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1982 DIGILAW 182 (CAL)

In re : Shaik Niamatullah v. .

1982-05-25

JYOTIRMOYEE NAG

body1982
ORDER The petitioner-applicant Shaik Niamatullah is charged under S. 197 and also under S. 201 read with S 34 of the Indian Penal Code. So far as the latter section is concerned, he is standing trial along with two others. 2. The petitioner is a qualified doctor and it is alleged that he issued a certificate which he knew to be a false one in respect of the deceased Basudeo Das for whose death the petitioner along with two others have been hauled up for trial under S. 302/34 as also under S 201/34 and under S. 197 of the Indian Penal Code, so far as the petitioner is concerned. 3. When the corpse of Basudeo Das was taken to the burning ghat, suspicion was roused by some allegations made against his wife and others by some of the relatives of the deceased as some marks of injury were clearly visible on the body of the deceased. On such suspicion being roused, the doctor of the burning ghat reported to the police and also sent the dead body for post-mortem examination. The post-mortem report shows that the deceased had several external injuries on his body. After from these, he also had several internal injuries in respect of the spleen, kidney, clotted and fluid blood was found in the abdominal cavity and 7th to 10th ribs were fractured on the left side. Apart from these injuries, certain external injuries were also found such as first degree burns on the lateral aspect of the dorsal of the right palm first degree burns on the posterior aspect of the right forearms third region, first degree burns on the back of the right forearm of the upper third region. In spite of all these external injuries a certificate that was issued by the present petitioner a registered medical practitioner that the deceased died of acute abdominal troubles. Later, he however, admitted that he had issued a false certificate. 4. The point that has been raised by Mr. In spite of all these external injuries a certificate that was issued by the present petitioner a registered medical practitioner that the deceased died of acute abdominal troubles. Later, he however, admitted that he had issued a false certificate. 4. The point that has been raised by Mr. Chakrabarty on behalf of the petitioner in this connection is, that though there is a charge under S. 197 of the Indian Penal Code, such a charge is untainable in law inasmuch as a certificate issued by a medical practitioner is not such a certificate as can be admitted in evidence without further proof as required by that section that is such a certificate cannot on its own merits be admissible in evidence as for instance a certificate issued under the Special Marriage Act of marriage celebrated under that Act this is evidence for all purposes and is admissible even without further proof. Mr. Chakraborty has relied upon a decision of this Court reported in AIR 1943 Calcutta at page 40. It was held by a Division Bench of this Court presided over by Bartely and Lodge JJ. that what S. 197 of the Indian Penal Code contemplates is that the certificate should by some provision of law be admissible in evidence as such certificate without further proof. A medical certificate is not per se evidence of the illness of a person certified to be ill, therein. The medical certificate is not a certificate relating to any fact of which such a certificate is by law admissible in evidence. Consequently the issuing and user of such medical certificate in a criminal proceeding stating contrary to the fact that the accused was ill would render neither the accused nor the person issuing the certificate liable under S. 197 or under S. 198 of the Indian Penal Code. Their Lordships relied in this connection upon the easier decisions namely AIR Patna 467 and AIR 1917 Calcutta 466. 5. On the other hand the learned Public Prosecutor has contended that under S. 509 of the Calcutta Municipal Act, 1951, such a certificate is admissible by its own force. Their Lordships relied in this connection upon the easier decisions namely AIR Patna 467 and AIR 1917 Calcutta 466. 5. On the other hand the learned Public Prosecutor has contended that under S. 509 of the Calcutta Municipal Act, 1951, such a certificate is admissible by its own force. Section 509 of the Calcutta Municipal Act, 1951 provides that if a sexton or keeper of a burial or burning ghat or other place for the disposal of the dead whether situated in Calcutta or not, shall not bury, burn or otherwise dispose of, the corpse of any person who has died in Calcutta unless such corpse is accompanied by a certificate, in the form prescribed by Schedule XXI, signed by a Registrar or Sub-Registrar appointed under S. 503 or by a registered medical practitioner or any other medical practitioner authorised in this behalf by the State Government. The learned Public Prosecutor