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2009 DIGILAW 1183 (ALL)

MANGALSEN @ MANGAL v. STATE OF U. P.

2009-04-08

VINOD PRASAD

body2009
JUDGMENT Hon’ble Vinod Prasad, J.—Mangal Sen, the applicant has approached this Court, under Section 482 Cr.P.C., with the prayer that the two impugned orders dated 11.9.2007, passed by Chief Judicial Magistrate, Pilibhit, in Misc. Case No. 982M of 2007, Mangal Sen Misra v. J.N. Misra and others, and the subsequent revisional Court’s order dated 22.9.2007, passed by Additional District and Session’s Judge, Court No. 4, Pilibhit, in Criminal Revision No. Nil of 2007, be quashed. By the former order, CJM, Pilibhit, has rejected the application of the applicant under Section 156(3), Cr.P.C. for getting his FIR registered of such a crime, where his wife had lost her life. Lower revisional Court has also rejected the revision preferred by the applicant challenging the aforesaid order passed by CJM. 2. In brief, the allegations levelled by the applicant in his application, under Section 156(3), Cr.P.C., against Dr. J.N. Misra and his colleagues were that Somwati, wife of the applicant developed breathing complications on 5.8.2007 and hence she was shown to Dr. J.N. Misra, who gave her some medicines. However, the condition of the wife deteriorated and, on 7.8.2007 at 2 p.m. she developed serious breathing trouble. Somwati went on her own to the Doctor, who charged Rs. 750/- as his fees but the condition of the wife further deteriorated and therefore she was advised hospitalisation by the said doctor and, for that purpose, he raised a demand of Rs. 15,000/- informing her that oxygen etc. had to be administered to her. Since Somwati did not have the adequate money demanded by the doctor therefore she was neither hospitalised nor treated by the said Doctor. 3. Mangal Sen husband of Somwati, who was at his working place in L.H. Sugar Factory, Pilibhit, was informed regarding his wife’s condition, who rushed to the doctor’s hospital and found his wife lying in the hospital varandah in a serious condition. Applicant made a vain endeavor to talk to the doctor as he refused to entertain him without charging his demanded money. In dire need, the applicant collected Rs. 2,000/- from various persons present their and offered it to the doctor requesting him to treat his wife. Doctor, it is alleged, got infuriated and ordered his compounder to bring an injection which was injected to Somwati, which after complication of Somwati rapidly developed resulting in her death at 4 p.m. that day itself. 4. 2,000/- from various persons present their and offered it to the doctor requesting him to treat his wife. Doctor, it is alleged, got infuriated and ordered his compounder to bring an injection which was injected to Somwati, which after complication of Somwati rapidly developed resulting in her death at 4 p.m. that day itself. 4. Thereafter, Doctor got collected his henchmen armed with fire-arms, knives and accosted the applicant to remove the corpse of his wife followed by an assault on the applicant by those henchmen. Meanwhile, many press people and police reached at the spot but the police refused to take the FIR of the applicant. 5. On, above facts, applicant approached the Chief Judicial Magistrate, Pilibhit, under Section 156(3), Cr.P.C. on 31.8.2007, to get his FIR registered, which application of the applicant was registered as Misc. Case No. 982M of 2007, Mangal Sen v. Dr. J.N. Misra and others. 6. Chief Judicial Magistrate, scanned the whole allegations levelled by the applicant, without getting the matter even inquired into rejected the application of the applicant vide his order dated 11.9.2007, relying upon the law laid down by the Apex Court in the case of Jacob Mathew v. State of Punjab and another, AIR 2005 SC 3180 . Aggrieved by the said rejection, the applicant approached the Session’s Judge, invoking his revisional power, unsuccessfully, as his revision was dismissed on the ground of being not maintainable vide it’s order dated 22.9.2007. Both the orders are now challenged before this Court, in the instant Criminal Misc. Application, albeit after a gap of two years. 7. I have heard learned counsel for the applicant in support of this application and learned AGA on opposition. 8. Criticizing both the impugned orders it was submitted by the learned counsel for the applicant that CJM committed a manifest error of law in not directing the police to register applicant’s FIR although it disclosed commission of offence of causing death by culpable homicide not amounting to murder punishable under Section 304, IPC. It is argued that the Magistrate had not taken cognizance, as the stage of Section 156(3), Cr.P.C. is a pre-cognizance stage, yet the CJM has decide applicant’s application as if he was deciding a criminal trial finally by applying those decisions of the Apex Court, which were not relevant at that stage. It is argued that the Magistrate had not taken cognizance, as the stage of Section 156(3), Cr.P.C. is a pre-cognizance stage, yet the CJM has decide applicant’s application as if he was deciding a criminal trial finally by applying those decisions of the Apex Court, which were not relevant at that stage. It is further argued that, at the stage of registration of FIR, only a prima facie offence of cognizable nature has to be looked into, without critically appreciating the levelled allegations, as investigation into the allegations is the realm of the police under Section 157, Cr.P.C. How the CJM reached the conclusions arrived at by him in the impugned order, even without getting the allegations inquired into, is a bizarre conclusion which cannot be sustained at all argued learned counsel. Once the stage was a pre-cognizance stage, there was no occasion for the CJM, to rely upon the decision of the Apex Court, which dealt with post cognizance stage and therefore relying upon Jacob Mathew’s decision (supra) was wholly misplaced. Whether the doctor had the mens rea and requisite negligence for making out the offence existed or not was required to be investigated and consequently pre-judging of that issue by the CJM is not sanctified by law. A victim cannot be criticised without affording him