Sanjeevan Medical Research ... vs State Of Nct Of Delhi & Ors.
2012 Latest Caselaw 6892 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI
%                    Crl.M.A. No.10046/2011
                                 IN
                     Crl. M.C. No. 2358/2010
+                               Date of Decision: 3rd December, 2012

#      SANJEEVAN MEDICAL RESEARCH
       CENTRE (PRIVATE) LTD. & ORS.             ....Petitioners
!               Through: Mr. K.T.S. Tulsi, Sr. Advocate with
                         Mr. Gaurav Bhargava, Advocate

                                   Versus

$      STATE OF NCT OF DELHI & ORS.           ...Respondents
                Through: Mr. Rahul Kumar Singh &
                         Mr. Kamla Prasad, Advs. for R-2 &
                         3/review petitioners
                         Mr. M.N. Dudeja, APP for State

       CORAM:
*      HON'BLE MR. JUSTICE P.K.BHASIN

                                    ORDER

P.K.BHASIN, J:

By way of this application filed in a disposed of petition under section 482 of the Code of Criminal Procedure,1973 the applicants, who are husband and wife and also doctors by profession, seek recalling of the order dated 11th February, 2011 whereby this Court had quashed the criminal complaint filed by

the two applicants against the non-applicants three doctors for causing death of their son due to medical negligence while treating him in their Nursing Home at Darya Ganj by the name of Sanjeevan Medical Research Center sometime in October, 2009.

2. The relevant facts may be noticed at the outset. On the complaint of the two applicants against three doctors and their Nursing Home for the commission of the offences punishable under Sections 420/468/471/304/380/120-B/34 IPC the learned Metropolitan Magistrate vide his order dated 4th June,2010 took cognizance and since it was a complaint of death due to medical negligence of the doctors, the Magistrate in view of the decision of the Supreme Court reported in 2009(3) SCC 1 also directed the Director of the All India Institute of Medical Sciences(AIIMS) to constitute a Medical Board to give an opinion as to whether the death of the son of the applicants took place because of the medical negligence on part of the treating doctors.

3. However, before the Medical Board of AIIMS could give any opinion in the matter the concerned doctors who were being accused of causing the death of the son of the applicants due to their medical negligence and their Nursing Home approached this Court in July,2010 for quashing of the criminal complaint. It appears that the applicants had approached the National Consumer Disputes Redressal Commission also with a similar complaint with

a complaint and in those proceedings also the Commission had vide its order dated 30th September,2010 ordered constitution of a multi disciplinary Board of Doctors by the Director of AIIMS for giving its prima facie opinion about the alleged negligence on part of the doctors who had treated the son of the applicants. The Medical Board of Doctors of AIIMS gave its opinion on 26th October, 2010 to the effect that there was no evidence to suggest that there was any gross negligence on the part of the treating doctors/hospital in the treatment of the patient.

4. It also appears that the applicants had before filing the complaint case in Court approached the police with a complaint in December,2009 for registration of FIR and the SHO concerned had, without registering the FIR, sought the opinion of the Director of Health Services, Government of National Capital Territory of Delhi and the then Director Dr. S. Bhattacharjee had informed the police vide letter dated 17th December,2009 that prima facie there was no gross negligence/rashness/omission involved in the treatment of the patient. The applicant no.1 Dr. Deepak Satsangi, father of the deceased, was communicated that opinion by the SHO, Darya Ganj vide his letter dated 11th March,2010. Dr. Satsangi had, however, strongly protested against that opinion and had also claimed that no proper Board was constituted and that the proper authority was the Delhi Medical Council and also that the

police was trying to shield the guilty doctors. Then the deputy Commissioner of Police had referred the matter to the Delhi Medical Council for its opinion. However, before the Delhi Medical Council could give its opinion the applicants apprehending that the police will not investigate the matter honestly filed a criminal complaint in Court under Section 200 Cr. P.C. on 25.02.2010 and in that complaint, as noticed already, the Magistrate took cognizance and against that decision the concerned doctors had filed a petition in this Court which, as also noticed already, was allowed and the complaint of the applicants itself was quashed by this Court vide order dated 11th February, 2011. This Court while allowing the petition of the three doctors had taken into consideration the report of the Director Health Services, that of the AIIMS dated 26th October, 2010 and also the decision dated 3rd November, 2010 of the Delhi Municipal Council, which had also in the meanwhile been approached by the applicants as well as the police, confirming the decision dated 1st October, 2010 of the Disciplinary Committee of the Delhi Medical Council to the effect that Dr. Anupam Jena had failed to exercise reasonable degree of knowledge which was expected of an ordinary prudent doctor and accordingly his name was ordered to be removed from the State Medical Register of Delhi Medical Council for a period of one month.

