Full Text
CRL.M.C. 21/2005
DR.DEVENDER SINGH KUMAR & ANR. ..... Petitioners
Through: Ms. Smriti Sinha & Mr. Jaivir Baini, Advocates
Through: Mr. Sunil Sharma, Additional Public Prosecutor for respondent
No.1-State.
Mr. Roopansh Porohit, Advocate for respondent No.2.
In this petition quashing of criminal complaint No. 952/1 dated 24th March, 1999 (presently C.C. No.447/1 dated 2nd August, 2002) for offences under Sections 304A/201/34 of the IPC, titled as 'Gulab Singh Rathor Vs.
Dr. Devender Kumar & Ors.' as well as FIR No. 443/1997, under Section
304A IPC, registered at police station Kalkaji, New Delhi is sought.
During pendency of this petition, a closure report was filed by the police in the aforesaid FIR case and vide interim order of 30th August, 2012, the concerned court was directed to pass appropriate orders as to whether to accept the final cancellation report or not. Order of 17th October, 2012 reveals that the concerned court has accepted the closure report but the aforesaid criminal complaint case is still pending, as cognizance for the offence under Sections 304A /201/34 of the IPC had been already taken vide
2013:DHC:2539 Crl. M.C. No. 21/2005 Page 2 order of 20th December, 2001 (Annexure P-6).
The impugned order of 20th December, 2001 (Annexure P-6) is assailed by learned counsel for petitioners on the ground that the enquiry was conducted by Medical Board of three senior doctors to ascertain the medical negligence on the part of petitioners and vide enquiry report of 31st December, 1999 (Annexure P-8), petitioners have been exonerated of medical negligence and impugned order does not take note of the enquiry report (Annexure P-8), although it was placed before the trial court, who has passed the impugned order in ignorance of it and therefore, the impugned order deserves to be set aside on this very ground alone.
During the course of hearing, attention of this Court was drawn by learned counsel for petitioners to the final report (Annexure P-7) on which trial court had passed a short order indicating that the final report would be considered at the time of summoning of the accused but impugned order has ignored the aforesaid order passed on the final report and has arbitrarily summoned petitioners as accused to face the proceedings for the offence of criminal negligence, whereas petitioners already stand exonerated by duly constituted medical board comprising of senior doctors. Reliance is placed upon decisions in 'Suleman Rahiman Mulani Vs. State of Maharashtra' AIR
1968 SC 829; 'Jagdish Ram Vs. State of Rajasthan' 1989 Crl. LJ 745 (Raj.);
'Rakesh Ranjan Gupta Vs. State of U.P. & Anr.' (1999) 1 SCC 188; 'Dr. Suresh Gupta Vs. Govt. of NCT of Delhi & Anr.' (2004) 6 SCC 422; 'Jacob
Mathew Vs. State of Punjab and Anr'. (2005) 6 SCC 1; 'B P Saha Vs. Dr. Vinit Suri' 134 (2006) DLT 616; 'G.S. Chandraker Vs. State & Anr.' 145
JUDGMENT
(2007) DLT 262; Martin F. D'Souza Vs. Mohd. Ishfaq (2009) 3 SCC 1 & Crl. M.C. No. 21/2005 Page 3 Maly Kumar Ganguly Vs. Dr. Sukumar Mukherjee & ors. (2009) 9 SCC 221 to contend that before proceeding against doctors accused of rash and negligent act or omission, an independent and competent medical opinion, preferably from a doctor in government service ought to be obtained and 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. On the strength of above decisions, quashing of the criminal complaint and the impugned order is sought. On the contrary, it was urged by counsel for respondent/ complainant that the complaint (Annexure P-1) is in two parts i.e. negligence in providing timely medical help and negligence in treating Master Yoginder Singh, aged about 5½ years, who had unfortunately lost his life due to medical negligence of petitioners and so, decisions relied upon on behalf of petitioners are of no avail, as there are allegation in the complaint in question against petitioners of destroying the evidence of medical negligence as well. Reliance was placed upon decisions in Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi & ors. AIR 1976 SC 1947 and Jagdish Ram Vs, State of Rajasthan and anr. (2004) 4 SCC 432 to contend that notwithstanding the opinion of local police and the medical opinion, cognizance has been rightly taken by the trial court, as there are sufficient grounds to proceed against petitioners and at this initial stage, it is not to be seen as to whether sufficient ground for conviction is made out or not. Thus, it is submitted by counsel for second respondent that impugned order suffers Crl. M.C. No. 21/2005 Page 4 from no infirmity and this petition deserves dismissal. The submissions advanced by both the sides, complaint in question, impugned order and decisions relied upon by the parties have been carefully considered and thereafter, it transpires that the instant case is not of purely medical negligence but relates to lapse in providing timely medical attention and also destroying the incriminating evidence attracting offence under Section 201 of the IPC as well. At the stage of summoning of accused in a criminal complaint, it is to be seen as to whether there is sufficient ground to proceed against the accused. However, while taking cognizance of the offence in a criminal complaint, inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant have to be also taken into consideration. A bare reading of the criminal complaint (Annexure P-1) as well as pre-summoning evidence of respondent/ complainant and his witnesses, it cannot be prima facie said that there are no grounds to proceed against petitioners / accused for the offence of criminal negligence in providing timely medical help and for the offence under Section 201 of the IPC. So far as the aspect of criminal negligence in giving treatment to Master Yoginder Singh, since deceased is concerned, the enquiry report (Annexure P-8) by the experts has to be certainly considered. This Court is conscious of the pertinent observations made by the Apex Court in V. Kishan Rao Vs. Nikhil Super Specialty Hospital & anr.
“In most of the cases the question whether a medical practitioner or the hospital is negligent or not is a mixed question of fact and law and the Fora is not bound in every case Crl. M.C. No. 21/2005 Page 5 to accept the opinion of the expert witness. Although in many cases the opinion of the expert witness may assist the Fora to decide the controversy one way or the other.” In view of the dictum of the Apex Court in Jacob Mathew (Supra), a complaint for the offence of criminal negligence cannot be proceeded with in the face of enquiry report (Annexure P-8) by an expert body if respondent –complainant produces a credible medical opinion to support the charge of negligence on the part of petitioners/accused are qualified doctors. Since impugned order does not take any note of the enquiry report (Annexure P-8) rendered by an expert body, although the said report was very much before the trial court, therefore, the impugned order is rendered unsustainable and is accordingly quashed with direction to trial court to consider the enquiry report (Annexure P-8) and if respondent –complainant comes forward with a credible medical opinion from a qualified / competent doctor in the field, then to consider it and thereafter, pass a speaking order if trial court chooses to summon petitioners as accused. Prayer for quashing of the criminal complaint is declined, as it raises a mixed question of fact and law regarding the negligence in providing timely medical help to the deceased. As this matter is pending before this Court for quite some time, therefore, trial court shall make all endavours to expedite hearing of this matter. Let the trial court be apprised of this order forthwith. This petition is accordingly disposed of in aforesaid terms.
JUDGE MAY 15, 2013 r