Allahabad High Court
Dr. Laxmi Narsu Seth vs State Of U.P. & Another on 20 March, 2018
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No.58 A.F.R. Case :- CRIMINAL REVISION No. - 2547 of 2012 Revisionist :- Dr. Laxmi Narsu Seth Opposite Party :- State Of U.P. & Another Counsel for Revisionist :- P.C. Srivastava Counsel for Opposite Party :- Govt. Advocate,Anil Srivastava ******* Hon'ble Ravindra Nath Kakkar,J.
This criminal revision has been preferred against the order dated 25.06.2012 passed by learned Chief Judicial Magistrate, Gorakhpur, whereby the discharge application of the revisionist under Sections 326, 338, 506 I.P.C. in Case No.9944 of 2010, Police Station Kotwali, District Gorakhpur, was rejected.
The brief facts, which are relevant for the purpose of this revision, are that on 28.12.2009 at about 11.15 a.m. opposite party no.2 got admitted his daughter-in-law in the nursing home of the revisionist and at about 9.45 p.m. a baby was born by normal delivery. An illegal demand of Rs.2000/- was made by the nursing home as gift, which was denied by opposite party no.2, due to which doctor and staff annoyed and with an intention to torture, committed negligence and kept the baby near the blower by which his leg became burnt. Further allegation is that at the time of discharge, doctor had taken Rs.15,000/- but a receipt of Rs.9,450/- was given to opposite party no.2. FIR was lodged on 03.01.2010 under Sections 338, 506 I.P.C. in Case Crime No.7 of 2010 at Police Station Kotwali, District Gorakhpur. After completion of investigation charge sheet was submitted against the revisionist and co-accused Aliza Jown under Sections 326, 338, 506 I.P.C. On 31.08.2010 learned Chief Judicial Magistrate took the cognizance and issued the summons. On 22.9.2010 Sub Inspector moved an application for permission of further investigation under Section 178(8) Cr.P.C. which was allowed. Further after completion of charge sheet, the revisionist moved an application before the D.I.G., Gorakhpur with the prayer for further investigation under Section 173(8) Cr.P.C. As a result of further investigation Investigating Officer came to the conclusion that revisionist had no concerned with the alleged incident. The revisionist moved a discharge application which was rejected by the learned Chief Judicial Magistrate, Gorakhpur vide order dated 19.3.2012. Aggrieved against that order, revisionist filed an application under Section 482 Cr.P.C. No.11705 of 2012 before this Court and this Court set aside the order dated 19.3.2012 passed by learned Chief Judicial Magistrate, Gorakhpur and directed to decide the discharge application of the revisionist on merit vide order dated 05.04.2012. In compliance of the order dated 05.04.2012, learned Chief Judicial Magistrate considering the facts and circumstances rejected the discharge application of the revisionist vide order dated 25.06.2012. Aggrieved against the same, present revision has been preferred.
I have heard Shri Gopal Chaturvedi, learned senior counsel assisted by Shri P.C. Srivastava, learned counsel for the revisionist, Shri Anil Srivastava, learned counsel for opposite party no.2 and the learned A.G.A. for the State.
It is contended on behalf of the revisionist that C.M.O. conducted an inquiry and on the basis of the order of the Government, an inquiry has been conducted by Additional Director, Medical Health and Family Welfare, Gorakhpur Range, Gorakhpur in which it has been mentioned that staff, nurse and A.N.N. of the nursing home of the revisionist handed over the baby to the family members of opposite party no.2 with the instruction that the baby should be kept in warm at mosfier and the blower can also be used and due to hot air of the blower the leg of baby became burnt by the negligence of family members of opposite party no.2. Further it is mentioned that after the birth of baby staff of nursing home is responsible to look after the mother and baby and that duty was properly performed by the staff. It is next contended that the baby received burnt injury on the leg due to fault of opposite party no.2 and his family members and in order to harass and torture the revisionist present FIR has been lodged and Investigating Officer without proper investigation submitted the charge sheet against the applicant. It is next contended that neither there is any negligence on the part of the revisionist nor staff of the nursing home. It is next contended that even if the entire prosecution story is taken to be correct, even then no offence under Sections 326, 338, 506 I.P.C. is made out against the revisionist. It is next contended that Hon'ble Apex Court in the cases of Jacob Mathew Vs. State of Punjab & another (2005) SCC (6) Page 1 and Martin D'souza Vs. Mohd. Ishaq (2009) SCC (3) Page 1 held that duly qualified doctors should not be harassed by police of the courts of law with criminal prosecution on the basis of frivolous complaints.
