Delhi High Court

Dr.Chitra Bhatnagar vs State on 11 April, 2012

Author: M. L. Mehta

*             THE HIGH COURT OF DELHI AT NEW DELHI

+                         CRL.M.C.2274/2010

                                                  Date of Decision: 11.04.2012

DR.CHITRA BHATNAGAR                                      ...... Petitioner

                          Through:     Mr. Jagat Rana, Adv.

                                     Versus

STATE                                               ...... Respondent

                          Through:     Mr. M.N. Dudeja, APP for the State.


CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA


M.L. MEHTA, J.

1. This is a petition under Section 482 Cr.P.C. for quashing the Order dated

06.05.2010 passed by Ld. Additional Sessions Judge, whereby he dismissed

the Criminal Revision Petition No. 05/2010 in FIR No.154/01 registered at P.S.

Roop Nagar.

2. The factual matrix of the case is that a complaint was filed by Yadveer

Singh Chauhan on 07.06.1998 to the SHO, P.S. Roop Nagar stating that his

wife Sapna was admitted in Parmarth Mission Hospital on 08.03.1997 during

her pregnancy for her treatment and was discharged on 19.03.1997. She was

again admitted in the said hospital on 22.05.1997 where she delivered a child

after a cesarean operation. It was stated by the complainant that his wife was

experiencing pain in her abdomen due to infection and on the advice of Dr.V.

Thukral , the uterus of the deceased was removed on 27.05.97, but she got no

relief from the pain. Thereafter she regularly visited the hospital and was under

the treatment of the present petitioner. The deceased wife of the complainant

underwent several X-rays, ultrasound and other tests which were seen by the

petitioner and Dr.V. Thukral. As there was no relief to the wife of the

complainant, she was discharged from the hospital on 19.05.1998 and her

ailment was diagnosed as „Australia Antigen‟. She was thereafter taken to

Hindu Rao Hospital by the complainant where she underwent an operation on

25.05.1998 and a sponge like foreign body nearly 17 cm. x 17 cm. with a tag

nearly 11 cm. was removed from her abdomen and she was declared dead at

3.45 P.M. on 26.05.1998.

3. Consequent to his complaint, an inquiry was conducted by ACP, Civil

Lines who did not find any force in the complaint and closed it on 22.4.1999.

Haplessly the complainant filed another complaint in the Court of learned

ACMM on 25.5.2001, pursuant to which the learned ACMM directed the

Police to register an FIR under Section 156 (3) Cr.P.C. An FIR under Section

304-A/34 IPC was registered by the Police on 13.07.2001 and final report

under Section 173 Cr.P.C. was filed against Dr. Vinod Thukral, Dr. Asha

Gupta and the petitioner. Another report was filed by the Police alleging that

the Management of Parmarth Mission Hospital was negligent in their treatment

of the deceased wife of the complainant.

4. After receiving the opinion of the Medical Board, charge sheet was filed

on 03.12.2002 and on the same day the learned MM took cognizance of

offence under Section 304-A/34 IPC and summoned the three accused persons

besides the Management of the Hospital vide his order dated 26.10.2004.

Assailing the summoning order on the ground of limitation and issue of cause

of death of the complainant‟s wife, revision petition was filed by the present

petitioner which was dismissed by the Addl. Sessions Judge vide his order

dated 06.05.2010 opining that the cognizance was within limitation period as

the complaint was filed on 25.5.2001 and FIR was registered on 13.07.2001and

charge sheet was filed on 03.12.2002 and further that prima facie it was a case

of gross negligence by the accused persons. Hence the present petition.

