Jharkhand High Court
Mr. Shishir Chand vs State Of Jharkhand Through Principal ... on 27 April, 2023
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(Cr.) No. 106 of 2019
Mr. Shishir Chand ..... ... Petitioner
Versus
1. State of Jharkhand through Principal Secretary,
Home Department, Govt. of Jharkhand, Ranchi.
2. CB-CID of Jharkhand Police, through Investigating
Officer Smt. Minakshi, CID Office, Bistupur, Jamshedpur.
3. Union of India through its Director
Central Bureau of Investigation, New Delhi. ...... ... Respondents.
with
Cr.M.P. No. 2677 of 2020
Shishir Chand ..... ... Petitioner
Versus
1. State of Jharkhand.
2. Tata Main Hospital, represented by its General manager,
Medical Services, Inner Circle, Bistupur, Jamshedpur.
3. Dr. Atul Chhabra, TMH Tubes Dispensary,
Inside Tubes Plant, Burma Mines, Jamshedpur. .. ... Opposite Parties
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Rajeeva Sharma, Sr. Advocate.
: Mrs. Rita Kumari, Advocate
For the State : Mr. Shreenu Garapati, S.C.-III.
: Mr. R.R. Verma, A.C. to S.C.-III
For the CBI : Mr. P.A.S. Pati, Advocate.
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09/ 27.04.2023 Heard Mr. Rajeeva Sharma, learned senior counsel appearing for the petitioner, Mr. Shreenu Garapati, learned S.C.-III for the State and Mr. P.A.S. Pati, learned counsel appearing for the CBI.
2. In W.P.(Cr.) No. 106 of 2019, prayer has been made to transfer the investigation of FIR, being Bistupur P.S. Case No. 164 of 2014 corresponding to G.R. No. 1443 of 2014, registered for the offence under Sections 304/304-A of IPC against Dr. Atul Chhabra to the Central Bureau of Investigation. Prayer has also been made to direct the respondents to compensate the petitioner.
3. Cr.M.P. No. 2677 of 2020 has been filed by the same petitioner for restoration of Criminal Revision No. 10 of 2020 {in Criminal Case No. 1754 of 2019}, which was dismissed for non- prosecution vide order dated 01.02.2020.
4. Reference may be made to the order dated 20.01.2022, in which, in detail it has been recorded how this matter was taken up on priority basis as well as adjourned for what reason.
-2-5. Mr. Rajeeva Sharma, learned senior counsel appearing for the petitioner submits that the petitioner is the elder brother of the deceased Late Vishal Chand, who died due to gross medical negligence on part of Dr. Atul Chhabra. He further submits that Vishal Chand was aged 33 years and in ICWA qualified finance professional working with Timken India as Assistant Manager-Finance. He further submits that Dr. Chhabra was employed as Senior Surgeon-Causality with Tata Main Hospital, Jamshedpur run by Tata Steel and has since been removed from services of the Main Hospital at Bistupur, Jamshedpur by the Management of Tata Steel. He further submits that on 20.05.2011 at about 10.30 PM, the brother of the petitioner felt extreme uneasiness and experienced severe chest pain during late evening hours and was immediated rushed to the emergency ward of the Tata Main Hospital by his driver. He further submits that the Late Vishal Chand was attended by Dr. Chhabra, as he was in the Emergency Ward, wherein the accused doctor recorded the blood pressure of the deceased and thereafter conducted an ECG and found that the pressure of the deceased was severely elevated at 150/100 and the ECG of the patient was highly irregular, in spite of that diagnosis of BP and ECG, he has treated the deceased as gastritis. He further submits that the doctor failed to understand that it was an alarm of heart attack and thereafter his brother was asked to go to home and he returned home. He further submits that in the next morning while he was on work, severe chest pain was there and he was taken to TIMKEM Hospital at Jamshedpur and while he was yet to be examined by the concerned doctor, the pain was there and he died. He submits that this shows the negligence upon Dr. Chhabra and that's why the matter was investigated by the CID and the CID has submitted showing that no offence is made out. Pursuant to that, the petitioner filed a protest petition before the learned Trial Court, which was numbered as C/1 Case No. 1754 of 2019, which was dismissed for default. He submits that the said order of dismissal was challenged before the learned revision court in Criminal Revision No. 10 of 2020, which was also dismissed after hearing the parties. He further submits that Cr.M.P. No. 2677 of 2020 has been filed for restoration of the Criminal Revision No. 10 of 2020.
6. Mr. Sharma, learned senior counsel further elaborates his arguments by way of submitting that the documents of the doctor is not -3- genuine and this aspect of the matter is being fortified in view of the contrary statement of the Ranchi University as well as MGM hospital. He submits that the Ranchi University has reported the information, sought under the RTI Act. He further submits that the Ranchi University filed a counter affidavit before the Delhi High Court, which is contained in Annexure-22, wherein it has been stated that the said doctor was found to be passed and his name was recommended for MGM Hospital, Jamshedpur. The said doctor passed such examination under the 85% quota of the State of Bihar in the Pre-Medical Test. He submits that MGM Hospital reported that he is not selected in 15% CBSE quota. He further submits that a life has been snatched by Dr. Chhabra and in view of Article 21 of the Constitution of India, liberty of any person cannot be taken away like this and it is a fit case to transfer the same to CBI for further investigation. He further submits that only based on the judgment of the Delhi High Court, the CID has submitted the closure report and against the report of the Ranchi University, which is unwarranted and in that view of the matter, it is a fit case to reopen the investigation.
