Delhi High Court
Dr.Chitra Bhatnagar vs State on 11 April, 2012
Author: M.L. Mehta
Bench: M.L. Mehta
* THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C.2274/2010
Date of Decision: 11.04.2012
DR.CHITRA BHATNAGAR ...... Petitioner
Through: Mr. Jagat Rana, Adv.
Versus
STATE ...... Respondent
Through: Mr. M.N. Dudeja, APP for the State.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J.
1. This is a petition under Section 482 Cr.P.C. for quashing the Order dated 06.05.2010 passed by Ld. Additional Sessions Judge, whereby he dismissed the Criminal Revision Petition No. 05/2010 in FIR No.154/01 registered at P.S. Roop Nagar.
2. The factual matrix of the case is that a complaint was filed by Yadveer Singh Chauhan on 07.06.1998 to the SHO, P.S. Roop Nagar stating that his wife Sapna was admitted in Parmarth Mission Hospital on 08.03.1997 during Crl.M.C. No.2274/2010 Page 1 of 11 her pregnancy for her treatment and was discharged on 19.03.1997. She was again admitted in the said hospital on 22.05.1997 where she delivered a child after a cesarean operation. It was stated by the complainant that his wife was experiencing pain in her abdomen due to infection and on the advice of Dr.V. Thukral , the uterus of the deceased was removed on 27.05.97, but she got no relief from the pain. Thereafter she regularly visited the hospital and was under
the treatment of the present petitioner. The deceased wife of the complainant underwent several X-rays, ultrasound and other tests which were seen by the petitioner and Dr.V. Thukral. As there was no relief to the wife of the complainant, she was discharged from the hospital on 19.05.1998 and her ailment was diagnosed as „Australia Antigen‟. She was thereafter taken to Hindu Rao Hospital by the complainant where she underwent an operation on 25.05.1998 and a sponge like foreign body nearly 17 cm. x 17 cm. with a tag nearly 11 cm. was removed from her abdomen and she was declared dead at
3.45 P.M. on 26.05.1998.
3. Consequent to his complaint, an inquiry was conducted by ACP, Civil Lines who did not find any force in the complaint and closed it on 22.4.1999. Haplessly the complainant filed another complaint in the Court of learned ACMM on 25.5.2001, pursuant to which the learned ACMM directed the Crl.M.C. No.2274/2010 Page 2 of 11 Police to register an FIR under Section 156 (3) Cr.P.C. An FIR under Section 304-A/34 IPC was registered by the Police on 13.07.2001 and final report under Section 173 Cr.P.C. was filed against Dr. Vinod Thukral, Dr. Asha Gupta and the petitioner. Another report was filed by the Police alleging that the Management of Parmarth Mission Hospital was negligent in their treatment of the deceased wife of the complainant.
4. After receiving the opinion of the Medical Board, charge sheet was filed on 03.12.2002 and on the same day the learned MM took cognizance of offence under Section 304-A/34 IPC and summoned the three accused persons besides the Management of the Hospital vide his order dated 26.10.2004. Assailing the summoning order on the ground of limitation and issue of cause of death of the complainant‟s wife, revision petition was filed by the present petitioner which was dismissed by the Addl. Sessions Judge vide his order dated 06.05.2010 opining that the cognizance was within limitation period as the complaint was filed on 25.5.2001 and FIR was registered on 13.07.2001and charge sheet was filed on 03.12.2002 and further that prima facie it was a case of gross negligence by the accused persons. Hence the present petition.
5. The impugned order is challenged by the learned counsel for the petitioner submitting that the ld. Revision Court had committed illegality in Crl.M.C. No.2274/2010 Page 3 of 11 holding that the cognizance was taken on 03.12.2002 and not on 26.10.2004. It was submitted by the counsel for the petitioner that cognizance was barred by limitation as the first complaint was made on 07.06.1998 and summoning order was passed on 26.10.2004 after 6 years and 5 months. It was further submitted that the impugned order of summoning was also illegal as there was no relation between the caesarean surgery performed at the hospital and the death of the wife of the complainant after one year and further that the sponge recovered from the deceased‟s abdomen was never preserved and presented before the Medical Board. It was also submitted that no MLC or postmortem report was prepared by the hospital where she breathed her last, to ascertain the true cause of death. Lastly, it was submitted by the counsel for the petitioner that there was no police complaint made by the complainant about the recovery of sponge from the abdomen of his wife and these fact casts shadow on the veracity of the allegations made by the complainant.
