Delhi District Court
Metro Life Line Hospital vs Sub Divisional Magistrate on 10 December, 2015
IN THE COURT OF SH. RAKESH SYAL, SPECIAL JUDGE,
(PC ACT) & (CBI)-03, SOUTH WEST DISTRICT, DWARKA,
NEW DELHI
In re:
Crl. Revision No. 21/15
Metro Life Line Hospital,
Through Dr. Jitendra Singh,
RZ-L-1, Gali No.-2, Near Mahalaxmi Restaurant,
New Roshan Pura, Najafgarh,
New Delhi-43.
............... Petitioner
Versus
Sub Divisional Magistrate,
Najafgarh, New Delhi-110043.
............... Respondent
Date of Institution of Case : 14-10-2015
Date on which Order was reserved : 01-12-2015
Date on which Order was passed : 10-12-2015
And
In re:
Crl. Revision No. 20/15
Dr. Hemant Kapoor,
S/o Sh. R.S. Kapoor,
Prop. Doctors Diagnostic Centre,
1441 A & 1442, Ward No. 1,
Najafgarh, New Delhi-110043.
............... Petitioner
Crl. Revision No. 21/15,
Metro Life Line Hospital Vs. Sub Divisional Magistrate, Najafgarh
and
Crl. Revision No. 20/15
Hemant Kapoor Vs. Sub Divisional Magistrate, Najafgarh 10-12-2015 1 of 24
Versus
Sub Divisional Magistrate,
Najafgarh
New Delhi-110043.
............... Respondent
Date of Institution of Case : 13-10-2015
Date on which Order was reserved : 01-12-2015
Date on which Order was passed : 10-12-2015
ORDER
1.1 By this common order, I shall dispose off the following two connected petitions:-
(a) Criminal Revision No. 21/15 titled Metro Life Line Hospital Vs. Sub Divisional Magistrate, Najafgarh, New Delhi, wherein the petitioner has challenged orders dated 29-09-2015 and 08-10-2015 passed by Ld. SDM, Najafgarh, and
(b) Criminal Revision No. 20/15 titled Hemant Kapoor Vs. Sub Divisional Magistrate, Najafgarh, wherein also the petitioner has challenged the aforesaid order dated 08-10-2015 passed by Ld. SDM, Najafgarh.
1.2 Both the above revision petitions have arisen out of Case No. 2/133/2015 (ID No. 8311) titled State Vs. Director/Owner Metro Hospital, Najafgarh and in both the petitions order dated 08- Crl. Revision No. 21/15, Metro Life Line Hospital Vs. Sub Divisional Magistrate, Najafgarh and Crl. Revision No. 20/15 Hemant Kapoor Vs. Sub Divisional Magistrate, Najafgarh 10-12-2015 2 of 24 10-2015 has been challenged.
2.1 The brief facts leading to filing of the aforesaid petitions are that on 28-09-2015, informant/complainant Sh. Sushil Kumar wrote a letter/complaint to the Ld. SDM, Najafgarh stating that on 13-09-2015, his daughter Ms. Kirti contracted fever due to which they took her to Nobel Nursing Home, Khera Morh, where after blood test they were told that she was suffering from Dengue but there was no requirement for admission and she would be administered injections in the morning and evening since her platelets were 1,13,000. Injections were accordingly administered. After three days, her platelets counts rose to 1,52,000 but there was no relief in vomiting. On 17-09-2015, her condition deteriorated and Dr. Ashok advised them that they were having a Nursing home by the name of Metro at Chhawla Road, Roshan Pura and Ms. Kirti would have to be admitted there because in Nobel Nursing Home there was no facility for night. At about 8.00 P.M. on 17-09-2015, Dr. Ashok got her admitted in Metro Hospital. The whole night she was given medicines but when they asked about the condition of Ms. Kirti from the doctor, he rebuked and told them to approach him once in 24 hours. The condition of Ms. Kirti was deterioating but no doctor was willing to meet them or check her. Suddenly at 11.00 A.M., they were told that her platelets count has fallen to 22,000 and they should arrange platelets of A+ blood group within two hours, otherwise there was a risk to the life of Ms. Kirti. Seeing the serious Crl. Revision No. 21/15, Metro Life Line Hospital Vs. Sub Divisional Magistrate, Najafgarh and Crl. Revision No. 20/15 Hemant Kapoor Vs. Sub Divisional Magistrate, Najafgarh 10-12-2015 3 of 24 condition of Ms. Kirti they decided to admit her in Vikas Hospital near Najafgarh Police Station road and asked the doctor of Metro Hospital to discharge her. The doctor started shouting on them and told that they will not discharge her and if they want to take her they can do so but they would not give them record. When they insisted for the record, they were threatened that the record would not be given and that the complainant cannot do anything. Seeing the fast deterioating conditon of his daughter, they took her to Vikas Hospital. At Vikas Hospital, the blood sample of Ms. Kirti was sent to Peetampura Blood Bank, where after checking, they were told that her blood group was B+, but at Metro Hospital, it was told that her blood group was A+. Before giving her platelets in the night on 18- 09-2015, her platelets count was checked at Vikas Hospital. In that report the platelets count was 1,24,000, whereas in the report in the morning at 11.00 A.M. at Metro Hospital, they have told that the platelets count was 22,000. He alleged that the wrong report of blood group and platelets count could have proved fatal.
