Gauhati High Court
Rajendra Prasad Hansaria vs Praveen Jain on 19 July, 2012
Author: I A Ansari
Bench: I A Ansari
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM; NAGALAND; MEGHALAYA;
MANIPUR; TRIPURA; MIZOAM & ARUNACHAL PRADESH)
Criminal Revision No. 581 of 2004
Sri Rajendra Prasad Hansaria,
Son of Late Satyanarayan Hansaria,
Chief Medical Superintendent,
Marwari Maternity Hospital,
Sati Joymati Road,
Bharalumukh Police Station,
Districe. Kamrup, Assam.
----- Accused-Petitioner
- Versus -
Sri Praveen Jain,
Son of Sri Gajanand Jain,
R/O Chinmoy Apartment,
3rd Floor, Kali Mandir Lane,
Tokobari, Guwahati-8,
Bharalamukh Police Station,
District-Kamrup, Assam.
----- Complainant-opposite party
PRESENT
THE HON'BLE MR. JUSTICE I A ANSARI
For the petitioners Mr. V Hansaria, Senior Advocate.
For the Opp. Party Mr. AK Bhattacharya, Sr. Advocate.
Date of hearing : 01-06-2012.
Date of judgment : 19-07-2012
JUDGMENT & ORDER
With the help of this application, made under Section 482 Cr.P.C.,
the petitioner, who is one of the accused, in Complaint Case No.
1998C/2004, has sought for quashing of the complaint, in question, as well
as the order, dated 03-08-2004, whereby cognizance of offence, under
Section 304-A IPC, has been taken by the learned Additional Chief
Judicial Magistrate, Kamrup, Guwahati, who has also directed issuance of
process, amongst others, against the present petitioner, who is a
Gynaecologist and Obstetrician and presently working as Chief Medical
Page 2 of 25
Superintendent of Marwari Maternity Hospital, Guwahati, which is being
run by a charitable trust, namely, Marwari Databya Aushadhalaya, and
which is one of the accused in the complaint, in question.
2. I have heard Mr. B Hansaria, learned Senior counsel, appearing on
behalf of the accused-petitioner, and Mr. AK Bhattacharyya, learned
Senior counsel, appearing for the complainant-opposite party.
3. The case of the complainant may, in brief, be set out as under :
(i) The accused No. 1, namely, Sri Om Prakash Choudhury is the
Secretary of the Marwari Maternity Hospital and accused Nos. 2, 3 and 4,
namely, Dr. RP Hansaria (i.e., the petitioner herein), Dr. Dinesh Agarwal
and Dr. KK Goswami (since deceased) respectively are doctors practising
in the said hospital and also in other parts of the city of Guwahati.
(ii) The complainant admitted his wife, Smti. Namita Jain, on 31-
03-2004, at about 9.30 am, as a delivery case. At the time of her
admission, Namita Jain was examined by the present petitioner, who
found that the patient‟s all the parameters, such as, blood test, x-ray,
ECG, etc, were as per requirements and she was quite normal and fit. On
01-04-2004, at about 9.00 am, Dr. RP Hansaria (i.e., the petitioner herein) came, suddenly, to the complainant and told him that the patient was required to undergo some operation and surgery and that the complainant was required to give his consent thereto by putting his signatures on requisite papers. The complainant accordingly signed the necessary consent papers on 01-04-2004, whereupon Dr. RP Hansaria conducted necessary operation on 01-04-2004 itself and the complainant‟s wife delivered a male child on that very day at about 11.45 am and, thereafter, she was shifted from Operation Theater (OT) to the Observation Room.
Criminal Revision No. 581 of 2004 Page 3 of 25
(iii) Subsequent to the surgery, the patient was, however, lying unconscious. This apart, when the patient was brought out from the Operation Theater, the complainant noticed that there was continuous bleeding at the point of saline‟s needle and his wife‟s bed was full of blood. Seeing this abnormal condition, the complainant raised the matter before the attending doctor, namely, Dr. RP Hansaria, who failed to take the matter seriously and did not take remedial medical steps and, as a result thereof, her condition went on deteriorating from bad to worse. The patient was, therefore, again, shifted to Operation Theater. Thereafter, at about 7.30 pm, the patient was brought back to the Observation Room with general oxygen, whereupon the complainant asked the doctors, namely, accused Nos. 2 and 3 (i.e., Dr. RP Hansaria and Dr. Dinesh Agarwal respectively), about the condition of the patient. Both the said doctors replied by saying that due to excess dose of anesthesia, some problems had arisen, but there was no need to worry inasmuch as necessary treatment was in progress. On being so informed by the said two doctors, the complainant remained silent and waited for recovery of his patient; but he was quite upset with the condition of the patient, because the patient remained in unconscious state till 6.30 pm, though such a patient, under normal circumstances, ought to have regained sense within an hour of surgery from the influence of anesthesia. The complainant also observed that due to negligence, on the part of the accused Nos. 2, 3 and 4, his wife‟s condition had become serious and he (complainant) also found that there was no provision for Intensive Care Unit (ICU), in the said hospital, to provide better treatment to such type of serious patients.
Criminal Revision No. 581 of 2004 Page 4 of 25
(iv) The complainant, therefore, decided and, consequently, tried to shift his patient to some other hospital; but the doctors, attending on his patient, including the present petitioner, did not allow him to take away the patient and to shift her to any other hospital. The attending doctor, namely, accused No. 2, Dr. RP Hansaria, again and again, tried to convince the attendants of the said patient, particularly, the complainant, that the patient was alright so far as gynaecological aspect was concerned, but she had been having problem, because of excess dose of anesthesia.
(v) On 02-04-2004, at about 3.30 am, some attending doctor rang up the complainant to inform him that his patient‟s condition was very serious and that he should come, immediately, to the Observation Room. On receiving the phone call, the complainant and his brother, Satish Jain, came to the Observation Room and found that 2/3 doctors, along with some nurses, searching for some electrical wires in the Observation Room and 2/3 doctors were pumping the chest of the patient. From what the complainant observed, it was clear to him that due to non-availability of ICU and other facilities in the said hospital, the condition of the patient was very much serious. When the condition of the patient deteriorated further, then, the attending doctors/medical authorities concerned started taking steps to shift the patient to Guwahati Neurological Research Centre (GNRC) at about 5 am, but it took about 15 minutes to carry the patient from the Observation Room, situated on the 1st Floor of the said hospital, to the ambulance and in this 15 minutes of total process, the patient was not provided with oxygen and life saving support.
