Rajasthan High Court - Jaipur
Dr. Kamal Gurvani vs State Of Rajasthan on 15 November, 2001
Equivalent citations: RLW2003(3)RAJ1515, 2002(4)WLC463, 2002(4)WLN66
JUDGMENT Garg, J.
1. This revision petition has been filed by the petitioner against the order dt.7.9.2001 passed by the learned Judicial Magistrate, 1st class, Sujangarh by which contents for offence Under Section 304A I.P.C. were read over to the accused petitioner.
2. It arises in the following circumstances:
i) On 16.2.99, one Shrawan Kumar lodged a written report with the Police Station Sujangarh stating that her sister Luni (hereinafter referred to as the deceased) developed labour pain in Gantiya Ke Rahi Ki Dhani and thereafter she was brought to Government Hospital, Bidasar at 10 a.m. and where she was admitted as indoor patient and where attending doctor advised that the patient should be shifted to Sujangarh and thereafter the deceased was brought by Shrawan Kumar to Sujangarh at the residence of the accused petitioner who was posted as Junior Specialist, Government Hospital, Sujangarh and child was delivered to the deceased at 5 p.m. but later on the condition of the deceased become serious one as as per the advice, she was shifted to Rathi Hospital at about 5.30 p.m. and body of the child was left at the house and at about 6.30 p.m. the deceased died. Thus, the case of the complainant is that due to negligence of the accused petitioner both the child as well as her sister died.
3. On this report FIR No. 25/99 for offence under Section 304A I.P.C. was registered and investigation commenced and after usual investigation police submitted challan on 15.7.1999 against the accused petitioner for offence under Section 304A I.P.C.
4. That the learned Magistrate took cognizance for offence Under Section 304A I.P.C.
5. During trial, an application was moved on behalf of the accused petitioner under Section 197 Cr.P.C. with a prayer that since at the time of treating the deceased, the accused petitioner was performing the official duties, therefore without sanction from the State Government as required under Section 197 Cr.P.C. no criminal proceedings can be taken against the accused petitioner, therefore the cognizance taken against the accused petitioner should be quashed.
6. That application was rejected by the learned Magistrate vide order dated 7.9.2001.
7. It may be stated here that against the order dated 7.9.2001, the learned counsel for the accused petitioner has filed a separate petition under Section 482 Cr.P.C. and the same is pending in this Court and the impugned order dated 7.9.2001 by which the learned Magistrate rejected the application of accused petitioner filed under Section 197 Cr.P.C. is not under challenge before me in this revision petition.
8. On the same day i.e. on 7.9.2001, the learned Judicial Magistrate read over the contents of offence under Section 304A I.P.C. to the accused petitioner and the same were denied by the accused petitioner and this order dated 7.9.2001 by which contents of offence under Section 304A I.P.C. were read over has been challenged in this Court through present revision.
9. In this revision petition, following submissions have been raised by the learned counsel for the accused petitioner:-
i) That the impugned order dated 7.9.2001 of framing charge against the accused petitioner is illegal.
ii) That the case of the petitioner comes under General Exceptions as provided in Section 88 of the I.P.C.
iii) That the accused petitioner gave best treatment which was available at Sujangarh and she has not caused death of the deceased by doing any rash or negligent act, as treatment was given for the benefit of the deceased in good faith.
iv) That the petitioner was not allowed any hearing before framing of charge which violates the principles of natural justice and thus, it has prayed that the order dated 7.9.2001 be quashed.
10. Before proceeding further, it may be state here that there is confusion in the mind of learned counsel for the accused petitioner on the point that he has come with the plea that charge for offence under Section 304A I.P.C. was read over to the accused petitioner, but position is otherwise as police submitted challan for offence Under Section 304A I.P.C. and cognizance was taken by the learned Magistrate on 7.9.2001 for the said offence and thus, there should remain no doubt on the point that trial which was pending before the learned Magistrate, Sujan Garh was trial of a summon case as as per Schedule II of the Cr.P.C. the maximum punishment for offence under Section 304A I.P.C. is two years and thus, the present case would be a summon case.
11. From perusing the order dated 7.9.2001 it further appears that the learned Magistrate did not frame charge for offence under Section 304A I.P.C. but only the contents of that offence were read over meaning thereby that there should remain no doubt on this point also that charge for offence under Section 304A I.P.C. was not framed against the accused petitioner and the learned Magistrate was right in not framing the charge for offence under Section 304A I.P.C. as it was a summon case.
12. Since it is a summon case, a very pertinent question arise for consideration whether in summon cases procedure which was adopted by the learned Magistrate in passing the order dated 7.9.2001 is permissible in law or not.
