Page No.# 1/5 vs The State Of Assam And Anr
2021 Latest Caselaw 598 Gua

                                                                     Page No.# 1/5

GAHC010042222018




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : Crl.Pet./165/2018

            ALTAF HUSSAIN AHMED AND ANR.
            S/O LT. DR ABUL HUSSAIN AHMED
            ADDRESS- BAPUJI NAGAR,
            P.S. GOALPARA,
            DIST. GOALPARA,ASSAM, PIN - 783121.

            2: JULFIKKAR RAHMAN BORAH
             S/O LT.JIAUR RAHMAN BORA
            ADDRESS- BAPUJI NAGAR
            P.S. GOALPARA
            DIST. GOALPARA ASSAM
            PIN - 783121

            VERSUS

            THE STATE OF ASSAM AND ANR.
            REP. BY THE HOME SECRETARY, GOVT. OF ASSAM, DISPUR, GUWAHATI
            DIST. KAMRUP (M), ASSAM PIN - 781006.

            2:NUR BAHAR
             S/O LT. MATIUR RAHMAN
            R/O NIJ KURSHAKATI
             PART-I P.S. LAKHIPUR
            DIST. GOALPARA ASSAM

Advocate for the Petitioner   : MR. K N CHOUDHURY, SENIOR ADVOCATE

Advocate for the Respondent : PP, ASSAM
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                                    BEFORE
                       HONOURABLE MR. JUSTICE MIR ALFAZ ALI

                                             ORDER

Date : 22-02-2021

Heard Mr. K.N. Choudhury, learned Sr. Counsel, assisted by Mr A.A. Dewan, learned counsel for the petitioner and Mr. J. Ahmed, learned counsel for the respondent No. 2 as well as Ms. S. Jahan, learned Addl. P.P. for the respondent No. 1.

This criminal petition is filed by the petitioners under Section 482 CrPC with a prayer to quash the order dated 21.11.2016 passed by the Additional Chief Judicial Magistrate, Goalpara framing charge against the petitioners under Section 420 IPC R/W Section 34 IPC in CR Case No. 1161/2013 as well as the order dated 29.08.2017 passed by the learned Sessions Judge, Goalpara in Criminal Revision No. 67/2016.

The respondent No. 2 lodged a complaint before the learned Chief Judicial Magistrate, Goalpara alleging therein, that his wife was admitted into the Nursing Home entitled Seven Sisters Hospital and Research Centre owned by the petitioner No. 1 on 11.08.2013 for delivery of child. The wife of the respondent No. 2 delivered a depressed baby without any operation. However, when the patient was discharged on the next day, a bill was given for an amount of Rs. 15,500/-, which included an amount of Rs. 11,900/- as operation charge. The allegation of the complainant was that the petitioners did not carry out any surgical operation and there was Spontaneous Vaginal Delivery (SVD) and operation charge was claimed fraudulently. Pursuant to the aforesaid bill, the respondent made the payment and later on, the respondent could realize that though no operation was done, Rs. 11,900/- were charged deceptively in the bill and thereby cheated the respondent.

On the basis of the said complaint, learned Magistrate having taken cognizance examined the complainant and four witnesses and thereafter issued summons to the petitioners. The petitioners approached this court challenging the order of taking cognizance and issuance of process, which stood dismissed by this court vide order dated 02.03.2015 in Criminal Petition No. 720/2014. Thereafter, the learned Additional Chief Judicial Magistrate framed charge against the petitioners under Section 420 IPC R/W Section 34 IPC by the order impugned. Challenging the impugned order of the learned Additional Chief Judicial Magistrate framing charge, the petitioners preferred a criminal revision before the learned Sessions Judge, Page No.# 3/5

Goalpara, which was registered as Criminal Revision No. 67/2016. Upon hearing the parties, the learned Additional Sessions Judge dismissed the criminal revision. The learned Sessions Judge held in the operating part of the judgment as under:

"...................... The fact is that the sister-in-law of the complainant was admitted in the hospital of the revisionists as she developed labour pain of her pregnancy, however, after the treatment, she had delivered a depressed baby who subsequently died, but in the bill, the revisionists charged some amount for operation although no caesarean operation was done to her. The revisionist's side, on the strength of the said bill, realized the amount including that charge of operation. Thus, the revisionists intentionally deceived the complainant on a belief that the revisionists had performed the operation which actually never been performed and thereby dishonestly induced the complainant to pay money for that purpose."

