Punjab-Haryana High Court
Dr. Parveen Kumar Sareen vs State Of Punjab And Another on 11 April, 2013
Crl. Misc. No. M-9820 of 2011
1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl. Misc. No. M-9820 of 2011
Date of Decision : 09.04.2013.
Dr. Parveen Kumar Sareen
...Petitioner
Versus
State of Punjab and another
...Respondents.
CORAM : HON'BLE MR. JUSTICE AJAY TEWARI
***
Present: Mr. P.S. Ahluwalia, Advocate for the petitioner.
Ms. Amarjit Kaur Khuarana, Addl. AG, Punjab
Mr. Navkiran Singh, Advocate
for respondent no. 2.
1. Whether Reporters of local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
AJAY TEWARI, J. (Oral)
C.R.M. NO. 9820 of 2011 This is the third round of litigation between the parties. The son of the complainant was operated as his kidneys were not functioning properly. First kidney transplantation was held on 16.4.1991 wherein the kidney was donated by his mother. That kidney was rejected and another kidney transplantation operation was held on 26.8.1992 where the petitioner was the surgeon. The patient, however, died on 18.03.1993. The allegation was that the petitioner and one Dr. Harsharan Kaur were guilty of criminal Kanchan 2013.08.05 11:29 I attest to the accuracy and integrity of this document Crl. Misc. No. M-9820 of 2011 2 negligence but were found innocent by the police. On two prior occasions, they were summoned under Section 319 Cr.P.C. but the order was quashed by this Court. On the second occasion, this Court directed as follows :
"The case is remanded back to the trial court for recording the evidence of the expert on the aspect as already noticed. Thereafter, the trial Court would re- assess the entire material available on record and see in case sufficient material and evidence is available to summon the petitioner as an additional accused or not. Needless to mention that the trial Court would appreciate on the basis of various judgments of Supreme Court, in this regard in Michael Machado's case (supra) Krishnappa Versus State of Karnataka, 2004(4) RCR (Criminal) 678 and any other judgments so placed before it to determine if the evidence led before the court would satisfy the test as laid down in the aforementioned judgments. Court is expected to indicate in the order itself that it has applied its mind and has satisfied that the evidence is sufficient for the prospect of the conviction of the petitioner so as to summon him under Section 319 Cr.P.C."
Thereafter court witness no. 1 was re-examined who as per learned counsel for the petitioner exculpated the petitioner. Despite this, the petitioner was again summoned under Section 319 by the impugned order. Apart from relying on what are the contents of the exculpatory Kanchan 2013.08.05 11:29 I attest to the accuracy and integrity of this document Crl. Misc. No. M-9820 of 2011 3 statement, learned counsel has further argued that the trial court did not record his satisfaction in terms of the direction of this Court even on this occasion. He also argued that now the Hon'ble Supreme Court has laid down Martin F. D'Souza Vs. Mohd. Ishfaq, 2009(2) RCR (Criminal) 64 as follows :
"We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer Fora (whether District, State or National) or by the Criminal Court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or Criminal Court should first refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima-facie case of medical negligence should notice be then issued to the concerned doctor/hospital. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew's case (supra), otherwise the policemen will themselves have to face legal action."
Consequently, he has prayed that the impugned order be set- asided and the petitioner be relieved from this two decade agony. Learned counsel for the complainant and learned AAG have very fairly accepted that Kanchan 2013.08.05 11:29 I attest to the accuracy and integrity of this document Crl. Misc. No. M-9820 of 2011 4 the impugned order is not in consonance with the parameters laid down in the above noted extract. They have, however, opposed the prayer of the petitioner that the matter should be completely closed against. They have argued that the present petitioner is an accused in several similar cases wherein he has been accused of removing kidney from unsuspecting donors unauthorisedly and similar such allegations and therefore, even if the order is to be set-aside, the direction should be issued to the trial court to re- examine the matter and pass a fresh order with any fixed time. Learned counsel for the complainant has prayed that CW1 should be called for re- examination because as per him, there is no record available which would show that the second donor was ever tested for HIV.
I find the stand of the learned counsel for the respondents to be fair.
Resultantly, the petition is allowed and the impugned order is set-aside. The trial court is directed to summon CW1 for re-examination and thereafter decide the issue in terms of the law laid down by the Hon'ble Supreme Court and directions of this Court.
The necessary order be passed within four months from the receipt of a certified copy of this order.
09.04.2013. (AJAY TEWARI)
kanchan JUDGE
Kanchan
2013.08.05 11:29
I attest to the accuracy and
integrity of this document