1. Dr. Namita, aged about 44 years, wife of Rakesh Kumar 2. Rakesh Kumar v. …
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 3664 of 2023 1. Dr. Namita, aged about 44 years, wife of Rakesh Kumar 2. Rakesh Kumar, aged about 51 years, son of Anirudh Prasad Both are residents of Anandi Sadan, Panna Lal Ghosh Road, P.O. & P.S.- Deoghar, Dist.- Deoghar Versus …... Petitioners The State of Jharkhand .. Opposite Party For the Petitioners For the State : Mr. Ashish Kumar Thakur, Adv. : Mr. Rajesh Kumar, Addl. PP P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. 2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the entire criminal proceeding as well as the order dated 09.05.2023 passed in connection with Deoghar (Town) P.S. case no. 72 of 2017 corresponding to G.R. Case no. 201 of 2017 whereby and whereunder, cognizance has been taken by learned CJM, Deoghar for the offence punishable under Section 304A/ 34 of the IPC against the petitioners. 3. The allegation against the petitioners is that the petitioners being the owners of the hospital in the name and style of Tridev Hospital, by rash and negligent act of their running a dialysis facility without adhering to the safeguards, including the availability of the doctor, to meet the exigencies, which may occur, during such dialysis, caused the death of the father of the informant, namely Prem Prakash Pandit. Police after investigation of the case, found the allegations against the petitioners to be true, and submitted charge sheet inter alia against them and the co- 1 Cr.M.P. No. 3664 of 2023 accused persons, for the having committed the offence punishable under Section 304 A / 34 of IPC. 4. It is submitted by learned counsel for the petitioners that the petitioners have not committed any offence nor they are concerned with the alleged occurrence. It is further submitted that the petitioners have stated in para 10 of the criminal miscellaneous petition that none of the ingredients of section 304/ 34 of IPC is present in the facts and circumstances of the case and also in para 8 of the petition, has quoted the said Section 304 of IPC. It is next submitted that the petitioner no. 1 is a lady doctor being Pathologist and she has no relationship with the dialysis of the deceased Prem Prakash Pandit. 5. It is pertinent to mention here that the petitioner has made false averment in para 16 of the petition, that the charge sheet has been submitted against the petitioner under section 304/34 of IPC. 6. It is further submitted that no offence has been made out against the petitioners and by a cryptic order dated 09.05.2023, without assigning any reason, cognizance has been taken against the petitioners. 7. Learned counsel for the petitioners relies upon the judgment of the Hon’ble Supreme Court of India, in the case of Jacob Mathew vs. State of Punjab & Anr. reported in (2005) 6 SCC 1, wherein, the Hon’ble Supreme Court of India has framed the guidelines for prosecuting the medical professionals and submits that the prayer as made in the criminal miscellaneous petition be allowed. 8. Learned Addl. PP. on the other hand, vehemently, opposes the prayer for quashing the entire criminal proceeding as well as the order dated 09.05.2023 passed in connection with Deoghar (Town) P.S. case no. 72 of 2017 corresponding to G.R. Case no. 201 of 2017 and submits that the entire criminal miscellaneous petition is misleading and the petitioners have deliberately made false averments in this criminal miscellaneous petition, posing as if the
Facts
petitioners were ignorant about the facts of the case and as if the charge sheet has been submitted against them under Section 2 Cr.M.P. No. 3664 of 2023 304/34 of IPC; though in fact, the charge sheet, has been submitted against them for the offence punishable under Section 304A / 34 of IPC and Section 304A is a separate and distinct offence from the offence punishable under Section 304 of IPC and to mislead this Court, the petitioner has quoted the Section 304 of IPC also in para 8 of the criminal miscellaneous petition. It is next submitted that the ratio of Jacob Mathew vs. State of Punjab & Anr. reported in (2005) 6 SCC 1 (supra) is not applicable to the facts of the case, as the allegation against the petitioner is that the petitioner being involved with the management of the hospital concerned, being Tridev Hospital, has by rash and negligent act of running a dialysis facility without the precautions and requirement to prevent the death of the patients, who is put on dialysis, caused the death of the deceased- Prem Prakash Pandit, and as learned Magistrate has taken cognizance after having the benefit of the FIR, case diary and the charge sheet submitted by the police after due investigation of the case and the materials thereof, hence, learned CJM is not required to pass an elaborate order, hence, it is submitted that this criminal miscellaneous petition being without any merit, be dismissed. 9. