Dr. Arun Kumar Gupta vs State Of Nct Of Delhi
2002 Latest Caselaw 1094 Del

JUDGMENT

S.K. Agarwal, J.

1. By this petition under Section 482 of the Code of Criminal Procedure (for short "Cr.P.C."), the petitioner has prayed for expunging the remarks against him in the order dated 10th August, 2000, passed by the court of Metropolitan Magistrate, New Delhi in the case State v. Abdul Rehman & Ors. FIR No. 152/95 under Sections 380/411/406/448/467/468/420 read with 120B IPC P.S. Kotla Mubarkpur. The petitioner is a qualified doctor working as psychiatrist in the Psychiatric Department of RML Hospital, New Delhi.

2. Facts necessary for the disposal of this petition are that on 9th May, 1995 Smt. Subhash Devi lodged a report stating that some bad characters have entered the ground floor of her house E-82, NDSE Part-II. Above-noted case was registered and after investigations challan was filed against the accused persons. However, further investigations against Abdul Rehman and his wife Smt. Suricha continued and non-bailable warrants against them were issued. She on 5.8.2000 was admitted in the Psychiatric Department of RML Hospital with the history of suffering from acute reaction of stress due to dissolution of marriage of her daughter. The condition of the patient as recorded in the admission sheet, reads as under:

"feeling low/depressed. Anxiety.

Headache. Symptom present for the past one day triggered by a sudden problem in the family. She has developed suicidal tendencies. Similar episode occurred for the past 8 years, was on treatment at a private doctor. She has tried to commit suicide 2 years back by over-dozing sleeping pills after father's death. No. H/o. DM/IHD. Known Hypertensive for 15 years on T. Tenormin.

Pulse: 90/mt.

Anaemia - NIL

Jaundice - NIL

CVS/NAD

RS/NAD

P/A Soft

No focal N. deficit.

MSP.: Sitting with face down

No eye contact. Not

communicative.

weeping with tears

listened to husband."

3. She was discharged on 8.8.2000. Police did not execute the warrants, while she was in Hospital and submitted a report on 6.8.2000 that she was admitted in the Hospital; the court was not satisfied and issued summons for appearance of the petitioner on 7.8.2000. The summons were returned with a request that the petitioner was unable to attend the court on that day because of urgent appointments and requested for seven days time; the request was endorsed by Head of Department, Dr. (Mrs.) Neena Bora (for short "HOD"). The court took it as a refusal and issued bailable warrants against the petitioner for 8.8.2001. Petitioner appeared on 8.8.2000, but the Court was on leave and he was asked to come on the next day, (9.8.2000); HOD was directed to produce patient's record; and on 10.8.2000 petitioner and HOD appeared and produced the patient's medical record. The trial court vide the impugned order dated 10.08.2000 made adverse observations against the petitioner, which are underlined and marked as (a), (b) and (c). Relevant part of the order reads as under:

"The summoned record produced. Perused. From the entire record one thing becomes clear that at the time of admission of the patient it was not a case of routine admission as pulse rate. B.P. etc. all found to be normal. However, reason best known to the concerned doctor A.K. Gupta to best of his wisdom, he found the case of admission. The case of admission and subsequent conduct of the doctor A.K. Gupta, including his conduct about appearance in the court and his conduct about subsequent discharge of the patient which resulted in frustration of the order of the court as IO failed to execute the NBWs against the accused, is not above suspicion but keeping in view the fact that he is young doctor and his long career is at stake I am not taking the serious view of the matter specially when he himself felt remorseful and shall be cautious in future. However Dr. A.K. Gupta is warned to be cautious in future to comply the orders of the court without fail and also to see that no order of the court is frustrated in the manner it was done. Record to given back to the HOD after obtained photocopy of the same to be attached to keep with file."

4. To repeat, the adverse observations made by the learned trial court are marked: (a) it was not a case of routine admission as pulse rate, B.P. etc. all found to be normal; (b) The case of admission and subsequent conduct of the doctor A.K. Gupta, including his conduct about appearance in the court and his conduct about subsequent discharge of the patient which resulted in frustration of the order of the court, as IO failed to execute the NBWs against the accused, is not above suspicion; and (c) However Dr. A.K. Gupta is warned to be cautious in future to comply the orders of the court without fail and also to see that no order of the court is frustrated in the manner it was done. These observations/remarks are sought to be expunged, as the same may affect future career of petitioner.

