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Allahabad High Court · body

2020 DIGILAW 645 (ALL)

Geetanjali v. State Of U. P.

2020-02-28

MANJU RANI CHAUHAN

body2020
JUDGMENT : 1. Heard Mr. Shailendra Kumar Yadav and Mr. Mahesh Prasad Yadav, learned counsel for the applicant and Mr. Prashant Kumar, learned A.G.A. for the State assisted by Mr. P.K. Shahi, learned special counsel for the State. 2. The present application under Section 482 Cr.P.C. has been filed to quash the judgment and order dated 15th March, 2018 passed by the Chief Judicial Magistrate, Allahabad in Complaint Case No. 1521 of 2015 (Geetanjali Vs. Dr. R.P. Shukla & Others), whereby the complaint made by the applicant through an application under Section 156 (3) Cr.P.C. has been rejected. The applicant has also challenged the judgment and order dated 1st October, 2019 passed by the Additional Sessions Judge, Court No.21, Allahabad in Criminal Revision No. 120 of 2018 (Geetanjali Vs. Dr. R.P. Shukla & Others) whereby the revision filed by the applicant has been dismissed and the judgment and order passed by the concerned Magistrate dated 15th h March, 2018 has been affirmed. 3. Learned counsel for the applicant submits that the case of applicant is that the husband of applicant, namely, Shyamendra Kaushal became suddenly ill on 27th July, 2015, the applicant and her father-in-law, namely, Achhe Lal Yadav got him admitted in Emergency Ward of Nazreth Hospital for his medical aid after depositing requisite charges towards fees of emergency ward, medicines, doctors etc. Opposite party no.2, Dr. R.P. Shukla was assigned the work of medically treating the husband of the applicant. After medically test etc., opposite party no.2 told the applicant that presently the condition of her husband is normal and further asked the applicant to take him to her home and on the next day i.e. 28th July, 2015, she would take him to the OPD of the hospital, where he will medically examine him again, but seeing the condition of her husband, the applicant and other family members requested opposite party to admit her husband and provide medical aid for whole night. Consequently, the husband of the applicant was admitted by opposite party no.2 namely, Dr.R.P. Shukla and on his advise medicine was given to her husband and whole night treatment was continued but despite consuming medicine as per advise of the opposite party no.2 (Dr. R.P. Shukla), the health condition of her husband became critical, due to which a hot talk was exchanged between the applicant and the opposite party no.2. R.P. Shukla), the health condition of her husband became critical, due to which a hot talk was exchanged between the applicant and the opposite party no.2. Because of aforesaid hot talk it appears that opposite party no.2 being the doctor might have provided noxious medicine to her husband deliberately and ultimately on 28th July, 2015 at about 04:00 p.m. her husband died in Nazreth Hospital, Allahabad. On being asked the reason by the applicant that at morning in pathology test report, ailment of malaria was reported and platelets were found less than accurate and the applicant thereafter had been praying for providing medicine for increasing platelets but all went in vain and after some time husband of the applicant died due to negligence and improper treatment of the opposite party no.2, therefore, for punishing him, the applicant has moved an application under Section 156 (3) Cr.P.C. on 17th September, 2015, but the same has been treated as a complaint case i.e. the present complaint case. With a view to prove prima facie negligence on the part of the opposite party no.2 and the management of Nazreth Hospital, the applicant got her statement recorded under Section 200 Cr.P.C. The applicant has also got examined Achhe Lal Yadav as P.W.-1 and another witness, namely, Amar Nath Yadav. The concerned Magistrate has proceeded further. However, without considering the contents of the application and statements of the witnesses, the concerned Magistrate has illegally rejected the complaint of the applicant filed under Section 156 (3) Cr.PC. The grounds mentioned in rejecting the complaint of the applicant are that on 12th October, 2015, the Chief Medical Officer, Allahabad was directed to constitute a medical board, which would conduct an enquiry with reference to the averments made in the complaint and submit report before the court of concerned Magistrate. It is further submitted that the report of the medical board appears to have submitted its report and about the cause of death the opinion of the medical board is mentioned in the impugned order. With reference to the report of the medical board, it is submitted by the learned counsel for the applicant that no notice was ever given to the applicant by the medical board, so that the applicant could have factual scenario and negligence of the opposite party no.2. With reference to the report of the medical board, it is submitted by the learned counsel for the applicant that no notice was ever given to the applicant by the medical board, so that the applicant could have factual scenario and negligence of the opposite party no.2. Learned counsel for the applicant further submits that in the judgment and order, there is no recital that the medical board has made an inquiry about the skill of opposite party no.2 as to whether he was competent person to exercise ordinary skill particularly with regard to ailment of applicant's husband. 