Delhi District Court
Raj Kishore Goel vs The State N.C.T. Of Delhi And Ors on 30 April, 2024
IN THE COURT OF SHRI ARVIND BANSAL
ADDL.SESSIONS JUDGE-05 (SHAHDARA DISTRICT)
KARKARDOOMA COURTS : DELHI
Criminal Revision No. 137/2022
Raj Kishore Goel
s/o Shri Nanak Chand Goel
r/o H. No. 406, Krishna Gali No. 10,
Adarsh Mohalla, Maujpur, Delhi-110053.
....... Revisionist
Vs.
(1) State of NCT of Delhi
(2) Dr. Sunita Gupta
(3) Dr. Mukesh Kumar Gupta @ Dr. M.K. Gupta
(4) Shivani Maternity & Ultrasound Centre
(through Respondent No. 2 & 3)
All at 1/9642, Bahl Street, Hanuman Road,
West Rohtash Nagar, Shahdara, Delhi-110032.
...... Respondents
Date of institution : 30.09.2022
Date of reserving order : 27.02.2024
Date of order : 30.04.2024
ORDER
1. This revision has been filed challenging the order dated 05.09.2022 (hereinafter referred to as the 'impugned order') passed by Ld. CMM, Shahdara District, in case titled 'State vs. Cancellation' arising out of FIR No.182/2019.
2. By the impugned order, Ld. Trial Court dismissed the protest petition filed by the revisionist and accepted the cancellation report filed in FIR No.182/2019 which came to be registered only on an order passed by such Court in an application u/s 156 (3) Cr.P.C.
Raj Kishore Goel vs. The State & Ors.
ARVIND Digitally signed by ARVIND BANSAL Page 1 of 7 BANSAL 15:46:04 +0530 Date: 2024.04.30
3. The brief factual background relevant for disposal of the present revision is that on 10.01.2018, wife of the revisionist namely Smt. Chanchal Goel was admitted at Shivani Maternity & Ultrasound Center in best of her health and with no history of any complications, for the purpose of delivery of her child. Even during her pregnancy, wife of the revisionist was receiving treatment from one Dr. Sunita Gupta and Dr. Mukesh Kumar Gupta (hereinafter referred to as 'respondents'). On the advise and assurance to perform surgery by the respondents, revisionist and his wife agreed to undergo delivery by cesarean section surgery at the nursing home of the respondents i.e. Shivani Maternity and Ultrasound Centre.
4. On 11.01.2018, at 06:50 AM, wife of the revisionist gave birth to a baby but soon thereafter complained of severe pain in stomach and abdomen. Despite being informed, respondents did not pay any heed to the condition of the wife of the revisionist which kept deteriorating. When her condition worsened, respondents referred the wife of the revisionist to a higher center for management. Revisionist, accordingly, shifted his wife to St. Stephen's Hospital. Wife of the revisionist was admitted in the Gynecologist Emergency Ward and her condition was informed to be critical due to internal bleeding and clotting of blood inside her stomach. Revisionist was informed that the cause for such condition of his wife was due to severe damage to her internal tissues during surgery resulting from negligence in performing the surgery. Such internal bleeding and loss of blood caused malfunctioning of kidney and liver of wife of the revisionist. Despite undergoing another surgery at St. Stephen's Raj Kishore Goel vs. The State & Ors.
Page 2 of 7ARVIND Digitally signed by ARVIND BANSAL BANSAL 15:46:14 +0530 Date: 2024.04.30 Hospital, wife of the revisionist could not recover. She remained admitted in ICU and was kept on ventilator support for about 20 days and underwent two more surgeries for saving her life. It is alleged that owing to gross incompetence and negligence of the respondents, wife of the revisionist has not been able to fully recover and left incapable of leading a normal life.
5. Being aggrieved by the alleged gross negligence and misconduct on the part of the respondents-doctors, the revisionist lodged a complaint u/s 154 Cr.P.C. against them for causing grievous hurt by negligence and endangering life of his wife. The police, however, failed to register an FIR due to which revisionist was constrained to move an application u/s 200 r/w Section 156 (3) Cr.P.C. before competent Criminal Court and sought directions for registration of FIR against the respondents. During the pendency of the application, the complaint of the revisionist was referred to Delhi Medical Council for its expert opinion, in compliance of procedure laid down in 'Jacob Mathew vs. State of Punjab' (2005) 6 SCC 1.
6. Vide order dated 05.11.2018, the Disciplinary Committee/Board of Delhi Medical Council opined respondents/doctors responsible for injuries suffered by wife of the revisionist due to their negligence. It is on the basis of this observation of the Medical Board that Ld. Trial Court vide its order dated 17.07.2019 allowed application filed by the revisionist u/s 156 (3) Cr.P.C. and directed the police to register an FIR.
ARVIND Digitally signed by ARVIND BANSAL BANSAL Date: 2024.04.30 15:46:24 +0530 Raj Kishore Goel vs. The State & Ors.
