Madhya Pradesh High Court
Dr.Radhika Bandi vs The State Of Madhya Pradesh on 11 May, 2020
Author: Virender Singh
Bench: Virender Singh
1M.Cr.C No.5736/2020
HIGH COURT OF MADHYA PRADESH; BENCH AT INDORE
M.Cr.C No.5736/2020
Dr. Radhika Bandi Vs. State of M. P.
Indore; Dated 11/05/2020
Shri S.K Vyas, learned senior counsel with Ms. Neha Yadav, learned
counsel for the petitioner.
Shri Sandeep Mehta, learned counsel for the respondent/State.
ORDER
1. Being aggrieved by order of dismissal of her application filed under section 294 CRPC to ask the prosecution to ''admit or deny'' the report of the Chief Medical and Health Officer, Indore filed by petitioner as Annexure P/6, to establish his defence against the allegation of negligently removing right eye instead of left eye of the 3 year old son of the complainant, the petitioner has invoked inherent powers of this Court conferred under section 482 CRPC.
2. The Judicial Magistrate First Class, Indore has dismissed the application vide order dated 21.01.2020 passed in criminal case number 19700/2008.
3. Facts giving rise to the present petition in brief are that in the April, 2007 (13.04.2007) one Kailash Narayan Dhakad approached the police with a complaint that his three year old son Chhotu was suffering from some disease. He visited local doctor; Dr. Digpal Dharkar, who referred him to Dr. Radhika Bandi (petitioner) of Greater Kailash Hospital, Indore for further treatment. Dr. Bandi acted negligently and instead of treating the left eye, she removed his right eye, which had no ailment. The police registered crime number 292/2008 and investigated the same.
4. During the investigation, the police recorded statement of complainant Kailash Narayan and Dr Digpal Dharker. The complainant reiterated his allegation and Dr. Dharker stated that he had examined Chhotu and found that there was some haematoma with swelling in his left eye, but there was no defect or ailment in his right eye. The police concluded that there was sufficient evidence to 2M.Cr.C No.5736/2020 prosecute the petitioner and filed the charge-sheet against her under section 338 of the IPC.
5. During pendency of the trial, the petitioner filed an application under section 91 of the CRPC for calling a report of Chief Medical Officer, Indore claiming that it was obtained by the investigating officer during the investigation, therefore, it was a prosecution document, but the prosecution withheld it and did not file it with the charge- sheet. It was further claimed that the Chief Medical Officer has exonerated the petitioner from the charge of negligence, therefore, the same be taken on record. This application was allowed vide order dated 17.05.2014. The report was called, but was never produced before the Court by the concerned officials. Later, as stated by the petitioner, the Court asked the petitioner to obtain a copy of this report under the RTI and file it on record. The petitioner obtained and filed the same.
6. The petitioner then filed an application under section 294 CRPC asking the prosecution to "admit or deny" the genuineness of this report.
7. The prosecution chose not to file reply to the application, but objected for the same.
8. The learned trial Court dismissed the application vide impugned order.
9. It is argued by the learned senior counsel representing the petitioner that the document produced by the petitioner cannot be considered as a document of defence as it was originally collected during the investigation but was withheld at the time of filing of the charge- sheet for reasons best known to the prosecution. It is a document of sterling quality, therefore in view of the law laid down by Honourable the Supreme Court in Nithya Dharmananda @ K lenin Vs. Sri Gopal Sheelam Reddy reported in (2018) 1 SCC 458, it has to be considered in favour of the petitioner. Placing reliance on Jacob Mathew's case (Jacob Mathew Vs. State of Punjab (2005) 6 SCC 1), the learned Senior counsel argued that in the case of 3M.Cr.C No.5736/2020 allegation in respect of medical practitioner or doctor not only the "negligence" much less the "gross negligence" on the part of the doctor matters. The report of the CMO states that there was no negligence much less gross negligence on the part of the petitioner and hence, no case can be sustained against the petitioner as in the wake of this report "gross negligence" cannot be established by the prosecution by producing any other evidence.
10. The learned Public Prosecutor has objected the petition. It is submitted that any exculpatory evidence, produced or relied upon by the defence, cannot be considered at the stage of framing of charge or stating the particulars of offence to the accused as the case may be.
11. The parties are heard at length.
12. The focus of the arguements advanced by the petitioner was on the point that the report of the Chief Medical and Health Officer, Indore (Annexure A/6) be considered before or at the time of stating the particulars of offence to her.