2.2 On the above information/complaint, a case was directed to be instituted and Conditional Order was directed to be issued to the hospital. The Conditional Order under Section 133 Cr. P.C. was accordingly issued on 29-09-2015 to the Director/Owner of Metro Hospital, Najafgarh, directing him to close the hospital till proper inspection of the lab/premises is carried out by Director Health Services, Karkardooma or to appear before the Ld. SDM at 2.00 P.M. Crl. Revision No. 21/15, Metro Life Line Hospital Vs. Sub Divisional Magistrate, Najafgarh and Crl. Revision No. 20/15 Hemant Kapoor Vs. Sub Divisional Magistrate, Najafgarh 10-12-2015 4 of 24 on 03-10-2015 and to show cause as to why the said order be not made absolute.
2.3 On 03-10-2015, Dr. Jitender Singh of Metro Life Line Hospital appeared before the Ld. SDM and filed his reply. In the reply it was, inter-alia, stated that patient Ms. Kirti was admitted in their hospital on 17-09-2015 at 8.30 P.M. with complain of fever, abdominal pain in right hypochondric and epigastric region, nausea, vomiting and was diagnosed as pyrexia with thrombocytopenia. On the next morning i.e. on 18-09-2015, the patient's complain was persisting with loose stool with malena, so her blood sample was sent for total platelet count and blood group to Doctors Diagnostic Center. The report given by Doctors Diagnostic Center showed total platelet count to be 22000 only and blood group-A 'Rh' positive. Laboratory investigation and patient's clinical conditon were showing need of platelet transfusion, so they asked for Single Donor Platelet arrangement from nearby blood bank. Patient's attendant refused for platelet transfusion and took discharge against medical advise. They went to Vikas Hospital, where platelet transfusion was done and they re checked the platelet count, which was found to be 1.24 lacs, given by the same Doctors Diagnostic Center. This confirms the same diagnosis and same line of treatment as under
taken by them and in the other hospital, by which patient's clinical condition improved and she was discharged lateron. Regarding wrong blood group reporting, the same diagnostic center was Crl. Revision No. 21/15, Metro Life Line Hospital Vs. Sub Divisional Magistrate, Najafgarh and Crl. Revision No. 20/15 Hemant Kapoor Vs. Sub Divisional Magistrate, Najafgarh 10-12-2015 5 of 24 involved in testing the blood group in Vikas Hospital, so a clarification was asked from Director of Doctors Diagnostic Center and they clarified that it was a clerical error and apologized for the same. It was further stated that considering the above, the Doctors Diagnostic Center may be questioned for further investigation, as all the treatment is dependent on the reports provided by the laboratory, or a specialized expert opinion should be taken in this matter.
2.4 After taking the above reply on record, Ld. SDM directed the issuance of summons to Director of Doctors Diagnostic Center, for submitting wrong report, for 08-10-2015. On 08-10-2015, Dr. Jitender Singh of Metro Life Line Hospital and Dr. Hemant Kapoor of Doctors Diagnostic Center appeared before the Ld. SDM. Sh. Sushil Kumar, complainant was also present along with his daughter Ms. Kirti. Statement of the complainant Sh. Sushil Kumar was recorded wherein he generally reiterated the facts stated in his complaint dated 28-09-2015. The documents filed by the parties were taken on record. Dr. Jitender Singh did not deny that the report signed by Dr. A. Shekhar was false. Dr. Hemant Kapoor admitted that there was clerical error on the part of Doctors Diagnostic Center.
2.5 Vide order dated 08-10-2015, the Ld. SDM, inter-alia, observed and directed as under:-
Crl. Revision No. 21/15, Metro Life Line Hospital Vs. Sub Divisional Magistrate, Najafgarh and Crl. Revision No. 20/15 Hemant Kapoor Vs. Sub Divisional Magistrate, Najafgarh 10-12-2015 6 of 24 "And whereas dengue fever is on the rise in Delhi which has already taken lives of many patients and lack of proper system to ensure correct reporting of patients health statistics in Metro Life Line Hospital and Doctors Diagnostic Centre may further put the lives of patients admitted at risk.
