Meenakshi Jain vs State & Anr.
2012 Latest Caselaw 3759 Del

*             HIGH COURT OF DELHI AT NEW DELHI

+                   CRL. M.C. No. 2504/2011

                               Date of Decision :    02.07.2012

MEENAKSHI JAIN                               ...... Petitioner
                              Through: Petitioner in person.

                               Versus

STATE & ANR.                                ...... Respondents
                              Through: Mr. Sunil Sharma, APP.


CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J.

1. This is a petition filed by the petitioner under Section 482

Cr.P.C. seeking the following reliefs:

"(a) Issue appropriate order or direction to quash the order dated 28.7.2011 passed by the Court below being illegal, arbitrary and against all principles of criminal justice system showing non-application of mind;

(b) Issue appropriate order/directions to the respondent no.1 to register an FIR on the complaint dated 12.10.2010 of the petitioner under the relevant provisions of law or in the alternative issue appropriate order/directions to the Ld. MM to expeditiously decide the application under

Section 156(3) Cr.P.C. of the petitioner on merits in the light of the Medical Opinion dated 14.6.2010 of the Board of Doctors of Maulana Azad Medical College, duly constituted by Dean, MAMC on the directions of the Hon'ble State Commission and other material on record filed with the complaint;

(c)Issue appropriate order or directions to transfer the investigation to some other independent investigating agency;

(d) Issue appropriate order or directions to respondent no.2 to keep the complaint No.780/10 of the petitioner pending before Disciplinary Committee in abeyance as requested;

(e) Pass any other and further order as this Hon'ble Court may deem fit, just and proper in the present facts and circumstances of the case."

2. Briefly stated the facts leading to the filing of the present

petition are that the father of the petitioner, who is a

practicing lawyer was admitted on 06.3.2009 in Apollo

hospital. Unfortunately, he died on 01.4.2009. It is

stated by the petitioner that on 16.2.2010, she had

obtained an expert opinion by Dr. V.J. Anand, Consultant

Surgeon and on the basis of the same, she filed a

complaint on 19.3.2010 before the Delhi State Consumer

Disputes Redressal Commission.

3. On 14.6.2010, a Board of Doctors of Maulana Azad

Medical College was constituted on the directions of the

President of State Consumer Forum and it gave an

opinion that the death of the deceased was caused

because of the medical negligence. On 12.10.2010, the

petitioner filed a complaint seeking prayer to register an

FIR under Section 304-A IPC against the Apollo Hospital

and its doctors for forging and tampering with the record

and causing the death of her father by medical

negligence. On 19.10.2010, a complaint of the medical

negligence and professional misconduct against the said

hospital and its doctors was made before the Delhi

Medical Council. On 6th December, 2010, the present

petitioner filed an application under Section 156 (3)

Cr.P.C. before the learned Magistrate, Saket Courts, New

Delhi seeking directions to the police for registration of

an FIR against the doctors of the Apollo hospital for

causing death by negligence. On 28th July, 2011, the

impugned order was passed by the learned Magistrate

directing the Delhi Medical Council /respondent no.2 to

expedite the hearing of the complaint bearing

No.780/2010 and file the Action Taken Report.

4. The petitioner feeling aggrieved by the said order has

challenged the same before this Court.

5. I have heard the petitioner in person, the learned counsel

for the Delhi Medical Council as well as Ms. Indu

Malhtora, learned senior counsel appearing for the

intervener/applicants.

6. The main contention of the petitioner is that by virtue of

the impugned order, the learned Magistrate had directed

the Delhi Medical Council to furnish its opinion which is in

fact trying to filling up the lacuna and save the doctors

who have already been held to be prima facie negligent

by the Medical Board constituted by the Consumer Forum

in the performance of their duties, as a consequence of

which, the death of the father of the petitioner has been

caused. It was contended by the petitioner that

admittedly, a medical board was duly constituted by the

Dean of the Maulana Azad Medical College, in pursuance

to the directions given by the President of the State

Consumer Forum and this Medical Board has already

given an opinion holding the doctors of the Apollo

Hospital to be prima facie guilty for medical negligence

and therefore, that opinion ought to have been sufficient

for the learned Magistrate to direct the registration of the

FIR.