Criminal Revision No. 581 of 2004 Page 5 of 25
(vi) The patient was, thus, shifted to GNRC and taken to the ICU there at about 5.30 am. The staff, on duty, put the patient on cardiac monitors and artificial ventilation; but after 6.15 am, the patient was declared dead. The complainant approached the GNRC authorities to issue requisite Death Certificate of his wife; but the GNRC refused to issue any such certificate, for, according to them, the death of the patient had occurred during the transit in the ambulance itself.
(vii) In order to know the cause of untimely death of the complainant‟s wife, the complainant sent a letter, on 10-04-2004, to the Secretary, Marwari Maternity Hospital, requesting him to provide the complainant with all the documents pertaining to the treatment of his patient. The complainant repeated the request by another letters, dated 13-04-2004. Thereafter, in response to the complainant‟s letters, dated 10- 04-2004 and 13-04-2004, the General Secretary, Marwari Maternity Hospital, Sri OP Chaudhury (i.e., accused No. 1), sent one letter, dated 17- 04-2004, to the complainant along with some relevant papers relating to the complainant‟s wife and, at the same time, he also mentioned in the letter that the whole matter, pertaining to the death of Smti Namita Jain, was under a process of enquiry. Thereafter, the Joint Secretary of Marwari Maternity Hospital sent another letter, dated 30-04-2004, to the complainant along with an inquiry report as regard the circumstances leading to the death of the complainant‟s wife. The inquiry report is, however, contradictory in the sense that the said letter claims that the doctors themselves had decided to shift the patient to GNRC at about 5 am on 02-04-2004. By the letter of the authorities concerned, it was also admitted that on reaching GNRC, the staff, on duty, immediately, resorted to necessary treatment, but the patient was declared dead and, Criminal Revision No. 581 of 2004 Page 6 of 25 in the same report, the enquiring authority also admitted the fact that the patient went into deep coma during transfer and as per report from GNRC, the death had occurred, in the ambulance, during transmit period from Marwari Maternity Hospital to GNRC.
4. Based on the above complaint, CR Case No. 1998C/2004 was registered. The complainant‟s initial deposition was recorded under Section 200 Cr.P.C. and, then, processes for commission of offence, under Section 304A IPC, were directed to be issued by the impugned order, dated 03-08-2004, against, amongst others, the present petitioner.
5. While considering the present application made under Section 482 Cr.PC., it needs to be noted that the law, with regard to quashing of criminal complaint, is no longer res integra. A catena of judicial decisions has settled the position of law on this aspect of the matter. I may refer to the case of R. P. Kapur v. State of Punjab (AIR 1960 SC 866), wherein the question, which arose for consideration, was whether a first information report can be quashed under Section 561A of the Code of Criminal Procedure, 1898. The Court held, on the facts before it that no case for quashing of the proceeding was made out. Gajendragadkar, J, speaking for the Court, observed that though, ordinarily, criminal proceedings, instituted against an accused, must be tried under the provisions of the Code, there are some categories of cases, where the inherent jurisdiction of the Court can and should be exercised for quashing the proceedings. One such category, according to the Court, in R. P. Kapur (supra), consists of cases, where the allegations in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases, no question of appreciating evidence arises and it is a matter merely of looking at the FIR or the Criminal Revision No. 581 of 2004 Page 7 of 25 complaint in order to decide whether the offence alleged is disclosed or not. In such cases, said the Court, it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal Court to be issued against the accused. From the case of R.P.Kapoor (Supra), it becomes abundantly clear that when a look into the contents of a complaint shows that the contents of the complaint, even if taken at their face value and accepted to be true in their entirety, do not disclose commission of offence, the complaint shall be quashed. Similarly, where an FIR does not disclose commission of an offence, the FIR has got to be quashed.
6. As a corollary to what has been discussed above, it is also clear that if the contents of the complaint disclose commission of offence, such a complaint cannot be, ordinarily, quashed nor can an FIR be, ordinarily, quashed if the FIR discloses commission of a cognizable offence.
7. Laying down the scope of interference by the High Court in matters of quashing of FIR or complaint, the Supreme Court, in State of Haryana and Ors. V. Bhajanlal and others, reported in 1992 Supp (1) SCC 335, laid down as follows :-
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the inherent powers under section 482 of the Code, which we have extracted and reproduced above, we give the following categories of cases by way of illustration, wherein such power could be exercised either to prevent abuse of the process of the any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines of rigid formulae and to give an exhaustive list of myriad kinds of cases, wherein such power should be exercised :-
Criminal Revision No. 581 of 2004 Page 8 of 25 (1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirely, do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations made in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where the allegation in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned act (under which criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance of the accused and with a view to spite him due to private and personal private grudge".
8. In the case of Bhajanlal (supra), the Supreme Court gave a note of caution, on the powers of quashing of criminal proceedings, in the following words :-
Criminal Revision No. 581 of 2004 Page 9 of 25 "103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases;
that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extra ordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice."
(Emphasis is added).
