High Court
Case Details
Court No. - 81 Case :- APPLICATION U/S 482 No. - 20408 of 2021
Legal Reasoning
Applicant :- Rama Shanker Sharma @ Rama Shanker Verma Opposite Party :- State of U.P. and Another Counsel for Applicant :- Parvesh Kumar Pandey,Sanjeev Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Sanjay Kumar Singh,J. Heard learned counsel for the applicant, learned Additional Government Advocate for the State of U.P./opposite party no.1 through video conferencing and perused the record. This application under Section 482 Cr.P.C. has been filed by the applicant to quash the charge-sheet dated 24.09.2020, arising out of Case Crime No. 202 of 2020, cognizance order dated 02.04.2021 and entire criminal proceedings of Criminal Case No. 3220 of 2021 (State Vs. Sharda Devi and others), under Sections 304, 420, 120B I.P.C.; Section 15(3) of Indian Medical Council Act, 1956 & Section 37/38/39 Clinical Establishment Act, Police Station-Kotwali, District-Ghazipur, pending in the court of learned Chief Judicial Magistrate, Ghazipur. The brief facts of the case, which are required to be stated are that complainant/opposite party no. 2, who is Deputy Chief Medical Officer, Ghazipur lodged F.I.R. on 15.04.2020 against the applicant, Dr. Ravi Kumar and Sharda Devi, under Sections 304, 420, 120B I.P.C., Section 15(3) of Indian Medical Council Act, 1956 and Section 37/38/39 of Clinical Establishment Act at Police Station-Kotwali, District-Ghazipur alleging inter alia that on 15.04.2020 he received an information that Smt. Khusboo Verma has died in Ganpati Hospital before her delivery. On the said information he reached at the aforesaid hospital and found that the said hospital is unregistered and running illegally in the house of Savitri Yadav by the applicant Rama Shanker Sharma. The deceased was treated by co-accused Dr. Ravi Kumar and on reaching the complainant in the hospital, all the accused persons fled away from the spot. The said hospital was sealed in accordance with law. After investigation charge sheet dated 24.09.2020 has been submitted against the applicant, on which learned Magistrate took cognizance on 02.04.2021. The main substratum of the argument of learned counsel for the applicant is that the applicant is diploma holder of O.T. Technician and he was employed in Ganpati Hospital situated at village-Nagatara, District-Ghazipur as receptionist and he has no concern with the treatment of the deceased. The deceased died during the surgery. It is also submitted that during investigation applicant was granted anticipatory bail by the co- ordinate Bench of this Court vide order dated 17.09.2020 in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 4451 of 2020. Thereafter charge sheet has been illegally submitted against the applicant without conducting fair investigation. Learned Magistrate took cognizance on a printed proforma without applying his judicial mind. Lastly, it is submitted that the applicant has been falsely implicated in this case. No offence is made out against the applicant. Under the facts and circumstances of the case, impugned charge-sheet, cognizance order and criminal proceeding against the applicant is liable to be quashed by this Court. Per contra, learned Additional Government Advocate for the State refuting the submissions advanced on behalf of the applicant submitted that upon perusal of F.I.R. and on the basis of the allegations made therein as well as material against the applicant, as per prosecution case, the cognizable offence against the applicant is made out. The criminal proceedings against the applicant cannot be said to be abuse of the process of the Court. Hence this application is liable to be dismissed. After having heard the submissions of the learned counsel for the parties and perusing the entire record, I find that as per the prosecution case the hospital was illegally being run by the applicant. The grounds taken in the application reveal that many of them relate to disputed questions of facts. This Court is of the view that it is well settled that the appreciation of evidence is a function of the trial court. This Court in exercise of power under Section 482 Cr.P.C. cannot assume such jurisdiction and put to an end to the process of trial provided under the law. It is also settled by the Apex Court in catena of judgments that the power under Section 482 Cr.P.C. at pre-trial stage should not be used in a routine manner but it has to be used sparingly, only in such an appropriate cases, where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceedings or where allegations made in First Information Report or charge-sheet and the materials relied in support of same, on taking their face value and