Page 3 of 77. It has been pleaded that though an FIR was registered against the respondents u/s 420/337/34 IPC, the police did not conduct any investigation. In the meantime, in a revision preferred by the revisionist against non-awarding of punishment to the delinquent doctors, the Appellate Body of the Delhi Medical Council i.e. the Medical Council of India overturned the findings of the Disciplinary Committee of Delhi Medical Council and exonerated the respondents from charges of negligence. On the basis of this opinion of the Medical Council of India, without collecting any other evidence or examining any other witness, the police filed a cancellation report before Ld. Trial Court.
8. It is the grievance of the revisionist that even the Ld. Trial Court, without appreciating the fact that the cancellation report was filed without due investigation only on the basis of opinion of the Medical Council of India, which is already under challenge by the revisionist before Hon'ble Delhi High Court and without waiting for the final outcome of such revision, accepted the cancellation report while dismissing the protest petition of the revisionist.
9. Aggrieved with such order dismissing the protest petition and accepting the cancellation report, revisionist has prayed that the impugned order dated 05.09.2022 be set aside and further investigation into the complaint be ordered.
10. Notice of the revision petition was issued to respondents. Respondent No. 2 to 4 appeared before the Court through their counsel. Reply was filed. Copy thereof was Raj Kishore Goel vs. The State & Ors.
Page 4 of 7ARVIND Digitally signed by ARVIND BANSAL BANSAL Date: 2024.04.30 15:46:33 +0530 supplied to revisionist.
11. On the other hand, it has been argued on behalf of the respondent no. 2 to 4 that the Ld. Trial court has committed no error by dismissing the protest petition or admitting the cancellation report which is duly supported by the opinion of a higher authority above Delhi Medical Council. It is argued that once the Appellate Authority i.e. Medical Council of India has come to an independent conclusion that there was no negligence on the part of respondents and as such, the police was not left with any option but to file a cancellation report and Ld. Trial Court has rightly accepted the same.
12. Having considered the submissions of the parties and upon perusal of the record, it is observed that even though a cancellation report had been filed by the police before Ld. Trial Court, the fact that the opinion or observation of the Medical Council of India (MCI) was under challenge before Hon'ble Delhi High Court appears not to have been brought to the notice of Ld. Trial Court. Revisionist has filed a copy of order dated 27.04.2023 of Hon'ble High Court of Delhi which also refers to previous order dated 02.11.2022, informing this Court about his challenge to the order of Medical Council of India dated 05.02.2022.
In the opinion of this Court, once the opinion of Medical Council of India (which also forms the basis of the cancellation report as well as the impugned order) was put under challenge, judicial propriety demanded that the cancellation report ought not have been accepted without awaiting the Raj Kishore Goel vs. The State & Ors. ARVIND Digitally signed by ARVIND BANSAL Page 5 of 7 BANSAL Date: 2024.04.30 15:46:42 +0530 decision of Hon'ble Delhi High Court on the issue. The issue subjudice before Hon'ble Delhi High Court has a direct bearing on the prima facie adjudication of the issue of taking cognizance of the offence or accepting of the cancellation report.
13. It is observed that in the facts and circumstances of the present case where the order dated 05.02.2022 of Medical Council of India is under challenge before Hon'ble High Court of Delhi and the finality thereof is still uncertain, the cancellation report filed 'solely' on the basis of said report cannot ought not to have been accepted by Ld. Trial Court.
This Court has also perused the case diary prepared by IO during investigation of the present case and the same would corroborate the argument of Ld. Counsel for revisionist that IO did not record even the statement of complainant Raj Kishore Goel or victim Chanchal Goel throughout the period of investigation. IO did not seize any original document of the medical treatment either from complainant or the victim. There is no notice u/s 91 Cr.P.C served upon the medical centre to provide certified copy of the treatment papers. It appears that instead of investigating the matter, IO simply awaited for the order of Board of Governors in supersession of Medical Council of India and filed the cancellation report. This Court is also in agreement with the submission that the report either of Delhi Medical Council or Medical Council of India opined regarding the aspect of 'medical negligence' only, and IO did not cite any reason for filing cancellation report qua offence u/s 420 IPC.
14. Taking note of the facts, circumstances and the Raj Kishore Goel vs. The State & Ors.
Page 6 of 7ARVIND Digitally signed by ARVIND BANSAL BANSAL Date: 2024.04.30 15:46:55 +0530 subsequent development of filing writ petition before Hon'ble High Court of Delhi, the impugned order dated 05.09.2022 cannot be sustained. As such, impugned order dated 05.09.2022 is set aside with directions to pass fresh order only after decision of Hon'ble Delhi High Court on the issue. Meanwhile, IO/SHO is directed to carry out the basic investigation like recording of statements and collection of documents and file the same before Ld. Trial Court in the form of supplementary report in the light of aforesaid observations subject to the final outcome of the writ petition before Hon'ble High Court of Delhi.
15. With these observations, present revision is disposed of as allowed.
Digitally signedDictated and announced in open ARVIND by ARVIND BANSAL Court on 30.04.2024. BANSAL Date: 2024.04.30 15:47:06 +0530 (ARVIND BANSAL) ADDL. SESSIONS JUDGE-05 (SHAHDARA) KARKARDOOMA COURTS, DELHI.
Raj Kishore Goel vs. The State & Ors.
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