9. It is clear from a close reading of the principles laid down, in the case of R.P.Kapoor (supra) and Bhajanlal (supra), that broadly speaking, quashing of a First Information Report or a complaint is possible (a) when the allegations made, in the First Information Report or the complaint, even if taken at their face value and accepted in their entirely as true, do not prima facie constitute any offence or make out a case against the accused; (b) when the uncontroverted allegations, made in the FIR or complaint and evidence collected in support of the same, do not disclose the commission of any offence and/or make out a case against the accused; and (c) when the allegations made in the FIR or complaint are so absurd and inherently improbable that on the basis of such absurd and inherently improbable allegations, no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
10. In other words, when the allegations, made in an FIR, disclose commission of a cognizable offence, such an FIR cannot, ordinarily, be quashed by relying upon some other materials on which will depend the defence of the accused, for, in such cases, truthfulness or otherwise of the allegations contained in the FIR or the probability of the defence plea can be determined only by effective investigation or at the trial. Criminal Revision No. 581 of 2004 Page 10 of 25
11. However, in Harshendra Kumar D. vs. Rebatilata Kiley and others, reported in (2011) 3 SCC 351, the Supreme Court has made it clear that it is not an absolute rule of law that the High Court, while exercising its jurisdiction under Section 482 CrPC, or, while exercising its revisional jurisdiction under Section 397 CrPC, cannot, under any circumstances, look into the nature of public document or such materials, which are beyond suspicion or doubt, in order to ascertain if the criminal prosecution should or should not be allowed to proceed. In fact, the Supreme Court has also made it clear, in Harshendra Kumar D. (supra), that no greater damage can be done to the reputation of a person than dragging him in a criminal case. The Supreme Court has, therefore, held, in Harshendra Kumar D. (supra), that the High Court fell into grave error in not taking into consideration the uncontroverted documents relating to the appellant‟s resignation from the post of director of the company, which, if looked into, would have made it clear that the appellant‟s resignation from the post of director of the company was much before the cheques had been issued by the company. The relevant observations, which appear, in this regard, at paragraph 25 and 26, in Harshendra Kumar D. (supra), read as under:
"25. In our judgment, the above observations cannot be read to mean that in a criminal case where trial is yet to take place and the matter is at the stage of issuance of summons or taking cognizance, materials relied upon by the accused, which are in the nature of public documents or the materials which are beyond suspension or doubt, in no circumstance, can be looked into by the High Court in exercise of its jurisdiction under Section 482 or for that matter in exercise of revisional jurisdiction under Section 397 of the Code. It is fairly settled now that while exercising inherent jurisdiction under Section 482 or revisional jurisdiction under Section 397 of the Code in a case where complaint is sought to be quashed, it is not proper for the High Court to consider the defence of the accused or Criminal Revision No. 581 of 2004 Page 11 of 25 embark upon an inquiry in respect of merits of the accusations. However, in an appropriate case, if on the face of the documents - which are beyond suspension or doubt - placed by the accused, the accusations against him cannot stand, it would be travesty of justice if the accused is relegated to trial and he is asked to prove his defence before the trial court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials which have significant bearing on the matter at prima facie stage.
26. Criminal prosecution is a serious matter; it affects the liberty of a person. No greater damage can be done to the reputation of a person than dragging him in a criminal case. In our opinion, the High Court fell into grave error in not taking into consideration the uncontroverted documents relating to the appellant‟s resignation from the post of Director of the Company. Had these documents been considered by the High Court, it would have been apparent that the appellant has resigned much before the cheques were issued by the Company."
(Emphasis is supplied)
12. From the law laid down in Harshendra Kumar D. (supra), it becomes clear that when the High Court is approached for quashing of a criminal prosecution in exercise of its extra-ordinary jurisdiction under Section 482 CrPC, or in exercise of its revisional jurisdiction under Section 397 CrPC, the High Court has to bear in mind that criminal prosecution affects the liberty of a person and there can be no greater damage done to the reputation of a person than dragging him in a criminal case. There is, therefore, no absolute bar, on the High Court‟s power, to take into consideration any uncontroverted document, which may have come on record, for the purpose of arriving at a decision as to whether a criminal prosecution should or should not be allowed to continue and, if the Court, on the basis of any public or uncontroverted document, comes to the conclusion that allowing the criminal prosecution to proceed, in such a case, would Criminal Revision No. 581 of 2004 Page 12 of 25 amount to abuse of the process of the Court, the High Court has the duty to quash such a proceeding.
13. It is, no doubt, true that while exercising its inherent jurisdiction under Section 482 CrPC, or its revisional jurisdiction, under Section 397 CrPC, where a complaint or FIR is sought to be quashed, it is not proper, on the part of the High Court, to consider the defence of the accused or enquire into the correctness or veracity of the accusations made against the accused. Nonetheless, in appropriate cases, if, in the face of the documents placed by the accused, which are beyond suspicion or doubt, the accusations against the accused cannot stand, it would be travesty of justice if the accused is asked to face trial, for, if it is so done, it would amount to denial of justice and would be tantamount to preventing justice from being done. This would be nothing short of abuse of the process of the Court.
14. Coupled with the above, there is no doubt that an FIR or a complaint may be quashed if the same is found to be actuated by mala fide (See. Hira Lal and others -vs- State of Uttar Pradesh, reported in (2009) 11 SCC 89) or if the FIR or the complaint makes accusations, which are so absurd or inherently improbable that no reasonable man would accept the allegations, made in the FIR or the complaint, as the case may be, as true and/or in a case, where the FIR and/or the complaint, as the case may be, is lodged as a counterblast. (See. MN Ojha & others -vs- Alok Kumar Srivastav & others, reported in (2009) 9 SCC 682). The FIR or a complaint may even be quashed, when the same is used as a weapon of harassment or persecution (See. State of Karnataka -vs- L. Muniswamy, (AIR 1977 SC 1489); but an FIR or a complaint shall be quashed, as held in Criminal Revision No. 581 of 2004 Page 13 of 25 Bhajanlal (supra), very sparingly and with great circumspection and that too, in the rarest of rare cases.
15. In the light of the law as regards quashing of a complaint or an FIR by taking resort to Section 482 Cr.P.C., let me, now, revert to the case at hand. As far as the process, issued as against the present petitioner, is concerned, what needs to be bear in mind is that the present petitioner is a Gynaecologist and Obstetrician. While considering the present application, made under Section 482 Cr.P.C., what needs to be noted, is that there is nothing, in the complaint, to show, nor is there anything, in the complainant‟s statement, recorded under Section 200 Cr.P.C., to indicate that there was any negligence or rashness on the part of the present petitioner in performing the surgery.
16. In fact, not even an iota of allegation has been made as regards any negligence or rashness on the part of the present petitioner in conducting the said surgery. The complainant also claims that according to the information given to him, his patient did not recover due to excess dose of anesthesia. Ordinarily, a surgeon‟s responsibility does not end merely with completion of surgery inasmuch as a surgeon remains also responsible to ensure that appropriate post operative care is taken. Here again, the complainant does not allege that the patient had suffered from any infection, rash or negligent act or omission, in the post-operative care, so far as the surgeon‟s role was concerned.