7. The second submission of the petitioner is that the Delhi

Medical Council has no power to furnish the medical

opinion in cases of negligence. The power to furnish

opinion in the cases of medical negligence vests only with

the government doctors and not with the Board

constituted by the Delhi Medical Council. It was urged

that it was not proper for the learned MM to have

directed the Delhi Medical Council to constitute a Board

and give its opinion. It was also contended by the

petitioner that the SHO to whom the direction was sent

on the basis of an application u/S 156 (3) Cr.P.C. had

absolutely no business to have approached the Delhi

Medical Council for the purpose of furnishing an opinion.

Since such an opinion is already in existence and given

by the Medical Board constituted in pursuance to the

directions of the State Commission, this exercise is being

undertaken to cover up lacunas to save the doctors.

8. The learned counsel appearing for the Delhi Medical

Council has contested the claim of the petitioner. He has

denied that the Medical Council has any interest in the

matter, so as to shield the doctors who may be found

prima facie guilty of being negligent in the performance

of their duties. On the contrary, it has been contended

that the disciplinary committee constituted in terms of

Section 21 of the Delhi Medical Council Act (hereinafter

referred to as the 'Act') not only has the power to

proceed departmentally for the Disciplinary action against

the medical practitioners, who are registered with it but it

also has the authority to give an opinion as to whether

the doctors are guilty of negligence or not. It was

contended by the learned counsel that it was totally

wrong on the part of the petitioner to contend that the

Disciplinary Committee or the Delhi Medical Council was

acting in pursuance to the request of the SHO. On the

contrary, it was contended that as a matter of fact, no

doubt the SHO had approached the Council with the

orders of the learned Magistrate dated 28.7.2011 for the

purpose of obtaining an opinion, but it was essentially on

the basis of the letter dated 14.10.2011 purported to

have been received from the Joint Secretary, Dept. of

Home, Govt. of Delhi stating that the Delhi Medical

Council may constitute a Disciplinary Committee and

forward an opinion whether the doctors of the Apollo

Hospital who treated the deceased were negligent or not.

It has been further stated that the Disciplinary

Committee had conducted and concluded the proceedings

after giving due notice to the petitioner and the outcome

of the same has still not been placed before the Council

for approval. It is only after the approval by the Council

that it be placed before the Court. It was contended that

once the Court gives the permission in this regard, the

matter will be placed before the Council.

9. It was also contended by the learned counsel that the

petitioner had separately made a complaint directly to

the Council against the doctors who had treated her

father and since the letter of the Joint Secretary and that

the complaint of the petitioner pertained to the same

subject, both of them were being dealt together. It is

stated that notices were issued to the complainant to

appear before the disciplinary committee constituted in

terms of Section 21 of the Act and present her case but

she had been indulging in dilatory tactics and the filing of

the present petition was only one of the steps in the said

direction.

10. The petitioner had also during the course of hearing,

raised an objection with regard to the right of hearing

having been given to the applicants/interveners. It was

the contention of the petitioner that the

intervener/applicants have no locus standi to assail the

order of the learned Magistrate or the opinion of the

Board constituted by Maulana Azad Medical College. For

this purpose, the petitioner has relied upon a number of

judgments. These are Grow-on Exports (India) Ltd. &

Ors. vs. J.K. Goel & Anr., 95 (2002) DLT 333; Prakash

Devi & Ors. vs. State of Delhi & Anr., 2010 (4) JCC

2833; Crl. M.C. No.2626/2009 dated 5.2.2010; Smt.

Nagawwa vs. Veeranna Shivalingappa Konjalgi &

Ors., (1976) 3 SCC 736; Prabha Mathur & Anr. Vs.

Pramod Aggarwal & Ors., SLP (Criminal)

No.1368/2007 dated 26.9.2008 and V. Kishan Rao vs.

Nikhil Super Speciality Hospital & Anr., 2010 (4)

SCALE 662.

