Delhi District Court
Kamal Kant Sharma vs State on 21 November, 2015
IN THE COURT OF SH. A. K. KUHAR, SPECIAL JUDGE;
NDPS SOUTH DISTRICT, SAKET
Criminal Revision No. 12/2015
Unique ID NO. 02406R0264662015
Kamal Kant Sharma ..........revisionist
29, 1 Floor, Neelam Vihar Apartments,
st
Sector 14, Kaushambi, Ghaziabad UP 201010
v e r s u s
State ..........respondent no. 1
(through PS Saket)
Max Super Specialty Hospital, ..........respondent no. 2
Saket , New Dehli
(through Chairman/Director)
Dr. Ajay Lall ..........respondent no. 3
Director, Pulmonolgy
Max Super Specialty Hospital,
Dr. Parminder Singh ..........respondent no. 4
Dr. Jaya Kumar ..........respondent no. 5
Dr. Ashish Jain ..........respondent no. 6
Dr. Tina Gupta (Psychiatrist) ..........respondent no. 7
Dr. Raj Kumar (ICU incharge) ..........respondent no. 8
Beena Naya (Duty Manager) ..........respondent no. 9
CR No. 12/2015 1/12
Kamal Kant Sharma vs State
Date of institution : 21st August, 2015
Arguments concluded on : 20th November 2015
Order announced on : 21st November 2015
O R D E R
1. The instant Criminal Revision petition u/s 397 r/w 399 Cr. PC has been preferred by the petitioner to challenge the legality and propriety of the order dated 23.06.2015 passed by Learned Additional Chief Metropolitan Magistrate, South District in criminal case no. 15/01/15 whereby the application u/s 156 (3) Cr. PC was dismissed.
2. Notice of the revision petition was given to the State/Respondent no. 1, only. Trial Court Record was summoned and thereafter, arguments heard.
3. The revisionist had filed a criminal complaint u/s 200 Cr. PC against the Chairman/Director of Max Super Specialty Hospital, Saket, New Delhi and others. This complaint alleged the commission of an offence u/s 304A and & 420 IPC amongst others. The revisionist/complainant had alleged that his mother Ms. Kamlesh Sharma was a patient of respiratory disease COPD and was admitted to Max Super Specialty Hospital on 25.06.2014. She had a history of typeII respiratory failure in the year 2010 as well and since then, she was under CR No. 12/2015 2/12
Kamal Kant Sharma vs State regular treatment and monitoring of Dr. Ajay Lall, Director Pulmonology Max Super Specialty Hospital, Saket. Revisionist/complainant had alleged that his mother has expired on 25.07.2014 due to gross medical negligence of the doctors of the hospital and not only that the hospital authorities have cheated the revisionist/complainant of Rs. one lacs. It was alleged that the hospital authorities had raised a bill of Rs.
11,64,427/. The revisionist/complainant had already paid a sum of Rs.
8,64,427/. The complainant was having a Medical Insurance Policy and the remaining Rs. three lacs were to be claimed by the hospital from the Insurance Company. It was alleged that the revisionist/complainant had given the consent for Rs. three lacs to be taken from the Insurance but the hospital authorities fraudulently took Rs. four lacs from the Insurance account causing a wrongful loss to the complainant.
4. In support of his allegations regarding the medical negligence, he has given graphic details about the treatment given to his mother in the hospital and has relied upon the death summary issued by the hospital authorities and annexed with the complaint as AnnexureB. It was alleged in the complaint that the mother of revisionist was administered medicines negligently which deteriorated her condition. It was alleged that despite deposit of expenses for the surgery of his mother on 23.07.2014, the operation was not conducted on the issue of CR No. 12/2015 3/12 Kamal Kant Sharma vs State financial clearance. As a consequence, the condition of his mother further deteriorated on 24.07.2014 and the operation could not be conducted as the blood pressure of his mother had fallen down. As such at 04:25am on 25.07.2014, his mother was declared dead.
5. With regard to the allegation of cheating, he has submitted that the inpatient bill was issued by the hospital authorities to Medi Assist India TPA Limited, wherein the fact of payment of Rs. 8,64,427/ was not mentioned and the hospital authorities claimed Rs. four lacs from the Insurance Company. He filed documents AnnexureE, F and G in support of these allegations.
6. On the basis of these allegations, this criminal complaint was filed alongwith application u/s 156 (3) Cr. PC supported by are affidavit, for direction for registration of FIR. Vide impugned order dated 23.06.2015, Learned ACMM dismissed the application and posted the complaint for complainant's evidence u/s 200 Cr. PC. Learned ACMM relying the Judgments in Skipper Beverages Pvt. Ltd vs State 2001 (92) DLT 217 and Md. Saleem vs State Crl. M. C. 3601/2009 dismissed the application with the following observations: "8. Since allegations of medical negligence and cheating are based upon personal knowledge of complainant Smt. Kamal Kant Sharma and documents viz. Photocopies of treatment at Max CR No. 12/2015 4/12 Kamal Kant Sharma vs State Super Specialty Hospital, death summary of late Mrs. Kamlesh Sharma and alleged false inpatient bills are already filed on record, moreover can be summoned during inquiry, so, no field investigation by police is required for collecting any evidence.