17. The admitted case of the complainant is that it was due to excessive dose of anesthesia that the complication arose. Though the complainant has also alleged that it took about 15 minutes to bring the patient from the Observation Room to the ambulance and, during this period, she was not provided with oxygen, which the patient ought to Criminal Revision No. 581 of 2004 Page 14 of 25 have been provided with, and it is also alleged by the complainant that though he himself not only suggested, but wanted to shift his patient to a better hospital, where necessary care of his wife could have been taken, the attending doctors, including the present petitioner, prevailed upon him by saying that whatever was necessary was being done, the complainant made the anesthetist, namely, Dr. KK Goswami, as accused No. 4. However, Dr. KK Goswami is no longer alive.
18. Apart from the fact that there is, strictly speaking, nothing in the complaint, in question, alleging that in administering anesthesia, there was rashness or negligence on the part of Dr. KK Goswami, the fact remains that even if the administration of excessive dose of anesthesia was in itself an act of such rashness or negligence, which would fall within the ambit of Section 304A IPC, what can be, at best, said is that a case, if any, had been made out by the complainant against the said anesthetist and, in the absence of any specific allegation that it was due to performance of surgery on his wife by the present petitioner in rash or negligent manner that the complainant‟s patient had developed complications and, eventually, went to coma and died, no case of rashness or negligence, attracting application of offence, under Section 304A IPC, can be said to have been made out against the present petitioner.
19. In no way, therefore, the direction for issuance of summons, as against the present petitioner, could have been passed, when the complaint, in question, and the complainant‟s statement, recorded under Section 200 Cr.P.C., did not make out any case of rashness or negligence, on the part of the present petitioner as Gynaecologist and Obstetrician, Criminal Revision No. 581 of 2004 Page 15 of 25 even if the contents of the complaint and the complainant‟s statement, recorded under Section 200 Cr.P.C, were assumed to be true and correct.
20. Coupled with the above, the term „negligence‟ may be used for the purpose of imposing civil liability on a defendant and, at times, to impose criminal liability. In order to enable a Court to hold that there was existence of criminal rashness or criminal negligence, there must be material to show that the rashness was of such a degree as to amount to taking a hazard knowing that hazard was of such a degree that injury was most likely imminent. Similarly, the negligence, in order to have criminality, has to have such a degree of negligence that the care, which was required to be taken, had not been taken at all. The element of criminality gets attracted, when the accused had run the risk of doing an act with recklessness and indifference to the consequences despite knowing that the hazard, involved in his act, was of such a degree that injury was most likely imminent. In his speech, in Andrews v. Director of Public Prosecutions, reported in (1937) 2 All ER 552 (HL). Lord Atkin observed, "Simple lack of care such as will constitute civil liability is not enough. For purposes of the criminal law, there are degrees of negligence, and a very high degree of negligence is required to be proved before the felony is established."
21. Clearly, therefore, distinction exists between "simple lack of care"
incurring civil liability and "very high degree of negligence or rashness", which is required in criminal cases.
22. Lord Porter, in Riddell v. Reid, reported in (1942) 2 All ER 161, said in his speech, "A higher degree of negligence has always been demanded in order to establish a criminal offence than is sufficient to create civil liability."
Criminal Revision No. 581 of 2004 Page 16 of 25
23. In fact, following the decision, in Andrew's case (supra), the Supreme Court, in Syad Akbar v. State of Karnataka, reported in (1980) 1 SCC 30, point out, at para 28, thus, "...................................... Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment." As pointed out by Lord Atkin in Andrews v. Director of Public Prosecutions, "simple lack of care such as will constitute civil liability, is not enough"; for liability under the criminal law "a very high degree of negligence is required to be proved. Probably, of all the epithets that can be applied „reckless‟ most nearly covers the case". (Emphasis added)
24. Having taken note of, amongst others, the decisions, in Andrews (supra) and Riddell (supra), on the above aspect of law, the Supreme Court, in Jacob Mathew -vs- State of Punjab and another, reported in (2005) 6 SCC 1, concluded, "17. In our opinion, the factor of grossness or degree does assume significance, while drawing distinction in negligence actionable in tort and negligence punishable as a crime. To be latter, the negligence has to be gross or of a very high degree."
25. Observed further, the Supreme Court, in Jacob Mathew (supra), as under:
"19. An oftquoted passage defining negligence by professionals, generally and not necessarily confined to doctors, is to be found in the opinion of McNair, J., in Bolam v. Friern Hospital Management Committee, WLR at p. 586, in the following words: (All ER p. 121 D-F) Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill.
Criminal Revision No. 581 of 2004 Page 17 of 25 A man need not possess the highest expert skill ... It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art." (Charlesworth & Percy, ibid., para 8.02)
20. The water of Bolam test has ever since flown and passed under several bridges, having been cited and dealt with in several judicial pronouncements, one after the other and has continued to be well received by every shore it has touched as neat, clean and a well-
condensed one." (Emphasis added)
26. The Supreme Court has summed up, in Jacob Mathew (supra), at para 48, the law, on rashness or negligence, involving medical professionals, for the purpose of their prosecution under Section 304A IPC, as under:
"48. We sum up our conclusions as under:
(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: "duty", "breach" and "resulting damage".
(2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was Criminal Revision No. 581 of 2004 Page 18 of 25 also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.
(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
(4) The test for determining medical negligence as laid down in Bolam case, WLR at p. 586 holds good in its applicability in India.
(5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may Criminal Revision No. 581 of 2004 Page 19 of 25 provide a ground for action in civil law but cannot form the basis for prosecution.
(6) The word "gross" has not been used in Section 304-A IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be "gross". The expression "rash or negligent act" as occurring in Section 304-A IPC has to be read as qualified by the word "grossly".
(7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.
(8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law, specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence."
(Emphasis is added).
27. From what have been summed up at para 48, in Jacob Mathew (supra), it is abundantly clear that though the word „gross‟ has not been used in Section 304A IPC, yet in order to hold a person criminally liable for negligence or rashness within the meaning of Section 304 IPC, the expression „rash or negligent act‟ has to be read as qualified by the word „grossly‟. For an act to amount to criminal negligence, the degree of negligence must be much higher, that is, gross or of a very high degree.
28. The Supreme Court, in Jacob Mathew (supra), has issued, in the following words, some instructions, at para 52, to be followed by all Courts and investigating agencies if accusations of rashness or negligence Criminal Revision No. 581 of 2004 Page 20 of 25 against professions, particularly, in the context of medical professions, are made in order to attract the application of Section 304A IPC:
"52. Statutory rules or executive instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service, qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying the Bolam test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld."