11. Ms.Indu Malhotra, the learned counsel for the

applicants/interveners has contested this submission of

the petitioner that the applicants/interveners do not have

any locus standi. It has been contended by her that in

the instant case, the entire effort on the part of the

petitioner is to see that a case u/S 304-A IPC on account

of the alleged medical negligence is registered against

the doctors without following due processes of law as has

been enunciated by the Apex Court in Jacob Mathew's

case. She has stated that there are a number of

authorities passed by the Apex Court where principles of

natural justice have been given effect to, for the purpose

of giving right of hearing to the aggrieved party. In this

regard, the learned counsel has referred to the following

judgments:

(i) Uma Nath Pandey & Ors. Vs. State of U.P. and Anr. (2009) 12 SCC 40;

(ii) P.Sundarrajan & Ors. Vs. R.Vidhya Sekar (2004) 13 SCC 472;

(iii) Prashant Goel Vs. State and Anr. 134(2006)

DLT 221;

(iv) TNG Kumar Vs. State of Kerala and Ors.

(2011) 2 SCC 772;

(v) Gangadhar Janardan Mhatre Vs. State of Maharashtra & Ors. (2004) 7 SCC 768;

12. I have gone through the said authorities. I am cognizant

of the fact that merely because the right of hearing has

been given in these reported judgments does not ipso

facto mean that the right of hearing has to be given to

the applicants/interveners in the present case also on the

basis of the said judgments. The Apex Court in number

of authorities has laid down that the law which is laid

down by the Apex Court should not be treated as

theorems and should not be applied blindly without co-

relating the facts of the reported judgment with the facts

of the case in hand. The authorities which have been

cited by the learned senior counsel are the cases where

the powers of revision were being exercised by the Court

and the right of hearing was involved except in the case

of Delhi High Court judgment in Prakash Devi's case

where the Court has come to a finding that before a

delay in filing the complaint u/S 138 of the Negotiable

Instruments Act is condoned, the prospective accused or

the respondent against whom the complaint is filed will

have a right of hearing.

13. I have gone through these authorities. Dehorse these

authorities, I am of the view that the law with regard to

the right of hearing to the applicants/interveners can be

crystallized, so far as the present case is concerned in

the following manner.

14. So far as the legal position is concerned, no doubt the

accused/respondent or the prospective accused has no

right of participation in the proceedings at the pre-

summoning stage or till the time he is summoned, he

has no locus standi to assail the order passed by the

learned Magistrate.But the situation in my view changes,

in case the complainant himself goes to the High Court

u/S 482 Cr.P.C. assailing the order of the learned

Magistrate seeking to obtain an adverse order against

the respondent/accused. It will be more apt to give a

right of hearing to the accused in cases of the present

nature, where the Supreme Court has put an embargo

on registration of a criminal case against the medical

practitioners without obtaining an opinion from the

Medical Board.

15. In the peculiar facts of the present case, I feel that the

applicants/interveners were well within their right to

assist the Court in presenting the clearer picture but

their participation would have gone unnoticed and an FIR

under Section 304A IPC would have been registered

against them. This is because of the fact that the

petitioner's father had admittedly died in the instant

case. The petitioner is an Advocate by profession. She

has opened almost all the fronts against the doctors with

a view to ensure that a case u/S 304A IPC is registered

against them without observing the law laid down by the

Apex Court in letter and spirit in Jacob's Mathew's case.

16. Dehorse the judgment cited by the learned senior

counsel for the applicants, I feel that this Court has

inherent powers to prevent an abuse of the processes of

law and also to pass an order in the interest of justice in

respect of a case pending before the Court. The Court is

well within its right to give a right of hearing to the

applicants/interveners in the light of peculiar facts of the

case. If the right of hearing would not have been given

to the interveners/applicants, it may have done

incalculable damage inasmuch as, the FIR might have

got registered against them without following the

dictates of Jacob Mathew's case. Accordingly, this

contention of the petitioner challenging the locus standi

of the applicants/interveners to assist the Court is

disallowed as the question of locus standi would have

arisen if the applicants/interveners would have come to

the Court. It is not the applicants/interveners who have

come to the Court but they are the prospective

respondents in the complaint before the trial court.

17. For these reasons, I feel that this contention of the

petitioner has no merit.

18. So far as the submissions of Ms. Indu Malhotra, learned

senior counsel with regard to the merits of the case are

concerned, it has been contended by her that the

petitioner had no doubt obtained an opinion from a

medical board in terms of the directions of the President

of the State Consumer Forum but that opinion was

obtained by her at the back of the intervener/applicants

and the opinion of the said board could not be relied

upon for the purpose of registering a criminal case of

medical negligence against the intervener/applicants.