5. The impugned order is challenged by the learned counsel for the

petitioner submitting that the ld. Revision Court had committed illegality in

holding that the cognizance was taken on 03.12.2002 and not on 26.10.2004. It

was submitted by the counsel for the petitioner that cognizance was barred by

limitation as the first complaint was made on 07.06.1998 and summoning order

was passed on 26.10.2004 after 6 years and 5 months. It was further submitted

that the impugned order of summoning was also illegal as there was no relation

between the caesarean surgery performed at the hospital and the death of the

wife of the complainant after one year and further that the sponge recovered

from the deceased‟s abdomen was never preserved and presented before the

Medical Board. It was also submitted that no MLC or postmortem report was

prepared by the hospital where she breathed her last, to ascertain the true cause

of death. Lastly, it was submitted by the counsel for the petitioner that there

was no police complaint made by the complainant about the recovery of

sponge from the abdomen of his wife and these fact casts shadow on the

veracity of the allegations made by the complainant.

6. Per contra, the learned APP for the State submitted that the petition is

although under Section 482 Cr.P.C., but is in reality a second revision against a

preliminary order which is barred under the provisions of Section 397(3)

Cr.P.C. It was further submitted that it was a case of gross negligence by the

accused persons including the petitioner as the sponge was present in the

abdomen of the deceased wife of the complainant for a period of one year

which led to her untimely death. In addition, it was submitted by learned APP

that it would be travesty of justice to thwart the prosecution case in its womb,

when even the stage for leading evidence to substantiate the charges has not

been reached.

7. I have heard learned counsel for the petitioner and the learned APP.

8. At the outset, it must be noted that a revision was filed by the petitioner

before the Court of ASJ against the summoning order passed by the Ld. M.M.

and that this is the second revision petition against the said summoning order.

A second revision petition against this order is barred under the provisions of

Section 397(3) Cr.P.C. The intention of the Legislature under section 397(3)

Cr.P.C. is definite and the scheme therein is unambiguous and clear. Sub

section (3) does not permit the repetition in exercise of jurisdiction of revision

under section 397(1) Cr.P.C. It curtails the chance availing second remedy and

therefore, an unsuccessful revisionist in the Court of Sessions cannot be

entertained for the second time by the High Court. In fact, sub section (3)

intends and aims to secure finality. The choice lies with the revisionist either

to file revision directly in this Court or in the Sessions Court. Having availed

the remedy by filing revision before the Sessions Court, one cannot be

permitted to avail second chance to file revision in view of the bar of sub

section (3) of section 397 Cr.P.C and hence, the present petition is not

maintainable on this ground alone.

9. While laying that section 397(3) Cr.P.C. laid statutory bar of second

revision petition, the courts have held that High Court did enjoy inherent power

under section 482 Cr.P.C. as well to entertain petitions even in those cases.

But, that power was to be exercised sparingly and with great caution,

particularly, when the person approaching the High Court has already availed

remedy of first revision in the Sessions Court and only in a situation when

there was an abuse of process of court or there was serious miscarriage of

justice or the mandatory provisions of law were not complied with. This Court

will now proceed to see as to whether the instant petition, fall within that

category of cases which require invoking of inherent jurisdiction of this Court

under Section 482 Cr.P.C.

10. Dealing with the contentious issue of limitation, it would be relevant to

note that the offence under Section 304-A IPC is punishable with

imprisonment upto two years and the limitation for taking cognizance in such

offence under Section 468 Cr.P.C. is three years. Further, under the provisions

of Section 469 Cr.P.C., the period of limitation in relation to an offender shall

commence from the date of offence or from the first day on which offence

comes into the knowledge of such persons or to any police officer, whichever

is earlier. Now, the question before this Court is that from which date the

period of limitation in the present case commenced. From the perusal of record,

it is evident that the complaint was filed by the complainant immediately after

the death of his wife, but no action was taken by the police authorities and the

complainant was constrained to file another complaint in the Court on

25.05.2001, pursuant to which the Court ordered the registration of FIR

against the three accused doctors and FIR was registered by the police on

13.07.2001 and the report of the Medical Board was sought. The initial charge

sheet was filed only against the three accused doctors on 03.12.2002. After

taking of cognizance of the offence by Ld. M.M., however on the objections

raised by the complainant, the Ld. MM also took cognizance against the

hospital management as well and passed the summoning order dated

26.10.2004 .The proceedings prior to filing of the charge sheet and taking of

cognizance on 03.12.2002 cannot be included within the limitation period as

they were merely instrumental in the passing of the summoning order by the

learned ACMM. The inaction and delay on the part of the ACP cannot be

attributed to the complainant as he took all necessary steps to ensure the filing