5. I have heard the learned counsel for the petitioner and learned APP for the State and have been taken through the relevant record which was summoned in the connected petition filed by Dr. Abdul Rehman and his wife Mrs. Suricha Rehman (Crl.R.No. 411/2000), against the order dealing the bail which has decided today by a separate order.

6. Learned counsel for petitioner relying upon the Apex Court's decision in Dr. Raghubir Sharan v. The State of Bihar SCR [1964] Vol.-II, 336, argued that this court has jurisdiction to expunge the remarks. There can be no doubt about this proposition.

7. Learned counsel while referring to the Chapter on the Signs and Symptoms of mental Disorder in the Medical books next argued that patient's history justified admission. The patient was brought by her husband with history of acute stress reaction. The petitioner after carefully analysing the clinical and psychological condition of the patient keeping in view her past history of developing suicidal and found the case as fit for admission. The patient was then given psychotherapy and anti-depressive medication along with sessions of psychotherapy. He argued that the pulse rate and blood pressure of the patient suffering form mental disorder cannot be a sole determinant to find out whether it is a case of admission or not. Past history and there psychological factors, are relevant. And the absence of other medical opinion, no such observation could be made. Learned APP very frankly conceded that no independent opinion in this regard was sought.

8. The law with regard to expunging of remarks is well settled by several authoritative pronouncements. The Supreme Court in a recent decision in "K" a Judicial Officer, , quoted with approval the observation made in its earlier decision in State of Uttar Pradesh v. Mohd. Naim, . It was held:

"Though the power to make remarks or observations is there but on being questioned, the exercise of power must withstand judicial scrutiny on the touchstone of following tests: - (a) whether the party hose conduct is in question is before the Court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct. The overall test is that the criticism or observation must be judicial in nature and should not formally depart from sobriety, moderation and reserve"

(emphasis supplied)

8. As noticed above, the observation marked (a) was made by the learned trial court only on the basis of medical record produced before him, only noticing that the pulse rate and blood pressure of the patient was found to be normal, therefore, it was not a case of routine admission. The court failed to take into consideration other symptoms. She was crying and avoiding eye to eye contract. This could be a reason justifying admission. There is nothing on record to indicate whether any inquiry was made from Dr. (Mrs.) Neena Bora, HOD, who was admittedly present. Her statement was not recorded, and there was no other evidence on record. No medical literature was referred. In this view of the matter, it has to be held that there was no enough evidence on record bearing on the conduct of the petitioner justying the observation made in impugned order, marked (a), which is an essential requirement of law. Therefore, the same is liable to be expunged. I may hasten to add that the position may have been different, if the trial court had sought opinion of the Head of the Department or had based his opinion on Medical books/literature dealing with the symptom of the patient suffering from such mental ailment.

9. Now coming to the observations, marked (b), it may be recalled that warrants against accused Mrs. Suricha, was issued; and she got herself admitted in Psychiatric Department of RML Hospital on 5.8.2000, for psychiatric treatment. There is nothing on record to show why the police officer did not execute the warrant while she was lying admitted in the hospital. Trial court issued summoned for appearance of the petitioner for 7.8.2000; summons were served on petitioner on 7.8.2000, they were returned under the signature of Head of Department, submitting that time was short. Trial court took it as refusal to accept the summons and issued bailable warrants against the petitioner for the next day, i.e. 8.8.2000. In my considered view, trial court ought to have first asked the police officer, as to why warrants were not executed against the patient, when she was lying admitted in the Hospital. He could post a constable there, after executing the warrants, if the trial court suspected some foul play, then some senior police officer could have been assigned to execute the warrants or Local Commissioner could be appointed to seized the record of the patient. The possibility of the police, submitting a report that the patient was discharged by the petitioner after seeing the bailable warrants against him, could be for the reason to save his own skin. Thus, no adverse inference against the petitioner and his conduct could be raised or about the subsequent discharged of the patient. It could not be held that because of the admission or discharge of the patient execution of non-bailable warrants against the accused was frustrated. In fact an inquiry should have been held against the police officers, as to why warrant was not execute by him, therefore, observations, marked

(b) in the impugned order is also liable to be expunged.

10. The observation made mark (c) is consequential to the observations made at portion marked (a) and (b). These having been held to be not sustainable, the observation, marked (c) has to go.

For the foregoing reasons, the petition is allowed. Adverse remarks noted above marked (a), (b) and

(c) in the impugned order are expunged. It made clear that any observation made here would not prejudice the administrative action, if any, in this regard. The petition stands disposed of.