9. Hence, application u/s 156 (3) Cr. PC for directing SHO, PS Saket to register FIR for offences u/s 304A & 420 IPC is dismissed."
7. Learned counsel for the revisionist has challenged this order claiming it to be illegal and against the well established principles of law and contrary to the facts of the case. It was submitted by Learned counsel that Learned ACMM has adopted the course which is contrary to the provisions of Section 156 (3) Cr. PC. It was submitted that Learned ACMM ignored the vital facts and documents which primafacie established the medical negligence and the fraud played by the hospital authorities upon the petitioner. Learned counsel further submitted that a complaint was made to the SHO, PS Saket but no action was taken and therefore, the revisionist/complainant had to file the criminal complaint with this application u/s 156 (3) Cr. PC.
8. Learned counsel argued that Police was under statutory obligation to register the FIR as the complaint disclosed the cognizable offence and Learned ACMM also failed to exercise his power u/s 156 (3) Cr. PC properly. Learned counsel has relied upon Srinivas Gundluri vs CR No. 12/2015 5/12 Kamal Kant Sharma vs State SEPCO Electric Power 2010 (8) SCC 206 and Radha vs State 2011 (2) JC 1414 in support of his argument.
9. Learned counsel had argued that all the required evidence i.e. doctors notes and nurses notes etc. are not in the custody of the complainant and there are chances that the original record may be tampered by the hospital authorities. Therefore, in view of allegations and the evidence required to prove the allegations, it was incumbent upon Learned ACMM to give direction for registration of the FIR.
10. On the other hand, Learned Addl PP for the State has submitted that there is no illegality in the order passed by Learned ACMM. He argued that Section 156 (3) Cr. PC give a discretion to the Magistrate to issue direction for registration of an FIR in appropriate cases. If the evidence is documentary and within the control of the complainant or can be summoned in the Court, the Magistrate may proceed with the complaint u/s 200 Cr. PC after taking cognizance. He argued that the Magistrate is not bound to issue direction u/s 156 (3) Cr. PC mandatorily.
11. Section 156 (3) Cr. PC appears in Chapter XII of the Code of Criminal Procedure which deals with the "Information to the Police and their powers to Investigate" an offence. Section 156 (3) Cr. PC specifically provide for Police officer's power to investigate cognizable CR No. 12/2015 6/12 Kamal Kant Sharma vs State case. It reads as under:
(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable cases 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.
12. In Mohd. Salim vs State in Crl. M. C No. 3601/2009, it has been observed, "11. The use of the expression 'may' in subsection (3) of Section 156 of the Code leaves no doubt that the power conferred upon the Magistrate is discretionary and he is not bound to direct investigation by the Police even if the allegations made in the complaint disclose commission of a cognizable offence, in the facts and circumstances of a given case, the Magistrate may feel that the matter does not require investigation by the Police and can be proved by the complainant himself, without any assistance from the Police. In that case, he may, instead of directing investigation by the Police, straightaway take cognizance of the alleged offence and proceed under Section 200 of the Code by examining the complainant and his witnesses, if any. In fact, the Magistrate ought to direct investigation CR No. 12/2015 7/12 Kamal Kant Sharma vs State by the Police only where the assistance of the Investigating Agency is necessary and the Court feels that the cause of justice is likely to suffer in the absence of investigation by the Police. The Magistrate is not expected to mechanically direct investigation by the Police without first examining whether in the facts and circumstances of the case, investigation by the State machinery is actually required or not. If the allegations made in the complaint are simple, where the Court can straightaway proceed to conduct the trial, the Magistrate is expected to record evidence and proceed further in the matter, instead of passing the buck to the Police under Section 156 (3) of the Code. Of course, if the allegations made in the complaint require complex and complicated investigation of which cannot be undertaken without active assistance and expertise of the State machinery, it would only be appropriate for the Magistrate to direct investigation by the Police. The Magistrate is, therefore, not supposed to act merely as a Post Office and needs to adopt a judicial approach while considering an application seeking investigation by the Police."
