Bombay High Court
Sanjay S/O Shridhar Andhare vs The State Of Maharashtra & Ors on 15 October, 2015
Bench: A.B. Chaudhari
Cr.Appln.3494/15
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.3494/2015
Sanjay s/o Shridhar Andhare,
age 40 yrs., occu.Medical Practice,
r/o Shushrut Hospital, Barshi.
Tq.Barshi Dist.Solapur.
...Applicant..
Versus
1]
ig The State of Maharashtra,
through the Home Department,
Mantralaya, Mumbai-32.
2] The Police Inspector,
Police Station, Paranda.
Tq.Paranda Dist.Osmanabad.
3]
Mr.Sundarao s/o Bhausaheb Humbe,
age ___ yrs., occu.Advocate,
r/o 1344, Samarth Nagar, Bhoom.
Tq.Bhoom Dist.Osmanabad.
...Respondents...
.....
Shri R.N. Dhorde, Senior Advocate i/b Shri V.N. Shelke,
Advocate for applicant.
Shri K.S. Patil, APP for respondent nos.1 & 2.
Shri V.D. Salunke with Shri K.R. Doke, Advocates for
respondent no.3.
.....
CORAM: A.B. CHAUDHARI &
INDIRA K. JAIN, JJ.
DATE: 15.10.2015
ORAL JUDGMENT (Per A.B. Chaudhari, J.) :
Cr.Appln.3494/15
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1] This is an application under Section 482 of the
Code of Criminal Procedure, 1973, for quashing FIR
No.60/2015 dated 8.4.2015 registered at Police Station,
Paranda, for the offences u/ss.353, 355, 504 and 186 of
the Indian Penal Code that was lodged by the respondent
no.3 - Sundarao s/o Bhausaheb Humbe, Advocate against
the applicant Dr. Sanjay s/o Shridhar Andhare.
2]
The applicant is M.D. in Medicine and runs
Sushrut Hospital at Shivajinagar, Barshi Dist.Solapur.
He was a witness in Criminal Case No.64/2009. The case
was pending in the Court of Judicial Magistrate, First
Class, Paranda Dist.Osmanabad. The Judicial Magistrate,
First Class, Paranda, had issued a non-bailable warrant
for arrest of the applicant - doctor since according to
the Court, he did not appear as a witness in response to
the summons issued to him earlier. On the date fixed
namely 8.4.2015, in the morning hours, in response to the
non-bailable warrant, he appeared before the Court and
applied for cancellation of non-bailable warrant, which
request was allowed. It appears that he was asked to
wait since the counsel for the accused in that criminal
Cr.Appln.3494/15
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case wanted 15 minutes time. Accordingly, the applicant
- doctor started waiting in the Court when other case
namely RCS No.158/2009 was taken up by the Court and
arguments were being heard. The Court kept the applicant
- doctor waiting and at about 1-40 p.m., the applicant -
doctor got up and addressed the Court in a loud voice
that he is a practising doctor and was unable to wait for
a long time. At about 3-40 p.m., the Judicial
Magistrate, First Class, Paranda, issued him a show cause
notice asking him to explain within two hours as to why
action should not be taken against him for obstructing
the Court work. It appears that after two hours, the
learned Judicial Magistrate, First Class, Paranda, passed
the order and recorded conviction u/s 228 of the Indian
Penal Code and imposed fine in the sum of Rs.1,000/-, in
default to suffer simple sentence for 20 days. At about
6-15 p.m., it appears that the applicant - doctor filed
his reply to the show cause notice in which he stated
that he was never served with any summons of the witness
in the past before issuance of non-bailable warrant
against him and, therefore, he could not appear on the
earlier dates. He also stated in his reply that through
Cr.Appln.3494/15
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inadvertence, without anything in his mind, contempt was
committed, for which he regretted and, therefore, sought
written apology and prayed for excuse. The learned trial
Judge, however, passed the order thereon that since the
reply was received after passing of the final order, the
reply was not accepted and hence it was filed. It
appears that simultaneously the respondent no.3 -
Advocate Shri Sundarao s/o Bhausaheb Humbe filed an
application on 8.4.2015 in the same Court asking the
Court to take severe action against the applicant -
doctor. The Court made an order that the contempt notice
was already issued to the applicant - doctor and,
therefore, the application was kept pending. The
applicant - doctor then immediately deposited fine amount
of Rs.1,000/- and thus the matter ended there.