Now therefore, I Himanshu Gupta, IAS under Section 133 Cr. P.C. hereby order that:
1. No new patients will be admitted/examined in Metro Life Line Hospital till the time necessary clearance is obtained by the Hospital from the Health Department, Govt. of NCT of Delhi in this regard.
2. No new sample will be received/tested by Doctors Diagnostic Center till the time necessary clearance is obtained by the Laboratory from the Health Department, Govt. of NCT of Delhi in this regard.
3. Further, for the patients who are admitted in the Metro Hospital, a team of CDMO, District South-West will visit the premises and will make arrangement to shift the patients in case he finds that the Hospital has inadequate facility to treat the already admitted patients.
4. SHO (Najafgarh) is directed to ensure the compliance of the order."
A corrigendum order correcting a typographical mistake regarding blood group of Ms. Kirti was also passed on 08-10-2015.
3.1 In the revision petition filed by Metro Life Line Hospital, the orders dated 29-09-2015 and 08-10-2015 have been assailed, inter-alia, on the grounds, that the said orders are against the principles of natural justice. The Ld. SDM failed to appreciate that petitioner has not committed any negligence/misconduct towards Crl. Revision No. 21/15, Metro Life Line Hospital Vs. Sub Divisional Magistrate, Najafgarh and Crl. Revision No. 20/15 Hemant Kapoor Vs. Sub Divisional Magistrate, Najafgarh 10-12-2015 7 of 24 his profession. Complainant has relied upon the error in pathological Lab Report, which was prepared and provided by Doctors Diagnostic Center and not by the petitioner hospital. As the petitioner doesn't have any in house path lab, so the report on samples of the patients are outsourced from any pathological lab. The petitioner hospital has no concern and interference regarding the result of pathological labs. It was admitted by Dr. Hemant Kapoor (Consultant Pathologist) of Doctors Diagnostic Center that it was a clerical mistake on their part. The mistake of one cannot create vicarious liability of other. It is further stated that as per the condition of patient which was shown in the lab report, the petitioner hospital had prescribed right treatment to the complainant for securing the life of patient. The treatment was given to the patient as per the report of pathological lab and not against the report. When the complainant refused to take further treatment in the hospital, they got discharged his daughter from the hospital. The petitioner provided complete treatment report as well as Lab report to the complainant without any hitch and delay. There is no misconduct by the petitioner hospital towards their patients. The appropriate way for useful treatment i.e. the primary treatment of the patient is based on the symptoms of the disease and the previous medication, if any. After the primary treatment, the samples of the patient are taken so as to establish the extent of disease and to start the treatment in a more focused manner. The patient Ms. Kirti was actually suffering from pyrexia with thrombocytopenia which is evident from both the Crl. Revision No. 21/15, Metro Life Line Hospital Vs. Sub Divisional Magistrate, Najafgarh and Crl. Revision No. 20/15 Hemant Kapoor Vs. Sub Divisional Magistrate, Najafgarh 10-12-2015 8 of 24 pathological reports and the line of treatment provided by both the hospital and she recovered by the same treatment. The pathological report of the patient was not provided by the petitioner hospital but by the Doctors Diagonostic Center.
3.2 It is further stated that while passing order dated 29-09- 2015, the Ld. SDM has not sought any opinion from medical experts and passed the order, which is against the principle of natural justice. A human error by anyone can occur which is evident from the Corrigendum order dated 08-10-2015 in which the Ld. SDM himself corrected the error of order dated 08-10-2015 in which it is mentioned that the complainant produced the report of Rao Tula Ram Hospital, which mentioned the blood group of Km. Kriti as A+. The order dated 08-10-2015 passed by Ld. SDM is self contradictory as, on the one hand, in para 4 of the order, he held that Doctors Diagnostic Center has admitted that the report is clerical error on its part and on the other hand he directed the petitioner that no new patients will be admitted/examined in Metro Life Line Hospital till the time necessary clearance is obtained by the hospital from the Health Department.
