCRIR 271, (2005) 4 ALLCRILR 772
Author: K.P. Balachandran
Bench: K.P. Balachandran
ORDER K.P. Balachandran, J.
1. The petitioners in the former Criminal M.C. filed under Section 482 Crl.P.C. to quash Annexure-III private complaint are the accused therein. The said complaint is one filed by the first respondent before the Judicial First Class Magistrate No. 1, Attingal complaining of commission by the petitioners of offences punishable under Sections 120(b), 304 and 201 I.P.C. read with Section 34 thereof. The petitioners 1, 2 and 4 in the former Crl.M.C. are the petitioners in the latter Crl.M.C. filed under Section 482 Crl.P.C. wherein Annexure-II final report and. proceedings pursuant thereto are sought to be got quashed. The said Annexure-II final report is charge sheeting the petitioners for offences under Sections 120B, 304A, 465, and 468 I.P.C. read with Section 34 thereof. According to them Annexure-III private complaint in the former Crl.M.C. and Annexure-II final report in the latter Crl.M.C. are liable to be quashed invoking power of this Court under Section 482 Crl.P.C. those being misuse of the process of Court. The first respondent in the former Crl.M.C. at whose instance the law was set in motion which culminated in Annexure-II final report is not a respondent in the latter Crl.M.C.
2. The bundle of facts which has led to the complaint and the registration of crime which culminated in the final report sought to be quashed are the same and that can be stated briefly as follows:--
3. Chandrakala the deceased in the occurrence involved in the case is the wife of the first respondent in the former Crl.M.C. and it was at his instance the crime which culminated in the final report in the latter Crl.M.C. was registered. She was pregnant and was under care, and treatment of the first petitioner to avoid a second abortion as she had already undergone abortion of the first pregnancy. The first petitioner was running a private hospital at Attingal under the name and style "Samad Hospital". The deceased was admitted in the hospital on 25.4.1996 for bed rest and had been advised encirclage operation. Surgical intervention was accordingly performed on 23.5.1996 AN and the patient breathed her fast in the forenoon on 24.5.1996. Anaesthesia was being administered to the patient by the second petitioner who is the husband of the first petitioner. It is alleged that he was not a competent Anaesthetist. The third petitioner in Crl.M.C.No. 1138 of 2001 is a Gynecologist who was employed in the said hospital at the relevant time. She is not a party in Crl.M.C.No. 3682 of 2001. The 4th petitioners Crl.M.C.No. 1138 of 2001 is the third petitioner in Crl.M.C.No. 3682 of 2001 and she was the Nurse who assisted in the surgery. The allegation is that the patient Chandrakala died on account of criminal negligence of the petitioners and that they have further forged documents in relation to the treatment administered to the deceased and have caused disappearance of evidence of offence and have also given false information to screen the offender and have cheated the first respondent/complainant.
4. On the basis of Annexure-II first information statement (in Crl.M.C.No. 1138 of 2001) given by the first respondent, Annexure-I first information report (in Crl.M.C.No. 1138 of 2001) was registered. It is submitted that the investigation in the case that was being conducted by the Attingal police was taken over by the Crime Branch pursuant to direction given by this Court in O.P.No. 1382 of 1997. Even the Crime Branch Deputy Superintendent of Police who conducted the investigation did not conduct the investigation and submit final report and hence on the motion made by the de facto complainant filing O.P.25561 of 1998 this Court by Annexure-XI judgment dated 8.1.1999 (in Crl.M.C.No. 3682 of 2001) directed the Deputy Superintendent of Police to expedite the matter and to take steps to get the opinion of the Medical Board as per instructions of the Government in Annexure-III Memorandum (in Crl.M.C.No. 3682 of 2001) issued by Government and to file final report within three months. But no final report was filed till 18.8.1999. It was therefore that the de facto complainant filed Annexure-III (in Crl.M.C.No. 1138 of 2001) private complaint.
5. After the accused in Annexure-III private complaint filing Crl.M.C.No. 1138 of 2001 to quash the same, the Crime Branch Deputy Superintendent of Police submitted final report in the case which is Annexure-II in Crl.M.C.No. 3682 of 2001 and the accused therein consequently filed Crl.M.C.No. 3682 of 2001 to quash the said final report.
