Jharkhand High Court

Dr. Om Prakash Anand @ Dr. O.P. ... vs The State Of Jharkhand on 12 December, 2022

                                       1

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   Cr.M.P. No. 3003 of 2021

       Dr. Om Prakash Anand @ Dr. O.P. Anand, aged about 44 years, son of Sri
       Yogendra Prasad, resident of 111 Save Life Hospita, Near Adityapur Railway
       Station, Adityapur-2, P.O. Adityapur, P.S. R.I.T., District-Seraikella-Kharsawan
       (Jharkhand)
                                               ...... Petitioner
                           Versus
  1. The State of Jharkhand
  2. Dr. Bariyal Mardi, Incharge, Civil Surgeon cum Chief Medical Officer,
      Seraikella-Kharswan, P.O. and P.S. Seraikella, District-Seraikella Kharsawan
                                                      ...... Opp. Parties
                          ---------

CORAM:        HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                          ---------
For the Petitioner        : Ms. Pinky Anand, Sr. Advocate
                            Mr. Rajesh Ranjan, Advocate
                            Mr. Nilesh Kumar, Advocate
                            Ms. Alka Kumari, Advocate
For the State              : Mr. Gautam Rakesh, A.P.P.
                          ...........

08/Dated: 12/12/2022

Heard Ms. Pinky Anand, learned senior counsel for the petitioner, Mr.

Gautam Rakesh learned counsel for the State.

2. The present petition has been filed for quashing of entire criminal

proceeding including order taking cognizance dated 04.10.2021 whereby

cognizance has been taken under sections 188, 341, 323, 353, 504, 506 of the

Indian Penal Code, Section 51 of Disaster Management Act, 2005 and Section 3 of

Epidemic Disease Act, 1897 in connection with RIT PS. Case No. 68 of 2021,

corresponding to G.R. Case No. 841 of 2021, pending in the Court of learned Chief

Judicial Magistrate at Seraikella.

3. The F.I.R. has been lodged by the O.P. No. 2 alleging therein that on

15.05.2021 he got information through phone that 111 Save Life Hospital is

receiving money for treatment more than the amount fixed by the government

and there was also allegation of negligence. On such telephonic information at

about 1.00 P.M. the informant as well as one Dr. Anirvan and others went to the

hospital. Documents were demanded from the petitioner but the petitioner refused

to co-operate the informant. He did not allow the informant to meet with the

patient and their relatives. When the informant tried to enter into the ward the

petitioner misbehaved with the team of doctors and compelled them to leave the

ward. It has further been alleged that without enquiry, the team returned back to

Head Quarter but later on this petitioner through video used objectionable

language against the enquiry team and insulted them. Accordingly, on such

information present first information report has been instituted.

4. Ms. Pinky Anand, learned senior counsel for the petitioner submits

that present case is malicious prosecution which has been instituted against the

petitioner without following the mandate and guidelines which suggests that

petitioner has unnecessarily been dragged in this case. She further submits that

petitioner was running hospital in the name of 111 Save Life Hospital at Adityapur,

Seraikella-Kharswan. She submits that this petitioner has raised objection with

respect to function of the Health department concerned and he raised objection

that practicing doctors in present situation of pandemic being harassed

unnecessarily and the said video was recorded by some news reporters which they

placed in social media. She submits that it is not the petitioner who has placed any

video or created any video for circulation however four F.I.Rs. have been lodged

against the petitioner who is practicing doctor in the State of Jharkhand. She

submits that R.I.T. P.S. Case No. 71 of 2021 was lodged against the petitioner

which was subject matter in Cr.M.P. No. 1914 of 2021 and by order dated

20.07.2022 the said F.I.R. and entire criminal proceeding was quashed by this

Court. She further submits that a Complaint Case No. 395 of 2021 was filed

against the petitioner which was subject matter in Cr.M.P. No. 2110 of 2021

which was allowed by order dated 09.06.2022 by this court and entire criminal

proceeding and complaint was quashed. She further submits that present case is

third one against the petitioner. She draws the attention of the Court to the

minutes of meeting dated 15.05.2021 and submits that this minutes of meeting

is with regard to inspection of the hospital in question which was inspected by the

doctors of the Health Department of the Government of Jharkhand in which they

have taken clear term that doctor has cooperated and documents were produced

before the committee. She further submits that inspite of that report one of the

member of the committee has lodged the F.I.R. which was registered by the police

under section 188 I.P.C. and several other sections. She further submits under

section 188 Cr.P.C. only complaint can be entertained and F.I.R. is not

maintainable. She further submits that in RI.T. P.S. Case No. 68 of 2021, warrant

of arrest was prayed by the I.O. against the petitioner which was declined by the

learned court vide order dated 21.05.2021. She submits that notice under section

41-A Cr.P.C. was issued to the petitioner on 16.05.2021 and the same was served

upon the employee of the hospital at 8.50 P.M specifying two days time for

appearance but before the same date of two days, police has filed application for

issuance of warrant of arrest against the petitioner. She submits that without

following the mandatory condition and guidelines the F.I.R. has been lodged

against the petitioner. She relied on judgment in the case of " Jacob Mathew V.