4.1 In the revision petition filed by Dr. Hemant Kapoor, the order dated 08-10-2015 has been assailed on the grounds, inter-alia, that the impugned order is founded on surmises, conjectures and flouting the mandatory provisions of Cr. P.C. The impugned order is Crl. Revision No. 21/15, Metro Life Line Hospital Vs. Sub Divisional Magistrate, Najafgarh and Crl. Revision No. 20/15 Hemant Kapoor Vs. Sub Divisional Magistrate, Najafgarh 10-12-2015 9 of 24 vague, unjust, arbitrary, illegal, against the principle of natural justice and unconstitutional; hence the same is not tenable in law. It is further stated that while passing the impugned order, Ld. Sub Divisional Magistrate, Najafgarh contravened the mandatory provisions of section 133 Cr. P.C. and exceeded the jurisdiction conferred upon him. The case of the complainant does not fall under any of the sub clauses of section 133 Cr. P.C. Therefore, the order passed on the basis of the said complaint is liable to be set aside. It is further stated that the Ld. Sub Divisional Magistrate erred in passing the impugned order as it is not a speaking order i.e. it was not mentioned anywhere in the whole order under which clause of section 133 Cr.P.C., the said impugned order was passed. This section is not intended to settle private disputes between two members of the public but it is intended to protect the public as a whole against the alleged inconvenience. The present complaint is not related to public nuisance but a grievance against an individual and is a private dispute only.
4.2 It is also stated that the Ld. Sub Divisional Magistrate, Najafgarh failed to comply with the provisions of Section 133 Cr. P.C., as he ought to have considered that even in a fit case under section 133 Cr. P.C., at first a conditional order is to be passed giving opportunity to the opposite party to file objection against such conditional order while the Ld. Sub Divisional Magistrate, Najafgarh passed the final order without giving any opportunity to the Crl. Revision No. 21/15, Metro Life Line Hospital Vs. Sub Divisional Magistrate, Najafgarh and Crl. Revision No. 20/15 Hemant Kapoor Vs. Sub Divisional Magistrate, Najafgarh 10-12-2015 10 of 24 petitioner for filing objection, hearing, etc. Thus, the Ld. Sub Divisional Magistrate, Najafgarh violated the mandatory provisions of section 133 Cr. P.C. The provisions of sections 134 to 137 relating to inquiry are mandatory and any order for removal of public nuisance without following the mandatory provisions is to be set aside. The impugned order was passed against the principle of natural justice and in violation of Article 14. It is further stated that a copy of complaint or other documents were not supplied along with the summons issued by the Ld. Sub Divisional Magistrate, Najafgarh to the Director of Doctors Diagnostic Centre to appear on 08-10- 2015 at 2.00 PM. The petitioner was denied of his right of opportunity of being heard and the passing of an absolute order immediately is against the principle of natural justice and liable to be set aside.
4.3 It is further stated that the Ld. Sub Divisional Magistrate, Najafgarh fell in error while passing the said order as there was no complaint against the petitioner and the said complaint of the complainant was against Metro Life Line Hospital only and there is no provision in the code for impleading a third person as a party to the proceeding under section 133 Cr. P.C. The impugned order is based on presumptions and the conclusions are drawn on surmises and conjectures.
5.1 Notice of the petition was given to the respondents in Crl. Revision No. 21/15, Metro Life Line Hospital Vs. Sub Divisional Magistrate, Najafgarh and Crl. Revision No. 20/15 Hemant Kapoor Vs. Sub Divisional Magistrate, Najafgarh 10-12-2015 11 of 24 both the cases. Sh. Jitender Kumar Jha, Advocate appeared for the respondent. Sh. Sushil Kumar, Informer/ Complainant has also been appearing in person in both the cases.
6.1 Sh. L.M. Grover, Ld. counsel for the petitioner Metro Life Line Hospital has, while relying upon Suhelkhan Khudyarkhan and Anr. Vs. State of Maharashtra and Ors., (Crl. Appeal No. 1039 of 2005 decided by the Hon'ble Supreme Court of India on 15-04-2009) argued that the proceedings u/s 133 Cr. P.C. are not intended to settle private dispute but these are intended to protect the public as a whole against any inconvenience. In this case, there is no inconvenience to the public and thus section 133 Cr. P.C. is not applicable. Therefore, the orders dated 29-09-2015 and 08-10-2015 of the Ld. SDM are liable to be set aside.
7.1 Sh. N.P. Nehra, Ld. Counsel for the petitioner Hemant Kapoor has argued that in the order dated 08-10-2015, it has not been clarified as to what clearance is required by Doctors Diagnostic Center lab. He has also contended that the petitioner Dr. Hemant Kapoor was not made a party in the complaint filed by Sh Sushil Kumar but he was later on called by the Ld SDM and the impugned order was passed against him. He has also contended that in the instant case, it was a mere clerical error on the part of Doctors Diagnostic Center. There is no continuous inconvenience being caused to the public at large. The case pertains to an individual only.
