Delhi District Court
Sh. Anuj Jain vs The State on 19 April, 2023
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IN THE COURT OF SH. SANJAY GARG - I
PRINCIPAL DISTRICT & SESSIONS JUDGE,
EAST, KARKARDOOMA COURTS, DELHI
Crl. (R).120/2020
Sh. Anuj Jain
S/o Sh. Rajendra Jain
R/o C-202, Hari Nagar,
Clowk Tower, New Delhi-110064. ...Petitioner
VERSUS
1. The State
(Govt. of NCT of Delhi).
2. Ashok Nursing Home
Through its Directors/proprietor
F-3/13-16, Vijay Chowk,
Krishna Nagar, Delhi-110051.
3. Dr. Deepa Singh
(DMC No. 15066)
At F-3/13-16, Vijay Chowk,
Krishna Nagar, Delhi-110051. ..Respondents
Date of Revision : 11.11.2020
Date of Arguments: 19.04.2023
Date of Judgment : 19.04.2023
JUDGMENT
1. The order impugned vide this revision petition is dated 06.08.2020 vide which application under Section 156 (3) Cr.P.C filed by complainant/petitioner for registration of FIR as well as complaint under section 200 Cr.P.C. have been dismissed. Crl. (R) 120/20 Anuj Jain vs. State & Ors. Page 1 of 7 :: 2 ::
2. The factual matrix of the case is that the petitioner has filed complaint u/s 200 Cr.P.C. against the respondent nos 2 & 3, u/s 304A/120B/34 IPC. Along with this complaint, he has also moved an application u/s 156 (3) Cr.P.C. seeking directions to police to register FIR against the respondent nos. 2 & 3. In his complaint, it is stated that respondent no.2 is Ashok Nursing Home and respondent no.3 is Dr. Deepa Singh. The petitioner/ complainant has admitted his wife Ms. Neha, who was pregnant, with complaint of labour pain with respondent no.2 on 08.11.2018 at 06.16 p.m. and she was under treatment and observation of respondent no.3; the foetus was healthy as informed by respondent no.3; on 09.11.2018, respondent no.3 again informed the petitioner that she needed to keep his wife for one more day for the purpose of delivery. On 10.11.2018, the respondent no.3 informed the petitioner that child in the womb of his wife had died and subsequently his wife gave birth to a dead child. It is stated that respondent no.3 did not disclose to the complainant about cause of death of the child; the petitioner called police at no. 100 and lodged a complaint against respondent nos. 2 & 3. Police officials including SI Amarchand Sharma pressurized him to withdraw the complaint and even threatened him that he would not be allowed to see the face of deceased child, if he did not withdraw the complaint. The complainant has also alleged that he had asked Doctor of SDN Hospital to conduct paternity test on the child but of no avail. He stated that the child had died due to gross negligence and unethical conduct of the Doctor i.e. respondent no.3. The Crl. (R) 120/20 Anuj Jain vs. State & Ors. Page 2 of 7 :: 3 ::
complainant stated that he was never informed about any complication regarding birth of the child or regarding C-Section as mentioned in case summary. He has stated that he had made complaint dated 19.04.2019 to SHO, PS Krishna Nagar but no action has been taken thereon. Status report was called by Ld. Metropolitan Magistrate.
3. In this petition, various grounds are taken by the petitioner assailing the impugned order. It has been mentioned that Ld. Trial Court has failed to consider that there is a clear prima facie case made out against the respondent nos. 2 & 3 and Ld. Trial Court has wrongly dismissed the application and complaint of the revisionist. It is stated that the police is duty bound to register an FIR if a cognizable offence is disclosed; police made preliminary investigation in collusion and in connivance with respondent nos. 2 & 3. Ld. Trial Court has failed to consider that it was a fit case to order for registration of the FIR against the respondent nos. 2 & 3. Ld. Trial Court did not even examine the petitioner after dismissal of application under section 156(3) Cr.P.C. It is stated that impugned order has caused miscarriage of justice. There are specific allegations of cognizable offences i.e. sections 304A/120B/34 IPC and thus Ld. Trial Court should have ordered for registration of the FIR.
4. The respondent nos. 2 & 3 have filed reply to the present revision petition denying therein the allegations made by the petitioner in the complaint as well as present revision petition. They stated that on 08.11.2018, the patient Neha Jain, aged about 30 years, was admitted in the hospital with complaint of pain in Crl. (R) 120/20 Anuj Jain vs. State & Ors. Page 3 of 7 :: 4 ::
abdomen; patient was given trial to normal delivery but the patient did not progress; patient was advised cesarean section in view of poor prognosis of labor pain, the necessity of cesarean section was again reiterated on 09.11.2018, 10.11.2018 but the attendant of the patient refused the same every time and ultimately on 10.11.2018 at 10.15 a.m., patient delivered a dead male fetus. There was no negligence on their part. The revision petition is liable to be dismissed.