Failing in the revision petition preferred before the learned Sessions Judge, this petition has been filed for quashing the order of framing charge by invoking inherent power under Section 482 CrPC.

Mr. K.N. Choudhury, learned Sr. Counsel for the petitioner placing reliance on the decision of the Apex Court in Kusum Sharma & Anr. Vs. Batra Hospital and Medical Research Centre and Ors. reported in (2010) 3 CC 480 submits that the medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients and they should not be exposed to face criminal trial for medical negligence without adequate materials. The present case does not relate to any allegation of medical negligence, rather the allegation in the instant case is of cheating and therefore, the aforesaid judgment shall be of no help to the petitioner.

In the additional affidavit, the petitioners have annexed a bill dated 28.01.2014 issued to the respondent. In serial No. 3 of the said bill, Rs. 11,900/- has been shown to have been charged for operation. However, in the second column of the said bill, though, the sub-head was shown as operational charge, in the third column against the particulars, it has been written as SVD, which means Spontaneous Vaginal Delivery.

The above bill relied by the petitioners shows that no surgical operation was performed by the petitioners. However, Rs. 11,900/- was charged for operation, though, in fact there was Page No.# 4/5

Spontaneous Vaginal Delivery. The aforesaid bill also shows that various amounts on different heads including labour room charge, pathology, IPD services etc. were charged, besides Rs. 11,900/- for operation, which was admittedly not done. The witnesses examined by the learned Magistrate before issuing process, more particularly, CW-2 has stated categorically that the aforesaid amount of Rs. 11,900/- was realized from the respondents.

In order to constitute an offence of cheating, it is necessary to show that there was deception at the initiation of the process and delivery of property by such deception. In the instant case, the duplicity of the statement in serial No. 3 of the bill itself prima facie shows that there was deception, inasmuch as, Rs. 11900/- was demanded for operation charge, which was never done and the respondent was also made to pay the same. Thus, prima facie ingredient of the offence of cheating under Section 420 IPC was very much present, which was sufficient to frame charge.

In view of the above material, learned Magistrate framed charge. It is the settled position that in order to frame charge, it is not necessary for the court to record a finding that trial would culminate in conviction, rather a very strong suspicion on the basis of prima facie material is sufficient to frame charge. The materials on record, more particularly the bill as indicated above and the statement of the witnesses examined under Section 200/202 CrPC as indicated above are sufficient to form a prima facie opinion to frame charge.

Taking note of the above facts and circumstances, learned Sessions Judge dismissed the revision filed by the petitioner challenging the order of framing charge by the learned Additional Chief Judicial Magistrate and rightly so. Therefore, the present petition for all practical purposes, is a second revision, and it is not difficult to comprehend that only to obviate the hurdle of Sub-section (3) of Section 397, which bars a second revision by the same party, the inherent jurisdiction under Section 482 CrPC is resorted to. No doubt, the inherent power under Section 482 CrpC can be invoked in a second revision in a rarest of the rare case to prevent miscarriage of justice or to secure ends of justice. A second revision cannot be entertained under the garb of Section 482 CrPC in a routine manner unless there is exceptional circumstance. The present case, in the attending facts and circumstances, in my considered view does not fall within the category of rarest of the rare case of exceptional circumstances so as to enable this court to invoke the extra-ordinary power under Section 482 CrPC to entertain a second revision by the same party. When there was prima facie material for framing charge and the order passed by the learned Sessions Judge rejecting the first criminal Page No.# 5/5

revision did not suffer from any illegality or impropriety, in my considered view, there is no scope of invoking the inherent power under Section 482 CrPC to entertain a second revision. Accordingly, the criminal petition is found devoid of merit and stands dismissed.

JUDGE

Comparing Assistant