Jyoti W/O Chandrashekar Bharaskare vs The State Of Mah. Thr. Pso Ps Bhandara ...
2025 Latest Caselaw 1814 Bom

Bombay High Court

Jyoti W/O Chandrashekar Bharaskare vs The State Of Mah. Thr. Pso Ps Bhandara ... on 27 January, 2025

2025:BHC-NAG:818




              Judgment

                                                              347 revn233.23

                                            1

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                          NAGPUR BENCH, NAGPUR

                   CRIMINAL REVISION APPLICATION NO.233 OF 2023

              Jyoti w/o Chandrashekar Bharaskare,
              aged about 48 years, Occupation:
              Service, R/o Gram Sevak Colony, Khat
              Road, Bhandara, Tah. and Dist.
              Bhandara.                        ..... Applicant.

                                    :: V E R S U S ::

              The State of Maharashtra, through
              Police Station Officer, Police Station
              Bhandara, Tah. and Dist. Bhandara. ..... Non-applicant.

              ==============================
              Shri N.Raut, Counsel for the Applicant.
              Shri C.A.Lokhande, Additional Public Prosecutor for the
              Non-applicant/State.
              ==============================

              CORAM : URMILA JOSHI-PHALKE, J.
              CLOSED ON : 13/01/2025
              PRONOUNCED ON : 27/01/2025

              JUDGMENT

1. Heard finally by consent of learned counsel Shri

N.Raut for the applicant and learned Additional Public

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347 revn233.23

Prosecutor Shri C.A.Lokhande for the

non-applicant/State.

2. The present revision is filed by the applicant

accused in connection with Crime No.52/2021 registered

at Police Station Bhandara, tahsil and district Bhandara

under Section 304-II read with 34 of the Indian Penal

Code against rejection of discharge application vide

Exh.19 filed under Section 227 of the Code of Criminal

Procedure.

3. The applicant is original accused No.3 and she was

Sister Incharge in ward of Special Neonatal Care Unit

(SNCU) at District General Hospital, Bhandara. On

9.1.2021, at about 1:30 am, in the ward of SNCU, fire

broke inside the SNCU outside of a burn ward on first

floor of the said hospital. In the said incident, ten infants

succumbed to death, six infants died due to suffocation,

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347 revn233.23

two infants died due to shock and burn, one infant died

due to shock and inhalation of the smoke, and one died

due to burn. Seven infants in the ward were saved.

Enquiry was conducted and it revealed that there was

sparking due to electrical circuit in control panel of

Radiant Warmer in Cadral No.8. It is further alleged that

the unwanted articles were kept in passage of emergency

door and, therefore, the infants could not be saved as

there was obstruction to open the emergency door. Due

to the negligence of the applicant and other accused, the

alleged incident has occurred. Initially, a Marg was

registered and during investigation, two co-accused were

arrested and offence was registered against them vide

Crime No.52/2021. During the investigation,

involvement of the applicant is also revealed.

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347 revn233.23

4. After completion of the investigation, chargesheet

was filed. The applicant had filed the application for

discharge before learned Additional Sessions Judge,

Bhandara under Section 227 of the Code for discharge

contending that the entire investigation papers nowhere

reveal that in what manner she contributed to the said

incident. In fact, the name of the applicant is not

mentioned in the First Information Report. She was also

not present at the relevant time when the alleged

incident has taken place. There was no such emergency

door. The spot panchanama nowhere shows availability

of the emergency door at the spot of the incident. The

entire investigation papers are silent as far as role of the

applicant is concerned. Thus, no prima facie case is

made out even for framing of the charge. The said

application was rejected by learned Sessions Judge.

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347 revn233.23

Hence, this revision.

5. Learned counsel for the applicant submitted that

from the entire investigation papers, role of the applicant

nowhere reveals. There is no dispute that she was

Incharge Sister of that ward However, at the relevant

time of the incident, she was not present and no

vicarious liability can be attributed to her. None of

statements of witnesses also discloses any role played by

the applicant. Thus, there is no sufficient material to

frame the charge against the applicant. The observation

of learned Sessions Judge while rejecting the application

is contrary to record. He submitted that the observation

of learned Sessions Judge, that material relied upon by

the prosecution on the basis of which it cannot be said

that the applicant has not committed any criminal

offence, is also contrary to the record. In fact, presence

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347 revn233.23

of the applicant, at the time of incident, admittedly, was

not there. Merely because she was Incharge sister and

due to the untoward incident, she is made an accused.

6. Learned Additional Public Prosecutor for the State

strongly opposed the application and submitted that the

investigation papers show that she was Incharge of the

Nurse Staff and it was her duty to check all equipments

in the said Ward and whether the said equipments are in

proper condition or not. The investigation papers show

that when smoke came out in the SNCU Ward, the

people rushed to rescue infants in the said ward, but they

were unable to enter due to the smoke. It further reveals

from the investigation papers that she has not checked

all equipments on 8.1.2021 before leaving hospital.

