Dr. J.S. Parwana vs The State

K.P.S. Sandhu, J.—Dr. J.S. Parwana has filed this revision petition against the order of Shri R.C. Sharma, Judicial Magistrate First Class, Chandigarh, dated 9th January, 1985, whereby he framed a charge u/s 304 A of the Indian Penal Code against him.

The prayer in the petition is that the charge framed by the learned Magistrate be quashed and such other consequential relief that may be deemed fit and proper under the circumstances of the case be granted.

The Petitioner is a medical practitioner and has his clinic in Sector 37, Chandigarh. On 17th September, 1983, at about 1 p. m. Miss Ruth Mueni Kayalo, a Kenyan student, went to the Petitioner in his clinic for treatment as she was suffering from abdominal trouble. The Petitioner gave her an injection of Analgin which is a pain-killer. Miss Ruth Mueni had an adverse reaction She was again given some antidote by the Petitioner but, unfortunately, she died. The Vice Chairman of Kenyan-African Students'' Association, Shri Fred Ombjo, lodged a report with Police Station, Sector 39, Chandigarh, alleging therein that Miss Ruth Mueni had gone to the Petitioner for medical aid as she was not feeling well and that immediately after the doctor gave an injection to her she passed away. Vide first information report No. 211 dated 17th September, 1983, a case u/s 304-A of the Indian Penal Code was registered against the Petitioner. The Petitioner was consequently arrested on 17th September. 1983. The chalan was presented in Court on 21st May, 1984. The learned Magistrate after perusing the documents and hearing the Public Prosecutor and the Learned Counsel for the defence came to a finding that a case punishable u/s 304 Part II of the Indian Penal Code was made out. He consequently committed the case for trial to the Court of Session. The learned Session Judge framed a charge u/s 304 Part II of the Indian Penal Code. The Petitioner came in revision to the High Court. The High Court allowed the revision and set aside the order of the learned Magistrate committing the case to the Court of Session for trial. When the case came up before the learned Magistrate for framing the charge the Petitioner took up the plea that since an offence u/s 304-A of the Indian Penal Code was triable by a Magistrate as a summons case and the investigation had not been completed within six months from the date of the arrest of the Petitioner and the investigating agency had not obtained the permission of the Court to proceed with the investigation beyond six months, so the learned Magistrate was not competent to take cognizance of the offence,

In the petition in hand this is the only plea which has been stressed by Mr. Harbans Singh Senior Advocate, Learned Counsel for the Petitioner.

There is no challenge to this proposition that an offence u/s 304-A of the Indian Penal Code is triable as a summons case by a Magistrate and that under the mandatory provisions of Section 167(5) of the Code of Criminal Procedure the investigation has to be completed within six months unless the Magistrate grants permission to the investigating agency to proceed with the investigation beyond six months. This again is not challenged in the case in hand that the investigating agency did not seek the permission of the Magistrate.

The only question which survives for determination is as to whether the investigation in the case in band was completed within six months or not Under the Code of Criminal Procedure investigation consists of the following steps: (1) proceeding to the spot, (2) ascertainment of the facts and circumstances of the case, (3) discovery and arrest of the suspected offender, (4) collection of evidence relating to the commission of the offence and (5) formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and, if so, taking necessary steps for the same by filing a charge-sheet u/s 173 of the Code of Criminal Procedure. Admittedly, the chalan was presented in the Court after a lapse of more than eight months. u/s 173(1) of the Code of Criminal Procedure, every investigation under Chapter XII of the Code shall be completed without unnecessary delay. u/s 173(2)(1) of the Code, as soon as investigation is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government In view of Sub-section (2) of Section 173 of the Code, from the submission of the report to the Magistrate after more than eight months it has to be inferred that the investigation was not completed within six months. The learned Magistrate came to a finding that the report u/s 173 of the Code of Criminal Procedure was prepared by the Station House Officer on 3rd February, 1984, when the papers were submitted to the prosecuting agency. Therefore, he came to a finding that the investigation did not continue beyond six months. But it appears that the prosecuting agency with certain objections sent back the papers and the investigating agency sought the opinion of Dr. Inderjit Dewan of the Postgraduate Institute of Medical Education and Research about the cause of the death of Miss Ruth Mueni. As is apparent from the judgment of the High Court, Dr. Inderjit Dewan on 2nd March, 1984, gave his opinion that the death was due to anaphylactic shock due to Novalgin/Analgin. So, certainly asking the doctor for the cause of death and receipt of opinion from the doctor was a part of the investigation. The finding of the learned Magistrate that the investigation was concluded on 3rd February, 1984, in my view, is erroneous. Mr. Harbans Singh Senior Advocate, Learned Counsel for the Petitioner, to support his position has placed reliance on a Single Bench authority of Delhi High Court reported as Raj Singh v. The State (Delhi Administration 1984 C. C. C 274 (HC).), where it was held that if a chalan was presented by the police after six months of the arrest of the accused in a summons case and the investigating agency had not taken the permission of the Magistrate to continue the investigation after six months from the date of the arrest the Magistrate was not competent to take cognizance of the case. In view of the above data, it has to be held that the investigation in the case in hand continued beyond six months and that the investigating agency did not get the permission of the Magistrate for the same. Consequently, this petition is allowed and the order of the learned Magistrate dated 9.1.1985 framing the charge against the Petitioner is quashed.