13. The learned counsel for the petitioner has vehemently argued that before passing the impugned order, the learned Magistrate should have heard the learned counsel appearing on behalf of the accused petitioner and after hearing, it was a fit case, where the accused petitioner should have been discharged. Thus another question which arises for consideration is whether in trial of summon case, the order of discharge of accused can be passed by the learned Magistrate by resorting to Section 251 and 255(1) Cr.P.C. or not.
14. For convenience, Section 251 Cr.P.C. is quoted here:-
"251. Substance of accusation to be stated.- When in a summons case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge."
15. It may be stated here that this section is correspond to Section 242 of the old Gode of Criminal Procedure.
16. Under the old Code, after the question was put to the accused, the accused was to be asked if he had any cause to show as to why he should not be convicted. Now under the present Code the question would be whether the accused pleads guilty or has any defence to make.
17. The words 'and he shall be asked whether he pleads guilty or has any defence to make' are imperative in their significance. Further, the words 'whether he pleads guilty or has any defence to make' were substituted in the 1973 code for the words 'if he has any cause to show why he should not be convicted' appearing in Section 242 of the Old Code of 1898.
18. In a summon case when accused appears or brought before the court, the particulars of the offence of which he is accused shall be stated to him. As a charge is not the framed, it is incumbent upon the Magistrate to state all the necessary ingredients of the offence in the questions put to the accused.
19. The trial of summon cases by the Magistrate is dealt with in Chapter XX of the Code of Criminal Procedure commencing from Section 251 to 259 Cr.P.C.
20. There is no dispute on the point that in the instant case, the offence for which cognizance was taken by the learned Magistrate was to be tried as summon case and the plea of learned counsel for the accused petitioner is that no case for said offence is made out, therefore the accused petitioner should have been discharged.
21. In my view, Section 251 read with Section 255(1) Cr.P.C. has no relevance to discharge. Under Section 251 Cr.P.C. when the accused appears before the Magistrate, the particulars of offences for which he is accused are to be stated to him and he is asked whether he pleads guilty or has any defence for make, but it is not necessary to frame formal charge. Under Section 255(1) of the Code of Criminal Procedure, if the Magistrate, Upon taking the evidence referred to in Section 254 and such further evidence, if any, as he may, of his own motion, cause to be produced, finds the accused not guilty, he can record an order of acquittal. Therefore, these two sections do not refer the discharges.
22. On the contrary, under Section 255(1) Cr.P.C., the Magistrate can acquit, only after taking evidence under Section 254 which contemplates the necessity of the Magistrate to proceed to hear the prosecution case and as such, the Magistrate while invoking Section 255(1) Cr.P.C. has to necessarily take of the witnesses of either side. Without resorting to this procedure, Section 255(1) Cr.P.C. cannot be invoked.
23. In the present case, the offence for which the cognizance was taken by the learned Magistrate is under Section 304A I.P.C. and as per Schedule II of the Cr.P.C., the said offence is tried as summon case.
24. In my considered opinion, the foregoing analysis of these provisions would made it clear that the accused court not invoke for discharges before the trial has been either under Section 251 or 255(1) of the Code of Criminal Procedure.
25. Thus, it is held that in trial of summon cases, the only permissible way before the learned Magistrate is that he should read over the contents of the offence to the accused and the order of discharge cannot be passed by the Magistrate by resorting to provision of Section 251 and 255(1) Cr.P.C.
26. In summon cases, as already states above, no question of framing of charge arises and thus question of hearing argument on charge also does not arise and simultaneously when no charge is to be framed, no question of discharge arises. Therefore, it is held that order for discharge of accused in summon cases cannot be passed by the Magistrate under Section 251 and 255(1) Cr.P.C.
27. The argument that there was no negligence on the part of the accused petitioner while treating the deceased is concerned, it would be considered by the trial court at the time of passing of final order and not at the time when contents of the offence under Section 304A I.P.C. were read over to the accused petitioner.
28. The learned counsel for the accused petitioner has relied on the case of Dr. Gopinath Pillai v. State of Kerala, 2000 Cr.L.R. 3682. In that case proceedings were quashed by the Kerala High Court under Section 482 Cr.P.C. and the Kerala High Court came to the conclusion that allegations of negligence of doctor were not found and thus, the Kerala High Court quashed the complaint.
29. As already stated above, this Court is hearing revision petition against the order by which contents of offence were read over, it is not a petition Under Section 482 Cr.P.C. and thee is large difference between the scope of revision and the petition Under Section 482 Cr.P.C. and thus from this point of view also, the above authority would not be helpful to the accused petitioner so far as disposal of this revision petition is concerned.
30. For the aforesaid reasons, the impugned order dated 7.9.2001 passed by the learned Magistrate is within the frame work of law and does not suffer from basic infirmity or illegality and hence this revision petition is liable to be dismissed.
Accordingly, this revision petition is dismissed after confirming the order dated 7.9.2001 passed by the learned Judicial Magistrate, First Class, Sujangarh.