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2005 DIGILAW 2460 (RAJ)

Dr. Vijay Balani v. State of Rajasthan

2005-09-15

R.S.CHAUHAN

body2005
Judgment R.S. Chauhan, J.-The petitioner has challenged the orders dated 08.04.2002 and dated 25.06.2003. The petitioner had submitted an application under Section 258 CrPC for dropping the proceedings against him. However, after hearing both the parties, the learned Magistrate was pleased to dismiss the said application vide order dated 08.04.2002. Thereafter, the petitioner had filed a revision petition before the Sessions Court. However, vide order dated 25.06.2003, the learned Sessions Judge was pleased to dismiss the said revision petition and to confirm the order dated 08.04.2002. Hence, this miscellaneous petition before us. 2. The brief facts of the case are that one Narayan Singh, the respondent No. 2, had lodged a FIR at Police Station, Mahamandir on 29.05.1994. He had alleged that on 02.05.1994 his sister-in-law was suffering from fever. On 03.05.1994. She was hospitalized under the care of the petitioner, Dr. Balani. Till, 3 0 clock in the afternoon, the patient was quite well. However, around 3.30 P.M., the patient started bleeding not only from her mouth, but also from her ear. She became unconscious. Despite the repeated request made to the petitioner that he should come and immediately attend to the patient, he refused to do so. He did not attend the patient till 5.15 P.M. in the evening. Because of his negligence, the patient lost lot of blood. Because of the blood loss, the patient required blood transfusion. However, there was no facility available in the hospital for checking the blood group of the donors. Because of the negligence of the doctor and the hospital staff , by 7 0 clock the patient had died. 3. On the basis of this report, a formal FIR was registered for offence under Section 304-A and 201 IPC. However, after a thorough investigation, the police filed a final report in the case. Subsequently, the statement of the Complainant and his witnesses were recorded under Sections 200 and 202 CrPC. Vice order dated 31.03.1998, the Magistrate was pleased to take cognizance against the petitioner for offence under Section 304-A IPC. The petitioner submitted an application under Section 258 CrPC for dropping the criminal proceedings. However, vide order dated 08.04.2002 the same was dismissed by the learned Magistrate. The petitioner preferred a revision petition, which was also dismissed vide order dated 25.06.2003. 4. Mr. The petitioner submitted an application under Section 258 CrPC for dropping the criminal proceedings. However, vide order dated 08.04.2002 the same was dismissed by the learned Magistrate. The petitioner preferred a revision petition, which was also dismissed vide order dated 25.06.2003. 4. Mr. P.R. Choudhary, the learned Counsel for the petitioner has vehemently argued that while dismissing the application under Section 258 CrPC, the learned Magistrate and the Revisional Court have ignored the fact that the death had occurred on 03.05.1994, but the FIR was not lodged till 29.05.1994. Hence, there is an inordinate delay of twenty-six days in lodging of the FIR. He has further contended that twice the opinion of the Medical Board was taken. The Medical Board had opined that there was no negligence on the part of the petitioner. Thus, he contended that the learned Magistrate should have dropped the proceeding after exercising his jurisdiction under Section 258 CrPC. .5. Mr. Vishnu Kachhawaha, the learned Public Prosecutor for the State and Mr. B.S. Rathore, the learned Counsel appearing for the complainant, have argued that the impugned orders are well considered. Hence, they are legally valid. 6. We have critically examined both the impugned orders. 7. In order to understand the controversy involved, it is pertinent to consider the scope and ambit of Section 258 CrPC Section 258 reads as under: -"Power to stop proceedings in certain cases. - In any summons-case instituted otherwise then upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any Judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a Judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge." 8. A bare perusal of the said section clearly reveals firstly that the said section applies only to the summons cases instituted otherwise then upon complaint. Secondly, the said section empowers the Magistrate of the First Class or, with the previous sanction of the Chief Judicial Magistrate or any of the Judicial Magistrate to stop the proceeding at any stage without pronouncing any Judgment . Secondly, the said section empowers the Magistrate of the First Class or, with the previous sanction of the Chief Judicial Magistrate or any of the Judicial Magistrate to stop the proceeding at any stage without pronouncing any Judgment . In case the proceeding is stopped after recording the evidence of the principal witness, then, the Judicial Officer shall pronounce the Judgment of acquittal. Thirdly, in any other case, i.e. prior to the recording of the evidence of the principal witness, the trial Court may release the accused and such release shall have the effect of discharge. 9. In the case of John Thomas vs. Dr. K. Jagadeesan, 2001 (6) SCC 30 , the Honble Supreme Court had an occasion to deal with the scope and ambit of Section 258 CrPC. According to their Lordships of the Honble Supreme Court, Section 258 CrPC deals only with those summons cases, which have been instituted otherwise then upon complaints. The words "and in any other case" used at the later part of the section do not imply that all summons cases are to be covered under this section. In fact, Section 258 bisects only "summons cases instituted otherwise than upon complaints" into two parts. The first part consists of cases in which evidence of material witness was recorded. The second part, where evidence of a material witness has not been recorded. 10. Undoubtedly, the power to stop the proceeding at any stage and to discharge/acquit the accused is a vast power. Since, it is a vast power, it has to be used in exceptional cases or unusual circumstances attending the case. Such exceptional circumstances may arise when the evidence collected by the police or evidence collected by the Court does not actually constitute any offence alleged against the accused or when a prima facie case is not made out against the accused or the prosecution has become invalid for not following a particular formality or on account of some technical defect in the prosecution. These examples are by no means exhaustive and are merely illustrative. Since, the power vested by Section 258 CrPC would prematurely terminate the criminal proceeding, therefore, the power has to be exercised judiciously and sparingly. 11. Without going into the merits of the case, the present case does not fall in any of the four exceptional circumstances mentioned above. These examples are by no means exhaustive and are merely illustrative. Since, the power vested by Section 258 CrPC would prematurely terminate the criminal proceeding, therefore, the power has to be exercised judiciously and sparingly. 11. Without going into the merits of the case, the present case does not fall in any of the four exceptional circumstances mentioned above. Therefore, the learned Magistrate was certainly justified in dismissing the application filed by the petitioner under Section 258 CrPC. Likewise, the revisional Court has rightly held that the provisions of Section 258 CrPC are not attracted in the instant case. 12. We do not find any perersity or illegality in the impugned orders. However, as the case started in 1994, as it is a summons case, we deem it proper to direct the learned Magistrate to complete the trial within a period of six months. Subject to this direction, the petition is dismissed.