Crl. Revision No. 21/15, Metro Life Line Hospital Vs. Sub Divisional Magistrate, Najafgarh and Crl. Revision No. 20/15 Hemant Kapoor Vs. Sub Divisional Magistrate, Najafgarh 10-12-2015 12 of 24 The profession of Doctors Diagnostic Center lab is by itself not a nuisance. There is no imminent danger to the community at large and therefore, section 133 Cr. P.C. is not attracted and hence the order dated 08-10-2015 is liable to be set aside. He has relied upon Kachrulal Bhagirath Agrawal and Others Vs. State of Maharashtra and Others, (2005) 9 Supreme Court Cases 36, S.P. Vishwanathan Vs. Sub-Divisional Magistrate, Coimbatore, 1999 Cri. L.J. 4285 and Shiraz Cinema Vs. Srinagar Municipal Council, 1998 Cri.L.J. 55.
8.1 Sh. Jitender Kumar Jha, Ld. Counsel for the respondent has, inter-alia, argued that there was a clear cut anomaly in the blood group-A+ and B+ and also platelet count as 22,000 and 1,24,000 of Ms. Kirti. The respondent went through the report of Rau Tula Ram Hospital, Jaffarpur, Government of NCT of Delhi, wherein the correct blood group of the complainant's daughter Ms. Kirti was mentioned as B+ve. The Metro Hospital took blood sample of Ms. Kirti on 18-09-2015 and the report was also collected on the same date, the blood group was mentioned as A+ and platelet count as 22,000. On the other hand after few hours on the same day i.e. 18-09-2015, the blood sample of the patient Ms. Kirti was taken by Vikas Hospital and the same was sent to Doctors Diagnostic Center for platelet count and blood group test. In the report procured and sent by Doctors Diagnostic Centre on 19-09-2015, the platelet count was 1,24,000 and blood group as per diagnostic/test Crl. Revision No. 21/15, Metro Life Line Hospital Vs. Sub Divisional Magistrate, Najafgarh and Crl. Revision No. 20/15 Hemant Kapoor Vs. Sub Divisional Magistrate, Najafgarh 10-12-2015 13 of 24 was B+. All the above evidence clearly established that the blood group and platelet count was wrongly reported by the Metro Hospital and Doctors Diagnostic Center, which could have played with the life of the patient. This also implied lack of proper system in place in the Hospital and laboratory to ascertain the most important vital statistics of human body that is blood group and platelet count. The act and conduct of the petitioner herein, and his other associates is injurious to health or physical comfort of the community/society/locality and can lead to loss of lives of the public at large and is "Public Nuisance", which falls under the domain of section 133 of the Cr.P.C.
8.2 Ld. Counsel further submitted that at the time of receipt of complaint/information dated 28-09-2015, people all over Delhi were suffering from dengue. On such an imminent dangerous circumstances and to save lives of people/public at large from the wrong diagnosis and treatment, the respondent exercised the power vested in him under section 133 Cr. P.C. The respondent on receipt of information/complaint from Sh. Sushil Kumar passed a conditional order under section 133 Cr. P.C. dated 29-09-2015 and after conducting enquiry and recording statements/reports as well as written submission of the present petitioner, passed the order dated 08-10-2015 in the large interest of public. Ld. Counsel for the respondent has relied upon Vasant Manga Nikumba and Others Vs. Baburao Bhikanna Naidu (deceased) by LRs.and Another, Crl. Revision No. 21/15, Metro Life Line Hospital Vs. Sub Divisional Magistrate, Najafgarh and Crl. Revision No. 20/15 Hemant Kapoor Vs. Sub Divisional Magistrate, Najafgarh 10-12-2015 14 of 24 1995 Supp (4) Supreme Court Cases 54, State of M.P. Vs. Kedia Leather and Liquor Ltd. and Others, (2003) 7 Supreme Court Cases 389, Municipal Council, Ratlam Vs. Shri Vardhichand and Ors. AIR 1980 SC 1622, Kachrulal Bhagirath Agarwal & Ors. Vs. State of Maharashtra, (Crl. Appeal 1350 of 2003 decided on 22-09-2004) and S.P. Viswanathan Vs. Sub Divisional Magistrate and Sub Collector, Coimbatore, 1999 Cri. L.J. 4285.
9.1 Sh. Sushil Kumar, Informant/Complainant, has also endorsed the arguments advanced by Ld. Counsel for the respondent.
10.1 I have heard all the parties and have also perused the record, including written submissions filed on behalf of the respondent.
11.1 It is pertinent to note that part B of Chapter X of Cr. P.C. deals with 'Public Nuisances'. Section 133 Cr.P.C in the said Chapter provides as under:-
"133. Conditional order for removal of nuisance.