3] It does appear that the respondent no.3 on
7.5.2015 made an application to the Court to take action
against the applicant - doctor by registering offence u/s
353, 355, 504 and 186 of the Indian Penal Code with a
further threat to the Presiding Officer in writing that
if the Court does not act and register the offences, then
Cr.Appln.3494/15
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he would be compelled to cite the Presiding Officer as a
witness in his complaint and, therefore, the Court must
issue process against the applicant - doctor. The
learned trial Judge made a detailed order on that
application and we quote the said order as under:-
" ORDER
Application put up before me today on
22/5/15. This is neither private complaint nor
charge sheet. This is not a way to submit
application in the Court. On 8/4/2015 this
Court has taken action against concerned
Dr.Andhare. Application dated 8/4/2015 of the
present applicant Shri Humbe was filed stating
that action regarding contempt was taken against
the doctor. He was convicted. Thereafter, Shri
Humbe has again filed this application which is
nothing but to pressurize the Court. This Court
has not stated anything to any one to file an
application but concerned applicant mentioned
contents to that extent. It also seems that
Shri Humbe has filed complaint in the Police
Station, Paranda. As per Section 300 of the
Criminal Procedure Code, a person once convicted
or acquitted and such conviction and acquittal
is in force then he shall not be liable to tried
again for the same offence, nor on the same
facts for any other offence for which a
different charge from the one made against him.
Cr.Appln.3494/15
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In view of above reason, application is hit by
provision of Section 300 of the Cr.P.C. Hence,
filed. Application be kept in the contempt
proceeding."
4] The respondent no.3 did not challenge the above
order. In fact, he was hardly concerned. But the
respondent no.3 then appears to have lodged the FIR in
the Police Station, Paranda, for the offences punishable
u/ss.353, 355, 504 and 186 of the Indian Penal Code
against the applicant - doctor stating the same facts and
that the Police should investigate the offence. The
Police Station Officer readily registered the offences on
his complaint and hence this application for quashing the
FIR.
5] The averments in this application show that a
patient by name Sadashiv Deshmukh, aged 55 years, was
admitted in the hospital of the applicant on 2.4.2015
with acute respiratory disress syndrome and ultimately
the patient died on 8.4.2015 at 1-00 p.m. While in the
Court from morning, the applicant - doctor was getting
repeated phone calls from his hospital to look after the
Cr.Appln.3494/15
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patient, but then the applicant was held up in the Court
right from morning till the evening and in the meanwhile
the patient died at about 1-00 p.m. It clearly appears
to us that the applicant - doctor was expecting that he
would be relieved from the Court within a short time and
would come back and attend the patient in his hospital
and that is why he went early in the morning in the
Court, but was asked to wait upto 1-40 p.m. and further
that he was receiving calls from hospital. But then he
had no alternative because there was a non-bailable
warrant of that date against him and until the Court
relieved him, he could not go back to the hospital.
Unfortunately, the patient died. It further appears that
the respondent no.3 who claims that he was put to
disturbance by the applicant - doctor during his
arguments in a civil case and that, therefore, he was
aggrieved by the conduct of the applicant - doctor and,
therefore, offences should be registered against the
applicant - doctor, he lodged the FIR in the Police
Station, which readily registered the offences.
6] In support of the application, Shri R.N. Dhorde,
Cr.Appln.3494/15
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Senior Advocate with Advocate Shri V.N. Shelke vehemently
argued that not a single Section of the Indian Penal Code
is attracted since the respondent no.3 - lawyer cannot be
said to be a public servant. He further argued that the
Magistrate had already made an order convicting the
applicant - doctor and imposing fine of Rs.1,000/- and,
therefore, the matter ended at the level of the learned
Magistrate. He then contended that since the alleged
offences had taken place in the Court-hall, it is only
the Magistrate who could take cognizance and in fact the
Magistrate took cognizance and ended up with the matter
and, therefore, the FIR lodged by the respondent no.3 was
with oblique motive and only with a view to take some or
the other revenge against the applicant. According to
him, the complaint filed by the respondent no.3 before
the Police Station itself was not maintainable and,
therefore, the FIR could not have been registered at all
since the happenings are said to have taken place in the
Court and the only competent authority was the Court to
lodge the FIR or as the case may be, the Court did not
think so. He, therefore, prayed for quashing the FIR and
allowing the application with costs.