(Emphasis added)
29. From what have been laid down at Para 52, in Jacob Mathew (supra), it becomes clear that in a complaint case, a complaint cannot be entertained, since after the decision, in Jacob Mathew‟s case (supra), rendered by the Supreme Court on 5th August, 2005, against a medical practitioner for an offence allegedly committed under Section 304A IPC, while performing surgery or administering anesthesia or in taking Criminal Revision No. 581 of 2004 Page 21 of 25 necessary post-operative care unless the complainant has produced prima facie material before the Court, in the form of credible opinion, given by another competent doctor to support the accusation of rashness or negligence on the part of the accused doctor. In a case of this nature, when police investigate the case, the investigating officer should, before proceeding against the doctor on accusation of rash or negligent act or omission, obtain independent and competent medical opinion, preferably, from a doctor in Government service.
30. In the case at hand, there was, admittedly, no opinion of any doctor laid before the learned Court below showing that there was rashness or negligence on the part of the accused-petitioner, Dr. RP Hansaria. In such circumstances, whether the learned Court below, in the light of the law, laid down in Jacob Mathew (supra), could have at all, in the present case, entertained the complaint, when there was no medical opinion furnished by the complainant as regards gross rashness or negligence on the part of the present accused-petitioner ? It needs to be carefully noted that the instructions, issued by the Supreme Court, at paragraph 52, in Jacob Mathew‟s case (supra), are meant to be resorted to, in future, so long as the statutory rules, or executive instructions, incorporating necessary guidelines, are not issued by the Government of India or the State Government in consultation with the Medical Council of India. As the decision, in Jacob Mathew‟s case (supra), was rendered after the present complaint had been entertained by the learned Court below, the fact, that the learned Court below had entertained the complaint, in the absence of any medical opinion of the nature, as has been directed, in Jacob Mathew‟s case (supra), to be placed on record by the complainant, would not make the complaint ipso facto bad in law. Criminal Revision No. 581 of 2004 Page 22 of 25
31. Mr. Bhattacharyya, learned Senior counsel, has, however, pointed out that the complaint, in the present case, was lodged, on 03-08-2004, for an offence, which was committed, on 31-03-2004, under Section 304A IPC; whereas the decision, in Jacob Mathew (supra), was rendered on 05- 08-2005 and, hence, the principle, laid down in Jacob Mathew (supra), that rashness or negligence, as envisaged by Section 304A IPC, must be taken to mean gross rashness or negligence, when rashness or negligence is attributed to a person from medical profession for the purpose of prosecuting him under Section 304A IPC, is not applicable. Suffice it to point out, in this regard, that when a Court interprets an existing law, which had been in force, then, the interpretation would relate back to the date of the law itself and cannot be prospective from the date of the decision given by the Court. Reference, in this regard, made by Mr. Hansaria, learned Senior counsel, to the case of Lily Thomas v. Union of India, (2000) 6 SCC 224, is not misplaced inasmuch as the Supreme court has, in no uncertain words, clarified, in Lily Thomas (supra), that when an existing law is interpreted by Court on a date later than the date of enforcement of the law, then, the interpretation of the provisions of the law would relate back to the date of the law itself meaning thereby that the law, under Section 304A IPC, must be deemed to have always been that in the case of medical negligence or rashness, mere rashness or negligence, on the part of a medical practitioner, would not attract Section 304A IPC and, in order to attract Section 304A IPC, in a case of medical negligence or rashness, the rashness or negligence must mean gross rashness or negligence on the part of the medical practitioner. The Criminal Revision No. 581 of 2004 Page 23 of 25 relevant observations, made, in this regard, at para 59, in Lily Thomas (supra), read as under:
"59. We are not impressed by the arguments to accept the contention that the law declared in Sarla Mudgal case cannot be applied to persons who have solemnised marriages in violation of the mandate of law prior to the date of judgment. This Court had not laid down any new law but only interpreted the existing law which was in force. It is a settled principle that the interpretation of a provision of law relates back to the date of the law itself and cannot be prospective from the date of the judgment because concededly the court does not legislate but only gives an interpretation to an existing law. We do not agree with the arguments that the second marriage by a convert male Muslim has been made an offence only by judicial pronouncement. The judgment has only interpreted the existing law after taking into consideration various aspects argued at length before the Bench which pronounced the judgment. The review petition alleging violation of Article 20(1) of the Constitution is without any substance and is liable to be dismissed on this ground alone."
(Emphasis is added).
32. Referring to the case of Lily Thomas (supra), the Supreme Court has, once again, pointed out, in Sarwan Kumar v. Madan Lal Aggarwal, (2003) 4 SCC 147, that interpretation of a provision relates back to the date of the law itself. The relevant observations, appearing in Sarwan Kumar (supra), read as under:
"..................... Since the jurisdiction of the civil court was barred, the decree passed by it was a nullity and the judgment-debtors could successfully raise objection regarding the executability of such a decree. The executing court erred in holding that the judgment-debtors could not raise the objection to the executability of the decree being a nullity having been passed by a court lacking inherent jurisdiction to do so. This Court in Gian Devi Anand case did not lay down any new law but only interpreted the existing law which was in force. As was observed by this Court in Lily Thomas Criminal Revision No. 581 of 2004 Page 24 of 25 case the interpretation of a provision relates back to the date of the law itself and cannot be prospective of the judgment. When the court decides that the interpretation given to a particular provision earlier was not legal, it declares the law as it stood right from the beginning as per its decision. In Gian Devi case the interpretation given by the Delhi High Court that commercial tenancies were not heritable was overruled being erroneous. Interpretation given by the Delhi High Court was not legal. The interpretation given by this Court declaring that the commercial tenancies heritable would be the law as it stood from the beginning as per the interpretation put by this Court. It would be deemed that the law was never otherwise. Jurisdiction of the civil court has not been taken away by the interpretation given by this Court. This Court declared that the civil court had no jurisdiction to pass such a decree. It was not a question of taking away the jurisdiction; it was the declaration of law by this Court to that effect. The civil court assumed the jurisdiction on the basis of the interpretation given by the High Court in Gian Devi case which was set aside by this Court."
(Emphasis is supplied).