5. I have heard Sh. Parnesh, learned counsel for the petitioner and Ld. Addl PP for the State. None appeared for R2 and R3 to advance arguments.
6. One of the main contention raised on behalf of the petitioner is that law is settled that if complaint discloses commission of cognizable offence, the police is bound to register FIR under Section 154 Cr.PC. On the other hand, Ld. Addl PP submits that order impugned is based on facts and law and due appreciation thereof and does not call for any interference by this Court.
7. The main allegation made by the petitioner is that respondent no. 2 & 3 have committed offences under sections 304A/120B/34 IPC, as when the wife of the petitioner was admitted with respondent no.2, foetus was informed to be healthy and he was not informed about complication in birth of the child and carrying out of C-Section as mentioned in case history. As per the ATR filed by IO, it has been stated that the cause of death of the deceased child is "still birth due to asphyxia as a result of aspiration of meconium during the process of delivery"; there is Crl. (R) 120/20 Anuj Jain vs. State & Ors. Page 4 of 7 :: 5 ::
some matrimonial dispute between the complainant and his wife, now they have agreed for mutual divorce and matter for mutual divorce was referred to Delhi Government Mediation & Conciliation Cenetre, Parliament Street, New Delhi where both the parties have agreed to withdraw all cases against each other in any Court/Forum/Cell/Authority. During enquiry, no negligence on the part of the Doctor has been stated by Neha and her father Sh. Praveen Jain, who were present throughout at the Nursing Home and have no complaint/grudge against the Doctor. As per statement of Sh. Praveen Jain, this complaint is an afterthought on the part of the complainant to harass the Nursing Home Doctor.
8. In Pepsi Foods Ltd. and Ors. Vs. Special Judicial Magistrate and Ors., AIR 1998 SC 128, the Apex Court has observed that summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. In Subhkaran Luharuka Vs. State (Govt. of NCT of Delhi), (2010) 170 DLT 516, Hon'ble Supreme Court has observed that "... in those cases where the allegations are not very serious and the complainant himself is in possession of evidence to prove his allegations there should be no need to pass orders under Section 156(3) of the Code. The discretion ought to be exercised after proper application of mind and only in those cases where the Magistrate is of the view that the nature of the allegation is such that the complainant himself may not be in a position to collect and produce evidence before the Court and interest of justice demand that the police should step in to help Crl. (R) 120/20 Anuj Jain vs. State & Ors. Page 5 of 7 :: 6 ::
the complainant." Another landmark judgment touching the facts of this case is of M/S. Skipper Beverages Pvt. Ltd. vs State, 2001 IV AD Delhi 625 wherein the court has observed that the power of directing the police to register a case and initiate investigation under section 156(3) Cr. PC should be exercised judiciously and not in a mechanical manner. When field investigation by the police is not required and complainant is in a position to collect and produce evidence in the court, order for registration of FIR need not be passed.
9. In the present case, as rightly observed by the learned Trial Court that as per case of the petitioner, the death of the child has resulted due to rashness and negligent act of respondent nos. 2 & 3, however, in the entire complaint, it is not clear that as to how respondent no3, who was a treating doctor, was negligent in the treatment of his wife. Simply because wife of the petitioner gave birth to a dead child, it cannot be concluded that respondent no.3 was negligent. Ld. Trial Court has rightly placed reliance on the judgment of Hon'ble Apex Court in "Jacob Mathew vs. State of Punjab & Anr " [Crl (Appeal) No. 144-145 of 2004 decided on 05.08.2005, the relevation observation is reproduced hereinunder:
" Where a prosecution of a doctor for offence of which criminal rshness or negligence is an ingredient, is sought, 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".
Crl. (R) 120/20 Anuj Jain vs. State & Ors. Page 6 of 7 :: 7 ::
10. The petitioner has not annexed any expert opinion of independent Doctor to support allegations of rashness and negligence on the part of respondent no.3. In the absence of such independent opinion of another Doctor, it was rightly held by Ld. Trial Court that complaint cannot be entertained and complaint under section 200 Cr.P.C. as well as application under section 156(3) Cr.P.C. were dismissed. Even no complaint has been made to the police either by the wife of the petitioner or her relative imputing any rashness or negligence to the treating Doctor or Nursing home i.e. respondent nos. 2 & 3.
11. In view of the aforesaid reasons, there is no illegality or infirmity in the impugned order. Hence, the revision petition is dismissed.
12. A copy of this order be sent to the learned Trial Court for information.
13. Revision file be consigned to Record Room.Digitally signed
SANJAY by SANJAY GARG - I GARG - I Date: 2023.04.19 16:38:21 +0530 Announced in the open court (SANJAY GARG - I) today on 19 April, 2023 h Principal District & Sessions Judge East, Karkardooma Courts, Delhi (mk) Crl. (R) 120/20 Anuj Jain vs. State & Ors. Page 7 of 7