Dr. A.K.Sinha @ Dr. Ashok Kumar ... vs The State Of Jharkhand
2022 Latest Caselaw 4766 Jhar

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            IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No. 746 of 2022

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Dr. A.K.Sinha @ Dr. Ashok Kumar Sinha, aged about 72 years, son of late Shyam Deo Prasad, resident of Near Bijli Board, Lower Kusai Colony, Atmanand Road, Doranda, P.O. and P.S. Doranda, District Ranchi, Jharkhand. Retired Medical Officer, High Court Dispensary, High Court, Jharkhand, Ranchi ..... Petitioner

-- Versus --

1.The State of Jharkhand

2.Manohar Prasad @ Manohar Patel, S/o late Keshav Prasad, r/o Hesag, P.O. Hatia, P.S. Jagarnathpur, District Ranchi ...... Opposite Parties

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner :- Mr. Saurabh Shekhar, Advocate Mr. Anurag Kumar, Advocate Mr. Aman Dayal Singh, Advocate For the State :- Ms. Rishi Bharti, AC to AAG-III For the O.P.No.2 :- Mrs. Nirupama, Advocate

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5/29.11.2022 Heard Mr. Saurav Shekhar, the learned counsel appearing

for the petitioner, Ms. Rishi Bharti, the learned counsel for the respondent

State and Mrs. Nirupama, the learned counsel appearing on behalf of the

O.P.no.2.

This petition has been filed for quashing of the entire

criminal proceeding including the First Information Report in connection

with Kotwali P.S.Case No.687 of 2011, corresponding to G.R. No.3730 of

2011 including the order taking cognizance dated 05.01.2022, whereby

cognizance has been taken under sections 406, 420, 467, 468, 471 and

120B of the I.P.C. so far it relates to the petitioner who has been Medical

Officer of repute for long period of time, pending in the court of learned

Chief Judicial Magistrate, Ranchi.

The First Information Report was lodged alleging therein

that the informant Manohar Patel, who was working as driver of co-

accused Arbind Kumar Sinha for last three years. In course of

employment, the wife of Arbind Kumar Sinha namely Sudha Sinha told

the informant that her husband is working as HR, Manager in SAIL and

he is in a position to provide jobs to the candidates. Thereafter the

informant spoke with Arbind Kumar Sinha who assured the informant

that he can obtain a job through proper channel in SAIL. Further case of

the prosecution is that the informant consulted his family members and

became ready for payment of money. The co-accused Arbind Kumar

Sinha took him to CCL Office, Darbhanga House and told him that he had

talked with CMD who had also asked him to get money there. It has

further been alleged that as the driver the informant used to take money

from the informant at Darbhanga House in the year 2009 on the eve of

Durga Puja, the informant paid Rs.2,50,000/- for a job in SAIL, the

accused Arbind Kumar Sinha told him that rest of the money will be

taken after the job is given to him. It is further alleged that the accused

Arbind Kumar Sinha used to get the forms filled up, medical check-up

made and appointment letters given and another person was given a

receipt. It is further alleged that co-accused Arbind Kumar Sinha taken

money from Mohan Singh, Sunil Kumar, Dilip Kumar in the name of

providing jobs to them. Hence this F.I.R.

