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2019 DIGILAW 466 (RAJ)

Sharif Mohammad v. State of Rajasthan

2019-02-07

PUSHPENDRA SINGH BHATI

body2019
JUDGMENT Pushpendra Singh Bhati, J. - The petitioner has preferred this criminal MISC. petition under Section 482 Cr.P.C., 1973 claiming the following reliefs: 'It is, therefore, most humbly and respectfully prayed that the petition may kindly be allowed and; a. the impugned orders passed by the learned Courts below qua the petitioner may kindly be quashed and set aside; and/or b. any other appropriate/consequential orders or directions which may be deemed just and proper in the facts and circumstances of the case may be passed.' 2. Brief facts of the case, as noticed by this Court are that on 12.03.2012, Smt. Ruksana filed a complaint before the Court of learned Chief Judicial Magistrate, Bhilwara under Sections 452, 325, 323 and 341 of IPC against non-petitioners No.2 to 7 which was forwarded under Section 156(3) Cr.P.C., 1973 to the concerned police station for investigation. 3. The bone of contention in relation to the present mater is that the complainant filed an application on 10.01.2018 through Additional Public Prosecutor, Bhilwara before the learned trial court to summon Medical Officer, Shri Dinesh son of Shri Ramnarayan and Dr. K.C. Laddha, who has treated the injured persons from 02.03.2012 to 17.03.2012 for 16 days, and again for 9 days in Unit-A of Mahatma Gandhi Hospital, Bhilwara. The learned trial court has dismissed the said application on the ground that calling of the doctors under section 311 of Cr.P.C., 1973 is nothing, but filling up of a lacuna. 4. Learned counsel for the petitioner has relied upon the judgment rendered by this Hon'ble Court in Rajendra Singh vs. State of Rajasthan & Ors. reported in 2018(1) R.Cr.D. 252 (Raj.) , which reads as under: 'By way of this revision, the petitioner complainant Rajendra Singh has approached this Court for challenging the order dated 22.8.2016 passed by learned Addl. Sessions Judge Sangariya in Session Case No. 4/2015 whereby the trial court rejected the application filed by the petitioner under Section 311 Cr.P.C., 1973 for summoning the concerned Neurosurgeon, P.B.M. Hospital, Bikaner so as to prove the gravity of injuries suffered by the petitioner at the hands of the accused. I have heard learned counsel for the parties and have gone through the impugned order as well as record. Learned counsel Dr. I have heard learned counsel for the parties and have gone through the impugned order as well as record. Learned counsel Dr. Bhansali representing the respondent accused tried to vehemently impress that vide order dated 12.7.2016 passed by learned trial court the earlier application filed by the petitioner with almost same prayer was rejected and thus the second application with the same prayer was not maintainable. Suffice it to say that the said application was dismissed observing that the name of doctor was not mentioned therein application and further application preferred by the victim could not be entertained. Approach of the trial court in rejecting the application on the ground of locus stand cannot be appreciated. In a criminal case, the Court is not supposed to act as mere bystander. If any of the parties fails to bring the evidence essential to unfurl the truth on record, the Court should exercise its powers under section 165 of the Evidence Act to bring such facts on record. The second application was filed with full particulars of doctors who carried CT Scan examination and treated the petitioner during the course of his hospitalisation. A perusal of the medical documents available on record of the charge-sheet particularly the Medical Jurist's opinion Ex.P-3 clearly indicates that when CT Scan was carried out on the injured complainant, he was found suffering from diffused cerebral enema and contusion of parietal region. He was subjected to craniotomy operation. In this background the trial court should have been vigilant enough and should have suo motu summoned the concerned doctors for proving the reports regarding the gravity of injuries suffered by the injured. Hon'ble Supreme Court has held time and again that the trial court is not supposed to be a mere spectator in the proceedings. The application submitted by the petitioner under Section 311 Cr.P.C., 1973 should not have been dismissed on the hyper technical ground that the case was being conducted by the learned P.P. who is miserably failed to perform his duty with diligence because it was incumbent upon him to produce the complete medical record before the Court and prove the same in evidence. The fact regarding the petitioner having been subjected to surgical procedure is apparent from the discharge ticket available on record. The fact regarding the petitioner having been subjected to surgical procedure is apparent from the discharge ticket available on record. In this background recording of evidence of treating doctors who conducted surgical procedure and CT Scan of the petitioner are essential for just decision of the case. Thus, the revision deserves to be and is hereby allowed. The impugned order dated 22.8.2016 is quashed and set aside. The trial court shall summon the surgeon who conducted surgical procedure and the expert who conducted CT Scan of the petitioner from the concerned hospital/centre and shall examine them in evidence. With these observations/directions the revision is allowed. Record be returned to the trial court forth with.' 5. Learned counsel for the petitioner has also placed reliance upon the judgment of Hon'ble Himachal Pradesh High Court in Arvind Kumar Sankhyan vs. Dr. M.P. Vaidya and Ors. reported in 2018(2) Crimes 42 (H.P.) , the relevant portion of the judgment reads as under: '16. In Ritesh Tewari and another vs. State of Uttar Pradesh and others (2010) 10 SCC 677 , the Hon'ble Supreme Court observed as under:- "Every trial is voyage of discovery in which truth is the quest." 17. In the administration of justice, Judges and Lawyers play equal roles. Like Judges, Lawyers must also ensure that truth triumphs in the administration of justice. Truth is the foundation for justice. It is incumbent upon all the Judicial Officers to make an endeavour to ascertain truth in every matter and to leave no stone unturned in achieving this object. 18. In view of the aforesaid discussion, the orders impugned herein cannot withstand judicial scrutiny and are accordingly set aside. The application is accordingly allowed. 19. The petition stands disposed of in the aforesaid terms, so also the pending application(s), if any.' 6. Learned Public Prosecutor does not oppose the petition. 7. No one has put in appearance on behalf of the private respondents, despite service. 8. After hearing learned counsel for the parties as well as perusing the record of the case along with the precedent law cited at the Bar, this Court finds that the wider power of section 311 of Cr.P.C., 1973 which ought to have been liberally exercised have been refused to be exercised even when the learned trial court has not been able to point out as to why the summoning of the medical officer concerned was not necessary. 9. In light of the given facts and circumstances, the present MISC. petition is allowed and while quashing and setting aside the impugned order of the learned court below, the application submitted by the petitioner under section 311 of Cr.P.C., 1973 is allowed and treating the doctors of the injured patient are directed to be summoned by the learned court below, in accordance with the aforementioned application filed by the petitioner.