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2020 DIGILAW 1423 (BOM)

Sangeet Daf v. State of Maharashtra

2020-12-09

ANIL S.KILOR, V.M.DESHPANDE

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JUDGMENT : V.M. Deshpande, J. 1. Rule. Rule is made returnable forthwith heard finally. 2. This is an application under Section 482 of the Code of Criminal Procedure for quashing of the First Information Report together with the final report filed by Police Station Officer, Sakkardara, Nagpur in Crime No.196/2013 for the offence punishable under Section 304-A of the Indian Penal Code. 3. Heard Shri N.S. Deshpande, learned counsel for applicant No.1, Shri N.R. Bhisikar, learned counsel for applicant No.2 and Shri S.M. Ghodeswar, learned Additional Public Prosecutor for State and also perused the chargesheet annexed with application. This application is a joint application moved by accused (applicant no.1) and the first informant (applicant no.2) on the ground that during the pendency of the trial before the Court, the applicant No.2 realized that death of his wife, deceased Swati, is a part of destiny which is beyond human control. The applicant No.1- Doctor states on oath that she has a complete realization of the loss caused to the applicant no.2 as well as his daughters. Therefore, they approached to this Court by invoking the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure and jointly prayed that the charge-sheet as well as the Summary Criminal Case No.327763/2013 pending on the file of learned Judicial Magistrate First Class, Corporation Court No.1, Nagpur be set aside. 4. Both the learned counsel submitted that for the reasons stated in application as referred in earlier paragraph of this judgment they reached to amicable settlement therefore, this application be allowed as prayed. The learned Additional Public Prosecutor opposed the application. 5. The powers of this Court while exercising its jurisdiction under Section 482 of the Code of Criminal Procedure are, though very wide, those will not be exercised by this Court just for asking. The Court exercises its powers under Section 482 of the Code of Criminal Procedure sparingly and only when it is brought to the notice of Court that there is gross abuse of process of law. Also, when it is noticed by the Court that the applicant, who is invoking the powers, is being hounded by the State authorities by giving complete go bye to the settled principles of law, surely the Court will exercise its jurisdiction. Also, when it is noticed by the Court that the applicant, who is invoking the powers, is being hounded by the State authorities by giving complete go bye to the settled principles of law, surely the Court will exercise its jurisdiction. Similarly, if it is noticed by the Court that the investigation of a crime is not on the touchstone of the principles of law and there is a bleak possibility of recording conviction, in such an event, in order to save public time and public money, the Court will grant relief by passing an appropriate order. 6. However, merely because the parties are coming to the Court and praying jointly that the charge-sheet or the criminal case should be quashed, on the ground that the matter stands compromised in between them, the Court will not allow their joint plea by exercising the powers under Section 482 of the Code of Criminal Procedure. Such parties must demonstrate that continuance of the proceedings is sheer abuse of process of law and it would be wasteful of the public time and money. 7. Now, let us examine the prosecution case to reach to a conclusion as to whether in the facts and circumstance of the prosecution case, which are brought on record in the nature of the final report under Section 173 of the Code of Criminal Procedure. In the light of material containing chargesheet, whether the case in hand is a case in which the Court should exercise its inherent jurisdiction, as prayed for. 8. Entire copy of charge-sheet is placed on record and we have an advantage of perusing the same. 9. The applicant No.2 set the criminal law into motion by approaching to the Police Station, Sakkardara, Nagpur on 26.09.2013. As per the First Information Report, non-applicant No.2 was married with Swati in the year, 2011 as per Hindu rites and customs. During their matrimony, Swati conceived and the applicant No.2 used to take Swati in the hospital, known as Mother Care Hospital at Bhande Plot, Sakkardara, Nagpur, which is run by applicant No.1 Dr. Sangeeta Daf. The applicant No.1 used to give various advises to couple and as per the applicant no.1’s advice, Swati used to be taken for regular check-up. During their matrimony, Swati conceived and the applicant No.2 used to take Swati in the hospital, known as Mother Care Hospital at Bhande Plot, Sakkardara, Nagpur, which is run by applicant No.1 Dr. Sangeeta Daf. The applicant No.1 used to give various advises to couple and as per the applicant no.1’s advice, Swati used to be taken for regular check-up. The First Information Report further resites that on 21.5.2013 when Swati was taken for regular check-up, that time applicant No.1 informed the applicant No.2 that urgent cesarean is required to be performed because of following: “HINDI” 10. For cesarean purpose, Swati was admitted as an indoor patient in Dr. Daf’s Hospital and on 22.5.2013 and at 7 O’clock in the morning, operation started. After a period of one hour, it was informed to the applicant no.2 by the applicant no.1 that Swati delivered twins (both daughters) and the health of the babies as well as their mother was good. However, after sometime, it was informed to the applicant no.2 that Swati is bleeding excessively. The same was also noticed by the applicant No.2’s mother Sau. Pramila and Swati’s mother Sau. Nalini. Due to excessive bleeding, the family members of the applicant no.2 were frightened and they made inquiry with applicant No.1. On that, as per the First Information Report, the applicant no.1 assured that everything will be all right. The First Information Report states that the applicant no.1 did not allow the family members to meet Swati and also used abusive words when Swati’s mother tried to have a dialogue with Doctor. At 8.00 O’clock in the night, as per the First Information Report, it was advised to the applicant no.2 that Swati requires admission in ICCU and for that she will be required to be shifted at the Hospital of Dr. Nerkar and after the consent given by the applicant no.2, though immediately she was required to take to Dr. Nerkar’s Hospital, the applicant no.1 first took Swati in the operation theatre of her hospital and after doing something there, she was admitted in the Hospital of Dr.Nerkar. That time, Dr. Nerkar disclosed that there is a delay in bringing the patient to his hospital and during the treatment Swati passed away in the night. Immediately, the incident about death was reported with the police station by Prabhakar Abaji Jumade, father-in-law of deceased Swati. That time, Dr. Nerkar disclosed that there is a delay in bringing the patient to his hospital and during the treatment Swati passed away in the night. Immediately, the incident about death was reported with the police station by Prabhakar Abaji Jumade, father-in-law of deceased Swati. On the said report Sakkardara Police registered Marg vide Marg No.31/13 under Section 174 of the Code of Criminal Procedure. 