Bombay High Court
Dr. Amit S/O Suresh Malpe vs The State Of Maharashtra, Thr. ... on 29 June, 2022
Bench: S.B. Shukre, G. A. Sanap
14.apl.171.2022 judge.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION NO. 171 OF 2022
Dr. Amit S/o. Suresh Malpe,
Aged about 40 yrs, Occ. Medical practitioner,
R/o. B-32, Vivekanand Colony, Amravati .. APPLICANT
...VERSUS...
1. State of Maharashtra,
through Police Station Officer,
Gadge Nagar Police Station,
Amravati City, Amravati
2. Smt. Bharti W/o. Manish Mohkar,
Aged about 42 Yrs., Occ. Pharmacist,
R/o. Roopkalash Apartment, Khaparde,
Bageecha, Amravati .. RESPONDENTS
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Mr Firdos Mirza, Advocate for the Petitioner
Mr S. S. Doifode, APP for the respondent No.1
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CORAM : SUNIL B. SHUKRE AND G. A. SANAP, JJ.
DATED : JUNE 29, 2022
ORAL JUDGMENT : (PER : SUNIL B. SHUKRE, J)
1] Heard. Rule. Rule made returnable forthwith. Heard
finally by consent of the learned counsel for the parties.
2] The latest report submitted by the experts' committee is
now tendered before the Court by the learned Additional Public
14.apl.171.2022 judge.odt
Prosecutor through Mr. Mahesh S. Ingole, the Investigating Officer,
who is personally present in the Court. This report collectively marked
as document 'A' is taken on record. The opinion of the Medical Experts
Committee is no different than what was stated in earlier report dated
24.12.2021.
3] In a detailed order passed by this Court, on 9.02.2022, this
Court had discussed as to how no offence is prima facie disclosed
against the applicant, in view of the report dated 24.12.2021 given by
committee of medical experts. This report clearly shows that the burns
could be caused due to malfunctioning of cautery pencil. This being the
opinion, this case could not have been taken as one of gross medical
negligence and this was what was found by us by relying upon the
parameters prescribed by the Apex Court in the case of Jacob
Mathew .v/s. State of Punjab and Anr., reported in, 2005 (6) SCC 1.
In fact, we have also noted that the Investigating Officer by registering
an offence punishable under Section 338 of the Indian Penal Code
against the applicant, without first obtaining report of Committee of
Medical Experts opining gross negligence on the part of the applicant,
ignored the directions of the Apex Court in the said case of Jacob
Mathew (supra). Such registration of a crime against the applicant, is
14.apl.171.2022 judge.odt
in fact contemptuous of the direction issued by the Apex Court. It also
amounts, prima facie, to damaging the reputation of the applicant.
However, at this juncture, we are not thinking of taking any action
against the Investigating Officer and we would leave it to the wisdom
and discretion of the applicant to appropriately proceed against the
Investigating Officer, if he wishes so. Suffice it to say that even after
giving sufficient opportunity to the prosecution, the prosecution could
not justify its action of registration of crime against the present
applicant, in complete violation of the directions issued by the Supreme
Court in the case of Jacob Mathew (supra).
4] The case is thus overwhelmingly made out for quashing of
the First Information Report in question. Accordingly, the application is
allowed in terms of prayer clause (a). Prayer clause (a) reads as
follows:
"a) quash the impugned FIR No. 0024 dated
07.01.2022 u/s. 338 of Indian Penal Code registered
at Police Station Gadge Nagar, Amravati against the
applicant."
5] Rule is made absolute in the above terms.
(G. A. SANAP, J.) (SUNIL B. SHUKRE, J.)
Namrata
Signed By:NAMRATA YOGESH
DHARKAR
P. A.
High Court Nagpur
Signing Date:30.06.2022 18:00