33. Without expressing any opinion, in this case, as to whether the learned Court below could have taken cognizance of offence, under Section 304A IPC, at all in the present case, against any of the accused named in the complaint, the fact remains that even if such a case was there against the said hospital and/or the anesthetist, who is no longer alive, no case, far less, even prima facie case, can be said to have made out as against the present petitioner of commission of offence under Section 304 A IPC.
34. Because of what have been discussed and pointed out above, this application, made under Section 482 Cr.P.C. is allowed. The impugned order, dated 03-08-2004, is hereby set aside and quashed to the extent that the same relates to issuance of process against the present petitioner as accused.
Criminal Revision No. 581 of 2004 Page 25 of 25
35. With the above observations and directions, this application shall stand disposed of.
36. Send back the LCR.
JUDGE Paul/rk Criminal Revision No. 581 of 2004 Page 26 of 25 Criminal Revision No. 581 of 2004 Page 27 of 25 COGNIZANCE PART
5. While considering the correctness or otherwise of the submissions made on behalf of the accused-petitioner, it is necessary to point out that it is Section 190 Cr.PC, contained in Chapter XIV, which deals with the taking of cognizance by a Magistrate and it is Section 200 Cr.PC, which lays down as to what a Magistrate shall do, when he takes cognizance of an offence on a complaint.
6. Broadly speaking, the provisions contained in Section 190 and Section 200 Cr.PC have to be read together, for, these provisions cannot be read in isolation by keeping them in two distinct and separate water-tight compartments. As a matter of fact, to understand the scheme of the Code of Criminal Procedure (in short, "the Code"), not only the provisions of Sections 190 and 200 of the Code, but also the provisions of Sections 201, 202, 203 and 204 of the Code need to be read as a whole.
7. For better appreciation of the question as to how and when a Magistrate can take cognizance of an offence, it is appropriate to take note of the provisions of Section 190 of the Code, which run as follows:-
"190. Cognizance of offences by Magistrates.-(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class especially empowered in this behalf under sub-s(2) may take cognizance of any offence-
(a) upon receipt of a complaint of facts, which constitute such offence,
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer or upon his own knowledge that such offence has been committed."
8. A careful reading of Sub-Section (1) of Section 190 of the Code clearly shows that a Magistrate can take cognizance of an offence in three different modes, namely, (a) upon receipt of a complaint of facts, which constitute such Criminal Revision No. 581 of 2004 Page 28 of 25 offence, (b) upon a police report of such facts and (c) upon information received from any person other than a police officer or upon his own knowledge that such offence has been committed. When a Magistrate, however, takes cognizance of an offence under clause (c) aforementioned, it is, in the light of the provisions of Section 191 of the Code, the duty of the Magistrate to inform the accused, who is to be proceeded against, that he (accused) is entitled to have the case enquired into and tried by another Magistrate and if the accused or any of the accused, if there be more than one, objects to further proceedings before the Magistrate, who takes cognizance, the case shall be transferred to another Magistrate as may be specified by the Chief Judicial Magistrate in this behalf.
9. Let me, now, turn to Section 200 of the Code, which, I notice, reads as follows:-
"200. Examination of complainant.- A Magistrate, taking cognizance of an offence on a complaint, shall examine, upon oath, the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses- (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint, or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192.
Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them."
10. A careful reading of Section 200 of the Code makes it clear that a Magistrate, taking cognizance of an offence on a complaint, shall examine, upon oath, the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate. Such examination Criminal Revision No. 581 of 2004 Page 29 of 25 can be dispensed with under two contingencies, namely, (a) if a public servant, acting or purporting to act in the discharge of his official duties, or a Court has made the complaint, or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192.
11. A careful analysis of the provisions of Section 190 of the Code read with Section 200 thereof clearly reveals that what Section 200 of the Code lays down is the procedure as to what a Magistrate shall do, when he takes cognizance of an offence on receiving a complaint of the facts, which constitute such offence. This, in turn, clearly reveals, as is correctly pointed out by Ms Thakuria, that taking of cognizance must precede examination of the complainant under Section 200 of the Code. A proposition of law, therefore, what the decision in Revanappa (supra) lays down cannot be disputed. The question, which, however, remains is this: whether, in the case at hand, the learned Magistrate had taken cognizance of the offence before examining the complainant?
12. Before answering the question posed above, the question, which arises for consideration is as to what is cognizance and when a Magistrate can take cognizance of an offence or when can a Magistrate be said to have taken cognizance of an offence. While considering these aspects of the matter, what is of paramount importance to bear in mind is that cognizance has not been defined under the Code. The word cognizance really indicates the point, when a Magistrate or a Judge first takes judicial notice of an offence. It also deserves to be borne in mind that cognizance is taken of offences and not of persons. Clause
(a), (b) and (c) of Sub-Section (1) of Section 190 of the Code set out, as indicated above, three different modes for taking of cognizance.
13. Whether a Magistrate has or has not taken cognizance of an offence will depend on the mode in which the case is sought to be instituted and the nature of the preliminary action, if any, taken by the Magistrate. The Supreme Court, in R.R. Chari V. The State Criminal Revision No. 581 of 2004 Page 30 of 25 of Uttar Pradesh, reported in (1951) SCR 312, quoted with approval the observations made by Kulada Charan Das Gupta, J, in Superintendent and Remembrancer of Legal Affairs, West Bengal V Abani Kumar Banerji, (AIR 1950 Cal 437), with regard to the question as to when a Magistrate can be said to have taken cognizance. The relevant observations read thus, "What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any magistrate has taken cognizance of any offence under section 190(1)(a) Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter
- proceeding under section 200 and thereafter sending it for inquiry and report under section 202. When the magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence."
14. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purpose of proceeding under Section 200 and the succeeding Sections in Chapter XV of the Code, he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a). If, instead of proceeding under Chapter XV, he has, in the judicial exercise of his discretion, taken action of some other kind, such as, issuing a search warrant for the purpose of investigation, or ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence. (See Devarapalli Lakshminarayana Reddy and others v. Narayana Reddy and others, reported in AIR 1976 SC 1672).
