Full Text
HIGH COURT OF DELHI
DR. ZAKIR HUSSAIN & ORS. ..... Petitioners
Through: Mr. Rajesh Manchanda, Advocate.
Through: Mr. Manoj Pant, APP for the State with SI Sunny, P.S.
Roop Nagar, Delhi.
Mr. Jivesh Tiwari and Ms.Samiksha, Advocates for
R-2.
JUDGMENT
1. The petitioners herein have filed the present petition under Section 482 of the Code of Criminal Procedure, 1973 („Cr.P.C‟) for quashing of FIR bearing No. 198/2002 registered at Police Station Roop Nagar, Delhi, for offences punishable under Sections 304A/34 of the Indian Penal Code, 1860 („IPC‟).
2. The brief facts of the case are that on 17.07.2002 a complaint was filed by the complainant/Respondent No.2, i.e., Krishan Tyagi wherein it had been stated that his wife/victim (deceased), was suffering from stomach pain since last five days and had been taken to a private hospital at Kingsway Camp, Delhi, where the concerned doctors administered two injections to the victim but she did not get any relief from pain. Thereafter, the victim was taken to Hindu Rao Hospital, Delhi, where she had been administered with some injections which had relieved her pain. However, one of the doctors suspected that the victim may be suffering due to stones and suggested that an ultra-sound should be conducted. Ultrasound report of the victim had been submitted to Petitioner No.3 who informed the complainant that his wife/victim had stones in her gallbladder and that an operation was required at the earliest. As per the advice of Petitioner No.3, the victim had been admitted in Roop Nagar Hospital, Delhi, at 11.30 a.m. and few tests were conducted. At about 1 p.m. on the directions given by Petitioner No.1 and 2, a nurse Ms. Simmi had administered glucose and an injection to the victim. After 8-10 minutes the victim had started shouting at the top of her voice pointing towards her stomach. No one was available to attend her at the time and when 1-2 doctors went to her room after 15 minutes the victim was not breathing. At about 4 p.m., Petitioner No.3 informed the complainant that his wife had died due to heart attack.
3. The police after investigation submitted the charge sheet under Sections 304A/34 IPC, whereupon cognizance was taken against the petitioners and the case was committed to the Court of Sessions for trial and presently, it is at the stage of framing of notice.
4. Learned counsel for the petitioner vehemently submits, on the point of limitation and maintainability of the order of cognizance, that the charge sheet was filed in defiance of the judgment of Hon‟ble Supreme Court in the case of J.K Mathew v. State of Punjab, (2005) 6 SCC 1. Learned counsel for the petitioners states that the petitioners had filed an application under Section 294 Cr.P.C before the Trial Court along with documents, i.e., enquiry report dated 13.01.2003 of the Medical Board constituted by the Govt. of NCT of Delhi that no negligence can be attributed to the petitioners and order dated 29.06.2006 passed by the learned District Consumer Redressal Forum, Tiz Hazari Court, Delhi holding that no deficiency of service by the petitioners is relevant in this regard.
5. Per Contra, Learned APP for the State opposes the application filed by the petitioner for quashing of FIR and further submits that the application filed by the petitioners under Section 294 Cr.P.C was dismissed by the learned Trial Court vide order dated 16.01.2010, The relevant portion of the order is as under: “It is settled law that at the stee of framing the charge accuse cannot file documents his defence. However, the Hon'ble Supreme Court in Rukmini’s case, (2009) 1 SCC (Crl.) 721 observed that there may be rare cases in which documents can be allowed to be filed by accused and those casesare where such documents completely demonstrate that case of the prosecution is totally absurd or totally concocted. The present case is a summons trial case and therefore no opportunity of hearing on charge is to be given. Therefore, in my considered view. accused cannot further be allowed to file documents and cannot further be allowed to seek admission/denial thereof. When no opportunity of hearing is to be given, there is no question of filling of documents by the accused. The accused can put up their defence at the appropriate stage but not now. In a summon trial case only notice of accusation is to be served upon the accused. Therefore, application of the accused is dismissed. No adverse order against accused person”.