11. Thereafter, the police authorities sent the treatment papers to the medical board and the medical board, after enquiry, recorded a finding that the death was due to negligence on the part of the Doctor. This fact was informed to the first informant and therefore, the first informant on 26/09/2013 lodged the report culminating into the registration of the offence under Section 304-A of the Indian Penal Code. 12. The entire charge-sheet is placed on record. At page No.53 of the compilation, there is a communication from Police Station Officer, Sakkardara to the Dean Medical College, Nagpur for giving his opinion as to whether there is a negligence on the part of the doctor. Chargesheet also contains the enquiry report. The committee for enquiry was constituted and it was consisting of Dr. Smt. S.S. Fuse [Professor and Head of the Department], President, Government of Medical College, Nagpur, Dr. Rajkondawar, Associate Professor of Medicine Department of said College, Dr. Bakshi, Associate Professor of Anesthesia Department amongst others. In the chargesheet from page Nos.54 to 58 is the report of the enquiry committee. 13. After holding the enquiry, the enquiry committee noticed following: (Page Nos.56 to 58 of communication)- “HINDI” From the enquiry report, at least prima facie there cannot be any second opinion that applicant No.1 Dr. Sangeeta Daf had failed to take reasonable care and monitoring. There was a delay in giving proper treatment and blood resulted into sad demise of Swati. 14. Section 304-A of the Indian Penal Code reads as under: “304-A. Causing death by negligence.—Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” 15. 14. Section 304-A of the Indian Penal Code reads as under: “304-A. Causing death by negligence.—Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” 15. Plain reading of the aforesaid Penal section would show that when the death of any person by doing any rash or negligent act not amounting to culpable homicide, attracts punishment for imprisonment which may extend to two years or fine or with both. 16. The chargesheet shows that during the investigation, statements of various witnesses are recorded including statement of Mohan Natthuji Nerkar in whose hospital Swati passed away. The statement would show water was accumulated in the lungs of Swati. Similarly, the statement of various other doctors or also find placed in the chargesheet. 17. Perusal of the application would show in paragraph No.4 of the application, it is stated that the charge is already framed by the learned Magistrate and the case was fixed for recording evidence. Thus, at the stage of recording of evidence the applicant No.1 Doctor who was found negligent and has found that she has failed to take reasonable care and monitoring of the patient, and the applicant No.2 is the husband of unfortunate young lady; Swati are before this Court for quashing of the chargesheet and the criminal case. As observed, the reasons supplemented in the application for quashing the proceedings are the joint request. According to them, death of Swati was the part of destiny which is beyond human control. 18. This Court is a custodian of law. Rather it is the duty of each and every Court to minutely scrutinize the material brought before it and to give the verdict in accordance with law. Merely because the parties are coming before the Court and making the joint request that the chargesheet should be quashed, that alone cannot be the criteria for quashing the chargesheet. In this case, we will not allow ourselves to accede to the prayer made, especially when there is a report by three expert doctors who unequivocally recorded finding that there was no reasonable care and monitoring at the hands of the applicant No.1 and she was negligent. In this case, we will not allow ourselves to accede to the prayer made, especially when there is a report by three expert doctors who unequivocally recorded finding that there was no reasonable care and monitoring at the hands of the applicant No.1 and she was negligent. We have already reproduced the observations and findings of the expert committee in this judgment which prima facie shows that applicant No.1 did not take proper care, rather was negligent in performing her duties. 19. When prima facie material is available in the chargesheet, an opportunity has to be given to the prosecution. In the present case, the charge is already framed under Section 304-A of the Indian Penal Code. The prosecution must be given an opportunity to substantiate the charge framed against the applicant No.1 and that can be done only during the trial. 20. Opportunity is there for the applicant No.1 to cross-examine the prosecution witnesses, examined by the prosecution during trial. The applicant No.1 will be having full opportunity to assail the enquiry report of experts by cross-examining them. The truthfulness or otherwise will be tested during the trial. 21. The upshot of the aforesaid discussion leads us to pass the following order: ORDER (i) The joint application for quashing the chargesheet and Summary Criminal Case No. 327763/2013 is required to be dismissed since there is no ground or circumstance for this Court to exercise its inherent jurisdiction under Section 482 of the Code of Criminal Procedure. (ii) All the observations made in this order are only for the purposes of deciding this application and it is expected that the learned Magistrate before whom the trial will be conducted will not get himself influenced by them. The application is dismissed.