accepting in their entirety do not disclose the commission of any offence against the accused. The disputed questions of facts and defence of the accused cannot be taken into consideration at this pre- trial stage. Factual submissions and defence as raised in the application can be more appropriately gone into by the trial court at the appropriate stage. The applicant has an alternative statutory remedy of moving discharge application at the appropriate stage. The Apex Court in the case of Md. Allauddin Khan Vs. The State of Bihar and others (2019) 6 SCC 107 has laid down the jurisdiction of High Court under Section 482 Cr.P.C. The observation made by the Apex Court in paragraph No.17 is reproduced herein below: "17. In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case." The Apex Court in the case of State of Madhya Pradesh Vs. Yogendra Singh Jadon and another, (2020) 12 SCC 588 has held that 'power under Section 482 of the Code of Criminal Procedure cannot be exercised where the allegations are required to be proved in court of law'. Recently on 11.02.2020, the Apex Court in case of Rajeev Kourav Vs. Baisahab and others, (2020) 3 SCC 317 has held that quashing the criminal proceedings by the High Court on the basis of its assessment of the statements recorded under Section 161 Cr.P.C. is not proper. The relevant paragraph nos. 8, 9, 10 and 11 of the aforesaid judgment are as under:- "8. We do not agree with the submissions made on behalf of Respondent Nos.1 to 3. The conclusion of the High Court to quash the criminal proceedings is on the basis of its assessment of the statements recorded under Section 161 CrPC. Statements of witnesses recorded under Section 161 CrPC being wholly inadmissible in evidence cannot be taken into consideration by the Court, while adjudicating a petition filed under Section 482 Cr.P.C. 9. Moreover, the High Court was aware that one of the witnesses mentioned that the deceased informed him about the harassment meted out by Respondent Nos.1 to 3 which she was not able to bear and hence wanted to commit suicide. The High Court committed an error in quashing criminal proceedings by assessing the statements under Section 161 Cr. P.C. 10. We have not expressed any opinion on the merits of the matter. The High Court ought not to have quashed the proceedings at this stage, scuttling a full-fledged trial in which Respondent Nos.1 to 3 would have a fair opportunity to prove their innocence. 11. For the aforementioned reasons, the judgment of the High Court is set aside and the Appeal is allowed." Recently on 11.12.2021, the Apex Court has considered the scope of inherent powers under Section 482 Cr.P.C in the case of State of Odisha Vs. Pratima Mohanty etc. (Criminal Appeal Nos.1455-1456 of 2021). Relevant observation made in paragraph no. 6.2 of the said judgement is quoted here in below: "6.2 It is trite that the power of quashing should be exercised sparingly and with circumspection and in rare cases. As per settled proposition of law while examining an FIR/complaint quashing of which is sought, the court cannot embark upon any enquiry as to the reliability or genuineness of allegations made in the FIR/complaint. Quashing of a complaint/FIR should be an exception rather than any ordinary rule. Normally the criminal proceedings should not be quashed in exercise of powers under Section 482 Cr.P.C. when after a thorough investigation the charge sheet has been filed. At the stage of discharge and/or considering the application under Section 482 Cr.P.C. the courts are not required to go into the merits of the allegations and/or evidence in detail as if conducing the mini-trial. As held by this Court the powers under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the Court." This Court does not find that this case fall in a categories as recognized by the Apex Court for quashing the criminal proceeding of the trial court at pre-trial stage. Considering the facts, circumstances and nature of allegations against the applicant in this case, the cognizable offence is made out. At this stage it would not be appropriate to adjudge whether the case shall ultimately end in conviction or not. Only prima facie satisfaction of the Court about the existence of sufficient ground to proceed in the matter is required. The impugned criminal proceeding under the facts of this case cannot be said to be abuse of the process of the Court. There is no good ground to invoke inherent power under Section 482 Cr.P.C. by this Court. The relief as sought by the applicant through the instant application is hereby refused. This application under Section 482 Cr.P.C. lacks merit and is, accordingly, dismissed. Order Date :- 10.1.2022 Sunil Kr. Gupta