19. It was contended by the learned senior counsel that the

petitioner is guilty of concealing material facts, inasmuch

as the said opinion which was given by the Medical Board

of Maulana Azad Medical College was assailed by the

intervener/applicants before the same forum which had

given the direction to constitute the Board. In any case,

it was contended that this fact ought to have been

disclosed by the petitioner that the intervener/applicants

have already filed an application before the State

Consumer Forum challenging the opinion of the Medical

Board of Maulana Azad Medical College in which she had

accepted the notice and, therefore, this became a

material fact which ought to have been revealed by her

in this petition. It was urged that the very fact that the

petitioner has come u/S 482 Cr.P.C., she was expected

to come to Court with clean hands and since she has not

done so, therefore, the petition deserves to be dismissed

on this short ground itself.

20. With regard to the constitution of the Medical Board by

the Delhi Medical Council, it was contended that the

Council has all the powers to constitute a Board for the

purpose of obtaining an opinion and in terms of the

judgment of the Supreme Court in case titled Jacob

Mathew -vs- State of Punjab & Anr., 2005 (6) SCALE

130 as to whether a prima facie case for medical

negligence is made out against the doctors, who treated

the patient and if the Board furnishes an opinion that

there was negligence only then, FIR can be registered.

21. It was contended that in paragraphs 51, 52 and 53 of

Jacob Mathew's case (supra), the offence under Section

304-A IPC cannot be registered against any doctor unless

and until the medical opinion from a Board is constituted.

The said paragraphs read as under:-

"Guidelines - re: prosecuting medical professionals

51. As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by police on an FIR being lodged and cognizance taken. The investigating officer and the private complainants cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to rash or negligent act within the domain of criminal law under Section 304A of IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by

acquittal or discharge but the loss which he has suffered in his reputation cannot be compensated by any standards.

52. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.

              53.    Statutory    Rules    or   Executive
              Instructions      incorporating      certain

guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the

accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligence act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam's test to the facts collected in the investigation.

A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been leveled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld."

22. It has been submitted by Ms. Malhtora, the learned

senior counsel that it was because of the judgment of

Jacob Mathew (supra) by the Apex Court, that the

learned Magistrate had referred the matter to Delhi

Medical Council for an expert opinion of the Board as to

whether there was medical negligence or not, before any

adverse action is taken against the doctors treating the

patient. It is further stated that the opinion of the

doctors of Maulana Azad Medical College could not be

treated as a substitute for this opinion of the Board

constituted by the Delhi Medical Council before the

registration of the FIR.

23. I have carefully considered the submissions made by the

learned counsel for the parties and gone through the

entire record.

Prayer for Registration of an FIR

24. In clause 'b' of the prayer clause, the petitioner has

sought appropriate order or direction to the respondent

no.1 to register an FIR on the basis of the complaint

dated 12.10.2010 of the petitioner against the relevant

provisions of law or alternatively issue a direction to the

learned MM to expeditiously decide the application of the

petitioner u/S 156 (3) Cr.P.C. on merits in the light of the

medical opinion dated 14.6.2010 of the Board of

doctors of Maulana Azad Medical College duly constituted

by the Dean of Maulana Azad Medical College. The third

prayer of the petitioner is for transfer of investigation to

some other independent investigating board.

25. It has been settled by now authoritatively by number of

judgments that if a person is feeling aggrieved on

account of non registration of an FIR in respect of an

cognizable offence in terms of Section 154 (1) Cr.P.C.

then the appropriate course of remedy open to him is to

approach the SP or DCP of the concerned area under

Section 154 (3) Cr.P.C. If the FIR is still not registered

inspite of this, then the alternate remedy which is open

to the petitioner or any party is to file an appropriate

complaint u/S 200 Cr.P.C. which may be inquired into by

the learned Magistrate u/S 200 and 202 Cr.P.C. and

thereafter, pass an appropriate order either u/S 203

Cr.P.C. dismissing the complaint under Section 204

Cr.P.C. issuing the process to the accused persons. It has

been repeatedly laid down that if a person is feeling

aggrieved on account of non registration of an FIR u/S

154 Cr.P.C. in respect of a cognizable offence, then it is

not open to him to approach the High Court by way of a

writ petition for getting the said FIR registered. Reliance

in this regard is placed on the case titled Sakiri Vasu Vs.