Thus, There was negligence on her part. By considering

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347 revn233.23

the same, the application is rightly rejected by learned

Sessions Judge.

7. Before entering into merits of the case, it is

necessary to see what are considerations for considering

the application for discharge.

8. It is a settled principle of law that at the stage of

considering an application for discharge, the court must

proceed on the assumption that the material which has

been brought on record by the prosecution is true and

evaluate the material in order to determine whether the

facts emerging from the material, taken on its face value,

disclose the existence of the ingredients necessary of the

offence alleged.

9. The Hon'ble Apex Court in the case of State of

Gujarat vs. Dilipsinh Kishorsinh Rao, reported in MANU/

SC/1113 2023, adverting to the earlier propositions of

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347 revn233.23

law in its earlier decisions in the cases of State of Tamil

Nadu vs. N.Suresh Rajan and ors, reported in (2014) 11

SCC 709 and The State of Maharashtra vs. Som Nath

Thapa, reported in (1996) 4 SCC 659 and The State of

MP Vs. Mohan Lal Soni, reported in (2000) 6 SCC 338,

has held as under:

"10. It is settled principle of law that at the stage of considering an application for discharge the court must proceed on an assumption that the material which has been brought on record by the prosecution is true and evaluate said material in order to determine whether the facts emerging from the material taken on its face value, disclose the existence of the ingredients necessary of the offence alleged. This Court in State of Tamil Nadu vs. N.Suresh Rajan and ors, (2014) 11 SCC 709 adverting to the earlier propositions of law laid down on this subject has held:

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347 revn233.23

"29. We have bestowed our consideration to the rival submissions and the submissions made by Mr. Ranjit Kumar commend us. True it is that at the time of consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the

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347 revn233.23

materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage."

10. Thus, the defence of the accused is not to be

looked into at this stage when the application is filed for

discharge.

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347 revn233.23

11. What is to be seen is that, whether there is a

sufficient material to frame the charge. Even, strong

suspicion is sufficient to frame the charge.

12. The materials placed before the court disclose

grave suspicion even in the case of framing of charge is

justified.

13. Thus, what the court has to do is, to sift the

evidence and to ascertain whether material is sufficient

to frame the charge. The said matter is not to be seen

with an aspect that whether it would be sufficient to

warrant conviction.

14. With the above principle, if the material collected

during investigation is perused, it shows that during the

investigation it revealed that the applicant was Incharge

Sister of the SNCU Ward. On the day of the incident, the

fire broke in the said Ward. The CCTV Footage shows

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347 revn233.23

that on 9.1.2021, during night hours, there was sparking

in the said Ward and the fire was spread and ten infants

succumbed to death. It further revealed that the co-

accused has not switched off main switch of the Warmer

and, therefore, fire was broken. As far as the applicant

is concerned, she was negligent and not verified

equipments and their condition to ascertain whether the

same are in proper condition or not. Due to this

unfortunate fire incident, ten new born babies

succumbed to death and, therefore, the Government has

constituted a Committee and directed to submit report

on fact finding. The said fact finding report discloses

that the applicant was Incharge Sister and was entrusted

with job of overall supervision and monitoring of the

SNCU. It further reveals from the report that the

equipments have paramount importance being life saving

machines and their reliable performance is very

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347 revn233.23

important. The hospital is having SNCU facility where

new born babies are being treated for various ailments

and using various types of medico electronic equipments

such as radiant warmers and phototheraphy units etc..

All the above equipments are handled by nursing staff

and doctors. In case of any problem or defect in the

equipments, the same is informed to the service provider

who is responsible to repair and maintain all these

machines from time to time. All these machines were

under maintenance contract. The analysis report shows

that periodical maintenance of the said equipments was

not carried out. The applicant having duty of overall

supervision has not carried her duty. The statement of

Dr.Pramod Khandate described the role of the applicant

and he stated that she has not carried out her duty with

utmost diligence. The duty chart also shows that she was

responsible for the overall maintenance of the said

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347 revn233.23

equipments. The statements on record including

statement of Ajit Kurjekar shows that there was

emergency door near SNCU Ward which was not kept

hindrance free and, therefore, persons who rushed

towards the spot, immediately after the incident, could

not save the infants.

15. Thus, being Incharge of the said ward, it was the

duty of the applicant to keep emergency door free which

she has not taken care of and, therefore, death of infants

caused as nobody can reach in time to save the infants.

16. Thus, applying the principles narrowed down by

the Hon'ble Apex Court and after sifting and weighing

the evidence on record, there is a sufficient material

against the applicant to attract the offence against her.

17. In this view of the matter, the order passed by

learned Additional Sessions Judge, Bhandara rejecting

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347 revn233.23

the application for discharge is legal and proper one. As

such, being the present revision is devoid of merits, the

same deserves to be rejected and it is rejected.

The Criminal Revision Application stands disposed

of.

(URMILA JOSHI-PHALKE, J.)

!! BrWankhede !!

Signed by: Mr. B. R. Wankhede Designation: PS To Honourable Judge ...../- Date: 27/01/2025 18:54:17