4. It is lastly submitted that at the stage of issuing process, the concerned Magistrate is only required to be prima facie satisfied on the basis of allegations made in the complaint and entering into a detailed discussion of merits and demerits at this state is not permissible as held by the Apex Court in its various judgments. Both the courts below have committed manifest error in law and facts in dismissing the complaint case as framed and filed by the applicant. 5. On the commutative strength of the aforesaid, learned counsel for the applicant urges that the both the impugned orders are liable to be quashed and the concerned Magistrate be directed to revisit the complaint filed by the applicant. 6. Per contra, Mr. Prashant Kumar, learned A.G.A. for the State submits that if the application under section 156 (3) Cr.P.C. contains the allegations of commission of a cognizable offence, then the Magistrate is under obligation to direct investigation after registration of the FIR in each and every case. It is then submitted that the present complaint case made by the applicant, namely, Geetanjali through an application under Section 156 (3) Cr.P.C. is nothing but a bundle of lie and the same has been made only for exploiting the opposite party nos. 2 and 3 by indulging their names in a fake, false and frivolous case. The entire prosecution story as unfolded in the present complaint case is absolutely a self-made story projected by the applicant. The application made by the applicant under Section 156 (3) Cr.P.C., which has been treated to be complaint case, has been filed after more than one month and twenty days from the date of death of the husband of the applicant. The application made by the applicant under Section 156 (3) Cr.P.C., which has been treated to be complaint case, has been filed after more than one month and twenty days from the date of death of the husband of the applicant. Neither in the affidavit filed in support of the present application nor in the application filed under Section 156 (3) Cr.P.C. by the applicant, there is any averment that initially the applicant has tried to lodge first information report before filing the application under Section 156 (3) Cr.P.C., which makes the prosecution case doubtful. Apart from the above, learned A.G.A. further submits that the court below has not found any substance in the prosecution case and he has rightly rejected the application of the applicant, which has been treated as complaint case, on the basis of enquiry report submitted by the Police and the report of the medical board submitted by the Chief Medical Officer, wherein it has been mentioned that due to septicemia, ARDS (Acute Respiratory Distress Syndrome), Fever Multi Organ Failure, husband of the applicant had expired. The court below has not committed any error while passing the impugned order. The court below has recorded pure finding of fact after relying upon the judgment of the Apex Court in the case of Jacob Mathew Vs. State of Punjab & Others (Criminal Appeal No. 144-145/2004, decided on 5th August, 2005). The appellate court has also rightly rejected the appeal filed by the applicant and affirmed the order of the concerned Magistrate. He, therefore, submits that the impugned orders passed by the courts below are legal and just and the same do not warrant any interference by this Court. 7. I have considered the submissions made by the learned counsel for the parties and have gone through the record of the present application under Section 482 Cr.P.C. 8. In Mahboob and others vs. State of U.P. and another, reported in 2017 (2) JIC, 320, (All) (LB), specifically in paragraph Nos. 10, 11 and 12, this Court has observed as follows:- "(10) Hon'ble Apex Court has further dealt with the nature of inquiry which is required to be conducted by the Magistrate and referring the case of Vijay Dhanuka (supra) it was held as under: "14. 10, 11 and 12, this Court has observed as follows:- "(10) Hon'ble Apex Court has further dealt with the nature of inquiry which is required to be conducted by the Magistrate and referring the case of Vijay Dhanuka (supra) it was held as under: "14. In view of our answer to the aforesaid question, the next question which falls for our determination is whether the learned Magistrate before issuing summons has held the inquiry as mandated under Section 202 of the Code. The word "inquiry " has been defined under Section 2(g) of the Code, the same reads as follows: "2. (g) ''inquiry' means every inquiry, other than a trial, conducted under this Code by a Magistrate or court," It is evident from the aforesaid provision, every inquiry other than a trial conducted by the Magistrate or the court is an inquiry. No specific mode or manner of inquiry is provided under Section 202 of the Code. In the inquiry envisaged under Section 202 of the Code, the