State of UP; 2008 (2) SCC 409 as well as Aleque

Padamsee & Ors. Vs. UOI; 2007 (6) SCC 171.

26. Therefore, this prayer made by the petitioner that a

direction be given to the respondent no.1 namely to the

State to register an FIR on the basis of a complaint

dated 12.10.2010, against the accused doctors is not

maintainable in law. A direction cannot be issued to the

Magistrate for deciding expeditiously the application of

the petitioner u/S 156 (3) Cr.P.C. because the petitioner

has not placed any document on record to show that the

learned Magistrate has been lax in dealing with the

application. On the contrary, the learned Magistrate has,

on the very threshold, directed the SHO to obtain a

medical opinion from the Delhi Medical Council regarding

medical negligence by constituting a Board which is a

sine qua non for registration of an offence and which

direction has got repeated on number of occasions yet

the petitioner did not feel aggrieved, but suddenly he has

woken up to challenge the order dated 28.7.2011, when

the learned Magistrate has reiterated the earlier order to

expedite the report of the Board regarding medical

negligence.

27. In my view, whatever orders have been placed on record

show that the Magistrate is acting with great deal of

expedition to dispose of the applications from time to

time.

28. If the relief, as prayed by the petitioner under clause (b)

regarding registration of an FIR, cannot be granted to

her, obviously there is no question of transfer of

investigation from one agency to the other agency.

Accordingly, prayer (c) also cannot be granted.

Therefore, both the prayers 'b' and 'c' are not

maintainable in the present petition apart from this, both

these prayers are beyond the scope of the main

complaint which has been filed by the petitioner before

the learned MM who has seized of the matter.

Professional complaint against the offending doctor before the Delhi Medical Council

29. In Prayer (d) a direction is sought by the petitioner

against the respondent no.2/Delhi Medical Council to

keep his complaint bearing no. 780/2010 pending before

the Disciplinary Committee. This prayer also cannot be

entertained. The reason for this is that the petitioner has

challenged the order dated 28.7.2011 which does not

deal with this aspect of the matter nor the deferring or

keeping of the complaint in abeyance is the main issue

involved or the relief claimed before the Magistrate. If a

subject matter has not been encompassed before the

learned Magistrate, I fail to understand as to how it can

be made the basis of the challenge before the High

Court. Further, a perusal of the record shows that the

petitioner seems to be confused and somehow or the

other, wants to keep the Damocles sword hanging on the

head of the doctors. This is evident from the fact that

firstly, she goes to the Consumer Forum on account of

alleged medical negligence and obtains an ex parte order

for constitution of a Medical Board. Thereafter, she files a

criminal complaint u/S 200 Cr.P.C. for prosecution of the

doctors for having committed the offence u/S 304A IPC.

Later on, she files an application u/S 156(3) for

registration of an FIR. But curiously, when the Action

Taken Report was called by the learned Magistrate, it is

not disclosed that she has already obtained a report of

the so called medical board. Simultaneously, she makes

a complaint to the Medical Council and when she is asked

to appear and assist the Disciplinary Committee, she

writes that the proceedings be kept in abeyance /

waiting. The orders of the criminal Court would take

considerable time so she starts crying hoarse, that the

policeman is approaching the Council for constitution of a

Board while as, the fact of the matter is that the Joint

Secretary, Govt. of Delhi requested the Council to

constitute the Board vide letter dated 14.10.2011 so that

prima facie, it could be established that the death was

because of medical negligence. Simultaneously, when

the Court wants to expedite the constitution of the Board

for giving medical opinion, she rushes to this Court for

stopping the same. She does not disclose in the petition

that the Consumer Forum has already issued the notice

to her for setting aside the order or challenging the

opinion of the so called Board. Therefore, all the facts

clearly show that the petitioner has lost all objectivity

only because the victim in the instant case happened to

be her father. She has started witch hunting with a view

to teach the doctors a lesson which the Apex Court

wanted to prevent by its judgment in Jacob Mathew's

case.