Cr.Appln.3494/15
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7] Per contra, learned counsel Shri V.D. Salunke
with Advocate Shri K.R. Doke for the respondent no.3
vehemently opposed the application and submitted that
Advocate in the Court is an officer of the Court and,
therefore, the insult of the Advocate by the applicant -
doctor amounted to offences punishable u/ss.353, 355, 504
and 186 of the Indian Penal Code and the FIR was rightly
lodged in the Police Station. According to him, the
respondent no.3 rightly lodged the FIR with the Police
Station since the Court did not take action against the
applicant - doctor despite seriousness of the offences
committed by him. He thus prayed for dismissal of the
application with costs.
8] We have heard the learned counsel for the rival
parties at length. The issue arising in the present case
is about the way in which professional doctors or the
doctors who are Government servants are treated in the
Court. We do not mean to say that the majesty of the
Court can be allowed to be lowered down. But at the same
time, the Court cannot ask the doctor to indefinitely
Cr.Appln.3494/15
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wait for giving evidence in the Court. In the instant
case, as is seen from the reply, the applicant - doctor
stated in his reply which was filed late at 6-15 p.m. on
that day before the Magistrate that he was never served
with the summons and was erroneously issued the non-
bailable warrant and that is why he had come to Court.
This statement in the reply made by him is not
controverted in the affidavit filed before us by the
respondent no.3. At any rate, the Magistrate herself
says that witness summons was issued to him, but he did
not appear and, therefore, non-bailable warrant was
issued. Without going into the controversy as to whether
the summons was actually received by the doctor or not,
at any rate, we find that the learned trial Magistrate
should have issued bailable warrant rather than issuing a
non-bailable warrant against a professional doctor if at
all the Court found that the witness was avoiding his
appearance. We do not find any justification on the part
of the learned Magistrate straightly issuing a non-
bailable warrant against a professional doctor. The
issuance of non-bailable warrant has serious
consequences. It may not have been within the knowledge
Cr.Appln.3494/15
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of the learned Magistrate that a serious patient was
admitted in the hospital of the applicant and was under
treatment and that the doctor was getting calls after
calls from his hospital and as stated earlier,
unfortunately the patient had died at about 1-00 p.m. on
the same day. But then we can understand the agony of
the applicant - doctor who thought that his first job was
to look after the patient and save the life of the
patient but due to non-bailable warrant he had no other
option but to go to the Court. We, therefore, find that
the learned Magistrate was not justified in directly
issuing non-bailable warrant against the applicant.
9] Next, we then find that the learned Magistrate
took the view in the matter with full responsibility and
with the sense of administration of justice by ordering
recovery of fine amount of Rs.1,000/- for offence u/s 228
of the Indian Penal Code and since that order has not
been challenged before us, we think that the Magistrate
added to the majesty of the Court rather than taking
revenge. However, the respondent no.3 who had absolutely
no reason or cause to hound the applicant - doctor lodged
Cr.Appln.3494/15
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the FIR in the Police after one month and the Police also
registered the offence treating the respondent no.3 as a
public servant. It appears that the respondent no.3 did
not disclose before the Police Officer about the orders
passed by the Magistrate convicting the applicant for
offence punishable u/s 228 of the Indian Penal Code and
imposing fine of Rs.1,000/-, which he paid and thus the
conviction and sentence was implemented. The respondent
no.3 - Advocate appears to have his own notions about the
superiority of his legal profession over the medical
profession or the doctors and that is why it appears that
the respondent no.3 lodged the FIR in the Police Station
fully knowing that the matter was closed at the end of
the Magistrate. We cannot countenance, nay, we deprecate
such a conduct on the part of the respondent no.3 who
appears to be an Advocate with sufficient seniority in
the profession.
10] Thus, it is clear that the conflict as to which
profession is superior between the medical profession and
the legal profession has come to the fore in this case.
