R.Muralidharan vs Union Territory Administration, Chandigarh and anr.

Harbans Singh Rai, J.

In this petition under Section 482 Cr.P.C. read with Article 227 of the Constitution of India, the petitioners pray for quashing FIR No. 247 dated October 18, 1988, final report under Section 173 Cr.P.C. charges framed against the petitioners by the Judicial Magistrate Ist Class, Chandigarh, vide his order dated September 21, 1989, and resultant proceedings in the said Court.

The petitioners have averred in the petition that on the basis of a written application moved by Shri Bobby Garg son of Dr. A. P. Garg resident of House No. 3429, Sector 24D, Chandigarh FIR No., No. 247 was registered on October 18, 1988 under Section 304A, IPC in Police Station West, Union Territory, Chandigarh.

The allegations made in the FIR are that on October 5, 1988 is the early hours, the mother of Shri Bobby Garg named Raksha Garg complained. of severe headache upon which Dr. Y. P. Singla was called who examined his mother and gave her the necessary medicines. The sad doctor told Bobby Garg and his father that there was nothing to worry Therefore, Bobby Garg left for his college while his father left for his office. When they came to house to take their lunch, they came to know that there was no relief in the headache of Raksha Garg. Then they called Dr. P.K. Kansal of General Hospital who after examining Raksha Garg suggested that she should be got admitted in the hospital. Acting upon his suggestion, they got Raksha Garg admitted in the hospital. There Dr. P.K. Kansal, Dr. J.P. Singh and Dr. S.K. Bhandari after examining Raksha Garg referred her to P.G.I. for Cat Scanning and she was brought to the P.G.I. According to Bobby Garg, his mother was admitted in the P.G.I. in the emergency ward but the Post Graduate Institute authorities took no concrete steps and the condition of his mother started deteriorating. In the meanwhile his father alongwith Dr. P.K. Kansal, Dr. J.P. Singh and Dr. Y.P. Singla also reached there. Bobby Garg appraised them that the condition of Raksha Garg was deteriorating and the doctors were not properly attending to her. On this, Dr. P.K. Kansal, repeatedly requested the doctor on duty named Dr. Muralidharan to call the senior consultant but the said doctor did not pay any heed to him nor did he pay his attention to the condition of Raksha Garg. Bobby Garg further alleged that Dr. Mistri, also did not call the Senior consultant doctor and after a considerable delay the said doctor extracted some fluid like water from the spine and his mother became unconscious.

During the night at about 3.00 A.M. his mother started breathing with difficulty. Bobby Garg ran to the doctor on duty but the doctor sent him back with a promise to follow him to treat Raksha Garg. When Bobby Garg reached near the bed of his mother, he found that his mother had already expired. Till that time neither the doctor on duty nor the senior consultant doctor whose name he subsequently learnt to be Dr. Harinder Singh Malhotra had reached there. Thus, Bobby Garg alleged that his mother had died on account of intentional and gross negligence of above mentioned doctors.

The petitioners have maintained that from the contents of FIR and report under 173 Cr.P.C. no prima facie offence under Section 304A, IPC is at all made out against them. The FIR, report under Section 173 Cr.P.C. and the statements of witnesses recorded under Section 161 Cr.P.C. do not furnish any material to frame charge against them. As soon as Smt. Raksha Garg was received in the Emergency and her report of Cat Scanning was received, she was attended to by the doctor on duty and also by the Senior Resident without any loss of time and all efforts to immediately diagnose the disease were made and. as soon as the diagnosis was complete, best and skilful treatment was provided to Raksha Garg. According to petitioner No. 2, his name does not figure in the FIR.

The petitioners have further alleged that there was delay of twelve hours on the part of Bobby Garg and his father not to provide the best medical treatment to the deceased. There is no material on the file to show that there was any lapse on the part of the petitioners to diagnose the decease properly or the treatment given to her was in way not proper. It is also the case of the petitioners that the dead body of Raksha Garg was taken away by her relations without getting any postmortem examination performed and in the absence of postmortem report, no specific cause of death can be known and the direct or proximate cause of death cannot be linked to any act, or omission on the part of the petitioners. The Investigating Agency could not collect any evidence to prove any rash or negligent act on the part of the petitioners. The investigation is most perfunctory, biased, partial and senior doctors of the PGI like Dr. I.M.S. Sawhney, Associate Professor, Dr. S.K. Garg, Assistant Professor and other members of the staff, who were associated in the treatment and also could depose about the nature of treatment have not been cited as witnesses. Dr. H. S. Malhotra, Senior Resident, who was also challaned alongwith the petitioners was, however, discharged by the learned Judicial Magistrate as no prima facie case was made out against him and that the case of petitioners is also identical.

The petitioners have further pleaded that it is a summons case and as per provisions of Section 167 Cr.P.C., the investigation was to be completed within six months. Since report under Section 173 Cr.P.C. was prepared after six months so the cognizance taken by the learned Judicial Magistrate on the said report was bad in law and the resultant proceedings were, therefore, without jurisdiction.

The petitioners have further averred that since no case is male out against them and the case is very likely to end in acquittal, the continuation of prosecution in this case is bound to adversely affect the image and prestige of the PGI which is one or the premier medical institutions in our country.

I have heard the learned counsel for the parties and gone through the record.

The learned trial Magistrate vide his order September 21, 1989 had framed charge 304A, IPC against the petitioners. A perusal of the order will show that the Magistrate has applied his mind and after careful scrutiny has formed an opinion that the petitioners do not deserve to be discharged as prima facie case for framing of charge is there. A Magistrate is required to frame charge after perusal of report under Section 173 Cr.P.C., statements recorded under Section 161 Cr.P.C. and other documents attached with the record. The Magistrate after perusal if these documents has framed the charge. The petitioners contentions can only be appreciated when the evidence is recorded. At the stage of framing of charge, only a prima facie case is to be seen.

In the circumstances of the case, I do not feel any justification to interfere. The Magistrate was justified in framing the charge. This petition is dismissed. The petitioners are directed to appear in the trial Court on June 12, 1990.