Dr. Mukesh Kumar Sundriyal vs State of Uttarakhand and Another

Umesh Chandra Dhyani, J.—The applicant, by means of present application/petition u/s 482 of Cr.P.C., seeks to quash the order dated 12.06.2008 as well as the entire proceedings of criminal case No. 680 of 2008, Mahendra Pal v. J.P. Chamoli and others, pending in the Court of Chief Judicial Magistrate, Pauri Garhwal. An FIR was lodged by Mahendra Pal Singh Rawat (respondent No. 3) against Dr. Mukesh Kumar Sundriyal and Dr. J.P. Chamoli on 11.09.2007, in police station Srinagar, District Pauri Garhwal, in respect of offences punishable under Sections 304A, 504 and 506 of IPC. After the investigation, a final report was submitted against Dr. Mukesh Sundriyal and DR. J.P.. Chamoli.

When the report u/s 173 of Cr.P.C., in final form, was submitted against Dr. Mukesh Sundriyal, the informant Mahendra Pal Singh Rawat was issued notice. The informant submitted protest petition.

Instead of proceeding against accused-applicant u/s 190(1)(a) of Cr.P.C., learned Magistrate entertained the protest petition as objections and rejected the final report. The cognizance was directed to be taken against Dr. J.P. Chamoli and Dr. Mukesh Kumar Sundriyal in respect of offences punishable under Sections 304A, 504, 506 of IPC, u/s 190(1)(b) of Cr.P.C. It was directed that the case against the accused persons shall proceed as a police case. Aggrieved against said order, Dr. Mukesh Kumar Sundriyal approached this Court u/s 482 of Cr.P.C. While the proceedings against Dr. Sundriyal were stayed vide order dated 30.07.2008, passed by this Court, the proceedings are going on against Dr. J.P. Chamoli (before the court below).

Learned counsel for the applicant assailed the impugned order dated 01.03.2008, principally on the ground that the cognizance ought not have been taken by learned Judicial Magistrate u/s 190(1)(b) of Cr.P.C. Learned counsel contended that once the final report was submitted against the applicant, notice to the informant was sent and informant filed protest petition against submission of final report, the only course, which was open to the learned Magistrate, was to proceed u/s 190(1)(a) of Cr.P.C. and not u/s 190(1)(b) of Cr.P.C.

Reliance was placed on the ruling of India Carat Pvt. Ltd. Vs. State of Karnataka and Another, in which it was held by the Hon''ble Apex Court that a Magistrate, upon receipt of a police report u/s 173(2) of Cr.P.C., is entitled to take cognizance of an offence u/s 190(1)(b) even if police report is to the effect that no case is made out against the accused. Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of Cr.P.C. though it is open to him to act under Sections 200 or 202 of Cr.P.C. also. The relevant part of the judgment is being reproduced here-in-below for ready reference:

Upon receipt of a police report u/s 173(2) a Magistrate is entitled to take cognizance of an offence u/s 190()(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating Officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit in exercise of his powers u/s 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in section 200 and 202 of the Code for taking cognizance of a case u/s 190(1)(a) though it is open to him to act u/s 200 or section 202 also.

In the instant case, it was well within the competence of learned Magistrate to have rejected the final report and proceeded u/s 190(1)(b) of Cr.P.C. But it was not open to learned Magistrate to have proceed u/s 190(1)(b) of Cr.P.C., once he issued notice to the informant and the informant submitted protest petition against submission of final report in the Court. A copy of the protest petition was annexed by the applicant as Annexure-5 to the application u/s 482 of Cr.P.C.

In his protest petition dated 18.02.2008, a request was made by the informant that the final report against the accused persons be rejected. What is more important is that the informant made a prayer that -''the evidence of the reporter and his witnesses be got recorded and the accused persons be summoned to face the trial in respect of offences committed by them.''

Thus, it is explicit from the protest petition dated 18.02.2008, that a request was made for an opportunity to record statements of the reporter and his witnesses. Learned Magistrate, instead of affording an opportunity to the reporter/informant to examine himself and his witnesses under Sections 200 and 202 of Cr.P.C., rejected the final report and proceeded u/s 190(1)(b) of Cr.P.C. In such a situation, learned Magistrate should have taken recourse to Section 190(1)(a) of Cr.P.C. and not Section 190(1)(b) of Cr.P.C. It has been said earlier and is being said at the cost of repetition, that the learned Magistrate was competent to take cognizance u/s 190(1)(b) of Cr.P.C., had he not issued notice to the informant, who in turn, made a request to get his and his witnesses'' statements recorded under Sections 200 and 202 of Cr.P.C. Thus, the proper procedure, which ought to have been followed by the learned Magistrate, was not followed in the instant case.

There was yet another aspect of the matter. In Martin F. D''Souza Vs. Mohd. Ishfaq, it was observed by the Hon''ble Apex Court that whenever a complaint is received against a doctor or hospital by the Consumer Forum or by the Criminal Court, then before issuing notice to the doctor or hospital against whom the complaint was made, the Consumer Forum or Criminal Court should first refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence, notice should be then issued to the concerned doctor/hospital. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew''s case 2005 Indlaw SC 452, otherwise the policemen will themselves have to face legal action.''

It will be apt to quote para 53 of the judgment rendered by the Hon''ble Supreme Court in Jacob Mathew Vs. State of Punjab and Another, The same reads as under:

Guidelines re: prosecuting medical professionals as we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by police on an FIR being lodged and cognizance taken. The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to rash or negligent act within the domain of criminal law u/s 304A of IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered in his reputation cannot be compensated by any standards.

Hon''ble Apex Court, in the above noted case, cited with approva Dr. Suresh Gupta Vs. Govt. of N.C.T. of Delhi and Another,

It will not be out of place to mention here that the precautions desired by the Hon''ble Apex Court were not taken while instituting the case against the present applicant. The impugned order cannot sustain on the basis of the discussion made in the foregoing paragraphs of this judgment. The same is therefore interfered with. Accordingly,. the application/petition u/s 482 of Cr.P.C. is allowed. The order dated 12.06.2008, as well as the entire proceedings of criminal case No. 680 of 2008, Mahendra Pal v. J.P. Chamoli and others, pending in the Court of Chief Judicial Magistrate, Pauri Garhwal are hereby quashed qua present applicant only.