7. On the aforesaid grounds, learned senior counsel appearing for the petitioner submits that the case may kindly be transferred to CBI and Cr.M.P. No. 2677 of 2020, filed for restoration or Criminal Revision No. 10 of 2020 may kindly be allowed.
8. On the other hand, Mr. Shreenu Garapati, learned S.C.-III appearing for the respondent-State at the outset submits that this petitioner has filed four cases against Dr. Chhabra in four States. He further submits that the alleged incident has occurred in the year 2011 while the present FIR is lodged in the year 2014 and on the request of the petitioner, the Government of Jharkhand has handed over the investigation of the case to the CID in the year 2015. He draws the attention of the court to the judgment of the Delhi High Court in W.P.(S) No. 277 of 2017 and submits that three prayers have been made therein. He further submits that the prayer No. 3 was with regard to degree verification of Dr. Chhabra and that prayer was not accepted by the Delhi High Court considering that respondent No. 4 has filed an affidavit, which clearly affirms that respondent No. 2 had passed his MBBS final exams held in April, 1995 and the respondent No. 4 has produced a tabular statement, indicating the marks obtained by respondent No. 2 and the respondent No. 2 is -4- Dr. Chhabra before the Delhi High Court. He further submits that the said order was challenged before the Division Bench of the Delhi High Court in L.P.A. No. 693 of 2017, which was also dismissed by the order dated 26.04.2018. He submits that the said LPA order was challenged before the Hon'ble Supreme Court of India in SLP (Civil) Diary No. 41865 of 2018, which was also dismissed vide order dated 22.11.2018. He further submits that after dismissal of the writ petition by the Delhi High Court, the present writ petition was filed on 09.04.2019. He submits that no case of further reinvestigation is made out when the decree matter of Dr. Chhabra has attained the finality up to Hon'ble Supreme Court.
9. Mr. P.A.S. Pati, learned counsel appearing for the CBI draws the attention of the court to page-204 of the writ petition, which is a letter issued by the Superintendent of Police, CID Ranchi addressed to the Superintendent of Police, Crime Investigation Department, Ranchi, stating therein that Ranchi University has informed that document with regard to Dr. Chhabra is correct.
10. In view of the above submissions of the parties, the court has gone through the materials available on record and has given anxious consideration on the submissions of the parties and finds that brother of the petitioner was treated by Dr. Chhbra in the evening of 20.05.2011 and after his check up, he has discharged him and he has safely come to the home, however, in the next morning he was attending his duty and in course of discharging his duties he felt chest pain and that is how his one of the friend took him to nearby TIMKEM Hospital at Jamshedpur and before examining of the doctor concerned in the hospital, he died due to cardiac arrest. Thus, this is not a case that the death has occurred while being treated by Dr. Chhabra, as he has safely sent back the brother of the petitioner to his house. Further, the degree aspect of Dr. Chhabra, has attained the finality in view of the judgment of the Delhi High Court in W.P.(C) No. 277 of 2017, wherein the Delhi High Court has held that the respondent No. 4 has also produced a tabular statement, indicating the marks obtained by respondent No. 2 and the respondent No. 2 is Dr. Chhabra before the Delhi High Court and the said order was examined by the Division Bench of Delhi High Court in L.P.A. No. 693 of 2017 and no illegality was found by the Division Bench and thereafter the said LPA was dismissed. The LPA order was also challenged before the Hon'ble -5- Supreme Court in SLP (Civil) Diary No. 41865 of 2018, which was also dismissed. Thus, degree aspect has already been attained the finality of Dr. Chhbra up to Hon'ble Supreme Court.
11. Further the documents annexed with the writ petition, particularly at page-204, which is letter issued by the Superintendent of Police, CID Ranchi suggests that the Controller of Examination of Ranchi University informed that the degree of Dr. Chhabra is correct. Even in the counter affidavit, filed by the Ranchi University before the Delhi High Court, on which, much emphasis has been made by learned senior counsel appearing for the petitioner, wherein the Ranchi University has not disputed the fact of genuineness of passing of Dr. Chhabra. It is not necessary to consider at this stage whether Dr. Chhbara was admitted on any quota or under any concession of either of the Government, when he has obtained the degree pursuant to such admission and the degree is not disputed either by the MCI or the concerned University or Medical College.