witnesses are examined whereas under Section 200 of the Code, examination of the complainant only is necessary with the option of examining the witnesses present, if any. This exercise by the Magistrate, for purpose of deciding whether or not there is sufficient ground for proceeding against the accused, is nothing but an inquiry envisaged under Section 202 of the Code." (11) In the present case, the learned Magistrate has not conducted any inquiry so as to satisfy himself that the allegations in the complaint constitute an offence and when considered alongwith the statements recorded and the result of such inquiry. There is ground for proceedings against the petitioners under Section 204 CrPC. There is nothing on record to show that the learned Magistrate has applied his mind to arrive at a prima facie conclusion. It must be recalled that summoning of accused to appear the criminal court is a serious matter affecting the dignity self-respect and image in the society. A process of criminal court cannot be made a weapon of harassment. (12) Learned Magistrate has passed a very cryptic order simply by saying that the statement of complainant as well as witnesses recorded under Sections 200 and 202 CrPC are perused and accused are summoned such order per se itself illegal which could not stand the test of law." 9. (12) Learned Magistrate has passed a very cryptic order simply by saying that the statement of complainant as well as witnesses recorded under Sections 200 and 202 CrPC are perused and accused are summoned such order per se itself illegal which could not stand the test of law." 9. Reliance is also placed upon the judgment of this Court in the case of Smt. Shiv Kumar and others vs. State of U.P. and another, reported in 2017 (2) JIC, 589, (All) (LB). Paragraph No. 10 of the aforesaid judgment is relevant for the controversy in hand. The same is as under:- "Learned Magistrate was required to atleast mention in the order about the prima facie satisfaction for summoning the accused. The order must reflect that the learned Magistrate has exercised his jurisdiction in accordance with law after satisfying himself about the prima facie allegations made in the complaint. The accused cannot be summoned mechanically merely by writing that perused the statements under Sections 200 and 202 Cr. P. C." 10. Reference may also be made to the judgment of this Court in the case of Hariram Verma and 4 Others Vs. State of U.P. and Anohter, reported in 2017 (99) ALL CC 104, wherein the following observations have been made in paragraphs 7 to 16: "7. A perusal of this impugned summoning order indicates that learned Magistrate had noted in the impugned order the contents of complaint and evidences u/s 200 and 202 CrPC but had neither any discussion of evidence was made, nor was it considered as to what overt act had allegedly been committed by accused. This contention of learned counsel for the applicants cannot be ruled out that leaned counsel have noted the contents of complaint and statements without considering its probability or prima facie case, and whether he had actually considered statements u/ss 200, 202 CrPC or the documents of the original. At stage of summoning, the Magistrate is not required to meticulously examine or evaluate the evidence. He is not required to record detailed reasons. A brief order which indicate the application of mind is all that is expected of him at the stage. 8. But in impugned order there is nothing which may indicate that learned Magistrate had even considered facts of the case in hand before passing the summoning order. Impugned order clearly lacks the reflection of application of judicial discretion or mind. A brief order which indicate the application of mind is all that is expected of him at the stage. 8. But in impugned order there is nothing which may indicate that learned Magistrate had even considered facts of the case in hand before passing the summoning order. Impugned order clearly lacks the reflection of application of judicial discretion or mind. Nothing is there which may show that learned Magistrate, before passing of the order under challenge had considered facts of the case and evidence or law. Therefore it appears that, in fact, no judicial mind was applied before the passing of impugned order of summoning. Such order cannot be accepted as a proper legal judicial order passed after following due procedure of law. 9. In ruling "M/s. Pepsi Food Ltd. & another vs. Special Judicial Magistrate & others, 1998 UPCrR 118" Hon'ble Supreme Court held :- "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. 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 the accused. Magistrate had to carefully scrutinize 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." 10. Magistrate had to carefully scrutinize 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." 10. In "Paul George vs. State, 2002 Cri.L.J. 996" Hon'ble Supreme Court held :- "We feel that whatever be the outcome of the pleas raised by the appellant on merit, the order disposing of the matter must indicate application of mind to the case and some reasons be assigned for negating or accepting such pleas.