any opportunity of establishing his charge retorted learned counsel and consequently blatant miscarriage of justice had been done by CJM. The decision of Dr. Suresh Gupta v. Govt. of NCT of Delhi and another, AIR 2004 SC 4091 : (2004 Cr LJ 3870) has also been wrongly applied and relied upon by the CJM as that decision did not dealt with application under Section 156(3), Cr.P.C. contended learned counsel. Both the aforesaid decisions relied upon by the CJM were post cognizance cases and therefore the same had no application on the facts of the present case. Learned counsel for the applicant submitted that on the allegations levelled, it is clear that the injection injected to the deceased was succeeded by her death and there was criminal negligence on the part of the doctor in not treating the patient without charging the fees demanded by him. Learned counsel for the applicant submitted that on the allegations levelled, it is clear that the injection injected to the deceased was succeeded by her death and there was criminal negligence on the part of the doctor in not treating the patient without charging the fees demanded by him. It is submitted that the rapacious attitude of the doctor against the medical professional ethics alongwith his conduct makes out cognizable offence and, therefore, Chief Judicial Magistrate concerned committed illegality in not directing the police to register the case. 9. Criticizing the judgment of the lower revisional Court, learned counsel for the applicant submitted that the decision of this Court reported in 2007(1) JIC 58 , Rakesh Mohan Sharma v. State, does not apply at all. The prayer of the applicant was rejected by CJM. The case was finally decided and, therefore, an order passed by CJM was a final order. At the stage of under Section 156(3), Cr.P.C., it is only the victim who has got a right of hearing and not an accused and, therefore, if any order has been passed against the interest of victim finally deciding his case, the same was amenable to the revisional power of Sessions Court. It is, therefore, submitted that the view taken by the lower revisional Court, Additional District and Sessions Judge, Court No. 4, Pilibhit vide his impugned judgment dated 22.9.2007 is also illegal and deserves to be set aside. 10. Learned AGA on the contrary supported the judgment and contended that no cognizable offence was disclosed and, therefore, the present Crl. Misc. Application deserves to be dismissed. 11. I have considered the case of both the sides and have gone through the two judgments of the Apex Court. Needless to say that at the stage of Section 156(3), Cr.P.C. what is to be looked into by the Magistrate is as to whether any cognizable offence is disclosed or not in the application moved before him for the purpose of directing the police to register the FIR of a cognizable offence. If a cognizable offence is disclosed, the Magistrate is legally bound to direct registration of an FIR. At that stage, appreciation of facts have not to be done. Chief Judicial Magistrate, Pilibhit committed a manifest error in relying upon the two judgments of the Apex Court referred to by him in his impugned judgment. If a cognizable offence is disclosed, the Magistrate is legally bound to direct registration of an FIR. At that stage, appreciation of facts have not to be done. Chief Judicial Magistrate, Pilibhit committed a manifest error in relying upon the two judgments of the Apex Court referred to by him in his impugned judgment. Both the aforesaid judgments Jacob Mathew’s (supra) and Dr. Suresh Gupta (supra) were post cognizance judgments where the matter was pending before the Magistrate at the stage of trial. The stage under Section 156(3), Cr.P.C. is a pre-cognizance stage. Parameter for getting the FIR registered are entirely different from framing the charge after the charge-sheet has been submitted in the trial Court. The two stages cannot be joint together nor the parameters for deciding the matters under the two stages can be considered on the same scale. They are different stages which have to be considered from two different points of view. Firstly, at the pre-registration of FIR stage only this much has to be seen as to whether a cognizable offence is disclosed or not whereas at the stage of framing of charge, the two judgments of the Apex Court has to be applied to look into whether the material collected during investigation disclose criminal negligence on the part of the doctor or not. Absence of such a criminal negligence cannot be presumed before the FIR is registered. 12. Coming to the judgment of the lower revisional Court, I only observe this much that, so far as victim and the aggrieved person who had filed the application under Section 156(3), Cr.P.C. is concerned, for him rejection of his application under Section 156(3), Cr.P.C. closes his case for getting his FIR registered for once and all and, therefore, such an order is a revisable order at the instance of the victim or aggrieved person and, therefore, the revision at his instance is maintainable. At the stage of Section 156(3), Cr.P.C., the accused has got no right to be heard nor he can challenge an order before FIR is registered against him. There is a world of differences between the right of the victim and the right of the accused at that stage. The law confers a right of hearing on the victim at that stage of pre-registration of FIR whereas no such right is conferred on the accused at that stage. 13. There is a world of differences between the right of the victim and the right of the accused at that stage. The law confers a right of hearing on the victim at that stage of pre-registration of FIR whereas no such right is conferred on the accused at that stage. 13. In view of above, I am of the opinion that both the impugned orders dated 11.9.2007 passed by CJM, Pilibhit and order dated 22.9.2007 passed by Lower Revisional Court/Additional District and Sessions Judge, Court No. 4, Pilibhit cannot be sustained and they are hereby set aside. The matter is remanded back to CJM, Pilibhit to re-consider the application of the applicant in accordance with law. 14. With the aforesaid direction, this Crl. Misc. Application stands allowed. ————