6. I have heard the rival submissions on behalf of both the parties as well as perused the material on record.
7. At the outset, it is important to take note of the order dated 24.08.2022 passed by this Court in the present case, which reads as under: “4. Learned counsel for the petitioner has not challenged this order which was passed way back January, 2010. The order does not, however, debar the accused from addressing arguments on the point of limitation, maintainability of the order of cognizance or the plea that the chargesheet was filed in defiance of the judgment of the Hon'ble Supreme Court of India in the case of J.K. Mathew Vs. State of Punjab(2005) 6SCC 1. Learned counsel is at liberty to address arguments on these points before the court of learned Magistrate on next date of hearing”.
8. With regards to the contention raised by the learned counsel for the petitioner on the point of limitation, maintainability of the order of cognizance and the chargesheet being in defiance of the judgment of Hon‟ble Supreme Court in the case of J.K Mathew v. State of Punjab, (supra) the learned counsel can address arguments before the learned Trial Court at the time of arguments on charge on these issues.
9. The present case is at the stage of charge and the arguments on charge are yet to be heard. The arguments being raised before this Court can be raised before the learned Trial Court for the purpose of charge and if charges are framed and the applicants are aggrieved by the said order, they can approach this Court.
10. This Court has also taken note of the law laid down by the Hon‟ble Supreme Court regarding the quashing of FIR in various judgments.
11. It is to be noted that the Hon'ble Supreme Court has laid the guidelines for quashing the FIR in the State of Haryana and Ors. v. Ch. Bhajan Lal and Ors., 1992 SCC (Cri) 426:
3. Where the uncontroverted allegations made in the FIR or complaint and the 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 allegations in the F.I.R. 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 a 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 on the accused and with a view to spite him due to private and personal grudge." (Emphasis supplied)
12. The Hon'ble Supreme Court in the case of Rakhi Mishra Vs. State of Bihar and Others,(2017) 16 SCC 772 has held that the High Courts can use its power under Section 482 of Cr.P.C. only in exceptional circumstances when a prima facie case is not made out against the accused.
13. In Neeharika Infrastructure v. State of Maharashtra, 2021 SCC OnLine 315, a three-judge Bench of Hon‟ble Apex Court has analysed the precedents and culled out the relevant principles that govern the law on quashing of an FIR under Section 482 of the Cr.P.C. The relevant observation are as under:
of justice or prevent the above of the process by Section 482 Cr.P.C. ix) The functions of the judiciary and the police are complementary, not overlapping; x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences; xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice; xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure; xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court; xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the selfrestraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; and xv) When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR." (Emphasis Supplied)
14. As per the law laid down in Bhajan Lal (supra) and Neeharika Infrastructure (supra), it has been cautioned that the High Courts in exercise of powers under section 482 Cr.P.C may interfere in proceedings relating to cognizable offences to prevent abuse of the process of any court or otherwise to secure the end of justice, but such power should be exercised sparingly and that too in the rarest of rare cases.
15. The main allegation in the complaint against the present petitioner is that urgent medical care and assistance was required to be given to the deceased but the same was not available to her while she was reeling under pain and no doctor was available to attend to her. Even if it is presumed that she had died of a cardiac arrest, those 15 minutes when she had been shouting for help, as per the complainant, and no help was available to her, would have been the life saving minutes for the deceased, when due to medical negligence in the form of nonavailability of doctor concerned in the emergency, she lost her life.
16. Furthermore, from bare perusal of the FIR, this Court is not persuaded to reach a conclusion that the allegation levelled against the petitioners are absurd, highly improbable or that such incident could not have happened. Whether the allegations in the FIR are true or untrue, will be decided in the course of trial. In fact the trial is yet to commence in the present case. The pleas taken before this Court can be taken at the stage of framing of notice/charge.
17. Considering the overall facts and circumstances of the case and the allegations and material available on record, this Court finds no reason to interfere with the FIR bearing no. 198/2002 registered at PS Roop Nagar, Delhi at the present stage.
18. Accordingly, the present petition stands dismissed.
19. It is however, clarified that the observations made by this Court are only for the purpose of deciding the present petition and shall have no bearing on the merits of the case during the trial.
20. The judgment be uploaded on the website forthwith.
SWARANA KANTA SHARMA, J MARCH 1, 2023