-----It is true that it may depend upon the nature of the matter which is being dealt with by the Court and the nature of the jurisdiction being exercised as to in what manner the reasons may be recorded e.g. in an order of affirmance detailed reasons or discussion may not be necessary but some brief indication by the application of mind may be traceable to affirm an order would certainly be required. Mere ritual of repeating the words or language used in the provisions, saying that no illegality, impropriety or jurisdictional error is found in the judgment under challenge without even a whisper of the merits of the matter or nature of pleas raised does not meet the requirement of decision of a case judicially." 11. In S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, (2005) 8 SCC 89 the Apex Court had held : "Section 203 of the Code empowers a Magistrate to dismiss a complaint without even issuing a process. It uses the words "after considering" and "the Magistrate is of opinion that there is no sufficient ground for proceeding". These words suggest that the Magistrate has to apply his mind to a complaint at the initial stage itself and see whether a case is made out against the accused persons before issuing process to them on the basis of the complaint. For applying his mind and forming an opinion as to whether there is sufficient ground for proceeding, a complaint must make out a prima facie case to proceed. This, in other words, means that a complaint must contain material to enable the Magistrate to make up his mind for issuing process. If this were not the requirement, consequences could be far-reaching. This, in other words, means that a complaint must contain material to enable the Magistrate to make up his mind for issuing process. If this were not the requirement, consequences could be far-reaching. If a Magistrate had to issue process in every case, the burden of work before the Magistrate as well as the harassment caused to the respondents to whom process is issued would be tremendous. Even Section 204 of the Code starts with the words "if in the opinion of the Magistrate taking cognizance of an offence there is sufficient ground for proceeding". The words "sufficient ground for proceeding" again suggest that ground should be made out in the complaint for proceeding against the respondent. It is settled law that at the time of issuing of the process the Magistrate is required to see only the allegations in the complaint and where allegations in the complaint or the charge-sheet do not constitute an offence against a person, the complaint is liable to be dismissed." 12. It is settled principle that while summoning an accused, the court has to see prima facie evidence. The ''prima facie evidence' means the evidence sufficient for summoning the accused and not the evidence sufficient to warrant conviction. The enquiry u/s 202 CrPC is limited only to ascertain of truth or falsehood of allegations made in the complaint and whether on the material placed by the complainant a prima facie case was made out for summoning the accused or not. 13. As held by the Courts as above, the passing of order of summoning any person as accused is a very important matter, which initiates criminal proceeding against him. Such orders cannot be passed summarily or without applying judicial mind. 14. In light of this legal position I have gone through the impugned order. A perusal of this order indicates that neither any discussion of evidence was made by learned, nor was it considered as to which accused had allegedly committed what overt act. The five accused persons of complaint were summoned for offences mentioned in it. Impugned order clearly lacks the reflection of application of judicial discretion or mind. Nothing is there which may show that learned Magistrate, before passing of the order under challenge had considered the facts and circumstances of the case and the evidence or the law. The five accused persons of complaint were summoned for offences mentioned in it. Impugned order clearly lacks the reflection of application of judicial discretion or mind. Nothing is there which may show that learned Magistrate, before passing of the order under challenge had considered the facts and circumstances of the case and the evidence or the law. Therefore it appears that, in fact, no judicial mind was applied before the passing of impugned order of summoning. Such order cannot be accepted as a proper legal judicial order passed after following due procedure of law. Therefore it is liable to be quashed. 