of the case in the Trial Court. The summoning order passed on 26.10.2004

cannot be equated as date of taking cognizance, because it was merely

progression of the trial Court proceedings which began effectively from

03.12.2002. Thus, the period of limitation commenced from the date of filing

the charge sheet i.e. 03.12.2002 and not from the date of filing the first

complaint or the date of impugned summoning order.

11. In view of the above discussion, I am of the opinion that the ld. ASJ

rightly concluded that the cognizance was taken within the limitation period of

three years which commenced from filing of charge sheet on 03.12.2002 and

the inclusion of the hospital management as the accused persons in the case

cannot be termed as the date of taking cognizance of the offence.

12. Coming to the contention of the learned counsel for the petitioner that

there was no nexus between the surgery performed at the Parmarath Mission

Hospital and death of the complainant‟s wife, it would suffice to say that the

deceased was under the treatment of the petitioner along with other accused

persons who had the X-rays and Ultrasound reports of the deceased at their

disposal, but still they could not ascertain the presence of a sponge like foreign

body in her abdomen, which prima facie indicates negligence on their part.

Moreover, the absence of MLC or post mortem report or complaint regarding

presence of sponge in the deceased‟s body are all triable issues and cannot be

looked into by this Court. The petitioner would have ample opportunity to lead

evidence on these issues in the Trial Court proceedings.

13. It is trite that when from the perusal of material on record prima facie

commission of offence is indicated, this Court should not throttle the

prosecution at its nascent stage. In State (Govt. of NCT of Delhi) Vs. DAM

Probhu & Anr. 2009(1) Crimes 351 (SC), the Hon‟ble Supreme Court has

reaffirmed the law that when the stand as taken by the respondent was

essentially their defence, which is to be considered at the time of trial,

threshold interference would not be appropriate. In Ashabai Machindra

Adhagale Vs. State of Maharashtra, 2009(1) Crimes 304(SC) the Hon‟ble

Supreme Court has held that the inherent power should not be exercised to

stifle a legitimate prosecution. The High Court should normally refrain from

giving a prima facie decision in a case where the entire facts are incomplete

and more so when the evidence has not been collected and produced before the

Court and the issues involved, whether factual or legal are of magnitude and

cannot be seen in their true perspective without sufficient materials.

14. This Court in Sarabjit Singh & Anr. Vs. State & Anr. [Crl. MC

No.4041/2009] , while deliberating on the issue of exercise of inherent powers

of this Court to quash the summoning orders against the accused persons held :

"7.. I consider that whatever defence the petitioners have cannot be gone into at this stage of summoning. At this stage, what is required to be seen is as to whether from the complaint and the statements of the witnesses examined in support thereof, there were sufficient reasons to proceed against the petitioners. In the present proceedings, the evidence could not be weighed and scrutinized, nor a fishy enquiry could be done to see as to whether the present complaint would ultimately lead to conviction of the petitioners or not."

15. In the case of K.M. Mathew v K.A. Abraham & Others [2002(3) JCC

1523], the Hon‟ble Supreme Court held that when a Magistrate before issuing

process has come to the conclusion that the complaint prima facie makes out

the offence, the High Court shall be reluctant in exercising its inherent powers

to quash the proceedings. Undisputedly, powers under Section 482 Cr.P.C has

to be used sparingly and with great caution and only in those cases where this

Court comes to the conclusion that there was manifest injustice or there was

abuse of process of the court.

16. From the perusal of first revision petition and the instant petition, I found

no material difference in the grounds raked up by the counsel for the petitioner

which stood rejected by the learned ASJ vide his impugned order. Nothing

novel could be pointed out by the counsel for the petitioner that would warrant