Dr. Balram Singh vs Harlsh Chandra Srivastava and Another

G.S.N. Tripathi, J.—This is a petition u/s 482 Code of Criminal Procedure for, quashing all the proceedings in Gase No. 3196 of 93, u/s 338 IPC pending in the Court of A.C.M.M. III, Kanpur Nagar.

The applicant is a Doctor in Sushila Nursing Home, Kanpur. An FIR was registered as Case Crime No. 27 of 91. u/s 338 IPC on 31-1-91 at the behest of the Respondent No. 1. After investigation, the police submitted a final report (Annexure B). The Respondent No. 1 filed a protest, petition before the learned Magistrate (Aunexures C and D). The learned Magistrate without examining the complainant or any other witness and only on the basis of the documents filed by the complainant has summoned the Petitioner. The alleged protest petition in the shape of the complaint did not contain a list of witnesses as required by section 204(2) Code of Criminal Procedure. Thus no offence is made out against the Petitioner. Hence the proceedings should be quashed.

I have heard learned counsel for the Petitioner at stretch and perused the record. I find that this petition has absolutely no force and it deserves to be dismissed.

The main thrust of the Petitioner is that since the final report has been submitted against the Petitioner, no case is made out against him. Secondly, while considering the protest petition, the learned Magistrate should have followed the procedure of complaint case and after examining the witnesses under Sections 200 and 202 Code of Criminal Procedure alone, he could have taken the cognizance of the matter.

Reliance has been placed upon a ruling of the Supreme Court in the case of Abhinandan Jha and Others Vs. Dinesh Mishra, . In that case, after the final report had been submitted and a protest petition had been entertained, the learned Magistrate disagreed with the final report and directed the police to submit charge sheet against the accused. Aggrieved by this order, the accused moved the High Court of Patna, which upheld the, order of the Magistrate. Against that, an appeal was filed before the Supreme Court. The main thrust of the appeal� was as to whether Magistrate could have directed the police to file a charge sheet against the accused Naturally the reply to the question was in negative. The Supreme Court held that the jurisdiction of the Magistrate as well as police in respect of criminal cases was complementary and not over-lapping. So ''far the investigation goes, the police has absolute and unfettered legal jurisdiction to work in their spheres. The Magistrate cannot interfere in the same. However, after the report has been submitted, the Magistrate can proceed according to law but he has no jurisdiction to direct the police to submit a charge sheet. Further, it was held that if ultimately the Magistrate forms an opinion that facts set out in the final report constitute an offence, he can take cognizance of the offence u/s 190(1)(c) disagreeing with the opinion of the police expressed In the final report on the ground that after having regard to the final report and police record he has reason to suspect that an offence has been committed While passing, in paragraph 21, it was observed as follows:

Therefore, while holding that the orders of the Magistrate, in each of these cases, directing the police to file charge-sheets, is without jurisdiction, we make it clear that it is open to the Magistrate to treat the respective protest petitions, as complaints and take further proceedings, according to law. and, in the light of the views expressed by us, in this judgment.

There is no dispute with regard to the legal position as it exists and is amplified by their Lordships in the aforesaid case. Annexure B is the final report dated 1-4-91. Annexure C is the affidavit dated 16-11-92 filed by the respoadent No. 1 with a prayer that the final report submitted by the police be rejected and the culprit be punished. He has further enumerated the facts showing the negligence on the part of the Petitioner in treating his minor daughter Km. Rinki. Due to negligence displayed by the Petitioner, his daughter has become permanently invalid and handicapped. He has also submitted along with this report another affidavit showing that the Petitioner had applied a wrong type of plaster and bandage resulting in swelling of the organs. He did not rectify despite requests made by the family members of the Respondent. In an unauthorised manner, surgery was done upon the child, whereby the fingers of the foot of the child had to be amputated. It was again pointed out that although the fracture was at ihe thigh and knee, the plastering had been done upto a wrong place resulting in gangrene and final amputation. Later on another Doctor Dr. Satya Nand was consulted, who opined that the damage to the organs had�been caused due to negligent, tight bandaging and plaster. A certificate was also issued by the Doctor showing that wrong bandaging and plastering had been done. The medical certificate was als� filed by the Respondent No. 1 along with his protest petition.

The learned Magistrate by his impugned order dated 6-11-93 disposed of the protest petition as well as the final report. A perusal of the order passed by the learned Magistrate shows that he took into consideration the final report, case diary, the protest petition, the affidavits, the photos of the child, the prescription, admission receipt, reports of Dr. A. K. Gupta, Dr. A. K. Katiyar, Dr. Satya Nand etc. He found that prima facie it appeared that the Petitioner had not done the bandaging and plastering correctly. Due to their being very tight, the fingers and the claw had to be amputate''d, making the child handicapped The occurrence of gangrene was found to be the direct result of the negligent plastering Taking all these facts into consideration, the learned Magistrate rejected the final report and took cognizance of the offence. He summoned the accused u/s 338 IPC fixing 5-1-94 for appearance of the�Petitioner in his Court.

A perusal of the order passed by the learned Magistrate clearly shows that the learned Magistrate proposed to proceed u/s 190(1)(c) upon information received from any person other than police officer...that such offence has been committed.

Admittedly, he is a Magistrate 1st . Class and he does not need any special empowerment for taking cognizance in the matter u/s 190(1)(c) of the Code of Criminal Procedure. It is again admitted that he had territorial jurisdiction to act in respect of this matter. Thus it is a case where there is no question of lack of inherent jurisdiction. The materials available before the learned Magistrate were prima facie sufficient for any reasonable and prudent man to hold that a prima facie case had been made out enabling him to take cognizance in the matter.

One thing, of course, is missing in the order but that does not go to the root of the case. u/s 191 Code of Criminal Procedure it has been provided that where a Magistrate takes conizance of an offence under clause (c) of subsection (1) of section 190, the accused shall, before any evidence is taken. be informed that he is entitled to have the case inquired into or tried by another Magistrate, and if the accused or any of the accused, if thereto more than one, objects to further proceedings before the Magistrate taking cognizance, the case shall be transferred to such other Magistrate as may be specified by the Chief Judicial Magistrate in this behalf. The learned Magistrate after taking cognizance in the matter should have informed the accused Petitioner that he was entitled to have his case inquired into or transferred to any other Magistrate. That was not done. But no proceeding, has taken place so far in this case. No evidence has been recorded and no prejudice has been caused to the accused so far. Therefore, the accused has not been prejudiced in any manner whatsoever and the irregularity, if any, is curable. The provisions of section 461(k) are not applicable in this case because the Magistrate in this case was fully empowered by virtue of being a Magistrate 1st Class in the matter. Hence it cannot be said that this is an irregularity which vitiates the proceedings in entirity. The arguments to the contrary are rejected.

What should be the procedure after the case is transferred to some other Magistrate, is a matter to be decided by him. In this case; I think that since the cognizance has been taken by a competent Magistrate u/s 190(1)(c) of the Code of Criminal Procedure, this Court need not interfere in this matter. However, in the interest of justice, I deem it proper to direct the Chief Metropolitan Magistrate. Kanpur Nagar to transfer this case from the Court of A.C.M.M. III to some other A.C.M.M. within his jurisdiction.

The petition is dismissed. It is directed that the Chief Metropolitan Magistrate, Kanpur Nagar shall transfer the case No. 3196 of 93 u/s 338 IPC, pending ip the Court of A.C.M.M. Ill, Kanpur Nagar to some other A.C.M.M., Kanpur Nagar, who shall proceed according to law in this matter.

A copy of this order shall be given to the Petitioner without loss of time on payment of usual charges.