laid stress upon the latter part of the section which provides that a certificate can be issued by a registered medical practitioner for the purpose of cremating a corpse and that makes it admissible in evidence by virtue of S. 509 of the said Act. 6. According to the provisions of S. 509 of the Ca1cutla Municipal Act, 1951, before a corpse is cremated it is necessary that a certificate in the form prescribed in Schedule XXI of the said Act signed by a Registrar or Sub-Registrar appointed under S. 503 of the Calcutta Municipal Act must accompany the corpse. Alternatively, a certificate must be given by a registered medical practitioner or if a registered medical practitioner is not available by any other medical practitioner authorised in this behalf by the State Government. In this case the accused is a medical practitioner, who gave the certificate in order to have the corpse of the deceased cremated. Therefore under S. 509 of the Calcutta Municipal Act it is required that the medical practitioner should give a certificate containing the details necessary to satisfy the Authorities of the burning ghat that the death is not due to any unnatural causes and when the Authorities of the burning ghat are satisfied upon such medical certificate being given by a registered medical practitioner the body is permitted to be cremated. Therefore by virtue of the provisions of the Calcutta Municipal Act that certificate is admissible in evidence without further proof. 7. Therefore by virtue of the provisions of the Calcutta Municipal Act that certificate is admissible in evidence without further proof. 7. The case cited by the learned Advocate for the accused-applicant reported in AIR /943 Calcutta page 40, can have no application to the facts of the present case. That cast: as already stated, related to a certificate given by a doctor which was put in by the advocate for the accused to get an adjournment from the Court. The complainant in that case challenged the fact of illness of ,he accused and as a result both the uncle and the nephew in that case were I1.ccused and both of I.hem were placed on trial the nephew was charged under S. 197 IPC and the uncle was charged under S. 198 of the Indian Penal Code on the allegation that the nephew issued or signed a false medical certificate and the other used it Both of them were convicted and upon their conviction they moved the Hon'ble High Court against that conviction. The question came up whether the medical certificate issued by the accused in that case is a certificate which is by law admissible in evidence knowing or believing that the certificate was false on a material point. It was held in that case that in order to constitute an offence under S. 197 of the Indian Penal Code a certificate must be in relation to a fact for which such a certificate is by law admissible in evidence. A medical certificate is not so admissible and therefore issuing or using such a document would not render a person liable under S. 197 or S. 198 of the Indian Penal Code. A medical certificate is not evidence without further proof. This principle has been laid down in the earlier cases in 20 CWN page 520 16 Patna, page 21. Therefore, in order to charge a person under S. 197 of the Indian Penal Code, the certificate in question must be one that should by some provision of law be admissible in evidence as such certificate without further proof. In this case the certificate given by the accused is required by law that is under S. 509 of the Calcutta Municipal Act to be given before a corpse can be interned or cremated. That satisfies the ingredient of S. 197 of the Indian Penal Code. In this case the certificate given by the accused is required by law that is under S. 509 of the Calcutta Municipal Act to be given before a corpse can be interned or cremated. That satisfies the ingredient of S. 197 of the Indian Penal Code. Accordingly, I reject the submission made on behalf of the accused-applicant. 8 The next point that the has been taken by Mr. Chakraborty on behalf of the accused applicant is that the order passed by the learned Judge framing charges under S. 197 and Ss. 201/34 of the Indian Penal Code against the applicant without applying his mind to the facts of the case and the materials on record as required under S. 227 of the Code of Criminal Procedure is bad in law I am unable to accept the submission of Mr. Chakraborty in as much as I find that the learned Judge has considered the post-mortem report, the certificate issued by the accused-applicant and also the statements of some of the witnesses of bad relationship between the accused-applicant and the deceased. The learned Judge considered the materials on record for framing the charges and was satisfied that a prima fade case had been made out by the materials on record. Accordingly, I uphold the order passed by the learned Judge and dismiss the application. Application dismissed.