(1) Whenever a District Magistrate or a Sub- divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers-
(a) that any unlawful obstruction or nuisance should be removed Crl. Revision No. 21/15, Metro Life Line Hospital Vs. Sub Divisional Magistrate, Najafgarh and Crl. Revision No. 20/15 Hemant Kapoor Vs. Sub Divisional Magistrate, Najafgarh 10-12-2015 15 of 24 from any public place or from any way, river or channel which is or may be lawfully used by the public; or
(b) that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated; or
(c) that the construction of any building, or, the disposal of any substance, as is likely to occasion configuration or explosion, should be prevented or stopped; or
(d) that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary; or
(e) that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public; or
(f) that any dangerous animal should be destroyed, confined or otherwise disposed of, such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order-
(i) to remove such obstruction or nuisance; or
(ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed; or
(iii) to prevent or stop the construction of such building, or to alter the disposal of such substance; or
(iv) to remove, repair or support such building, tent or structure, or to remove or support such trees; or Crl. Revision No. 21/15, Metro Life Line Hospital Vs. Sub Divisional Magistrate, Najafgarh and Crl. Revision No. 20/15 Hemant Kapoor Vs. Sub Divisional Magistrate, Najafgarh 10-12-2015 16 of 24
(v) to fence such tank, well or excavation; or
(vi) to destroy, confine or dispose of such dangerous animal in the manner provided in the said order; or, if he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the Order, and show cause, in the manner hereinafter provided, why the order should not be made absolute.
(2) No order duly made by a Magistrate under this section shall be called in question in any Civil Court.
Explanation- A "public place" includes also property belonging to the State, camping grounds and grounds left unoccupied for sanitary or recreative purposes.
11.2 Further, section 134 Cr. P.C. deals with service or notification of order upon the person against whom it is made. As per section 135 Cr.P.C., the person to whom order is addressed is required to obey or show cause against the same. Section 136 Cr. P.C. stipulates the consequences of such person failing to obey the order or show cause. Section 138 Cr. P.C. provides the procedure, where the said person appears to show cause.
12.1 It is also pertinent to refer to section 268 of the IPC which defines the term, "Public Nuisance" as under:-
"268. Public nuisance.--A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. A common nuisance is not excused on the ground that it causes some convenience or advantage."
Crl. Revision No. 21/15, Metro Life Line Hospital Vs. Sub Divisional Magistrate, Najafgarh and Crl. Revision No. 20/15 Hemant Kapoor Vs. Sub Divisional Magistrate, Najafgarh 10-12-2015 17 of 24 13.1 In S.P. Vishwanathan Vs. Sub Divisional Magistrate and Sub Collector Coimbatore (supra), the petitioner who was calling himself as Dr. S.P. Vishwanathan and was holding a certificate of degree as Doctor of Medicine (Traditional Medicine) purported to have been issued by Open International University for Complementary Medicines in March, 1995 was practicing as allopathic doctor on the basis of said certificate. He was reported to be using the drugs which are highly injurious to the health of the public. It was found that no permission had been granted to him to practice allopathic medicine. Conditional Order u/s 138 Cr. P.C. was passed for stoppage of his occupation, which was subsequently confirmed. The said order was upheld by the Hon'ble Madras High Court.
13.2 In Vasanta Manga Nikumba and others Vs. Baburao Bhikanna Naidu (deceased), (supra), the Hon'ble Supreme Court held, "3. Nuisance is an inconvenience materially interferes with the ordinary physical comfort of human existence. It is not capable of precise definition. It may be public or private nuisance. As defined in Section 268 IPC, public nuisance is an offence against public either by doing a thing which tends to the annoyance of the whole community in general or by neglect to do anything which the common good requires. It is an act or omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy the property in the vicinity. On the alternative it causes injury, obstruction, danger or annoyance to persons who may have occasion to use public right. It is the quantum of annoyance or discomfort in contradistinction to private Crl. Revision No. 21/15, Metro Life Line Hospital Vs. Sub Divisional Magistrate, Najafgarh and Crl. Revision No. 20/15 Hemant Kapoor Vs. Sub Divisional Magistrate, Najafgarh 10-12-2015 18 of 24 nuisance which affects an individual is the decisive factor. The object and public purpose behind section 133 is to prevent public nuisance that if the Magistrate fails to take immediate recourse to section 133 irreparable damage would be done to the public. The exercise of the power should be one of judicious discretions objectively exercised on pragmatic consideration of the given facts and circumstances from evidence on record. The proceedings under section 133 is not intended to settle private disputes or a substitute to settle civil disputes though the proceeding under section 133 is more in the nature of civil proceedings in a summary nature." (emphasis supplied) 13.3 The above judgment was relied upon by the Hon'ble Supreme Court in State of M.P. Vs. Kedia Leather and Liquor ltd and Others, (supra). In this case, a closure order was passed in respect of industrial units on the allegation that serious pollution was being created by discharge of effluents from their respective factories causing public nuisance.
