Bombay High Court
Dr. Nitin Vasantrao Akolkar And ... vs The State Of Maharashtra & Ors on 11 April, 2016
Bench: R.M. Borde
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1293 OF 2015
1 Dr.Nitin Vasantrao Akolkar,
age: major, Occ: Medical Practice;
2 Dr./Mrs.Anjali w/o Nitin Akolkar,
maiden name Anjali d/o Ashokrao
Padekar), age: major, Occ: Medical
Practice:
Both R/o Akolkar Hospital,
Majalgaon, District Beed. Petitioners
Versus
1 The State of Maharashtra,
through the Principal Secretary,
Home Department, Mantralaya,
Mumbai-32.
2 Police Station Officer,
Majalgaon Police Station,
Majalgaon, District Beed.
3 The Civil Surgeon,
District Civil Hospital,
Beed, District Beed. Respondents
Mr. R.R.Mantri, advocate holding for Mr.R.R.Sancheti, advocate for
petitioners.
Mr.S.J.Salgare, APP for Respondents.
CORAM : R.M.BORDE &
K.L.WADANE, JJ.
DATE : 11th April, 2016
ORAL JUDGMENT (Per R.M.Borde, J.):
1 Heard. Rule. Rule made returnable forthwith and
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heard finally by consent of learned Counsel for respective parties.
2 The petitioners, who are registered Medical
Practitioners, are praying to quash the criminal proceedings
initiated against them in pursuance to lodging of Crime
No.82/2015, registered on 23.08.2015 at Police Station Majalgaon
(Rural), for the offences punishable under Sections 304 (II) read
with Section 34 of the Indian Penal Code.
3 The details with regard to registration of crime and
contents of the First Information Report need not be recorded,
suffice it to note that one Sharad Damodhar Jarhad lodged First
Information Report on 23.08.2015 with Police Station Majalgaon
(Rural), alleging that, as a result of negligence on the part of
petitioners, who are medical practitioners, death of one Mrs.Seema
Mukund Jadhav had caused. It is alleged that deceased Seema
was admitted to the hospital operated by the petitioners on
27.02.2015. Deceased was pregnant and was carrying nine
months' pregnancy. It is alleged that she had the tendency of
acquiring high blood pressure and, therefore, it was a high risk
pregnancy. It is alleged in the First Information Report that
petitioners did not possess requisite expertise to conduct high risk
pregnancy as well as necessary apparatus were not available at the
hospital. It is alleged that death of deceased was as a result of
negligence on the part of petitioners who are medical practitioners.
4 On receipt of the First Information Report, the matter
was referred to the Medical Board headed by Civil Surgeon, Civil
Hospital, Beed and on receipt of report from Medical Board,
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offence has been registered.
5 Petitioners contend that allegations made in the First
Information Report are devoid of substance and that there is no
negligence on the part of petitioners.
6 At this stage, it is not necessary to scrutinise the
contentions or plausible defence of the accused. On the basis of
allegations made in the First Information Report together with
opinion of the Medical Board, offence is made out. Hence, without
scrutinising merits or demerits of the case, appropriate directions
need be issued within the permissible parameters and within the
framework of the guidelines issued by the Hon'ble Supreme Court
in various judgments.
7 It is contended that, on perusal of the First
Information Report as well as material relied upon by the
Investigating agency, by any stretch of imagination, provisions of
Section 304 (II) of the Indian Penal Code cannot be made
applicable. Section 304 provides for:
304 Punishment for culpable homicide not
amounting to murder -
Part I provides:
Whoever commits culpable homicide not amounting to
murder, shall be punished with imprisonment for life,
or imprisonment of either description for a term which
may extend to ten years, and shall also be liable to fine,
if the act by which the death is caused is done with the
intention of causing death,
Whereas, Part-II provides for:
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causing such bodily injury as is likely to cause death;
or with imprisonment of either description for a term
which may extend to ten years, or with fine, or with
both, if the act is done with the knowledge that it is
likely to cause death, but without any intention to
cause death, or to cause such bodily injury as is likely
to cause death.
8 Culpable homicide is defined under Section 299 of the
Indian Penal Code, which provides that whoever causes death by
doing an act with the intention of causing death, or with the
intention of causing such bodily injury as is likely to cause death,
or with the knowledge that he is likely by such act to cause death,
commits the offence of culpable homicide.
9 In the instant matter, intention of causing death, or
with the intention of causing such bodily injury as is likely to cause
death, or with the knowledge that he is likely by such act to cause
death, cannot be attributed to the petitioners. The basic
ingredients of intention of causing death or with the intention of
causing such bodily injury as is likely to cause death, or with the
knowledge that he is likely by such act to cause death, are
absolutely absent. That there is no allegation that the petitioners
have contributed for causing any bodily injury, which is likely to
cause death, or with knowledge that they are likely by such act to
cause death. It can, thus, be concluded that the charge levelled by
the police in respect of offence punishable under Section 304 (II) is
not applicable and ingredients of Section 304-A are attracted in
the instant matter. The Investigating Officer shall take appropriate
steps and file charge sheet on completion of investigation.
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10 In view of the directions as above, since the
observations are made at the prima facie stage, all defences, which
can be legally canvassed, are available to the petitioners/accused.
11 Rule is made absolute to the extent specified above.
K.L.WADANE R.M.BORDE
JUDGE JUDGE
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