It is next contended that revisionist is an old lady aged about 76 years and is M.B.B.S., D.G.O., M.D. and for the last 55 years she is practising as a doctor. It is lastly contended that learned Chief Judicial Magistrate has failed to apply judicial mind to the fact of the case. Prima facie, there is no material to stand the prosecution case and the cognizance and summoning order are made in a mechanical way without any cogent evidence against the revisionist. The order is illegal and suffers from error of law and is liable to be set aside.
Per contra, learned counsel for opposite party no.2 as well as learned A.G.A. submitted that the incident occurred only due to the intentional negligence of the doctor and staff of the nursing home. FIR was lodged and after collecting the material under Section 161 Cr.P.C. on the basis of the statements and the collection of materials the Investigating Officer has submitted a charge sheet on which the cognizance had been taken and the accused were summoned. It is next contended that after filing of the charge sheet certain facts were twisted to give the entire incident a different shape whereas the informant's child was removed and kept in seclusion near the blower. There was no doctor or staff of the nursing home to attend the child which was the responsibility of the doctor who had ordered and directed for the child to be kept separately before the blower. It is next contended that it was the responsibility of the revisionist which in case would have been fulfilled then the incident could not have occurred. It is next contended that the investigation was conducted properly by the Investigating Officer and the charge sheet had rightly been submitted. The revisionist in order to avoid the trial filed this revision. The revisionist has not come before this court with clean hands. It is next contended that the entire nursing home and its staff were in the control of the revisionist and it is an absurd defence of the revisionist as in order to save herself from the culpability had levelled charge against opposite party no.2.
I have considered the submissions advanced by both the parties and perused the record. It is relevant to mention that against the discharge of the accused under Section 239 Cr.P.C. the trial court is required to consider only the police report as referred to under Section 173 Cr.P.C. and the documents referred and the statements of the witnesses recorded under Section 161 Cr.P.C. Further obligation to discharge the accused under Section 239 of the Cr.P.C. arises when the Magistrate considers the charges against the accused to be groundless. No detailed evaluation of the materials or meticulous consideration of the possible defences need to be undertaken at this stage. The exercise of weighing materials in golden scales is certainly not to be undertaken at this stage and has to be postponed to a later date, i.e. at appropriate stage of trial. At the time of taking decisions on the discharge application the only thing needs to be considered is whether the allegation/charge found to be groundless. In the case of Om Prakash Vs. State of U.P. (1983) Crl. Law Journal Page 1151 (Calcutta), it is held that "the real test for determining whether the charge should be considered groundless is that where the materials are such that even if that unrebutted make out no case whatsoever."
Further in the case of Naresh Chandra Vs. State of U.P., 1987 (3) Crimes Page 842 Alld., it is held that even very strong suspicion founded on materials before Magistrate is sufficient for framing of charges.
It is trite that word "groundless" connotes no basis or foundation in evidence whereas "grounds" connotes foundation or basis in criminal cases.
It is also trite that at the stage of framing of charge, the assessment will be on the assumption that they are correct and they will be properly proved in the case. Evaluation of the evidence will be only at the stage of trial. The expression "legal evidence" is not appropriate at that stage when the Magistrate has only to make up his mind to frame the charge or discharge the accused. The materials placed then will not have the status of evidence.