Medical negligence and registration of an FIR under Section 304-A IPC

30. This leaves us with only prayer (a) which is drafted as

under :-

(a) issue appropriate order or direction to quash the

order dated 28.7.2011 passed by the court below being

illegal, arbitrary and against all the principles of criminal

justice system essentially non-application of mind.

31. The order dated 28.7.2011 reads as under :-

"Fresh Vakalatnama filed on behalf of the DMC. Same is taken on record.

Written submissions filed by the complainant stating therein that Complaint No.780/10 is pending before the Disciplinary Committee of DMC and that proceedings before it are equal to a trial even before the registration of FIR and as such SHO concerned is creating evidence in favour of the accused. A letter dated 12.07.2011 is annexed alongwith the same, as per which the complainant had requested the DMC to keep her complaint abeyance.

               Further    minutes    of    meeting    dated
              15.7.2011 filed, according to which
              Disciplinary    Committee       has     been

constituted by the DMC consisting of seven members out of which three are expert members. It is stated that the said Committee/Medical Board had been constituted for filing the opinion as requested by the SHO. It is also informed that complainant did not appear on last date and therefore, dated i.e. 5.8.2011 has been fixed for hearing of the parties.

In view of the above, DMC is further directed to expedite the proceedings and file opinion at the earliest. List for filing of status report/ATR on 19.08.2011."

32. A perusal of the aforesaid order would show that the

petitioner is feeling aggrieved by virtue of the last portion

of the order. By the said portion of the order, the

learned Magistrate had directed the Delhi Medical Council

to expedite the proceedings and file its opinion at the

earliest. As a matter of fact, even if this part of the

impugned order is set aside, it would not bring any relief

to the petitioner because of the fact that this order

reiterates the earlier order passed by the Court directing

the constitution of a medical Board by the Delhi Medical

Council and file its medical opinion, which is sine qua non

for registration of the FIR. The petitioner along with his

complaint under Section 200 had also filed an application

u/S 156(3) Cr.P.C. seeking registration of an FIR.

Neither prima facie medical opinion was attached nor was

this the case of the petitioner. She has a medical opinion

of Maulana Azad Medical College in her favour which

must be made the basis of registration of FIR. It is only

belatedly that wisdom dawned on her, therefore, it was

necessary for the learned Magistrate to have obtained a

medical opinion as the petitioner had failed to produce

any prima facie evidence showing medical negligence on

the part of the doctors concerned.

33. It may be pertinent here to refer to the few orders which

were passed by the learned Magistrate which culminated

into the passing of the impugned order.

34. The complaint came up for the first time before the

learned Magistrate on 06.12.10 when the Presiding

Officer did not hold the Court and the matter was

adjourned to the next date i.e. 07.12.10 on which date

the Action Taken Report was called for from the police.

It was pursuant to this Action Taken Report that the IO

intimated the Court that the matter has been referred to

Delhi Medical Council for giving an opinion with regard to

the medical negligence. Since the furnishing of a medical

opinion report by the Delhi Medical Council was being

delayed and in the meantime, the IO of the case seemed

to have done some mischief by approaching a private

doctor for the purpose of obtaining a medical opinion that

the learned Magistrate had sent for the SHO of the police

station where the incident had taken place and also

directed the constitution of a medical Board. This

effective order was passed on 03.06.11. It is this order

which was sought to be reviewed by the petitioner by

filing an application seeking recall of this order and

having failed to do so, it culminated into the order dated

28.07.11. As has been observed hereinabove by this

Court that even if the order dated 28.07.11 is set aside

even then the order regarding obtaining of a medical

opinion from the Board, duly constituted by Delhi Medical

Council, still remains on record.

35. The main grievance of the petitioner is not that the Court

is trying to obtain the medical opinion from the Delhi

Medical Council but the contention of the petitioner is

that the State Consumer Forum had constituted a

Medical Board headed by three Doctors of Maulana Azad

Medical College which had prima facie found it to be a

case of medical negligence and therefore, that should

have been the ground for registration of an FIR. I must

say that this was only an improvement and a belated

wisdom which had dawned upon the petitioner. This is

on account of the fact that when the petitioner filed the

complaint and also an application u/S 156 (3) C.r.P.C for

direction to the police to register an FIR, it was not her

case that the medical opinion has already been furnished

by a competent Board duly constituted by an appropriate

authority which should form the basis of the registration

of an FIR. More so, when the very medical opinion

furnished by the said Board was not challenged by the

applicants/interveners before the said Forum in which

notice was issued to the petitioner, it will not be safe to

rely on the said opinion and the Court cannot today set

aside the order passed by the learned Magistrate

directing the Delhi Medical Council to constitute a Board

and furnish an opinion with regard to the medical

negligence of the doctors.