15. When a police report is submitted before a Magistrate for taking of cognizance, the Magistrate may, in terms of Clause (b) of Section 190(1) of the Code, take cognizance if the police report discloses commission of an offence. The Magistrate, in such a case, may also, instead of taking cognizance, direct further investigation. As reflected by Clause (c) of Section 190(1), when a Criminal Revision No. 581 of 2004 Page 31 of 25 Magistrate takes cognizance of an offence on the basis of the information received by the Magistrate from a person other than a police officer, or upon his own knowledge that an offence has been committed, the Magistrate must, before the evidence in such a case is recorded, let the accused know that the latter is entitled to have the case enquired into and tried by another Magistrate and if the accused or any of the accused, if there be more than one, objects to further proceeding before the Magistrate, who has taken cognizance, the case shall be transferred to such other Magistrate as may be specified, in this regard, by the Chief Judicial Magistrate.
16. What is, now, of immense importance to note is that when a complaint is presented before a Magistrate and even if the same discloses commission of an offence, cognizable or non-cognizable, the Magistrate still has the option, under Clause (a) of Section 190(1) of the Code, to either take cognizance of the offence or, if the complaint discloses commission of a cognizable offence, direct investigation to be conducted by police in terms of Section 156(3) of the Code. In other words, what is of paramount importance to note is that when a Magistrate receives a complaint, he is not bound to take cognizance even if the offence alleged in the complaint discloses commission of an offence. This is, as held in Devarapalli Lakshminarayana Reddy and others v. Narayana Reddy and others (AIR 1976 SC 1672), made clear from the use of words "may take cognizance", which cannot be equated with the expression "must take cognizance". Clarified the Supreme Court in Devarapalli Lakshminarayana Reddy (supra), the position of law, in this regard, as follows:
".... If on a reading of the complaint he finds that the allegation therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the magistrate from being wasted in inquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence, himself."
Criminal Revision No. 581 of 2004 Page 32 of 25
17. Thus, whether the Magistrate has or has not taken cognizance of an offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted and the nature of the preliminary action, if any, taken by the Magistrate.
18. In short, in the light of the decision in Abani Kumar Banerji (supra) approved in R. R.Chari (supra) and in view of what Devarapalli Lakshminarayana Reddy (supra) lays down, it is abundantly clear that when a Magistrate applies his mind to the contents of a complaint for the purpose of proceeding in accordance with the subsequent provisions of the Code, particularly, Section 200 thereof, he can be taken to have taken cognizance. When, however, the Magistrate applies his mind not for the purpose of proceeding under Chapter XV of the Code, but for taking action of some other kind, such as, ordering investigation under Section 156(3) or directing issuance of search warrant, he cannot be said to have taken cognizance of the offence.
19. It logically follows from what has been observed above that when a Magistrate, on receiving a complaint, records the statement of the complainant, he can be said to have, in the absence of anything showing to the contrary, taken cognizance of the offence. No specific order need be passed by the Magistrate mentioning that he has taken cognizance of the offence, for, cognizance may be inferred to have been taken by the preliminary action, which the Magistrate takes.
20. What surfaces from the discussions held above is that the scheme of the Code is that when a complaint is presented before a Magistrate, he can either direct an investigation in terms of Sub-Section (3) of Section 156 of the Code or he may decide to proceed with the complaint. If he decides to proceed with the complaint by taking cognizance of the offence(s), which the complaint discloses, he shall, for this purpose, take steps in terms of Section 200 of the Code by examining the complainant. If the Magistrate, on receipt of the complaint, takes Criminal Revision No. 581 of 2004 Page 33 of 25 no steps to indicate that the Magistrate wanted to proceed in terms of Section 200 of the Code and sends the complaint to the police for investigation, it will indicate that the Magistrate has not taken cognizance and, in the later case, there will be no impediment, on the part of the Magistrate, to take cognizance of the offence if and when the police, on investigation carried out, submits a report, in this regard, in terms of Section 190(b). The act of sending of the complaint to police for investigation is really at a pre-cognizance stage. When, however, a Magistrate, instead of sending the complaint for investigation to the police, decided to proceed further under Section 200 of the Code, the Magistrate shall be deemed to have, unless shown otherwise, taken cognizance of the offence, for, the Magistrate cannot proceed to record the complainant's statement under Section 200 without taking cognizance. The act of proceeding with the examination of the complainant under Section 200 will, thus, be indicative of the fact that the Magistrate has taken cognizance of the offence and has decided to proceed accordingly. It is for this reason that when the Magistrate, after recording statement of the complainant and his witnesses, if any, present, decides to hold inquiry under Section 202 of the Code, he cannot, thereafter, send, for investigation, a complaint, which discloses commission of offence, which is exclusively triable by Court of Sessions. The act of sending the complaint for investigation after recording of statement of the complainant and/or the witness and/or after holding inquiry under Section 202 of the Code is a stage, which may be called the post-cognizance stage. If the distinction between pre-cognizance stage and post-cognizance stage is borne in mind, there will be no difficulty in appreciating that when a Magistrate, instead of sending the complaint for investigation, decides to proceed under Section 200 and records the statement of the complainant and his witnesses, the Magistrate shall be treated to have taken cognizance of the offence disclosed by the complaint, for, as already indicated hereinabove, he cannot proceed to record the statement of the complainant under Section 200 without taking cognizance. The contention, therefore, of Ms. Criminal Revision No. 581 of 2004 Page 34 of 25 Thakuria that a Magistrate cannot examine complainant unless he has taken cognizance is legally correct. What is, however, necessary to note, in this regard, is that no formal order is required to be passed by the Magistrate to indicate that he has taken cognizance of the offence. The very fact that the Magistrate, instead of sending the complaint for investigation, has decided to proceed with the complaint under Section 200 of the Code is, in itself, in the absence of anything showing to the contrary, sufficient indication of the fact that the cognizance has been taken of the offence by the Magistrate in terms of Clause
(a) of Sub-Section (1) of Section 190 of the Code.
21. Thus, a mere presentation of a complaint in the Court of Judicial Magistrate does not mean that the Magistrate has taken cognizance of the same unless the Magistrate has applied his mind for the purpose of proceeding under Section 200 of the Code, i.e., when the Magistrate applies his mind for the purpose of determining if any process is required to be issued against the offender in respect of the offence(s) complained of and/or when the Magistrate applies his mind for the purpose of determining if any offence is prima facie shown to have been committed by the offender. (See Narsingh Das Tapadia Vs. Goverdhan Das Patani and another (AIR 2000 SC 2946) and Yunus Khan Vs Mazhar Khan, reported in 2004 (1) GLT 652).