13. Through the present petition, the petitioner has prayed for following substantial relief, that this Court: -
"(B) Further be pleased to direct the Learned Lower Court to consider the letter dated 04/04/2008 (Annexure P/5) and opinion of CMO dated 09/04/2008 (Annexure P/6) sought by the prosecution, during investigation, at the stage of charges;"
14. Before the trial Court, the petitioner had filed the following application:
uksfVl vUrxrZ /kkjk 294 n- iz- la- ds rgr **1%& ;g gS fd vuqla/kku ds nkSjku iqfyl iykfl;k }kjk eq[; fpfdRlk ,oa LokLF; vf/kdkjh ftyk] bankSj ls fnukad 04-04-2008 dks ,d fo'ks"kK er ek¡xk x;k FkkA 2%& ;g fd eq[; fpfdRlk ,oa LokLF; vf/kdkjh ftyk bUnkSj }kjk fnukad 09-04-2008 ds i= ftldh çekf.kr çfrfyih ekuuh; U;k;ky; esa çLrqr dh tk jgh gS] ds }kjk viuk er vuqla/kku vf/kdkjh dks çsf"kr fd;k FkkA 3%& ;g fd] eq[; fpfdRlk ,oa LokLF; vf/kdkjh ftyk bUnkSj ds nLrkost dh çekf.kr çfrfyih lwph vuqlkj çLrqr dh tk jgh gSA 4M.Cr.C No.5736/2020 4%& ;g fd] mijksä nLrkost dh izekf.kdrk esa dksbZ lansg ugha gks ldrk gSA 5%& ;g gS fd vfHk;kstu mä nLrkost dh çekf.kdrk Lohdkj djsA vr,o vfHk;kstu mijksä nLrkost dh çekf.kdrk Lohdkj djsA bUnkSj fnukad %& 13-12-2017-**
15. Thus, the simple prayer made by the petitioner before the trial Court was that the prosecution be asked either to ''admit or deny'' the genuineness of the document produced by the petitioner. Neither any fact was mentioned in the application nor was any relief claimed that any particular document be consider at the time of stating the particular of offence.
16. Though the prosecution didn't file reply, but had objected the same, which clearly means that the prosecution did not admit the document.
17. Thus, the matter ends here as the prosecution was asked either to "admit or deny" the genuineness of the document and the prosecution denied the same. After the denial of the prosecution, nothing remained for the Court to do except to proceed further with the trial.
18. Perusal of Section 294 CRPC would be useful here. It provides that:
-
"No formal proof of certain documents.- (1) Where any documents filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document.
(2) .....
(3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed:
Provided that the Court may, in its discretion, require such signature to be proved."
19. The object in enacting this Section is to shorten the proceedings. It provides the mode or manner in which the document relied upon by the prosecution or by the defence can be proved without any formal proof thereof. A simple and plain reading of this Section shows that 5M.Cr.C No.5736/2020 no party can be compelled by the other side to admit or to deny any document. In the case in hand, the defence proposed to admit genuineness of the report of the CMO, but the prosecution refuse to admit it. Now its upon the proposer to prove it by producing evidence during the trial. He cannot ask the Court to use its authority to compel the prosecution to admit the document. Therefore, there is nothing wrong or illegal in the conclusion of the trial Court. There appears no illegality or perversity in the impugned order passed by the trial Court. Therefore, no ground for interfering in the impugned order is made out.
20. It reflects from the order of the trial Court, pleadings of the present petition and the arguements advanced by the learned senior counsel for the petitioner that by filing the application before the trial Court and thereafter by filing the present petition before this Court, the petitioner intends to compel the trial Court to consider the report of the CMO, Indore before stating the particular of offence and as the report is genuine and exoneratesthe petitioner from the allegation made by the complainant, discharge her or to drop the proceedings pending against her.