13.4 In Kachrulal Bhagirath Agrawal and others Vs. State of Maharashtra and Others (supra), it was held, "10 ........The proceedings under Section 133 are more in the nature of civil proceedings than of criminal nature. Section 133(1)(b) relates to trade or occupation which is injurious to health or physical comfort. It itself deals with physical comfort to the community and not with those which are not in themselves nuisance but in the course of which public nuisance is committed. In order to bring a trade or occupation within the operation of this Section, it must be shown that the interference with public comfort was considerable and a large section of the public was affected injuriously. The word 'community' in Clause (b) of Section 133 (1) cannot be taken to Crl. Revision No. 21/15, Metro Life Line Hospital Vs. Sub Divisional Magistrate, Najafgarh and Crl. Revision No. 20/15 Hemant Kapoor Vs. Sub Divisional Magistrate, Najafgarh 10-12-2015 19 of 24 mean residents of a particular house. It means something wider, that is, the public at large or the residents of an entire locality. The very fact that the provision occurs in a Chapter with "Public Nuisance" is indicative of this aspect. It would, however, depend on the facts situation of each case and it would be hazardous to lay down any straitjacket formula.
11. The conduct of the trade must be injurious in presenti to the health or physical comfort of the community. There must, at any rate, be an imminent danger to the health or the physical comfort of the community in the locality in which the trade or occupation is conducted. Unless there is such imminent danger to the health or physical comfort of that community or the conduct of the trade and occupation is in fact injurious to the health or the physical comfort of that community, an order under Section 133 cannot be passed. A conjoint reading of Sections 133 and 138 of the Code discloses that it is the function of the Magistrate to conduct an enquiry and to decide as to whether there was reliable evidence or not to come to the conclusion to act under Section 133.
12. ..............To bring in application of Section 133 of the Code, there must be imminent danger to the property and consequential nuisance to the public. The nuisance is the concomitant act resulting in danger to the life or property due to likely collapse etc. The object and purpose behind Section 133 of the Code is essentially to prevent public nuisance and involves a sense of urgency in the sense that if the Magistrate fails to take recourse immediately irreparable danger would be done to the public. It applies to a condition of the nuisance at the time when the order is passed and it is not intended to apply to future likelihood or what may happen at some later point of time. It does not deal with all potential nuisances and on the other hand applies when the nuisance is in existence. ................" (emphasis supplied) 13.5 In Suhelkhan Khudyarkhan and Anr. Vs. State of Maharashtra and Ors., (supra) the Hon'ble High Court held, "11. ...............'Public nuisance' or 'common nuisance' as defined in Section 268 of the Indian Penal Code, 1860 (in short the 'IPC') is an Crl. Revision No. 21/15, Metro Life Line Hospital Vs. Sub Divisional Magistrate, Najafgarh and Crl. Revision No. 20/15 Hemant Kapoor Vs. Sub Divisional Magistrate, Najafgarh 10-12-2015 20 of 24 offence against the public either by doing a thing which tends to the annoyance of the whole community in general or by neglecting to do anything which the common good requires. It is an act or omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity. .................. Therefore, a lawful and necessary trade ought not to be interfered with unless it is proved to be injurious to the health or physical comfort of the community. Proceedings under Section 133 are not intended to settle private disputes between different members of the public. They are in fact intended to protect the public as a whole against inconvenience. A comparison between the provisions of Section 133 and 144 of the Code shows that while the former is more specific the latter is more general. Therefore, nuisance specially provided in the former section is taken out of the general provisions of the latter section. The proceedings under Section 133 are more in the nature of civil proceedings than of criminal nature. Section 133(1)(b) relates to trade or occupation which is injurious to health or physical comfort. It itself deals with physical comfort to the community and not with those acts which are not in themselves nuisance but in the course of which public nuisance is committed. In order to bring a trade or occupation within the operation of this Section, it must be shown that the interference with public comfort was considerable and a large section of the public was affected injuriously. The word 'community' in Clause (b) of Section 133(1) cannot be taken to mean residents of a particular house. It means something wider, that is, the public at large or the residents of an entire locality. The very fact that the provision occurs in a Chapter containing "Public Nuisance" is indicative of this aspect. It would, however, depend on the facts situation of each case and it would be hazardous to lay down any straitjacket formula."
