Remanded

Dr. Rohit Gupta v. State of U.P. and Another

Allahabad HC6 Jul 2018A482/18618/2018

Case brief

AI extract

What is this about?

Held that a Magistrate cannot adopt a hybrid procedure to take cognizance in a state case by considering material from a protest petition without following complaint case procedures. The order accepting cognizance on such mixed material was set aside and remitted.

What did the court decide?

The order dated 5.4.2018 was set aside and remitter to the learned Magistrate to re-decide the issue of cognizance afresh based only on the police report.

Dr. Rohit Gupta Vs State of U.P. and Another — Criminal Trial and Appeal | Allahabad HC (2018)

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Court No. - 49

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Case :- APPLICATION U/S 482 No. - 18618 of 2018

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Applicant :- Dr. Rohit Gupta Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Rajrshi Gupta,Dileep Kumar Counsel for Opposite Party :- G.A.,Ashutosh Kumar Singh,Rajesh Kumar

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Hon'ble Saumitra Dayal Singh,J.

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Heard Shri Dileep Kumar, learned counsel for the applicant, learned AGA for the State and Shri Gajendra Pratap, learned Senior counsel assisted by Sri Ashutosh Kumar Singh, learned counsel for the opposite party no. 2.

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The present 482 Cr.P.C. application has been filed to quash the order dated 5.4.2018 passed by Special Chief Judicial Magistrate, Allahabad, by which the protest petition of the complainant has been accepted and the final report dated 22.1.2017, in Case Crime No. 279 of 2015, Police Station Colonelganj, District Allahabad, under Sections 304A, 323, 504 IPC has been rejected.

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Learned counsel for the applicant first submits that the learned Magistrate had erred in summoning the applicants at this stage on the basis of the material that was produced along with protest petition inasmuch as the learned Magistrate had not registered the case as a complaint case and the applicant in the protest petition had neither been examined nor any other witness on his behalf had been examined.

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Second, it is submitted that the applicant had been summoned on the material that is extraneous inasmuch as at this stage, the learned Magistrate could have summoned the applicant only on the basis of material contained in the police report and not on the basis of any other material.

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Third, it is submitted that there is no material or evidence to establish that the deceased suffered death on account of medical negligence, even if it is judged on the standard of information obtained by the opposite party no. 2 under the Right to Information Act and that the conclusion drawn by the learned Magistrate is pre-mature and unfounded.

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Reliance has been placed on the decision of the Supreme Court in the case of Jacob Mathew Vs. State of Punjab and another reported in 2005(6) SCC (1) , paragraphs 50 and 52 reads as under:-

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"50. 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 under Section 304-A 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.

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52. Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam's test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld"

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Further reliance has been placed on another judgment of the Supreme Court in the case of Dr. Sou Jayshree Ujwal Ingole Vs. State of Maharashtra reported in (2017) (14) SCC 571.

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It is also submitted that the applicant had only advised the deceased to receive treatment upon admission at a medical establishment with I.C.U. facility. It has then been contended that the deceased got himself admitted at a particular medical establishment which the applicant does not own. The deceased was receiving treatment at a medical establishment of his choice when his condition deteriorated and he expired.

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Sri Gajendra Pratap, learned Senior counsel, assisted by Sri Ashutosh Kumar Singh, learned counsel for the opposite party has opposed the present application. He submits that even if the material that has been relied upon in the protest petition and which was not part of the police report is completely ignored even then the ingredients of offence as alleged under Section 304A IPC and other offences are clearly made out against the applicant.

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Reliance has also been placed on two judgments of the Supreme Court in the case of Malay Kumar Ganguly vs Sukumar Mukherjee & Ors reported in (2009) 9 SCC 221 to submit that for an offence of negligence to arise, it is sufficient to allege that the applicant had not taken reasonable care or a care that prudent man, would ordinarily take in his circumstance. Further, reliance has been placed on another judgment of the Supreme Court in the case of Mahadev Prasad Kaushik vs State Of U.P. & Anr reported in 2008(14) SCC 479 again for the purpose of determining as to what would constitute an act of negligence.

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It has been further submitted that the fact of the ownership of medical establishment where the deceased received treatment at the time of his death is not relevant for the purpose of determining whether the applicant had acted with negligence.

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At present, the only thing that concerns the Court is the first objection raised by learned counsel for the applicant i.e. whether the learned Magistrate has at the stage of taking cognizance upon police report had only looked into the material that was brought before him by means of the police report and whether he could look into the other material that was brought before him with the protest petition and which is not part of the

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police report.

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In so far as the factual aspect of the matter is concerned, it is undisputed that the material referred to at pages 2-4 of the order in the shape of information received by the opposite party no.2 under the Right to Information Act, is not material that was contained in the police report.

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Undisputedly, at the stage of taking cognizance on the police report, it was open to the learned Magistrate to take cognizance solely on the basis of material brought before him to the police report as a state case under Section 190(1)(b) of Cr.P.C.

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However, if the learned Magistrate were to be not convinced with the material contained in the police report then he could either accept the police report or he could direct further investigation or he could register the case as a complaint case. Only then, and in that manner, he could, after following the complaint case procedure examine the material contained in the protest petition. Only then, it would have been open to him to only take cognizance and proceed accordingly.

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The Code does not allow the learned Magistrate to adopt a hybrid procedure of treating the case as a state case but at that stage itself take into consideration material that is outside the police report.

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At present, from a perusal of the order dated 5.4.2018, it is difficult to reach any conclusion as to which material had appealled to the learned Magistrate for the purpose of forming his opinion that an offence had been committed. He has referred to the case diary as also the material that was relied upon in the protest petition in lumpsum manner. In fact from the perusal of the order, it appears that a large part of the order refers to material that was brought before him through the protest petition.

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At the same time, it is undisputed that the learned Magistrate had not registered the case as a complaint case and had not followed that procedure.

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Accordingly, the order dated 5.4.2018 cannot be sustained and is hereby set aside. The matter is remitted to the learned Magistrate to re-decide the issue of cognizance afresh without being influenced in any part by any observations, if any, made herein that may touch upon the merits of the issues. It is further made clear that the Court has not adjudicated any issue other than the first issued raised by learned counsel for the applicant. All other issues are left open.

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The aforesaid exercise may be completed as expeditiously as possible, preferably within a period of one month from the date of the production of a certified copy of this order.

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The present application is allowed .

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Order Date :- 6.7.2018 Mini

Dr. Rohit Gupta v. State of U.P. and Another

Case brief

What is this about?

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Dr. Rohit Gupta v. State of U.P. and Another

Case brief

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