Delhi High Court - Orders
Himanshu Singhal & Anr vs State Of Nct Of Delhi on 10 May, 2022
Author: Jasmeet Singh
Bench: Jasmeet Singh
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 1674/2022
HIMANSHU SINGHAL & ANR. ..... Petitioner
Through: Mr. Sachin Jain, Ms. Meenakshi
Jain, Mr. Hardeep S. Sodhi, Advocates
versus
STATE OF NCT OF DELHI ..... Respondent
Through: Mr. Ashok Kumar Garg, Ld. APP
SI Kuldeep Singh, PS Shalimar Bagh
CORAM:
HON'BLE MR. JUSTICE JASMEET SINGH
ORDER
% 10.05.2022 This is a petition filed seeking setting aside of the impugned order dated 15.01.2022 passed by learned MM, North-West, Rohini Courts, New Delhi in Complaint Case No. 11692/2021.
It is submitted by Mr. Jain, learned counsel appearing for the petitioner that his only request is to send the matter to some government hospital or All India Institute of Medical Sciences (AIIMS) for credible expert opinion.
It is also submitted that the I.O. has sought the opinion of Delhi Medical Council (DMC) which is an elected body of Doctors. He further submits that the petitioner has apprehension that DMC being an elected body of Doctors, the big hospitals exert considerable clout and influence over DMC. He submits that the DMC is only a professional regulatory body and its opinion cannot be construed as expert opinion.
Signature Not Verified Digitally Signed By:AMIT ARORA Signing Date:18.05.2022 15:59:55Mr. Jain, lastly, has referred to para 52 of the judgment of 'Jacob Mathew vs. State of Punjab' [(2005) 6 SCC 1] and, more particularly, para 52 which reads as under:-
"52. Statutory rules or executive instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service, qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying the Bolam9 test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld."
He submits that he has no objection if medical opinion is sought from any Doctor from any government hospital or AIIMS, but has grave apprehensions vis-à-vis the opinion of DMC is concerned.
Issue notice. Mr. Garg, learned APP accepts notice, seeks and is Signature Not Verified Digitally Signed By:AMIT ARORA Signing Date:18.05.2022 15:59:55 granted 2 weeks to file the response.
List on 21.07.2022.
CRL.M.A. 7183/2022-STAY Issue notice. Mr. Garg, learned APP accepts notice. For the reasons stated above, the operation and effect of the order dated 15.01.2022 in Case No. 11692/2021 passed by learned MM is stayed till the next date of hearing.
List on 21.07.2022.
JASMEET SINGH, J MAY 10, 2022 / (MS) Click here to check corrigendum, if any Signature Not Verified Digitally Signed By:AMIT ARORA Signing Date:18.05.2022 15:59:55