5. The applicants/complainants had then filed a Special Leave Petition(being SLP(Crl.) No. 4642/2011) against the order dated 11th February,2011 of this Court in the Supreme Court. However, when that Special Leave Petition came up for hearing before the Supreme Court on 11th July, 2011 the counsel for the petitioners there sought permission of the Court to withdraw the Special Leave Petition to bring certain documents to the notice of the High Court and accordingly permission to withdraw that SLP was granted and the same was disposed of as withdrawn.

6. After withdrawing the SLP from the Supreme Court the applicants filed the present application under Section 482 Cr.P.C. for recalling the order dated 11th February,2011. This Court had issued notice of this application at first instance only on its maintainability.

7. The applicants are now claiming that after the disposal of the petition of the non-applicants by this Court they had sought some information from the Delhi Medical Council which in turn had informed them that Dr. S.Bhattacharjee, who had earlier informed the police that there was no gross negligence in the treatment of the son of the applicants, himself had subsequently confirmed the decision of the disciplinary committee of Delhi Medical Council, as one of the members of the Council , that Dr. Anupam Jena was negligent and he was also a party to the decision confirming the

removal of Dr. Anupam's name from the Register of Doctors and thus, according to the applicants, the earlier decision of the Director health services deserves to be ignored having been obtained by manipulation by the owners of the Nursing Home where the applicants' son was admitted. The applicants were also informed by the Medical Council of Delhi in May,2011 that the appeal filed by Dr. Anupam Jena against the decision of the Delhi Medical Council holding him guilty was dismissed by the appellate authority i.e. the Ethics Committee of the Council. All these documents which the applicants claim to have got after the order of 11th February,2011 are now sought to be placed before this court for being considered.

8. The non-applicants, who were the petitioners in the disposed of petition have opposed this application on the ground that in view of the bar under Section 362 Cr. P.C. the applicants cannot seek review of the order dated 11th February,2011 of this Court and the Supreme Court had also not given them any liberty to file this review application. These were the submissions made on their behalf even during the course of hearing by their learned senior counsel Mr. K.T.S. Tulsi. in the reply to this application filed by the non-applicants it was also pleaded that in case the Supreme Court had granted permission to the applicants to approach this

Court again then of course the bar under Section 362 Cr.P.C. would not have come in their way of filing this application.

9. The submission of the learned counsel for the applicants, however, was that the Supreme Court did permit them to bring to the notice of this Court certain documents which had come into their possession and some development which had taken place after the passing of the order dated 11th February, 2011 by this Court.

10. The Supreme Court's order disposing of the SLP of the non- applicants reads as under:-

"The learned counsel for the petitioners seeks permission to withdraw the Special Leave Petition to bring certain documents to the notice of the Court.

Permission to withdraw the petition, is granted. The Special Leave Petition stands disposed of as withdrawn."

In the opinion of this court the permission of the Supreme Court to the applicants herein to bring certain documents to this Court is implicit in the said order passed by it. The applicants had sought permission from the Supreme Court to withdraw their Special Leave Petition for bringing to the notice of this Court certain documents and that permission was granted to them and so this Court cannot dismiss this application only on the ground that the same is not maintainable.

11. This application, therefore, deserves to be entertained and disposed of on merits after giving opportunity to the non- applicants to give a detailed reply to this application since in their earlier reply they had confined their submissions only on the maintainability of the application. That reply should be filed within ten days and this application shall now be taken up for consideration on merits on 17th December, 2012. It is, however, made clear that the question whether on the basis of the material now being brought on record the applicants would get any relief or not shall be decided only after hearing all the concerned parties and the present order shall not be considered even as a prima facie opinion on the merits of this application.

P.K. BHASIN DECEMBER 3, 2012