15. In Anita Malhotra v. Apparel Export Promotion Council, (2012) 1 SCC 520 the Apex Court had hld as under: "20. As rightly stated so, though it is not proper for the High Court to consider the defence of the accused or conduct a roving enquiry in respect of merits of the accusation, but if on the face of the document which is beyond suspicion or doubt, placed by the accused and if it is considered that the accusation against her cannot stand, in such a matter, in order to prevent injustice or abuse of process, it is incumbent on the High Court to look into those document/documents which have a bearing on the matter even at the initial stage and grant relief to the person concerned by exercising jurisdiction u/s 482 of the Code." 16. Considering the uncontroverted averment of present petition u/s 482 CrPC as well as affidavit supporting it, the incorrect and unbelievable complaint case, and false implication of five petitioners and the general allegations levelled by informant in her FIR without allegations of any specific act, the incorrectness of cause of action for the complaint and considering the vagueness of information mentioned in complaint, and in light of verdict mentioned in aforesaid rulings of Hon'ble Apex Court, this appears to be a case in which applicants should succeed and the impugned summoning order as well as the complaint case are liable to be quashed. 11. From the perusal of the aforesaid laws laid down by the Apex Court, this Court is of the firm opinion that Section 203 of the Code empowers a Magistrate to dismiss a complaint without even issuing a process. It uses the words "after considering" and "the Magistrate is of opinion that there is no sufficient ground for proceeding". 11. From the perusal of the aforesaid laws laid down by the Apex Court, this Court is of the firm opinion that Section 203 of the Code empowers a Magistrate to dismiss a complaint without even issuing a process. It uses the words "after considering" and "the Magistrate is of opinion that there is no sufficient ground for proceeding". These words suggest that the Magistrate has to apply his mind to a complaint at the initial stage itself and see whether a case is made out against the accused persons before issuing process to them on the basis of the complaint. For applying his mind and forming an opinion as to whether there is sufficient ground for proceeding, a complaint must make out a prima facie case to proceed. This, in other words, means that a complaint must contain material to enable the Magistrate to make up his mind for issuing process. If these were not the requirement, consequences could be far-reaching. If a Magistrate had to issue process in every case, the burden of work before the Magistrate as well as the harassment caused to the respondents to whom process is issued would be tremendous. Even Section 204 of the Code starts with the words "if in the opinion of the Magistrate taking cognizance of an offence there is sufficient ground for proceeding". The words "sufficient ground for proceeding" again suggest that ground should be made out in the complaint for proceeding against the opposite party/respondent. It is settled law that at the time of issuing of the process the Magistrate is required to see only the allegations in the complaint and where allegations in the complaint or the charge-sheet do not constitute an offence against a person, the complaint is liable to be dismissed. 12. From the aforesaid, this court finds substance in the submissions made by the learned A.G.A. for the State that entire prosecution story as unfolded in the present complaint case is absolutely a self-made story projected by the applicant. The application made by the applicant under Section 156 (3), which has been treated to be complaint case, has been filed after more than one month and twenty days from the date of death of the husband of the applicant. The application made by the applicant under Section 156 (3), which has been treated to be complaint case, has been filed after more than one month and twenty days from the date of death of the husband of the applicant. Neither in the affidavit filed in support of the present application nor in the application filed under Section 156 (3) Cr.P.C. by the applicant, there is any averment that initially the applicant has tried to lodge first information report before filing the application under Section 156 (3) Cr.P.C. 13. In light of the above facts and above proposition of law, this Court is of the view that the court below has not found any substance in the prosecution case and he has rightly rejected the application of the applicant, which has been treated as complaint case, on the basis of enquiry report submitted by the Police and the report of the medical board submitted by the Chief Medical Officer, wherein it has been mentioned that due to septicemia, ARDS (Acute Respiratory Distress Syndrome), Fever Multi Organ Failure, husband of the applicant had expired. The appellate court has also rightly rejected the appeal filed by the applicant and affirmed the order of the concerned Magistrate. Both the courts below have not committed any error while passing the impugned orders. The court below have recorded pure finding of fact after relying upon the judgment of the Apex Court in the case of Jacob Mathew Vs. State of Punjab & Others (Criminal Appeal No. 144-145/2004, decided on 5th August, 2005). Thus, the complaint of the applicant has rightly been rejected by the court below under the order impugned. 14. In light of above facts, this Court is of the view that both the orders impugned do not warrant any interference by this Court under Section 482 Cr.P.C. The present application lacks merit and deserves to be dismissed. It is accordingly dismissed.