In the case of Pt.Parmanand Katara v. Union of India &
Cr.Appln.3494/15
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others reported at AIR 1989 SC 2039, the Apex Court
stated thus in paragraph no.16 as under and we quote
following extracted portion from paragraph no.16 :
"We therefore have no hesitation in assuring the
persons in the medical profession that these
apprehensions, even if have some foundation,
should not prevent them from discharging their
duty as a medical professional to save a human
life and to do all that is necessary but at the
same time, we hope and trust that with this
expectation from the members of the medical
profession, the police, the members of the legal
profession, our law courts and everyone
concerned will also keep in mind that a man in
the medical profession should not be
unnecessarily harassed for purposes of
interrogation or for any other formality and
should not be dragged during investigations at
the police station and it should be avoided as
far as possible. We also hope and trust that our
law courts will not summon a medical
professional to give evidence unless the
evidence is necessary and even if he is
summoned, attempt should be made to see that the
men in this profession are not made to wait and
waste time unnecessarily and it is known that
our law courts always have respect for the men
in the medical profession and they are called to
give evidence when necessary and attempts are
Cr.Appln.3494/15
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made so that they may not have to wait for long.
We have no hesitation in saying that it is
expected of the members of the legal profession
which is the other honourable profession to
honour the persons in the medical profession and
see that they are not called to give evidence so
long as it is not necessary. It is also expected
that where the facts are so clear it is expected
that unnecessary harassment of the members of
the medical profession either by way of requests
for adjournments or by cross examination should
be avoided so that the apprehension that the men
in the medical profession have which prevents
them from discharging their duty to a suffering
person who needs their assistance utmost, is
removed and a citizen needing the assistance of
a man in the medical profession receives it. "
11] We then find that in the Criminal Manual, there
are provisions regarding witness summons to public
servants, Member of Parliament etc., but then there is no
provision regarding the witness summons to the
professional doctors or other professional experts, who
may be able to spend more time in the Court. In our
opinion, guidelines are required to be framed, which
should be strictly followed for the evidence of such
witnesses like the professional doctors whose first duty
Cr.Appln.3494/15
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is to attend the patients rather than as witness in the
Court. There is a necessity to have proper rules or
procedure for contacting the doctor concerned, who is to
be examined as a witness, fixing time and date in
consultation with him or her and making one and all aware
about the same so that the doctor is not asked to wait in
the Court for hours together. It may some times happen
that the witness summons is given to doctor and then on
the date fixed the Court may be on leave and in that
case, the doctor will have to go back, which is not at
all desirable and, therefore, there should be the system
to communicate the doctor if the learned Judge is to go
on leave. All that is now easy with technological
advances. We are, therefore, of the opinion that the
rules are required to be properly framed in this
connection so that the doctor should be allowed to
perform his duty first to attend to the patient rather
than in the Court as a witness.
12] The next question is about the award of
compensatory costs to the applicant from the respondent
no.3. We find that the respondent no.3 for no reasons
Cr.Appln.3494/15
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and being fully aware about the action taken by the Court
by convicting the applicant - doctor for offence
punishable u/s 228 of the Indian Penal Code and payment
of fine of Rs.1,000/- by him, still lodged the FIR in the
Police Station and not only that, in his application in
writing to the Court dated 7.5.2015 in the last
paragraph, threatened the Court that if the Court does
not register the offences against the applicant - doctor,
he would be compelled to name the Presiding Officer as a
witness in the case. We do not approve of such type of
conduct of the respondent no.3 and we find no
justification whatsoever from a responsible Advocate. In
our opinion, there was no cause or reason for the
respondent no.3 to lodge the FIR in the Police Station or
to persist being revengeful against the applicant -
doctor. There is no justification whatsoever that the
applicant was thus unnecessarily harassed by him. We
have, therefore, come to the conclusion that costs in the
sum of Rs.5,000/- by way of compensation should be paid
by the respondent no.3 to the applicant - doctor. In the
result, we make the following order.
Cr.Appln.3494/15
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O R D E R
I. Criminal Application No.3494 of 2015 is
allowed.
II. Rule is made absolute in terms of prayer
clause (C).
III. Respondent No.3 shall pay compensatory
costs in the sum of Rs.5,000/- (Rupees Five
Thousand only) to the Applicant within a
period of four weeks from today.
IV. The prayer for stay of paying the cost
amount is rejected.
(INDIRA K. JAIN, J.) (A.B. CHAUDHARI, J.)
ndk/cr151015.doc