6. On hearing elaborate arguments of the counsel for the petitioners, the first respondent in Crl.M.C.No. 1138 of 2001 and the Public Prosecutor and on perusing the records of the case made available, I am unable to accept the contention of the petitioners that no wanton act or omission which can be categorised as criminal negligence is made out for the petitioners being tried for offences under Section 304 or 304A and that therefore both the private complaint and the final report are liable to be quashed allowing both Crl.M.Cs. The allegation and the records made available in the case show prima facie that a case of criminal negligence stands made out which if proved by evidence would warrant conviction of the petitioners for the offences alleged. Contention of the Public Prosecutor is that the burden to explain the cause of death in the circumstances of the case is also on the petitioners/accused as they are the only persons who are aware as to what transpired within the operation theatre where others had no access and how it could be said that there was no negligence on their part in administering treatment to the patient who breathed her last at their hospital. The postmortem finding is that the patient died of shock due to spinal anaesthesia. Considering the allegations in the complaint; Annexure-V report and Annexure-VI minutes respectively of the Medical Board and the Apex Body produced in Crl.M.C.3682 of 2001, it cannot be stated that the allegation in the first information report or final report even if taken at their face value do not prima facie constitute offences alleged in the complaint or do not disclose ingredients of cognizable offence as alleged.
7. While exercising jurisdiction under Section 482 Crl.P.C., it is impermissible for this Court to look into the material produced before this Court, the acceptability of which is essentially a matter for consideration at trial. Even when final report is filed, the Court has only prima facie to be satisfied about the existence of grounds for proceeding against the accused. Of course, for that limited purpose, the Court can evaluate materials or documents on record; but, it cannot appreciate evidence like a trial Judge. Apex Court in State of M.P. v. Awadh Kishore Gupta and Ors., 2003 AIR SCW 6501, held that when the materials relied on by a party are required to be proved, no inference can be drawn and the Court should not act on Annexures to the petition under Section 482 of the Code which cannot be termed as evidence without being tested and proved. It is true that the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise and powers shall be used sparingly as held by the Apex Court in State of Haryana and Ors. v. Bhajan Lal and Ors., 1992 Supp. (1) SCC 335. Apex Court in Union of India v. Prakash P. Hinduja and Anr., AIR 2003 SC 2612, observed as follows:--
"9. Section 482, Cr.P.C. saves inherent powers of the High Court and such a power can be exercised to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The power can therefore be exercised to quash the criminal proceedings. The grounds on which the prosecution initiated against an accused can be quashed by the High Court in exercise of power conferred by Section 482, Cr.P.C., has been settled by a catena of decisions of this Court rendered in R.P. Kapoor v. State of Punjab, AIR 1960 SC 866; Madhu Limaye v. State, AIR 1978 SC 47; Delhi Municipality v. Ram Kishan, AIR 1983 SC 67; Raj Kapoor v. State, AIR 1980 SC 258. The matter was examined in considerable detail in State of Haryana v. Bhajan Lal, AIR 1992 SC 604 and after review of practically all the earlier decisions, the Court in para. 108 of the Reports laid down the grounds on which power under Section 482, Cr.P.C. can be exercised to quash the criminal proceedings and basically they are (1) where the allegations made in the F.I.R. or complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, (2) where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused, (3) where there is an express legal bar engrafted in any of the provisions of the Code of Criminal Procedure or the concerned Act to the institution and continuance of the proceedings. But this power has to be exercised in a rare case and with great circumspection."
After discussing the entire case law on the subject, Apex Court held in State of Andhra Pradesh v. Goloconda Linga Swamy and Anr., 2004 AIR SCW 4329 that:--
"10.......... Whether the material already in existence or to be collected during investigation would be sufficient for holding the concerned accused persons guilty has to be considered at the time of trial. At the time of framing the charge it can be decided whether prima facie case has been made out showing commission of an offence and involvement of the charged persons. At that stage also evidence cannot be gone into meticulously. It is immaterial whether the case is based on direct or circumstantial evidence. Charge can be framed, if there are materials showing possibility about the commission of the crime as against certainty. That being so, the interference at the threshold with the F.I.R. is to be in very exceptional circumstances."