State of Punjab & Anr. reported in (2005) 6 SCC 1 and in the case of "Dr.

Suresh Gupta Vs. Government of NCT Delhi & Anr. reported in (2004) 2

SCC 422 (para 28) and submits that the case is not made out against the

petitioner and the criminal proceeding against the petitioner is violation of those

judgments. On these grounds, she submits that the entire criminal proceeding

including order taking cognizance, so far as petitioner is concerned, is fit to be

quashed.

5. On the other hand, Mr. Gautam Rakesh, learned counsel for the State

submits that the learned court has already taken cognizance. He submits that the

petitioner is having remedy to face trial. He further submits that the there is

disputed questions of facts which can be decided in trial. On these grounds he

submits that this Court may not entertain this petition under section 482 Cr.P.C.

6. In view of the above facts and considering the submission of the learned

counsel for the parties, the court has gone through the material on record and

finds that F.I.R. was lodged on 15.05.2021 by Dr. Bariyal Mardi. Looking into the

minutes of meeting, it transpires that the said inspection was made on 15.05.2021

and the complainant was one of the member of the Committee when the

inspection of the hospital in question was completed. In the said inspection,

committee has reported that hospital committee co-operated in the inspection and

all the documents have been produced however, in contradictory of this report,

complaint has been lodged alleging therein that document has not been provided.

Looking into the order of this Court in Cr.M.P. No. 1914 of 2021 as well as in

Cr.M.P. No. 2110 of 2021 also, it transpires that several cases have been lodged

against the petitioner who happens to be a doctor in the State of Jharkhand. It is

well settled that for maintainability under section 188 I.P.C. only complaint can be

filed whereas in the case in hand, F.I.R. has been lodged and the learned court has

taken cognizance. Reference may be made to the case of " C. Muniappan &

Others Vs. State of Tamil Nadu" reported in (2010) 9 SCC 567 wherein para

33, 34 and 35 the Hon'ble Supreme Court has held as under:-

"33. Thus, in view of the above, the law can be summarised to the effect that there must be a complaint by the public servant whose lawful order has not been complied with. The complaint must be in writing. The provisions of Section 195 CrPC are mandatory. Non-compliance with it would vitiate the prosecution and all other consequential orders. The court cannot assume the cognizance of the case without such complaint. In the absence of such a complaint, the trial and conviction will be void ab initio being without jurisdiction.

34. The learned counsel for the appellants have submitted that as no charge could have been framed under Section 188 IPC in the absence of a written complaint by the officer authorised for that purpose, the conviction under Section 188 IPC is not sustainable. More so, it falsifies the very genesis of the case of the prosecution as the prohibitory orders had not been violated, no subsequent incident could occur. Thus, the entire prosecution case falls.

35 Undoubtedly, the law does not permit taking cognizance of any offence under section 188 I.P.C. unless there is a complaint in writing by the competent public servant. In the instant case, no such complaint had ever been filed. In such an eventuality and taking into account the settled legal principles in this regard, we are of the view that it was not permissible for the trial court to frame a charge under Section 188 I.P.C. However, we do not agree with the further submission that absence of a complainant under Section 195 Cr.P.C. falsifies the genesis of the prosecution case and is fatal to the entire prosecution case"

7. Further it is well settled if the malicious prosecution is found and

proved before the Court and the court comes to the conclusion that the

prosecution was malicious even the F.I.R. can be quashed in the light of the

judgment of the Hon'ble Supreme Court as held in the case of State of

Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335. Paragraph no. 102 of the

said judgment is quoted hereinbelow:

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a 6 criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

8. Thus under the criteria as held in para 102 of 'Bhajan Lal' (supra) the

High Court can exercise its power under Section 482 Cr.P.C. for quashing the

proceeding at initial stage. Summoning the person is a serious thing which has

been held by the Hon'ble Supreme Court in the case of 'Pepsi Foods Ltd. V.

Special Judicial Magistrate' (1998) 5 SCC 749 wherein para 28 the Hon'ble

Supreme Court has held as under:

"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The 12 Cr.M.P. No. 1914 of 2021 order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the

accused."

9. The submission of the learned counsel for the State is not accepted in

view of the fact that under section 188 I.P.C. only complaint can be entertained

and in view of the discussion made here-in-above, if the malicious prosecution is

there why the petitioner will be asked to face trial and the same will be amounts to

abuse of process of law.

10. In view of the aforesaid facts, reasons and analysis, the entire criminal

proceeding including order taking cognizance dated 04.10.2021 in connection with

RIT PS. Case No. 68 of 2021, corresponding to G.R. Case No. 841 of 2021,

pending in the Court of learned Chief Judicial Magistrate at Seraikella, so far as

petitioner, is concerned, is hereby quashed.