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that it is a settled principle of law that at the stage of issuing summons to the accused based on a police report, Magistrate is not required to record any reason as has been observed by the Hon’ble Supreme Court of India in the case of State of Gujarat vs. Afroz Mohammed Hasanfatta reported in (2019) 20 SCC 539, paragraph-23 of which reads as under:- “23. Insofar as taking cognizance based on the police report is concerned, the Magistrate has the advantage of the charge-sheet, statement of witnesses and other evidence collected by the police during the investigation. Investigating officer/SHO collects the necessary evidence during the investigation conducted in compliance with the provisions of the Criminal Procedure Code and in accordance with the rules of investigation. Evidence and materials so collected are sifted at the level of the investigating officer and thereafter, charge-sheet was filed. In appropriate cases, opinion of the Public Prosecutor is also obtained before filing the charge-sheet. The court thus has the advantage of the 3 Cr.M.P. No. 3664 of 2023 police report along with the materials placed before it by the police. Under Section 190(1)(b) CrPC, where the Magistrate has taken cognizance of an offence upon a police report and the Magistrate is satisfied that there is sufficient ground for proceeding, the Magistrate directs issuance of process. In case of taking cognizance of an offence based upon the police report, the Magistrate is not required to record reasons for issuing the process. In cases instituted on a police report, the Magistrate is only required to pass an order issuing summons to the accused. Such an order of issuing summons to the accused is based upon subject to satisfaction of the Magistrate considering the police report and other documents and satisfying himself that there is sufficient ground for proceeding against the accused. In a case based upon the police report, at the stage of issuing the summons to the accused, the Magistrate is not required to record any reason. In case, if the charge-sheet is barred by law or where there is lack of jurisdiction or when the charge-sheet is rejected or not taken on file, then the Magistrate is required to record his reasons for rejection of the charge-sheet and for not taking it on file.” (Emphasis supplied) 10. Now coming to the allegations against the petitioners, as has rightly been submitted by learned Addl. PP that the petitioners have tried to mislead this court, by posing as if charge sheet has been submitted against them for having committed the offence punishable under Section 304 of IPC and cognizance has been taken for the offence punishable under Section 304 of IPC, but in fact, neither charge sheet has been submitted nor cognizance has been taken against the petitioners under Section 304 of IPC rather the charge sheet has been filed alleging the offence committed by the petitioners, punishable under Section 304A / 34 of IPC and cognizance has also been taken for the said offence. 11. Now coming to the facts of the case, the essential ingredients of the offence punishable under Section 304A of IPC is that (i) there must be death of the person in question (ii) the accused must have caused such death and (iii) such act of accused was rash or negligent and that it did not amount to culpable homicide, as has been held by the Hon’ble Supreme Court of India, in the case of State Of Punjab vs Balwinder Singh and Others reported in 2012 2 SCC 182. 12. Undisputedly, there is death of Prem Prakash Pandit and after due investigation of the case, police found the allegations against the petitioners to be true that the petitioners by their negligent act, 4 Cr.M.P. No. 3664 of 2023 by running a facility for dialysis of patients without adequate safeguards, has caused the death of Prem Prakash Pandit. 13. Under such circumstances, this court is of the considered view
Legal Reasoning
that the materials available in the record is sufficient to prima facie show the involvement of the petitioners in the capacity of being in control and management of Tridev Hospital, having committed the offence punishable under Section 304A/ 34 of IPC, hence, this court do not find any justifiable reason to quash the entire criminal proceeding as well as the order dated 09.05.2023 passed in connection with Deoghar (Town) P.S. case no. 72 of 2017 corresponding to G.R. Case no. 201 of 2017. 14. So far as the judgment relied upon by the petitioners is concerned, as has rightly been submitted by learned Addl. PP, the same is not of much relevance to this case because this is a case where the petitioners were not prosecuted for any medical intervention done by them, rather they have been prosecuted for running a dialysis facility without the safeguards required to prevent the death of the persons, who are subjected to dialysis. 15. Under such circumstances, this Criminal Miscellaneous Petition being without any merit is dismissed. High Court of Jharkhand, Ranchi Dated, the 19th April, 2024 Smita /AFR (Anil Kumar Choudhary, J.) 5 Cr.M.P. No. 3664 of 2023