12. There is no doubt that the High Court sitting under Article 226 of the Constitution of India can hand over the case to investigate by CBI, if materials are brought before the court. The order of the court unambiguously should state as to whether the previous investigation, for reasons to be recorded, is incapable of being acted upon and in this regard reference may be made to the case of Vinay Tyagi v. Irshad Ali, reported in (2013) 5 SCC 762, wherein the Hon'ble Supreme Court in paras-23, 43 and 44 held as follows:-
"23. However, in the case of a "fresh investigation", "reinvestigation" or "de novo investigation" there has to be a definite order of the court. The order of the court unambiguously should state as to whether the previous investigation, for reasons to be recorded, is incapable of being acted upon. Neither the investigating agency nor the Magistrate has any power to order or conduct "fresh investigation".
This is primarily for the reason that it would be opposed to the scheme of the Code. It is essential that even an order of "fresh"/"de novo"
investigation passed by the higher judiciary should always be coupled with a specific direction as to the fate of the investigation already conducted. The cases where such direction can be issued are few and far between. This is based upon a fundamental -6- principle of our criminal jurisprudence which is that it is the right of a suspect or an accused to have a just and fair investigation and trial. This principle flows from the constitutional mandate contained in Articles 21 and 22 of the Constitution of India. Where the investigation ex facie is unfair, tainted, mala fide and smacks of foul play, the courts would set aside such an investigation and direct fresh or de novo investigation and, if necessary, even by another independent investigating agency. As already noticed, this is a power of wide plenitude and, therefore, has to be exercised sparingly. The principle of the rarest of rare cases would squarely apply to such cases. Unless the unfairness of the investigation is such that it pricks the judicial conscience of the court, the court should be reluctant to interfere in such matters to the extent of quashing an investigation and directing a "fresh investigation".
43. At this stage, we may also state another well-
settled canon of the criminal jurisprudence that the superior courts have the jurisdiction under Section 482 of the Code or even Article 226 of the Constitution of India to direct "further investigation", "fresh" or "de novo" and even "reinvestigation". "Fresh", "de novo" and "reinvestigation" are synonymous expressions and their result in law would be the same. The superior courts are even vested with the power of transferring investigation from one agency to another, provided the ends of justice so demand such action. Of course, it is also a settled principle that this power has to be exercised by the superior courts very sparingly and with great circumspection.
44. We have deliberated at some length on the issue that the powers of the High Court under Section 482 of the Code do not control or limit, directly or impliedly, the width of the power of the Magistrate under Section 228 of the Code. Wherever a charge-
sheet has been submitted to the court, even this Court ordinarily would not reopen the investigation, especially by entrusting the same to a specialised agency. It can safely be stated and concluded that in an appropriate case, when the Court feels that the investigation by the police authorities is not in the proper direction and that in order to do complete justice and where the facts of the case demand, it is always open to the Court to hand over the -7- investigation to a specialised agency. These principles have been reiterated with approval in the judgments of this Court in Disha v. State of Gujarat, Vineet Narain v. Union of India, Union of India v.
Sushil Kumar Modi and Rubabbuddin Sheikh v. State of Gujarat."
13. The investigation in the case pursuant to Bistupur P.S. Case No. 164 of 2014, lodged by the petitioner was conducted by none other than the CID and nothing contrary has been brought into the knowledge of the court. The Court is not finding any reason why investigation at this stage be entrusted to any Central Investigation Agency. There is no doubt the right of life guaranteed under Article 21 of the Constitution of India includes a right of a person to live without any fear or is living as a law abiding citizen. Thus, it is crystal clear that the decision to direct any inquiry by the CBI against a person can only be done if the High Court after considering the materials on record comes to the conclusion that such materials does disclose a prima facie case calling for investigation by the CBI or any other independent central agency.
14. Considering the judgments of Delhi High Court, Division Bench of Delhi High Court as well as Hon'ble Supreme Court and also the report of MCI and the certification controller of Ranchi University and the affidavit of Ranchi University before the Delhi High Court, the court comes to the conclusion that there is no prima facie finding can be arrived that this is a fit case to transfer it to the CBI. Accordingly, the prayer made in the writ petition is dismissed. As such, the writ petition is dismissed.
15. The petitioner has filed protest petition, which was numbered as Criminal Case No. 1754 of 2019 and after filing of the protest petition, the petitioner has not appeared on several dates before the learned court to contest the same and thereafter the said complaint was dismissed for default and the court has recorded that since 24.06.2019 till 16.12.2019, i.e. for about six months, the complainant has not appeared and that's why the said case was dismissed for default. Against that order, the petitioner referred Criminal Revision No. 10 of 2020, which was also dismissed, however, on contest. The revisional court has recorded that the complainant wanted to examine on SA and he was seeking exemption from physical appearance, and in spite of giving several opportunity for appearance, he has failed to appear and in that view of the matter, the learned revisional court has dismissed the revision petition. There is -8- cogent reason for passing the said order by the revisional court.
16. Once there is no illegality in the order of the revisional court in the garb of Section 482 Cr.P.C, second revision is not maintainable. Accordingly, the Cr.M.P. No. 2677 of 2020 is also dismissed.
17. Pending I.As, if any, in any of the cases, stands dismissed.
(Sanjay Kumar Dwivedi, J.) Amitesh/-