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2013 Supreme(UK) 270
UTTARAKHAND HIGH COURT
Hon'ble Mr. Justice U.C. Dhyani
Criminal Misc. Application (C-482) No. 462 of 2008
DR. MUKESH KUMAR SUNDRIYAL – Applicant
Versus
STATE OF UTTARAKHAND & ANR. – Respondents
Decided on : 20.06.2013
For the Applicant :Mr. Kartikey Hari Gupta, Advocate
For the State : Mr. P.S. Saun, AGA
For the Respondents:Mr. Pratul Kumar, Advocate holding brief of Mr. Lokendra Dobhal, Advocate
Headnote:Criminal Proceedings — Prosecuting a doctor — Guidelines for — 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 the doctor’s or committee’s report that there was 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 — In the present case, precautions were not taken while instituting the case against the present applicant — Thus, impugned order, not sustainable. (Paras 10, 13, 14)
nkf.Md izfØ;k & vkijkf/kd dk;Zokgh & fpfdRld dks vfHk;ksftr djus ds fy, fn’kk funsZ’k & tc dHkh miHkksDrk Qksje esa ;k nkf.Md U;k;ky; esa fdlh fpfdRld ;k vLirky ds fo#) f’kdk;r ntZ gksrh gS rc uksfVl tkjh djus ls iwoZ miHkksDrk Qksje ;k nkf.Md vnkyr dks okn l{ke fpfdRld ;k fpfdRldksa dh desVh tks ml {ks= ds fo’ks”kK gks] ftlesa fpfdRlh; mis{kk dkfjr Fkh funsZf’kr djuk pkfg, & vkSj l{ke fpfdRldksa dh fjiksVZ ds mijkUr fd izFke n`”V;k fpfdRlh; mis{kk dkfjr Fkh dfFkr fpfdRld ;k vLirky dks uksfVl tkjh fd;k tk, & ;g fpfdRldksa ds mRihM+u ls cpus ds fy, gS tks varr% nks”kh ugha ik;s tkrs gSa & izLrqr okn esa vihykFkhZ ds fo#) okn nk;j djrs le; iwokZo/kku dk /;ku ugha j[kk x;k Fkk & blfy, ikfjr vkns’k] iq”V ughaA ¼izLrj 10] 13] 14½
Hon’ble U.C. Dhyani, J. (oral)
The applicant, by means of present application/petition under Section 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 vs J.P. Chamoli and others, pending in the Court of Chief Judicial Magistrate, Pauri Garhwal.
2. 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.
3. When the report under Section 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.
4. Instead of proceeding against accused-applicant under Section 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, under Section 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 under Section 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).
5. 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 under Section 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 under Section 190(1)(a) of Cr.P.C. and not under Section 190(1)(b) of Cr.P.C.
6. Reliance was placed on the ruling of Messrs India Carat Private Limited vs State of Karnataka and another, 1989 (2) SCC 132, in which it was held by the Hon’ble Apex Court that a Magistrate, upon receipt of a police report under Section 173(2) of Cr.P.C., is entitled to take cognizance of an offence under Section 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 under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(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 under section 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