22. What emerges from the above discussion is that when the Magistrate initially applies his mind to the contents of a complaint, becomes conscious and aware of the allegations made therein and decide to examine the validity of the said complaint by examining the complainant, he can be said to have taken cognizance. (See Tula Ram v. Kishore Singh, reported in 1978 Cri. L.J. 8 (SC)
23. What may, thus, be summarized is that when a Magistrate applies his mind to the contents of the complaint and decides to proceed in the manner as indicated in the subsequent provisions of the Code, namely, Chapter XV and, particularly, Section 200 of the Code, he can be said to have taken cognizance. In other words, it is only upon taking Criminal Revision No. 581 of 2004 Page 35 of 25 of cognizance of an offence that it is open to Magistrate to examine the complainant on oath under Sub-Section (1) of Section 200 and also complainant's witnesses present, if any. The proviso to Section 200 makes it abundantly clear that the examination of the complainant and his witnesses is not necessary, when the complaint is made, in writing, by a public servant or the Magistrate makes over the case for inquiry and trial by another Magistrate under Section 192 of the Code. If a Magistrate takes cognizance of an offence, he must (i) examine, on oath, the complainant, though the complaint may be in writing, and the witnesses present, if any, and (ii) reduce the substance of such examination to writing. By examining the complainant and the witnesses present, if any, what the Magistrate essentially does is to determine as to whether there are sufficient grounds for proceeding against the accused. If the Magistrate is of the opinion, on examining the complainant and his witnesses under Section 200, that there are sufficient grounds for proceeding against the accused, he can issue process in terms of Section 204 of the Code. If, on examining the complainant and his witnesses under Section 200, the Magistrate is of the view that the allegations made against the accused needs to be inquired into or investigated, he may, in terms of Section 202, either inquire into the case himself or direct an investigation to be made by a police officer or by such other persons as he thinks fit. This inquiry or investigation is really for the purpose of determining as to whether there is sufficient grounds for proceeding. If the Magistrate chooses to hold the inquiry himself under Section 202 of the Code, this inquiry may result either, as already mentioned above, issuance of processes against the accused under Section 204 or dismissal thereof under Section 203, for, Section 203 makes it clear that if, upon considering the statements on oath, if any, of the complainant and his witnesses and the result of the inquiry or investigation, if any, under Section 202, the Magistrate is of the opinion that sufficient grounds do not exist for proceeding further, it is obligatory on him to dismiss the complaint, though while dismissing the complaint, the Magistrate is duty bound to record reason for so doing.
QUASHING PART Criminal Revision No. 581 of 2004 Page 36 of 25 Criminal Revision No. 606 of 2004 The petitioner No. 2, namely, Dr. KK Goswami, who was Anesthetist, and who had allegedly given excess dose of anesthesia to the said patient at the time when she had undergone surgery, is no longer alive. The complainant‟s case, therefore, against the accused No. 2, Dr. KK Goswami, does not survive.
Coming to the case of accused No. 3, namely, Dr. Dinesh Agarwal, it deserves to be pointed out that there is no specific, clear, precise or pointed allegation made against the accused No. 3 showing that he has in any manner failed to give necessary treatment as a medicine specialist to Smti Namita Jain following her gynaecological surgery. In the absence of any such accusation, no case of rash or negligence on the part of the accused No. 3 in providing necessary medical advise or treatment to Smti Namita Jain (since deceased), can be said to have been made out. There is, thus, no case as against the accused No. 3, under Section 304A IPC. The case of the complainant must, therefore, fail as against the petitioner No. 3, namely, Dr. Dinesh Agarwal, is concerned.
So far as accused No. 1, namely, Marwari Maternity Hospital, is concerned, there is no allegation of the complainant that the patient was kept without supply of oxygen for about 15 minutes while she was already, in the light of the complaint, and when she was being shifted from the Observation Room, to the ambulance and when the hospital, in question, did not have materials, even electrical wires ready for providing treatment at a critical stage, it would be inappropriate, at this stage, to interfere with the complaint, so far as taking of cognizance of an offence, under Criminal Revision No. 581 of 2004 Page 37 of 25 Section 304A and issuance of process against the accused No. 1 are concerned. Sri Om Prakash Choudhury, who is the Secretary of Marwari Maternity Hospital has been impleaded as an accused, may not be personally liable for the offence under Section 304A, it is, at this stage, not proper, fair and/or legal to quash the entire complaint and issuance of process against the accused No. 1, when the complaint has made sufficient allegations of gross negligence on the part of the authorities of the hospital in providing treatment to a patient, whose condition becomes critical following administration of excessive dose of anesthesia while doing operation by a Gynaecologist.
According to the death certificate, the patient, namely, Namita Jain, died due to sudden cardiac arrest and pulmonary embolism. Cardiac arrest : drug overdose. Patient collapses suddenly with loss of consciousness. Pulse is not felt and neither respiratory movements are seen. If a person is breathing normally then he or she has not suffered cardiac arrest. Cardiac arrest may respond to TV infusion of epinephrine + calcium. In extreme cases direct injection of epinephrine into heart may help. Electrical pacemaker may help.
Embolism : The sudden blocking of an artery or vein by a blood clot or other obstruction that was brought there by the blood current. Pulmonary embolism : In medical word it is due to heart disease and carcinoma, Prolonged bed rest in patients of hip fracture increases the risk. Condition is usually associated with venous thrombosis in leg and pelvis. Onset may coincide with getting up or straining at stool. Tachycardia is rise in central venous pressure.
Criminal Revision No. 581 of 2004 Page 38 of 25 Similarly, the negligence, in order to have criminality, has to have such a degree of negligence that the care, which was required to be taken, had not been taken at all.
I needs to be carefully noted that the instructions, issued by the Supreme Court, at paragraph 52, in Jacob Mathew‟s case (supra), are meant to be resorted to, in future, so long as the statutory rules, or executive instructions, incorporating necessary guidelines, are not issued by the Government of India or the State Government in consultation with the Medical Council of India. As the decision, in Jacob Mathew‟s case (supra), was rendered after the present complaint had been entertained by the learned Court below, the fact, that the learned Court below had entertained the complaint, in the absence of any medical opinion of the nature, as has been directed, in Jacob Mathew‟s case (supra), to be placed on record by the complainant, would not make the complaint ipso facto bad in law.
Criminal Revision No. 581 of 2004