13. It is crystal clear that when a complaint u/s 200 Cr. PC is filed alongwith an application u/s 156 (3) Cr. PC, the Magistrate has a discretion either to give direction for registration of FIR in exercise of his power u/s 156 (3) Cr. PC or take cognizance and proceed with the complaint u/s 200 Cr. PC. While dealing with application u/s 156 (3), the Magistrate has to consider the requirement of case. Certain guidelines CR No. 12/2015 8/12 Kamal Kant Sharma vs State have been laid down in this regard in the case of Shubh Karan Luharuka and others vs State Crl. M. C. No. 612223/2005, (date of decision 09.07.2010) which interalia reads;
"(iv) Of course, it is open to the Magistrate to proceed under Chapter XII of the Code when an application under Section 156 (3) of the Code is also filed alongwith a Complaint under Section 200 of the Code if the Magistrate decides not to take cognizance of the Complaint. However, in that case, the Magistrate, before passing any order to proceed under Chapter XII, should not only satisfy himself about the prerequisites as aforesaid, but, additionally, he should also be satisfied that it is necessary to direct Police investigation in the matter for collection of evidence which is neither in the possession of the complainant nor can be produced by the witnesses on being summoned by the Court at the instance of complainant, and the matter is such which calls for investigation by a State agency. The Magistrate must pass an order giving cogent reasons as to why he intends to proceed under Chapter XII instead of Chapter XV of the Code."
14. Thus, it is clear that discretion lies with the Magistrate either to proceed u/s 156 (3) Cr. PC or to proceed u/s 200 Cr. PC whenever a commission of cognizable offence brought to his notice by way of a criminal complaint. The exercise of discretion either way by the Magistrate need not be interfered with, "unless there is a jurisdictional CR No. 12/2015 9/12 Kamal Kant Sharma vs State error or an error of law." (Krishan Lal vs Dharmender Lal Bagana 2009 (9) SCALE 768).
15. Learned counsel argued that if a bare reading of the complaint discloses commission of a cognizable offence, the Magistrate has to direct the police for investigation. In support of this, he relied upon Judgment in Srinivas Gundluri vs SEPCO Electric Power (supra).
16. On the other hand, Learned Addl. PP for the State has argued that a Magistrate cannot issue direction u/s 156 (3) Cr. PC without considering the facts and circumstances of the case and therefore, has to apply mind to the allegation made in the complaint and the requirement of investigation by the police.
17. This issue has been considered by Hon'ble Supreme Court in some recent cases i.e. Ramdev Food Products Private Limited vs State of Gujarat 2015 (6) SCC 439 and Priyanka Srivastava and another vs State of UP 2015 (96) SCC 287 wherein, Hon'ble Supreme Court has emphasized that the Magistrate has to apply its mind before issuing any direction u/s 156 (3) Cr. PC. It has been reiterated number of times that a Magistrate cannot mechanically invoke the power u/s 156 (3) Cr. PC and direct the registration of the FIR.
18. In view of position of law, it is to be seen whether Learned ACMM has considered the facts and circumstances of the case, whether CR No. 12/2015 10/12 Kamal Kant Sharma vs State they justified or warranted registration of the FIR. Learned ACMM has considered the documents which have been submitted by the complainant alongwith complaint and thereafter, formed a view that allegation of negligence and cheating are based on the personal knowledge of the complainant and documents in support thereof are either in the possession of the complainant or they can be summoned during inquiry. Therefore, Learned ACMM has duly considered requirement of the case before passing the impugned order. It is no more in controversy that when the evidence is within the control of the complainant or it can be summoned during inquiry or when the field investigation is not required or the allegations are not of serious nature, then it would be a judicious exercise of the discretion by a Magistrate to proceed with the complaint instead of directing for registration of an FIR u/s 156 (3) Cr. PC.
19. Learned counsel for the revisionist had argued that certain documents are not within the control of the complainant, such as, Doctors' note, Nurses' note, consent forms and similar documents. These documents are kept in the hospital by the authorities and are in their power and possession. Learned ACMM was correct in his view that documents can be summoned during the inquiry. Therefore, the Doctors' note etc. can be summoned by the complainant while leading CR No. 12/2015 11/12 Kamal Kant Sharma vs State complainant's evidence. The submission of Learned counsel for the revisionist that hospital authorities may destroy the documents is unfounded and without any basis. The Learned ACMM has taken the cognizance of offence and has opted to proceed to inquire into the allegations made in the complaint in accordance with the procedure laid down u/s 200 Cr PC. It will not be out of place to mention here that Learned ACMM still has the power to direct the investigation by the police, if required u/s 202 Cr. PC.
20. Therefore, no illegality or impropriety is found in the impugned order dated 23.06.2015 to justify any intervention. The revision petition, therefore, stands dismissed.
21. Trial Court Record be sent back to the Trial Court concerned alongwith copy of this order for its perusal.
22. Revision file be consigned to record room, after compliance of all other necessary formalities.
(announced in the (Ajay Kumar Kuhar)
open Court on Special Judge (NDPS)
21 November 2015)
st
South District: Saket
CR No. 12/2015 12/12
Kamal Kant Sharma vs State