It is also trite that presumption on the basis of omission or ambiguities which are capable of explanation also cannot be drawn for the purpose of that stage in order to frame charge or discharge the accused. The materials will have to be accepted as correct whatever may be the decision after trial. 'Groundless' has to be taken as a meaning that there is no ground at all for presuming and it does not mean absence of reasonable ground to expect a conviction.
It is also trite that any illegality committed by the Investigating Officer during investigation will not be sufficient ground to discharge an accused.
It is pertinent to mention that in the present case both the parties are not in dispute that an FIR was lodged in this case and after completion of the investigation charge sheet under Sections 326, 338 and 506 I.P.C. was submitted; cognizance was taken and summoning order was passed. Thereafter further investigation was done under Section 173(8) Cr.P.C. and on the basis of the Government Order inquiry was conducted by the Additional Director, Medical Health and Family Welfare, Gorakhpur.
It is also a relevant fact of the case that initially discharge application was moved before the trial court which was rejected vide order dated 19.3.2012 which was challenged before this Court and this Court has set aside the order dated 19.3.2012 with a direction to the learned Chief Judicial Magistrate to decide the discharge application filed by the applicant before him on merits in accordance with law. That discharge application was dismissed on 25.6.2012 on merits. Aggrieved against the same, present revision is filed.
It is trite that a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charges.
It is also trite that the court would be justified in framing the charges against an accused, if the prosecution has shown the seed in the form of incriminating material which has got the potential to develop itself into a full-fledged tree during trial.
It is also an established legal proposition that the High Court would not interfere with the order for framing of charge unless the case happens to be exceptional one or unless there is a glaring injustice.
The established legal proposition as held in Ashish Mani Tripathi Vs. State of U.P., 2008 Crl. Law Journal (NOC) page 413 and 2008(1) ALJ Page 658 Alld. that the police has right of further investigation under Section 173(8) Cr.P.C. but it has no right of fresh investigation or reinvestigation.
In the light of the above settled legal proposition I would like to mention that generally during further investigation additional facts are collected in support of previous investigation and not for the purpose of exonerating any accused against whom charge sheet has already been filed and the court had taken the cognizance and has summoned the accused. Additional material collected during further investigation under Section 178(8) Cr.P.C. are for the purpose to facilitate dispensation of criminal justice.
According to Charles Worth and Percy on negligence (Tenth Addition, 2001), Negligence has three meaning :-
They are (i) a state of mind, in which it is opposed to intention. (ii) Careless conduct and (iii) The breach of duty to take care that is imposed by either common or statute law
It is not out of place to mention that mens rea is the question of fact and circumstances which are required to be seen in trial. In the present case just born infant was kept near blower under the order and direction of the doctor who medically treated the infant child and his mother after delivery of child. The statements of Sanjeev and Asha Masih recorded under Section 161 Cr.P.C. which are annexed by way of supplementary affidavit by the revisionist would go to prima facie establish that on the order and direction of the doctor just born victim infant child was put near the blower by the Nurse Aliza Jown. Now how much heat energy is to be required for just born baby and what should be the time period and what should be the distance of the blower from the victim infant who was quite a few hours old, in an ordinary prudence I am of the view that it was the prime responsibility of the doctor who had attended this delivery case and it was essentially required to be personally monitored by the attending doctor on whose suggestion just born infant and her mother were admitted in nursing home. Therefore, I am of the prima facie view that this is a case of breach of duty to take care and is an example of serious careless conduct on the part of the revisionist.
