Bombay High Court
Dr. Shivanand Fulaji Kawane vs State Of Mah. Thr. Pso Ps Umarkhed ... on 7 December, 2022
Bench: S.B. Shukre, M. W. Chandwani
1
7-12-2022-APL-1485-2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Criminal Application (APL) No.1485 of 2022
Dr. Shivanand Fulaji Kawane
Versus
State of Maharashtra,
through its P.S.O., P.S. Umarkhed, Tq. Umarkhed, Dist. Yavatmal and another
Office Notes, Memoranda of Coram,
appearances, Court's orders or directions Court's or Judge's orders
and Registrar's order
Shri V.N. Patre, Advocate for Applicant.
Shri S.M. Ghodeswar, Additional Public Prosecutor for
Non-Applicant No.1.
CORAM : SUNIL B. SHUKRE & M.W. CHANDWANI, JJ.
DATE : 7th DECEMBER, 2022
1. Heard.
2. It is the contention of the applicant that without referring of
the complaint filed against the applicant to the Committee of Medical
Experts, the offence has been registered against the applicant by the
non-applicant No.1.
3. Shri V.N. Patre, learned counsel for the applicant, places
reliance upon the judgment of the Apex Court in the case of Jacob
Mathew Vs. State of Punjab and another, reported in (2005) 6 SCC 1.
According to the learned counsel, the guidelines stated in Para 52 of
the judgment of the Apex Court have not been followed in the present
case. The learned counsel for the applicant also places reliance upon
the same law reiterated by the Apex Court in it's judgment in the case
of Martin F. D'Souza Vs. Mohd. Ishfaq, reported in
AIR 2009 SC 2049, wherein, in Para 117 thereof, the Apex Court has
held that whenever a complaint is received against a doctor or
hospital, the concerned Authority shall first refer the matter to a
competent doctor or committee of doctors, specialized in the field
7-12-2022-APL-1485-2022.odt
relating to which the medical negligence is attributed, and only after
that competent doctor or committee reports that a prima facie case of
medical negligence is made out against that doctor, the concerned
Authority shall proceed further in the matter, which means that if
there is no opinion given by a competent doctor or committee of
doctors making out a prima facie case against the concerned doctor
against whom the complaint is made, no offence can be registered
against that doctor.
4. The learned counsel for the applicant further submits that the
Apex Court in the case of Martin F. D'Souza (supra) has issued a
warning to the police officials not to arrest or harass doctors unless the
facts clearly come within the parameters laid down in Jacob Mathew's
case (supra), otherwise the policemen would themselves have to face
legal action.
5. The learned counsel for the applicant further invites our
attention to the Government Resolution dated 26-3-2010 issued by the
Department of Public Health, thereby constituting a committee of
medical experts in order to examine the prima facie nature of the
criminal complaint alleging medical negligence on the part of a
particular doctor. He further submits that even this Government
Resolution makes a reference to the observations of the Apex Court
appearing in Para 117 of the case of Martin F. D'Souza (supra).
6. The learned counsel for the applicant further submits that the
Court of concerned Judicial Magistrate First Class at Umarkhed,
District Yavatmal, while passing an order under Section 156(3) of the
Code of Criminal Procedure directed the Police Station Officer,
Umarkhed, to register the offence against the applicant. The learned
counsel further submits that the learned Magistrate did not comply
7-12-2022-APL-1485-2022.odt
with the guidelines stated in the cases of Jacob Mathew and
Martin F. D'Souza (supra) and thus has made himself liable to face
legal action, in terms of the warning issued by the Apex Court in the
case of Martin F. D'Souza (supra).
7. Issue notice for final disposal to the non-applicants.
8. Shri S.M. Ghodeswar, learned Additional Public Prosecutor,
waives service of notice for the non-applicant No.1.
9. Considering the fact that the impugned order dated 29-4-2022
does not make any reference to scrupulously following of the
guidelines laid down by the Apex Court in the cases of Jacob Mathew
and Martin F. D'Souza (supra), pointed out in the earlier paragraphs,
there shall be interim stay to the effect and operation of the impugned
order dated 29-4-2022 and that would mean that no further
investigation shall be carried out in this case.
10. Stand over to 20-12-2022.
11. Meanwhile, the office objections shall be removed before the
next date; failing which, the application shall stand dismissed without
reference to the Court.
(M.W. CHANDWANI, J.) (SUNIL B. SHUKRE, J.)
Lanjewar
Digitally Signed By :P D
LANJEWAR
Signing Date:08.12.2022
14:23
