Research › Search › Judgment

J&K High Court · body

2014 DIGILAW 450 (JK)

Sanjay Gupta v. Kanta Devi

2014-11-15

DHIRAJ SINGH THAKUR

body2014
JUDGMENT : Dhiraj Singh Thakur, J.:- 1. The present petition has been filed under Section 561-A Cr.P.C. for quashing the FIR No. 6/10 dated 12.1.2010, registered with the police station, Gandhi Nagar, Jammu. Briefly stated, the material facts are as under:- 2. A complaint came to be filed by the complainant-Kanta Devi, respondent No. 1, herein, under Section 326/420 RPC, in the court of learned Chief Judicial Magistrate, Jammu, wherein it was alleged that upon reading an advertisement in the newspaper that a doctor from AIIMS, Delhi, was coming at GEM Nursing Home, Jammu, the complainant got herself registered for medical checkup and for being operated upon for the problem of cataract in her eye. 3. Subsequently, the surgery took place on 15.9.2009, as a result of which the complainant, to her dismay, found that she could not see at all from one eye for which she had undergone the surgery. It was further alleged that the concerned Nursing home then referred the complainant to one S.M. Regina and Laser Eye Centre, 13-A/C, Gandhi Nagar, Jammu, where upon check-up, she was informed that the complainant is suffering from infection in the eye and it would take two to three days to cure the infection whereafter she will be able to see properly. 4. It was further alleged that on 20.9.2009, the complainant went to Amritsar, where she consulted one Dr. Daljeet Singh, who after check up informed the complainant that her one eye was permanently damaged due to surgery and negligence of the doctor who conducted the said surgery. Thereafter, the complainant consulted another doctor namely Dr. K.D. Singh at Amritsar on 21.9.09 and 26.9.09, who also similarly opined that the eye sight of the complainant had been lost due to the negligence of the doctor conducting the surgery and that no repair was possible. 5. Upon a complaint having been filed in the court of learned Chief Judicial Magistrate, Jammu, the same appears to have been forwarded to the SHO, Police Station Gandhi Nagar, Jammu, under Section 156(3) Cr.P.C., for investigation under law. Pursuant thereto, an FIR bearing No. 6 of 2010, under Section 326/420 RPC, was registered at police station, Gandhi Nagar. It is in this backdrop that the present petition has been filed under Section 561-A Cr.P.C. for quashing the aforementioned FIR. 6. Pursuant thereto, an FIR bearing No. 6 of 2010, under Section 326/420 RPC, was registered at police station, Gandhi Nagar. It is in this backdrop that the present petition has been filed under Section 561-A Cr.P.C. for quashing the aforementioned FIR. 6. The main ground of challenge in the petition is that the learned Chief Judicial Magistrate, Jammu, while directing the respondent No. 2, to investigate the matter and the police in registering the FIR, have acted in a mechanical manner. It is stated that both the authorities were required to satisfy themselves as to whether the allegations leveled in the complaint disclosed any cognizable offence before directing registration of FIR and its investigation. 7. It was further asserted by the counsel for the petitioner that the guidelines laid down by the Apex Court in the case of Jacob Mathew v. State of Punjab & anr, AIR 2005 Supreme Court 3180, had not been followed. Reference was also made to Section 87 of the RPC, to emphasize that if grievous hurt or death was not intended or known by the doer to be likely to cause death or grievous hurt to a person who has given his consent whether expressed or implied would not be an offence. 8. Counsel for the respondents reiterated the stand of the complainant as projected in the complaint and stated that not only the complainant but 13 other patients also lost their eye sight pursuant to the operation conducted by the doctor. However, this assertion is not reflected anywhere in the complaint filed by the complaint, which is on record. 9. Heard learned counsel for the parties. 10. Two issues arise for consideration in the present case; (i) whether while exercising powers under Section 156(3) of the Criminal Procedure Code, the learned Chief Judicial Magistrate was required to pass a speaking order after proper application of mind, (ii) whether the guidelines framed by the Apex Court in the case of Jacob Mathew v. State of Punjab & anr., AIR 2005 SC 3180 have been followed. First Issue 11. First Issue 11. From a perusal of the 1st Information Report, placed on record, it appears that based on a complaint filed by the complainant before the learned Chief Judicial Magistrate, the same was forwarded to the SHO, Police Station, Gandhi Nagar with the following remark: "Forwarded under Section 156(3) CrPC to SHO, Police Station, Gandhi Nagar for investigation u/law." 12. In Anil Kumar & ors v. M.K. Aiyappa & anr., (2013) 10 SCC 705 , the Apex Court while relying upon the case of Maksud Saiyed v. State of Gujarat, (2008) 5 SCC 668 held as under: "11. The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyed case examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 Cr.P.C., the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) Cr.P.C., should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation." 13. In Pepsi Foods Limited & anr v. Special Judicial Magistrate & ors, (1998) 5 Supreme Court Cases 749, the Apex Court in Paragraph 28 held as under: "28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused." 14. In the present case, as will be noticed, no reasons at all were given by the Court below nor does it show any application of mind by the learned Magistrate while ordering investigation against the respondents in the complaint. 15. The need for application of mind by the Magistrate is imperative inasmuch as once an order under Section 156(3) of the Criminal Procedure Code is issued for investigation, the police has no option but to register an FIR and set into motion the criminal justice system against the accused. Second Issue 16. In Jacob Mathew's case (supra), the Apex Court noticed the rising tendency to file criminal cases against doctors on the ground of medical negligence and hold the view that indiscriminate prosecution of medical professionals for criminal negligence was counter-productive to the interest of the society. 17. Second Issue 16. In Jacob Mathew's case (supra), the Apex Court noticed the rising tendency to file criminal cases against doctors on the ground of medical negligence and hold the view that indiscriminate prosecution of medical professionals for criminal negligence was counter-productive to the interest of the society. 17. While summing up the conclusions in the judgment (supra) in paragraph 49, the Apex Court, inter alia, held that (1) a professional may be held liable for negligence on one of the two findings: either that he was not possessed of the requisite skill which he professed to have possessed, or he did not exercise, with reasonable competence in the given case, the skill which he did possess; (2) A simple lack of care, an error of judgment or an accident is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed; (3) to prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent. Finally, the following were the guidelines laid by the Apex Court in the judgment (supra). (a) A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. (b) The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam's test to the facts collected in the investigation. (c) A doctor accused of rashness or negligence, may not be arrested in a routine manner unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld. 18. The order passed by the Learned Chief Judicial Magistrate in purported exercise of powers under section 156(3) Cr.P.C. was not only passed mechanically but also did not take into consideration the guidelines prescribed by the Apex Court in Jacob Mathew's case. The same is, therefore, quashed alongwith FIR No. 6/2010 registered with police station Gandhi Nagar, Jammu under section 326/420 RPC. 19. The Learned Chief Judicial Magistrate shall pass a fresh order on the application filed by the complainant within a period of two weeks from the date of receipt of this order. 20. Disposed of accordingly, along with connected CrMA.