36. In Jacob Mathew's case, the Supreme Court has already

observed that once the criminal process is initiated, this

subjects the medical profession and the professionals to

serious embarrassment and sometimes even

harassment. The accused apprehending arrest may have

to seek bail which may or may not be granted to him and

therefore, this becomes imperative that the greatest

possible care is taken that no doctor is put to peril of

being arrested or facing a criminal case without

observing the procedure which has been laid down by the

said judgment which precisely the Court was trying to do

in the instant case. The Apex Court, in the said case, has

also observed that a private complaint may not be

entertained unless the complainant has produced prima

facie evidence before the Court in the form of a credible

opinion given by another competent doctor to support

the rash or negligence act on the part of the accused

doctor. It was also observed that the IO should, before

proceeding against the doctor, accused of rash or

negligent act or omission obtain an independent medical

opinion, preferably from a doctor in a Government

service qualified in that field of medical practice who

should normally be expected to give an impartial and

unbiased opinion. If this standard was to be observed by

the Court before registration of an FIR against the

applicant/intervener, it was necessary that a fresh

opinion from the Board duly constituted by the Delhi

Medical Board has to be obtained and once the petitioner

has put the criminal justice machinery into motion and

she has not produced any prima facie evidence with

regard to the medical negligence, it was not open to her

to have retraced her steps belatedly and then urge

before the said trial Magistrate or before this Court that

the order passed by the learned Magistrate directing for

constitution of a Board of Delhi Medical Council to furnish

a medical opinion be recalled because there is already an

opinion furnished by the doctors of Maulana Azad Medical

College.

37. This is on account of two reasons; firstly, that the opinion

furnished by the Board constituted by the doctor of

Maulana Azad Medical College was constituted by a

Consumer Forum and not by a Criminal Court. Moreover,

the report furnished by the said Board is already under

challenge by the applicants/interveners inasmuch as,

their application has been allowed and the notice issued

to the petitioner stands accepted. Therefore, that

opinion is of not much relevance for the present and the

medical opinion which will be furnished by the Board

constituted by the Delhi Medical Council would only be

prima facie relevant before the learned Magistrate to

decide further course of action. Therefore, I feel that so

far as this part of the impugned order is concerned, there

is nothing wrong or illegal or perverse in the order of the

learned Magistrate.

38. I have also been handed over a sealed envelope during

the course of the present proceedings by the counsel

appearing for the Delhi Medical Council wherein, an

opinion has been furnished by the Board in which

admittedly there are doctors belonging to the

Government hospitals as well as the doctors from some

specialty who are highly reputed. The said opinion of the

Board has to be approved by the Delhi Medical Council

before it is given effect to or handed over to the Court. I

feel, since the said opinion has to be approved by the

Council, it must be permitted to complete the said

processes and once the said opinion is approved by the

Council, it can be submitted to the learned Magistrate

where the petitioner, if aggrieved will have appropriate

remedies available to him.

39. The Delhi Medical Council is permitted to act in

accordance with their statute and get the report of the

medical Board approved and thereafter, place the same

before the learned Magistrate for such action in

accordance with law, as may be deemed fit.

40. Having regard to the aforesaid discussion and in view of

the totality of circumstances, I am of the view that the

present petition of the petitioner assailing the impugned

order dated 28.7.2011 is without any merit and

accordingly, the same is dismissed. The stay granted on

05.8.2011 is vacated.

41. It is further clarified that expression of opinion made

hereinbefore may not be treated as an expression on the

merits of the case by the learned Magistrate and without

being influenced by any observation, the Court must act

in accordance with law.

42. With the above observations, the petition is dismissed.

V.K. SHALI, J.

JULY 02, 2012 RN/'AA'