6. Per contra, the learned APP for the State submitted that the petition is although under Section 482 Cr.P.C., but is in reality a second revision against a preliminary order which is barred under the provisions of Section 397(3) Cr.P.C. It was further submitted that it was a case of gross negligence by the accused persons including the petitioner as the sponge was present in the Crl.M.C. No.2274/2010 Page 4 of 11 abdomen of the deceased wife of the complainant for a period of one year which led to her untimely death. In addition, it was submitted by learned APP that it would be travesty of justice to thwart the prosecution case in its womb, when even the stage for leading evidence to substantiate the charges has not been reached.
7. I have heard learned counsel for the petitioner and the learned APP.
8. At the outset, it must be noted that a revision was filed by the petitioner before the Court of ASJ against the summoning order passed by the Ld. M.M. and that this is the second revision petition against the said summoning order. A second revision petition against this order is barred under the provisions of Section 397(3) Cr.P.C. The intention of the Legislature under section 397(3) Cr.P.C. is definite and the scheme therein is unambiguous and clear. Sub section (3) does not permit the repetition in exercise of jurisdiction of revision under section 397(1) Cr.P.C. It curtails the chance availing second remedy and therefore, an unsuccessful revisionist in the Court of Sessions cannot be entertained for the second time by the High Court. In fact, sub section (3) intends and aims to secure finality. The choice lies with the revisionist either to file revision directly in this Court or in the Sessions Court. Having availed the remedy by filing revision before the Sessions Court, one cannot be Crl.M.C. No.2274/2010 Page 5 of 11 permitted to avail second chance to file revision in view of the bar of sub section (3) of section 397 Cr.P.C and hence, the present petition is not maintainable on this ground alone.
9. While laying that section 397(3) Cr.P.C. laid statutory bar of second revision petition, the courts have held that High Court did enjoy inherent power under section 482 Cr.P.C. as well to entertain petitions even in those cases. But, that power was to be exercised sparingly and with great caution, particularly, when the person approaching the High Court has already availed remedy of first revision in the Sessions Court and only in a situation when there was an abuse of process of court or there was serious miscarriage of justice or the mandatory provisions of law were not complied with. This Court will now proceed to see as to whether the instant petition, fall within that category of cases which require invoking of inherent jurisdiction of this Court under Section 482 Cr.P.C.
10. Dealing with the contentious issue of limitation, it would be relevant to note that the offence under Section 304-A IPC is punishable with imprisonment upto two years and the limitation for taking cognizance in such offence under Section 468 Cr.P.C. is three years. Further, under the provisions of Section 469 Cr.P.C., the period of limitation in relation to an offender shall Crl.M.C. No.2274/2010 Page 6 of 11 commence from the date of offence or from the first day on which offence comes into the knowledge of such persons or to any police officer, whichever is earlier. Now, the question before this Court is that from which date the period of limitation in the present case commenced. From the perusal of record, it is evident that the complaint was filed by the complainant immediately after the death of his wife, but no action was taken by the police authorities and the complainant was constrained to file another complaint in the Court on 25.05.2001, pursuant to which the Court ordered the registration of FIR against the three accused doctors and FIR was registered by the police on 13.07.2001 and the report of the Medical Board was sought. The initial charge sheet was filed only against the three accused doctors on 03.12.2002. After taking of cognizance of the offence by Ld. M.M., however on the objections raised by the complainant, the Ld. MM also took cognizance against the hospital management as well and passed the summoning order dated 26.10.2004 .The proceedings prior to filing of the charge sheet and taking of cognizance on 03.12.2002 cannot be included within the limitation period as they were merely instrumental in the passing of the summoning order by the learned ACMM. The inaction and delay on the part of the ACP cannot be attributed to the complainant as he took all necessary steps to ensure the filing Crl.M.C. No.2274/2010 Page 7 of 11 of the case in the Trial Court. The summoning order passed on 26.10.2004 cannot be equated as date of taking cognizance, because it was merely progression of the trial Court proceedings which began effectively from 03.12.2002. Thus, the period of limitation commenced from the date of filing the charge sheet i.e. 03.12.2002 and not from the date of filing the first complaint or the date of impugned summoning order.
