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1998 DIGILAW 517 (PAT)

Prabha Rani Prasad v. State Of Bihar

1998-07-24

M.Y.EQBAL

body1998
Judgment M.Y.Eqbal, J. 1. Heard Braj Kishore Prasad, Senior Counsel appearing on behalf of the petitioner as also learned Addl. P.P. appearing on behalf of the State. 2. This application under Section 482 of the Code of Criminal Procedure has been filed for quashing the entire criminal proceedings of P.C.R. No. 429 of 1995 including the order dated 25.5.1998 passed by the learned Sub-Divisional Judicial Magistrate. Godda, by which cognizance of the offences punishable under Sections 275 and 284 of the Indian Penal Code has been taken against the petitioner. 3. Mr. Braj Kishore Prasad, learned senior Advocate assailed the impugned order as being illegal and wholly without jurisdiction on various grounds. Learned Counsel firstly submitted that it is totally non-application of mind by the learned Magistrate, inasmuch as he has passed the order mechanically without going through the facts of the case and without scrutinising the reliability of the evidence adduced by the prosecution. Learned Counsel secondly submitted that the petitioner is a gazetted officer and there is complete bar in taking cognizance without prior sanction of the competent authority. Learned Counsel thirdly submitted that the complaint was filed after about nine months of the occurrence and the delay has not been explained. Learned Counsel relied upon the decision of the Apex Court in the case of (M/s.) Pepsi Foods Ltd. V/s. Special Judicial Magistrate, AIR 1998 SC 128. 4. Before appreciating the submissions of the learned Counsel for the petitioner, I would like to go into the allegations made in the complaint petition. It is alleged in the complaint petition that on 19.11.1994 at about 8 a.m. he along with his wife Pushpa Devi and few other persons reached Godda Hospital as his wife was having motion in the night due to the disorder of the stomach. The petitioner was present in the Hospital and asked to administer saline and also for a private treatment and the complainant paid a sum of Rs. 2,500/- to the accused petitioner on her demand - for better treatment of his wife. It is further alleged that in course of treatment, fluid was given to his wife and the fluid was supplied by the accused petitioner on payment. After fluid was supplied, the wife of the complainant complained of some burning sensation. The matter was reported to the petitioner who came and took away the empty bottle. It is further alleged that in course of treatment, fluid was given to his wife and the fluid was supplied by the accused petitioner on payment. After fluid was supplied, the wife of the complainant complained of some burning sensation. The matter was reported to the petitioner who came and took away the empty bottle. The accused petitioner said to have assured that the patient would recover and there is nothing to be worried. Further allegation is that during the night burning sensation of the wife of the complainant was increased then the accused - petitioner did not turn up from her residence inspite of information. On the next day the patient was shifted to Bhagalpur and the doctor at Bhagalpur referred to the patient to the All India Institute of Medical Science (for short AIIMS ) New Delhi for treatment of the patient as the fluid supplied to her was spurious which reacted. It is further alleged that due to reaction of spurious fluid supplied by the accused-petitioner, the hands and legs of the patient were amputated. The complainant was examined on solemn affirmation by the Chief Judicial Magistrate who then transferred the case under Section 192 of the Code of Criminal Procedure to the Court of Sub-Divisional Judicial Magistrate, Godda. During inquiry the complainant examined altogether four witnesses including the wife (patient) and also filed photo of his wife to show that he hands and legs were cut. Photo copy of the medical report of the AIIMS has also been filed. The learned Magistrate after going through the entire allegation made in the complaint petition and after considering the evidence of the complainant and his witnesses including the patient and also relying upon the report of the AIIMS passed the impugned order after having satisfied that prima facie case is made out against the petitioner, 5. I have gone through the complaint petition as also the impugned order passed by the learned Magistrate. In my opinion, the learned Magistrate has taken all precaution and passed the impugned order after being fully satisfied about the existence of the prima facie case. I have gone through the complaint petition as also the impugned order passed by the learned Magistrate. In my opinion, the learned Magistrate has taken all precaution and passed the impugned order after being fully satisfied about the existence of the prima facie case. Regard being had the nature of the allegation made in the complaint petition supported by the evidence of the witnesses as also documents, I am of the opinion that decision relied upon by the learned Counsel appearing on behalf of the petitioner in the case of (M/s.) Pepsi Foods Ltd., (supra) does not apply. Since the learned Magistrate has considered the entire allegations made in the complaint petition and gone through the evidence both oral and documentary and took cognizance, this Court in exercise of power under Section 482 of the Code of Criminal Procedure should not interfere with the said order. Reference may be made to the cases of the Apex Court reported in Rupan Deol Bajaj and another V/s. Kun-war Pal Singh Gill and another, (1995) 6 SCC 194 : 1996 BCCR (SC) 95 ; State of Bihar V/s. Rajendra Agrawalla, (1996) 8 SCC 164 ; Ganesh Narayan Hadge V/s. S. Bangrappa and others, (1995) 4 SCC 41 :1995 BCCR SC 289; Dhanalakshmi V/s. R. Prassna Kumar and others,.1990 (Suppl) SCC 686 and the case reported in 1988 4 SCC 655 and lastly but not the least the case of Mustaque Ahmad V/s. Mohd. Habibur Rahman Faizi and others, (1996) 7 SCC 440 : 1996 BCCR (SC) 372. 6. The next submission that the petitioner is a Gazetted Officer and there is complete bar in taking cognizance without previous sanction of the competent authority, also having no force. It has been well settled by the Apex Court that in case of the negligence of a public officer in discharge of their official duty, there is no bar in lodging prosecution and sanction is not required, reference may be to the decision of the Apex Court in the case of Shambhu Nath Mishra V/s. State of U.P., AIR 1997 SC 2102 . 7. The next submission is that there is delay in lodging of the complaint. In my opinion, the delay in lodging the complaint is natural. 7. The next submission is that there is delay in lodging of the complaint. In my opinion, the delay in lodging the complaint is natural. Because of the negligence of the petitioner in injecting spurious drugs she was subjected to treatment in various hospitals and ultimately she was removed to AIIMS, New Delhi where her hands and legs were amputated. 8. Having regard to the facts and circumstances of the case, I am of the opinion that the impugned order passed by the learned Magistrate is perfectly legal and valid and there is no need of interference with the impugned order. This application is dismissed. 9. Before parting with the order, I must make it clear that any expression or observation made in this order shall not in any way prejudice the case of the petitioner in subsequent stage and the Trial Court shall decide the case on its own merit without being influenced by this order.