Bombay High Court
Satish Ramnarayan Mundada vs State Of Mah. Th.Police Stn.Waluj on 1 December, 2016
Bench: Z.A. Haq
(1) cria2485.04
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.2485 OF 2004
Dr. Satish Ramnarayan Mundada ..Applicant
Age. 40 years, Occ. Medical Practice,
R/o. Nutan Colony, Now Jyoti Nagar,
Aurangabad.
ig Versus
The State of Maharashtra ..Non-applicant
Through Police Station,
M.I.D.C. Waluj.
Mr.R.R. Mantri, Advocate for the applicant.
Mr.A.R. Kale, A.P.P. for the respondent/State.
CORAM : Z.A. HAQ,J.
DATED : 01.12.2016
ORAL JUDGMENT :-
. Heard. The applicant has challenged the order
passed by the Sessions Court by which the Revision
Application filed by the State of Maharashtra is allowed,
the order passed by the Magistrate recalling the summons
issued against the applicant is set aside and the
Magistrate is directed to proceed with the Trial against
the applicant along with other accused.
(2) cria2485.04
02. On the report by brother of deceased, police
conducted investigation and filed charge-sheet against
Dr.Jainendra Indarchand Challani for offence under
section 304-A of the Indian Penal Code. According to the
prosecution, deceased Dilip Patil died because of
negligence on the part of accused-Dr. Jainendra
Indarchand Challani, while giving him treatment. The
Investigating Officer had submitted a report under
section 169 of the Criminal Procedure Code as far as the
present applicant is concerned. The learned Magistrate
had rejected the report and directed the Police to
investigate the matter further. The present applicant had
challenged the order passed by the learned Magistrate by
filing Criminal Revision No.107 of 1999, which was
allowed by the Sessions Court and name of the present
applicant was deleted from the charge-sheet.
03. The learned Magistrate proceeded with the Trial
and recorded the evidence. After the evidence came to be
recorded, the prosecution filed application (Exh.61) for
an order under section 319 of the Criminal Procedure Code
to implead the present applicant as accused, as according
to the prosecution the evidence showed that the present
applicant is also liable for prosecution. The Magistrate
passed an order on 16.08.2001 and directed issuance of
(3) cria2485.04
summons to the present applicant.
. The present applicant appeared before the
Magistrate, furnished bail and filed application (Exh.78)
praying that the order passed by the Magistrate on
16.08.2001 be recalled. This course was adopted by the
present applicant as per the practice prevailing at that
time.
.
The Magistrate considered the application filed
by the present applicant and passed an order on
06.07.2002 concluding that the evidence on record was not
sufficient to exercise jurisdiction under section 319 of
the Criminal Procedure Code and to issue summons to the
present applicant. The Magistrate directed that the name
of the present applicant be deleted from the charge-
sheet.
. The above order was challenged by the State of
Maharashtra in Revision which is allowed by the Sessions
Court by the impugned judgment. The applicant being
aggrieved by the order of the Sessions Court has filed
this Criminal Application.
04. With the assistance of the learned Advocate for
the applicant and the learned A.P.P. I have gone through
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the impugned judgment and the evidence of Arun Babulal
Patil (brother of the deceased) and evidence of Parashram
Ghuge (I.O.)
. The learned Sessions Judge has set aside the
order passed by the Magistrate mainly on the ground that
the Magistrate could not have re-assessed the same
evidence and could not have recalled the order passed by
him earlier directing issuance of summons, however, as
recorded earlier, at the relevant time as per the
practice, the accused were filing applications praying
for recall of the order of issuance of summons and such
applications were considered.
05. In view of the facts of the present case, I felt
it appropriate to examine the evidence on record. The
Investigating Officer has stated in his cross-examination
on behalf of the accused Dr.Challani that during
investigation it was found that Dr.Satish Mundada
(present applicant) is not responsible for the death of
deceased Dilip Patil.
. The only evidence on record against the
applicant is that of Arun Patil (brother of deceased) to
the effect that Dr. Mundada (present applicant) has given
six injections to Dilip Patil and after conducting
(5) cria2485.04
operation, the injury was not stitched. It is the case of
the prosecution that deceased Dilip Patil was taken to
the Medical Hospital after giving discharge from the
hospital of the present applicant and deceased Dilip
Patil was examined and treated at Medical Hospital, where
he expired. The prosecution has not examined the Doctor
who attended deceased Dilip Patil at Medical Hospital.
Any other medical expert has not been examined by the
prosecution to substantiate that the present applicant
has acted with gross negligence while treating deceased
Dilip Patil. In-fact, the prosecution had earlier showed
the present applicant as one of the witnesses.
. I find that the evidence on record is not
sufficient against the applicant and the learned
Magistrate could not have exercised jurisdiction under
section 319 of the Criminal Procedure Code and could not
have issued summons to the applicant for prosecution for
offence punishable under section 304-A of the Indian
Penal Code.
06. The learned Sessions Judge has not considered
the matter in the right perspective and failure on his
part to advert to the relevant point vitiates the
impugned judgment passed by him.
(6) cria2485.04
. Hence, the following order :-
(i) The judgment passed by the learned
IVth Adhoc Asstt. Sessions Judge, Aurangabad, in
Criminal Revision No.166 of 2002 on 10.09.2004
is set aside.
(ii) The order passed by the learned
J.M.F.C., Aurangabad below Exh.78 in S.C.C.
No.654 of 1995 on 06.07.2002 is restored.
(iii) Rule made absolute in the above terms.
In the circumstances, parties to bear their own
costs.
[Z.A. HAQ,J.]
snk/2016/DEC16/cria2485.04