11. In view of the above discussion, I am of the opinion that the ld. ASJ rightly concluded that the cognizance was taken within the limitation period of three years which commenced from filing of charge sheet on 03.12.2002 and the inclusion of the hospital management as the accused persons in the case cannot be termed as the date of taking cognizance of the offence.
12. Coming to the contention of the learned counsel for the petitioner that there was no nexus between the surgery performed at the Parmarath Mission Hospital and death of the complainant‟s wife, it would suffice to say that the deceased was under the treatment of the petitioner along with other accused persons who had the X-rays and Ultrasound reports of the deceased at their disposal, but still they could not ascertain the presence of a sponge like foreign body in her abdomen, which prima facie indicates negligence on their part. Moreover, the absence of MLC or post mortem report or complaint regarding Crl.M.C. No.2274/2010 Page 8 of 11 presence of sponge in the deceased‟s body are all triable issues and cannot be looked into by this Court. The petitioner would have ample opportunity to lead evidence on these issues in the Trial Court proceedings.
13. It is trite that when from the perusal of material on record prima facie commission of offence is indicated, this Court should not throttle the prosecution at its nascent stage. In State (Govt. of NCT of Delhi) Vs. DAM Probhu & Anr. 2009(1) Crimes 351 (SC), the Hon‟ble Supreme Court has reaffirmed the law that when the stand as taken by the respondent was essentially their defence, which is to be considered at the time of trial, threshold interference would not be appropriate. In Ashabai Machindra Adhagale Vs. State of Maharashtra, 2009(1) Crimes 304(SC) the Hon‟ble Supreme Court has held that the inherent power should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal are of magnitude and cannot be seen in their true perspective without sufficient materials. Crl.M.C. No.2274/2010 Page 9 of 11
14. This Court in Sarabjit Singh & Anr. Vs. State & Anr. [Crl. MC No.4041/2009] , while deliberating on the issue of exercise of inherent powers of this Court to quash the summoning orders against the accused persons held :
"7.. I consider that whatever defence the petitioners have cannot be gone into at this stage of summoning. At this stage, what is required to be seen is as to whether from the complaint and the statements of the witnesses examined in support thereof, there were sufficient reasons to proceed against the petitioners. In the present proceedings, the evidence could not be weighed and scrutinized, nor a fishy enquiry could be done to see as to whether the present complaint would ultimately lead to conviction of the petitioners or not."
15. In the case of K.M. Mathew v K.A. Abraham & Others [2002(3) JCC 1523], the Hon‟ble Supreme Court held that when a Magistrate before issuing process has come to the conclusion that the complaint prima facie makes out the offence, the High Court shall be reluctant in exercising its inherent powers to quash the proceedings. Undisputedly, powers under Section 482 Cr.P.C has to be used sparingly and with great caution and only in those cases where this Court comes to the conclusion that there was manifest injustice or there was abuse of process of the court.
Crl.M.C. No.2274/2010 Page 10 of 11
16. From the perusal of first revision petition and the instant petition, I found no material difference in the grounds raked up by the counsel for the petitioner which stood rejected by the learned ASJ vide his impugned order. Nothing novel could be pointed out by the counsel for the petitioner that would warrant entertaining this petition against the impugned order. Not only that the case does not fall within the parameters of invoking inherent and extraordinary jurisdiction under section 482 Cr.P.C., even otherwise it does not call for any interference by this court on merits. In the present factual matrix, I am of the opinion that the averments made in the complaint spelled out the ingredients of the criminal offence and the trial Court proceedings do not merit interference by this Court under Section 482 Cr.P.C.
17. In view of the above discussion, I find no merit in the present petition which is hereby dismissed.
M.L. MEHTA, J.
APRIL 11, 2012 ss/skw Crl.M.C. No.2274/2010 Page 11 of 11