Quashed

Dr Radha Kant Mishra v. the State of Jharkhand

Jharkhand HC11 Dec 2023Cr.M.P./3067/2013

Case brief

AI extract

What is this about?

The High Court quashed a criminal proceeding upon a magistrate's order taking cognizance without recording reasons for rejecting the police Final Report in favor of the accused. The matter was remanded for a fresh order.

What did the court decide?

The order taking cognizance dated 17.09.2013 is set aside, and the matter is remitted to the lower court to pass a fresh order.

Dr Radha Kant Mishra Vs the State of Jharkhand — Medical Negligence | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr.M.P. No. 3067 of 2013

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Dr. Radha Kant Mishra ..... … Petitioner Versus 1. The State of Jharkhand. 2. Laxmi Devi ..... … Opposite Parties

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CORAM : HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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-----For the Petitioner : Mr. Rishav Kumar, Advocate. For the State : Mr. Achinto Sen, A.P.P. For the O.P. No. 2 : Mr. Saurabh Choubey, Advocate. ------

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07/ 11.12.2023 Heard Mr. Rishav Kumar, learned counsel appearing for the petitioner, Mr. Achinto Sen, learned A.P.P. for the State and Mr. Saurabh Choubey, learned counsel appearing for the O.P. No. 2.

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This petition has been filed for quashing of the entire criminal proceedings including the order taking cognizance dated 17.09.2013, by which, cognizance for the offence under Sections 419, 420, 471, 328, 269 of the Indian Penal Code has been taken against the petitioner, in connection with Mandu (Kuju) P.S. Case No. 162 of 2013 corresponding to G.R. No. 1520 of 2013, pending in the court of learned A.C.J.M., Hazaribag.

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The FIR was lodged alleging therein that the informant Laxmi Devi had gone to the petitioner on '19.2.13 for her treatment as she was not feeling well. It has been further alleged that the petitioner who does not possess MBBS degree had portrayed himself to be a doctor having MBBS degree and had treated the informant and had advised for giving saline water to her as she was very weak. As a result of giving saline water to her she has further alleged that her right hand had swollen and being dissatisfied with the treatment given by the petitioner, she got herself treated at RIMS Ranchi on 28.2.13 where the doctors told her that due to wrong treatment there has been infection and thus, her hand has to be amputated and resultantly her right hand was amputated. On the basis of the aforesaid written report Mandu(Kuju) P.S. Case No.162/13 was registered.

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Learned counsel appearing for the petitioner submits that the final report No. 150 of 2013 dated 31.08.2013 was submitted by the police, stating therein the lack of evidence. He submits that the learned court has been pleased to take cognizance with the said final form. He further submits that the allegations are made that the saline water was

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administered upon the O.P. No. 2 due to that hand of the O.P. No. 2 was cut on the advise of the RIMS, Ranchi. He submits that the saline water was administered to the O.P. No. 2 on 19.02.2013 and the hand of the O.P. No. 2 advised to be cut on 05.04.2013. He further submits that by letter No. 171 dated 20.07.2013, issued by the Registrar of Bihar Rajya Ayurvedic and Unani Chikitsa Parishad, Patna, apprised the Investigating Officer about the notification dated 10.05.1977 issued by the Health Department, wherein it was informed that the doctor registered under the Ayurvedic and Unani Chikitsa Parishad is competent to practice under the Drugs and Cosmetics Act. He submits that the order taking cognizance is not in accordance with law.

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Learned counsel appearing for the O.P. No. 2 submits that the petitioner has transfused the saline water and pursuant to that the hand of the O.P. No. 2 was cut on the advise of the RIMS, Ranchi. He submits that the petitioner is not the competent person to do that in spite of that he has done the same. He further submits that in view of the above, the case is made out against the petitioner.

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Learned A.P.P. appearing for the State submits that the case is made out against the petitioner.

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In view of the above, the court has gone to the order taking cognizance dated 17.09.2013. There is no doubt, once a final form is submitted, the learned court is having the four options:-

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“ (1) He may agree with the conclusion of the police and accept the final report and drop the proceeding.

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(2) He may take cognizance under Section 190(1)(b) CrPC and issue process straightaway to the accused without being bound by the conclusion of the investigating agency where he is satisfied that upon the facts discovered by the police, there is sufficient ground to proceed.

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(3) He may order for further investigation if he is satisfied that the investigation was made in a perfunctory manner.

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(4) He may without issuing process and dropping the proceedings under Section 190(1)(a) CrPC upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections

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200 and 202 CrPC and thereafter whether complaint should be dismissed or process should be issued.”

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In view of the above, the learned court has chosen any of the option, as stated hereinabove, he can do so. However, if the final form is submitted in favor of the petitioner, the reasons of differing with the final form are required to be recorded in the order taking cognizance, which is lacking in the case in hand. Further the word cognizance has been filled up in the blank space, which itself suggests that there is non-application of judicial mind.

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In view of the above, the order taking cognizance dated 17.09.2013, by which, cognizance for the offence under Sections 419, 420, 471, 328, 269 of the Indian Penal Code has been taken against the petitioner, in connection with Mandu (Kuju) P.S. Case No. 162 of 2013 corresponding to G.R. No. 1520 of 2013, pending in the court of learned A.C.J.M., Hazaribag, is hereby, set aside. The matter is remitted back to the learned court to pass a fresh order in accordance with law. 10. This petition is disposed of.

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(Sanjay Kumar Dwivedi, J.)

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Amitesh/-

Dr Radha Kant Mishra v. the State of Jharkhand

Case brief

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Dr Radha Kant Mishra v. the State of Jharkhand

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