Proceedings are not liable to be quashed in this case for the reason that the allegations in the complaint and F.I.R. and the materials collected during investigation prima facie disclose offences under Sections 304/304A I.P.C. as also under Sections 120(b), 465, 468 and 201 I.P.C. read with Section 34 thereof though the question as to whether it is actually proved or not can be decided only after trial.
8. It is finally urged by counsel for the petitioners that the Apex Body did not afford sufficient opportunity of being heard to the first petitioner and that on her representation the Government has vide Annexure-VII (in Crl.M.C.No. 3682 of 2001) directed the Director of Health Services to reconsider the matter after giving her opportunity of being heard; that though Annexure-VIII (in Crl.M.C.No. 3682 of 2001) letter had been issued requesting her to appear at 11 A.M. on 14.2.2001, the Apex Body meeting did not take place and thereafter the Apex Body did not either give notice or meet and that the final report submitted without a reconsideration of the report of the Apex Body giving her an opportunity of being heard as afforded by Annexure-VII letter of the Government, is premature. There is force in the argument so advanced as the final report has been submitted without a reconsideration of the matter by the Apex Body as directed by the Government in Annexure-VII. It is true that, usually, this Court will not interfere in the investigation conducted by the police as held in the Prakash Hinduja's case (supra) at paragraph 19 as follows:--
"19. Thus the legal position is absolutely clear and also settled by judicial authorities that the Court would not interfere with the investigation or during the course of investigation which would mean from the time of the lodging of the First Information Report till the submission of the report by the officer-in-charge of police station in Court under Section 173(2), Cr.P.C., this field being exclusively reserved for the investigating agency".
It is also true that as held in H.N. Rishbud and Inder Singh v. State of Delhi (1955 Crl.LJ.526), even if there is any irregularity, the trial will not be vitiated.
9. Here, in the instant case no mandatory statutory provision is violated in the investigation and the defect in investigation if any does not affect the competence and jurisdiction of the trial. But, that will not prevent the Court from directing the police to file a further report, or police filing further report. In the circumstances of this case it is felt that the Investigating Officer has to be directed to conduct further investigation and submit final report afresh under Section 173(8) Crl.P.C. in C.C.No. 258 of 2001 on the file of the Judicial First Class Magistrate's Court-I, Attingal registered on Annexure-II final report. So then the proceedings in C.P.No. 1 of 2001 pending before the same Court on the basis of Annexure-III complaint (in Crl.M.C. 1138 of 2001) deserves to be stayed adopting the procedure prescribed in Section 210 Crl.P.C.
10. In the circumstances the Investigating Officer who submitted Annexure-II final report shall conduct further investigation in the case getting a fresh report from the Apex Body in view of the direction communicated to the first petitioner vide Annexure-VII letter produced in Crl.M.C.No. 3682 of 2001. The Apex Body shall be convened with notice to the first petitioner and report in the matter shall be furnished to the Investigating Officer within three months from the date of receipt of a copy of this order by the Director of Health Services. The second petitioner who is the husband of the first petitioner shall also be entitled to appear before the Apex Body along with the first petitioner to have his say if he so chooses though however he shall not be entitled to any separate notice from the Apex Body. The first respondent in Crl.M.C. 1138 of 2001 shall be supplied with three free copies of this order one each to be produced before the Investigating Officer; Judicial First Class Magistrate's Court-I, Attingal and the Director of Health Services for appropriate follow up action being expedited. The Investigating Officer shall do the needful in the matter; shall complete further investigation in the case and shall submit final report within six months from the date of receipt of a copy of this order. The Public Prosecutor shall forthwith give appropriate directions to the officers in the departments concerned to avoid any further avoidable delay in the further investigation in the case which is almost 9 years old by now. In relation to C.P.No. 1 of 2001 registered on Annexure-III private complaint the learned Magistrate shall adopt the procedure prescribed in Section 210 Crl.P.C. These Crl.M.Cs. are disposed of with the above directions.