Learned counsel for the revisionist has drawn my attention towards inquiry report of Additional Director, Medical Health and Family Welfare, Gorakhpur. Perusal of the inquiry report dated 27.3.2010 highlights certain facts which are reproduced as under :-
;g lR; gS fd cPPks dk iSj Cyksoj dh xeZ gok ls ty x;kA tks lEHkor% ifjtuksa dh vlko/kkuh ds dkj.k gqvk izrhr gksrk gS fd ftldk bykt Hkh rRdky uflZx gkse ds deZpkjh }kjk cky jksx fo'ks"kK dks cqykdj djk;k x;kA blds lkFk gh ;gka ij bl rF; dks Hkh ugha udkjk tk ldrk fd cPPks dks tUe ds ckn uflZx gkse esa jgus dh vof/k esa ekW vkSj cPps dh ns[kHkky dh iwjh ftEesnkjh uflZx gkse dfeZ;ksa dh jgrh gS vkSj tUe ds ckn LVkQ }kjk dgus ds ctk, Lo;a ns[kuk pkfg, Fkk fd Cyksoj cPps rFkk ekWa ls fdruh nwjh ij j[kk x;k gSA ftlls ekWa@cPpss dks dksbZ uqdlku ugha igqaps tks uflZx gkse ds LVkQ }kjk ugha fd;k x;k FkkA NksVh lh vlko/kkuh ls cPps dk iSj >qyl Xk;kA It transpires that this report is pointing towards the negligence of the family members of the victim infant which itself is based on probability, surmises and conjectures and is a disputed defence which requires fact evidence and could only be decided at the proper stage of trial. On the other hand factum of the report that it was the duty and responsibility of the employees of the nursing home; indirectly stating that the responsibility of the doctor who attended from the very beginning, i.e. from delivery to discharge from the nursing home cannot and could not be ignored. On the basis of aforesaid reasons, prima facie, the conduct of the revisionist fell below that of the standard required in this field. It should have been exercised with a reasonable care and caution whether this is a case of simple negligence or gross negligence or recklessness may be a matter of dispute between the parties which would not be decided at the time of disposal of discharge application.
Next submission made by the learned counsel for the revisionist is that offence under Section 326 I.P.C. is not made out against the revisionist. This argument, to my mind, is premature because perusal of the impugned order only shows that discharge application has been rejected and the date is fixed for framing of charge under Section 338 or Section 326 I.P.C. It is still open to the court below to decide the same on the basis of material especially medical report of the victim infant collected during investigation.
So far as two rulings cited in para 5 of the petition by the learned counsel for the revisionist is concerned, the facts and circumstances of this case are totally different from the present case. It is accepted legal proposition that on the basis of frivolous complaints qualified doctors should not and should never be harassed by the police of the courts of law with a criminal prosecution, but the case in hand, admittedly, the infant victim who is just born along with her mother was under direct control of the nursing home and on the direction and command of the doctor blower was suggested to be kept near the just born infant to save him from the cold. To what distance and till what time infant who is only few hours old should be kept or to what amount and extent heat energy is to be given to keep him safe and secure is undoubtedly to be monitored by a medical expert/ doctor who cannot be exonerated from discharge of his duty and as I have already noticed that during inquiry by the Additional Director, Medical Health and Family Welfare, Gorakhpur for this incident the nursing staff has been held responsible for the negligence. Since nursing staff is under direct control and had acted under the direction of the revisionist. Therefore, I am of the view that impugned judgment and order dated 25.06.2012 passed by the learned Chief Judicial Magistrate neither can be said to suffer from any illegality or perversity and the prayer for discharge has rightly been refused. The submissions raised on behalf of the revisionist are disputed defence which can only be seen at the time of proper stage of the trial. The scope of revision being limited to the extent of assessing the legality, correctness and propriety of the impugned order.
Therefore, keeping all the facts and circumstances and the legal proposition as above mentioned, I found no merit in the arguments raised by the learned counsel for the revisionist. The impugned order does not suffer from any illegality, hence does not require any interference.
Accordingly, the revision being devoid of merit is hereby dismissed.
Let a certified copy of the judgment be transmitted to the court concerned for compliance.
Order Date :- 20.3.2018 Anand/-