13.6 From the aforesaid, it is clear that the provisions of Section 133 Cr. P.C. would be attracted only if the conduct of any trade or occupation is injurious to the health or physical comfort of the community. It does not apply to any trade or occupation which is Crl. Revision No. 21/15, Metro Life Line Hospital Vs. Sub Divisional Magistrate, Najafgarh and Crl. Revision No. 20/15 Hemant Kapoor Vs. Sub Divisional Magistrate, Najafgarh 10-12-2015 21 of 24 not in itself a nuisance but in the course of which a public nuisance is committed. "Public Nuisance", as defined in Section 268 IPC pertains to any act or illegal omission which causes any common injury, danger or annoyance to the public or the people in general who dwell or occupy property in the vicinity. For the operation of Section 133 Cr. P.C. it must be shown that interference with public comfort was considerable and a large section of the public was affected injuriously. The word, "community" in clause (b) of Section 133 (1) Cr. P.C. means the public at large or the residents of an entire locality. It is well settled that Section 133 Cr. P.C. is not intended to settle private disputes or a substitute to settle civil disputes. Further, it applies to a condition of the nuisance in existence at the time when the order is passed and it is not intended to apply to a likelihood of nuisance in future. It is also well settled that a lawful trade or profession ought not to be interfered with unless it is proved to be injurious to the health or physical comfort of the community.
14.1 In the instant case, admittedly in the case of patient Ms. Kirti, a wrong report regarding blood group and platelet count was given by the petitioner Doctors Diagnostic Center which was sought to be acted upon by the petitioner Metro Life Line Hospital. Any such wrong report could have proved fatal. However, the same is not covered within the provisions of Section 133 Cr. P.C. or the term 'public nuisance', as defined in section 268 IPC. The running of a Crl. Revision No. 21/15, Metro Life Line Hospital Vs. Sub Divisional Magistrate, Najafgarh and Crl. Revision No. 20/15 Hemant Kapoor Vs. Sub Divisional Magistrate, Najafgarh 10-12-2015 22 of 24 hospital i.e. Metro Life Line Hospital or a Diagnostic Center, i.e., Doctors Diagnostic Center is not in itself a nuisance, although a mistake had been committed by the aforesaid Diagnostic Center while reporting about the result of blood test of patient Ms. Kirti. By the running of the aforesaid hospital and Diagnostic Center, there is no imminent danger to the physical comfort of the community at large. The trade/profession of the petitioners, by itself is not causing any injury/danger or nuisance to the public or people in general who have property in the vicinity. The acts of the petitioner in exercise of their profession does not per-se amount to nuisance. The grievance of informant/complainant Sh. Sushil Kumar is more in the nature of a private dispute. Any likelihood of such a mistake in future will not fall within the ambit of section 133 Cr. P.C. To attract the provision of section 133 Cr. P.C., nuisance has to be in existence and not a potential nuisance. It is well settled that a lawful trade or profession ought not to be interfered with unless it is proved to be injuries to the health or physical comfort of the community. In the impugned order dated 08-10-2015, it has not been specified as to what "necessary clearance" is required to be obtained by the petitioners from the Health Department, Govt. of NCT of Delhi or as to how the case was covered within the ambit of section 133 Cr.P.C.
14.2 In view of the above, it is considered that the wrong report of petitioner Doctors Diagnostic Center, apparently on account of negligence and consequent action upon the same by the Crl. Revision No. 21/15, Metro Life Line Hospital Vs. Sub Divisional Magistrate, Najafgarh and Crl. Revision No. 20/15 Hemant Kapoor Vs. Sub Divisional Magistrate, Najafgarh 10-12-2015 23 of 24 petitioner Metro Life Line Hospital, will not fall within the ambit of Section 133 Cr. P.C. The facts in the judgments cited by the Ld. Counsel for the respondent are different from the facts of this case. Thus, the same are of no help to him.
15.1 In view of the aforesaid discussion, it is considered that the orders dated 29-09-2015 and 08-10-2015 passed by the Ld. SDM are illegal and cannot be sustained. Accordingly, both the revision petitions are allowed and the orders dated 29-09-2015 and 08-10- 2015 are set aside.
16.1 This order be placed in the file bearing C.R. No.21/15 titled Metro Life Line Hospital vs. Sub Divisional Magistrate. A copy of the order be placed in file bearing C.R. No. 20/15 titled Hemant Kapoor vs. Sub Divisional Magistrate, Najafgarh.
17.1 A copy of this order, along with Trial Court Record, be sent to the Ld. Trial Court.
18.1 Revision files be consigned to the Record Room.
Announced in the Open Court today on 10th December, 2015.
(Rakesh Syal) Spl. Judge, (PC Act) & (CBI) -03, Dwarka Courts, New Delhi (pa) Crl. Revision No. 21/15, Metro Life Line Hospital Vs. Sub Divisional Magistrate, Najafgarh and Crl. Revision No. 20/15 Hemant Kapoor Vs. Sub Divisional Magistrate, Najafgarh 10-12-2015 24 of 24