Jharkhand High Court

Dr. Shararad Jain vs State Of Jharkhand on 22 July, 2022

                                                    1                   Cr.M.P. No. 3088 of 2017


                   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                             Cr.M.P. No. 3088 of 2017
             1.   Dr. Shararad Jain, S/o Late Suresh Jain
             2.   Dr. Soumya Jain, W/o Dr. Sharad Jain
                  Both R/o Om Health Care, Ramgarh Cantt., P.O. & P.S. Ramgarh,
                  District- Ramgarh                           ... Petitioners
                                           -Versus-
             1.   State of Jharkhand
             2.   Sanjeev Kumar Sinha, S/o Jivan Kishore Prasad, R/o Talkhara, P.O. &
                  P.S. Dumri, District- Giridih                 ... Opposite Parties
                                            -----

             CORAM:      HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                                            -----
             For the Petitioners            : Mr. Kalyan Roy, Advocate

For the Opposite Party-State : Mr. Ravi Prakash, Spl.P.P. For Opposite Party No.2 : Mr. Suraj Singh, Advocate

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07/22.07.2022. Heard Mr. Kalyan Roy, learned counsel for the petitioner, Mr. Ravi

Prakash, learned counsel for the State and Mr. Suraj Singh, learned counsel

for opposite party no.2.

2. This petition has been filed for quashing the order dated 21.08.2017

as well as entire criminal proceedings in connection with Complaint Case

No.407/16, pending in the court of the learned Judicial Magistrate, 1 st Class,

Ramgarh.

3. The complaint case was filed by the husband of the deceased alleging

therein his wife Late Shikha Sinha was under treatment of co-accused since

last six months prior to occurrence dated 11.08.2016 and 12.08.2016. It

was further alleged that during the treatment of said Shikha Sinha of her

pregnancy all the accused persons named in the complaint petition in

conspire with each other and with intend to remove the kidney of said

Shikha Sinha for its unauthorized transportation and transplantation got her

admitted in the said nursing home on 11.08.2016 and kept her in an

isolated room and on very next day i.e. on 12.08.2016 some unknown

persons came at the accused persons and they were talking with them for

procurement of kidney and thereafter the said Shikha Sinha was brought to

operation theatre and after half an hour she was taken away to some

unknown place through an ambulance and after that ambulance returned

back to nursing home and then two unknown persons had shifted to said

ambulance and thereafter the complainant was also shifted in the said

ambulance and went towards the deep forest area of Pirtand Jungle where

some unknown persons were present arms with AK-47 rifles and then the

complainant was forced to get the funeral ceremony of his wife done and

they also threatened him for dire consequences if he would lodge any case

against the accused persons. It was also alleged that the signature of the

father-in-law of the complainant was also obtained on a typed paper by the

said miscreants on the point of lethal arms. It was further alleged that after

performing the cremation of the deceased Shikha Sinha, the complainant

approached to the local police station for lodging an FIR, but FIR was

lodged by delay by the police then the instant case has been filed after

belated stage.

4. Mr. Kalyan Roy, learned counsel for the petitioners submits that for

the same cause of action, earlier FIR was lodged by the father of the

deceased and in the said FIR, the police has investigated the matter and

submitted final form stating that there is lack of evidence and the informant

was called upon, but he has not responded and thereafter the learned court

has accepted the final form. He further submits that on the same facts, the

present complaint case has been filed by the husband of the deceased

alleging therein that there is medical negligence of the distinguished doctors

as well as nursing home, namely, Om Health Care, Ramgarh. He also

submits that this is a case of malicious prosecution and against the mandate

of the judgment passed by the Hon'ble Supreme Court in the case of Jacob

Mathew v. State of Punjab, reported in (2005) 6 SCC 1.

5. Paragraphs 14 and 17 of the said judgment are quoted herein below:

"14. In order to hold the existence of criminal rashness or criminal negligence it shall have to be found out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The element of criminality is introduced by the accused having run the risk of doing such an act with recklessness and indifference to the consequences. Lord Atkin in his speech in Andrews v. Director of Public Prosecutions stated: (All ER p. 556 C) "Simple lack of care such as will constitute civil liability is not enough. For purposes of the criminal law there are degrees of negligence, and a very high degree of negligence is required to be proved before the felony is established." Thus, a clear distinction exists between "simple lack of care" incurring civil liability and "very high degree of negligence" which is required in criminal cases. In Riddell v. Reid (AC at p. 31) Lord Porter said in his speech --

"A higher degree of negligence has always been demanded in order to establish a criminal offence than is sufficient to create civil liability." (Charlesworth & Percy, ibid., para 1.13)

17. In our opinion, the factor of grossness or degree does assume significance while drawing distinction in negligence actionable in tort and negligence punishable as a crime. To be latter, the negligence has to be gross or of a very high degree."

6. Mr. Kalyan Roy, learned counsel for the petitioners further submits

that the Deputy Commissioner has constituted Three Men Enquiry

Committee and that Committee has submitted the report whereby the

petitioners have been exonerated. On this ground, he submits that entire

prosecution case is malicious and this Court sitting under Section 482 Cr.P.C.

may quash entire criminal proceedings including the order taking

cognizance.

7. Per contra, Mr. Suraj Singh, learned counsel for opposite party no.2

submits that the complainant was examined on solemn affirmation and the

complainant witnesses were also examined and the learned court having

found prima facie case, has taken cognizance against the petitioners and

there is no illegality in the order taking cognizance.

8. Mr. Ravi Prakash, learned counsel for the State submits that there is

no illegality in the cognizance order.

9. In view of the above submissions of the learned counsel for the

parties, this Court has gone through the materials on the record and finds

that earlier an FIR was lodged on the same ground of medical negligence

due to which the deceased was died. The police has investigated that

matter and submitted final form stating that there is lack of evidence. The

informant was called upon by the learned court, but he has chosen not to

appear and ultimately the learned court has accepted the final form. The

Three Men Enquiry Committee's report is on the record whereby the

petitioners have been exonerated. Nothing adverse has been held against

the petitioners, who are practicing Doctors in Ramgarh town. Looking to the

complaint case, it appears that for the said alleged negligence, this

complaint case has been filed. In a criminal case, summoning of an accused

is a serious thing, as has been held by the Hon'ble Supreme Court in the

case of Pepsi Foods Limited v. Special Judicial Magistrate , reported in

(1998) 5 SCC 749, wherein, it has been held that it should not be taken in

a routine manner. Paragraph 28 of the said judgment is quoted herein

below:

"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 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 scrutinise 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."

10. If the High Court sitting under Section 482 Cr.P.C. comes to the

conclusion that prosecution is malicious, the Court is competent to quash

the entire criminal proceedings even at the initial stage, as has been held by

the Hon'ble Supreme Court in the case of State of Haryana v. Bhajan

Lal, reported in 1992 Supp (1) SCC 335. In the case of Martin F.

D'Souza v. Mohd. Ishfaq in Civil Appeal No.3541 of 2002, the Hon'ble

Supreme Court considered with the case under Consumer Protection Act

and held that by routine way notice should not be issued against the Doctor

unless expert opinion is before the court.

11. In view of the above facts, circumstances, reasons and analysis, this

Court comes to the conclusion that it is a fit case to exercise power under

Section 482 Cr.P.C. Accordingly, the order dated 21.08.2017 as well as entire

criminal proceedings in connection with Complaint Case No.407/16, pending

in the court of the learned Judicial Magistrate, 1 st Class, Ramgarh is, hereby,

quashed.