21. Though, it is not necessary to consider any prayer other than the prayer made in the application under consideration and which is altogether different from the issue raised before the Court, however with intent to curtail the litigation, which may arise in future for the same purpose and to avoid delay in the trial which is already more than 12 years, I have considered the report of the CMO, which is the umbilicus of the present controversy and which the petitioner wishes to be considered by the trial Court to pass an order in her favour. The report is filed by the petitioner as Annexure P/6, which reads as under : -
Þmijksä fo"k;karxZr ,oa lanfHkZr i= ds rkjrE; esa voxr gksos fd Jh NksVw iq= Jh dSyk'k /kkdM+ ds laca/k esa vkids }kjk tks vfHker pkgk x;k gS rRlaca/k esa tk¡pdrkZ fpfdRld dh tk¡p fjiksVZ rFkk muds }kjk miyC/k djok;s x;s nLrkostksa ds vk/kkj ij ;g vfHker gS fd M‚DVj Jherh jkf/kdk caMh }kjk mipkj esa fdlh çdkj dh dksbZ ykijokgh ugha 6M.Cr.C No.5736/2020 cjrh xbZ gS ,oa le; ls mipkj u gksus ds dkj.k jksxh dh tku dks [krjk gks ldrk FkkAß
22. This report, which in fact, is reply to the letter of the Investigating Officer, shows that the author of this reply has never gone through the treatment papers or record of the patient/victim. Some other doctor had examined them and had submitted some inquiry report before the Chief Medical and Health Officer, District Indore, who intimated the same to the SHO of Police Station Palasia, District Indore as allegedly sought by him. Undisputedly the prosecution is not relying upon this report, as earlier it; as alleged, was not filed with the charge-sheet and later; when proposed to admit, it has not been admitted. This reply does not reveal as to who examined the treatment record, how he reached on the conclusions claimed by the petitioner and what were the reasons to reach on those conclusions. It is mentioned in the order of the trial Court dated 17.05.2014 that before filing of the charge-sheet, opinion of CMO was sought, who, on the basis of report submitted by Ophthalmologist Dr. Ashutosh Sharma, had opined that the operation of right eye of the patient/victim was not performed by taking his guardians in confidence. Thus, on the one hand, the report relied upon by the petitioner cannot be considered as conclusive proof to the extent to drop the proceedings against her, it has to be established during the trial after giving opportunity to the prosecution/complainant following the due process of law and on the other hand the statements of the complainant Kailash Narayan and Dr. Dharkar shows existence of prima facie evidence against the petitioner. Therefore, looking to the controversial status of facts, the prosecution cannot be compelled to admit the report and the trial Court cannot be directed to consider such imperfect and incomprehensive report, as it appears from the face of it and to pass any order without giving an opportunity to the prosecution/complainant to establish its/his case.
7M.Cr.C No.5736/202023. The judgements cited by the petitioner are distinguishable on the facts and, therefore, do not help her as untill and unless established, there are grounds to doubt the opinion mentioned in the report of the CMO.
24. Perusal of the record reflects that the incident of this case took place in April, 2007. The police filed the charge sheet in May, 2008. Since then the proceedings are pending for the one reason or the other and in a 'summons case', which are classified with the sole purpose to provide a measure of early decision in petty cases, even the particular of the offence could not be stated to the accused. Earlier, in the year 2014 when the case was fixed for stating the particular of the offence and later in the impugned order, the trial Court has observed that even after inordinate delay, the case is still pending for stating the particular of the offence to the accused.
25. Earlier, in the year 2014 also, while dismissing the application of the petitioner filed under section 259 CRPC, the trial Court discarded the same contention of the petitioner and had held that on the basis of the report of the CMO, the case cannot be disposed off and further observing that the report can only be established by producing the evidence as to whether there was any negligence in the treatment of the victim or not. But even then the same issue is agitated again by the petitioner; first before the trial Court and now before this Court.
26. The trial Court itself has observed that the case is 12 years old and there are directions of the High Court to dispose of such cases, which are pending since more than 10 years, at the earliest.
27. In such circumstances, this Court is of the considered opinion that it has become imperative to issue direction to conduct the trial in a time bound manner and to dispose off the same at the earliest.
28. Therefore, the trial Court is directed to conclude the trial and to dispose it off within six months from the date of communication of this order. Needless to say, the adjournment, untill and unless it becomes exceptionally unavoidable, be not granted to any of the parties. Coercive methods to secure presence of the witnesses be 8M.Cr.C No.5736/2020 adopted. The concerned Additional Superintendent of Police (ASP), Indore is directed to monitor the trial and to provide all logistic assistance to the Court to conclude the trial within the time fixed. The time limit shall be observed positively. Any failure may invite stern action.
29. No time shall be extended without the express permission of this Court.
30. With the aforesaid, present petition stands dismissed and disposed off.
31. Copy of this order be immediately communicated to the SP and ASP Indore and to the Court concerned for compliance.
(Virender Singh) Judge sourabh Digitally signed by Pankaj Pandey Date: 2020.05.11 16:41:58 +05'30'