Mr. Saurabh Shekhar, the learned counsel appearing for the

petitioner submits that the petitioner was admitted in Magadh University,

from where he underwent the course in Medical Sciences, and finally

completed his course in the month of December, 1976. The certificate

was issued holding that the petitioner has completed final MBBS

examination, along with requisite training /internship under the signature

of the Registrar of the University and certificate was provided annexed as

Annexure-2 of this petition. He submits that the petitioner was granted

the certificate of registration from the Bihar Council of Medical

Registration being Certificate No.13798 dated 31.05.1978. He submits

that thereafter the petitioner entered into practice and has specialized in

seniorship in medicine and juniorship in pediatric and he was discharging

his duty with full responsibility. He submits that the petitioner was posted

at Wazirganj, Gaya on the post of Civil Assistant Surgeon in 1981 and

after several transfer he has finally posted in the Clinic of Jharkhand High

Court with effect from 04.05.2001 and had retired on 30.04.2010. He

further submits that the petitioner's character remarks has been excellent

during his period of service. He submits that the FIR was lodged in the

year 2009. He further submits that the petitioner granted permission to

practice for Central Government and for the State as Authorized Medical

Attendant up to 31.12.2017 as contained in Annexure-9. The petitioner

while working has issued certificate which was prepared in the format of

Medial Certificate specially for working in SAIL which is central

government public undertaking and for such certificate the case has been

lodged against the petitioner and there is no allegation of taking any

graft. He submits that he was discharging his duty in light of section 15

of the Indian Medical Council Act, 1956 which speaks of right of a person

possessing qualification in the schedule to be enrolled. He submits that in

the charge sheet name of the petitioner has come and the learned court

has taken cognizance. He submits that the petitioner was granted

anticipatory bail considering that the petitioner has not received any graft

from any person and he has only issued the certificate. He further

submits that the case of the petitioner is fully covered in light of the

judgment in the case of Jacob Mathew v. State of Punjab and Another,

(2005) 5 SCC 1. Paragraph no.50 of the said judgment is quoted

hereinbelow:

"50. 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 the police on an FIR being lodged and cognizance taken. The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so

as to determine whether the act of the accused medical professional amounts to a rash or negligent act within the domain of criminal law under Section 304-A 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 to his reputation cannot be compensated by any standards."

Further he relied on the direction no.3, at the conclusion of

the aforesaid judgment, which is quoted hereinbelow:

"(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence."

On these grounds he submits that to allow the present

proceeding to continue will amount to abuse of the process of law. He

further submits that the petitioner was granted clearance certificate by

the Lokayukta on 05.01.2012 contained in Annxure-8. On these grounds

he submits that the criminal proceeding can be quashed to far as this

petitioner is concerned.

Mrs. Nirupama, the learned counsel appearing for the

O.P.No.2 fairly submits that the complainant has not filed the case

against the petitioner and the complainant is not knowing the petitioner.

She submits that the police submitted charge sheet and thereafter

cognizance has been taken. According to her, complainant has got no

grievance so far as this petitioner is concerned.

Ms. Bharti, the learned counsel appearing for the

respondent State submits that in the charge sheet the name of this

petitioner has come and pursuant to that the learned court has taken

cognizance and there is no illegality in taking cognizance.

In view of the above facts and submissions of the learned

counsels appearing for the parties the Court has gone through the

materials on record and finds that admittedly the petitioner was a

practicing doctor and retired on 30.04.2010. The allegation is made in

the year 2009. The petitioner has already been authorized by the Central

Government to issue certificate so far as central government employees

fitness certificate is concerned. It is an admitted fact that there is no

allegation of taking graft from any of the person including the

complainant so far as this petitioner is concerned. The Lokayukta of State

of Jharkhand has also given certificate under the Jharkhand Lokayukta

Act as contained in Annexure-8 which also prescribes that the record of

the petitioner has remained untainted. Clearance certificate has been

issued by the Lokayukta which is being issued for the Government

officials and in that view of the matter, nothing is against the petitioner.

The petitioner has acted in light of section 15 of the Indian Medical

Council Act, 1956 and particularly, sub-section (2)(c)(d) of section 15 of

the said Act which speaks that shall be entitled to sign or authenticate a

medical or fitness certificate or any other certificate required by any law

to be signed or authenticated by a duly qualified medical practitioner.

Section 15 of the Indian Medical Council Act, 1956 is quoted below:

"15. Right of persons possessing qualifications in the Schedules to be enrolled.--[(1)] Subject to the other provisions contained in this Act, the medical qualifications included in the Schedules shall be sufficient qualification for enrolment on any State Medical Register.

[(2) Save as provided in Section 25, no person other than a medical practitioner enrolled on a State Medical Register,--

(a) shall hold office as physician or surgeon or any other office (by whatever designation called) in Government or in any institution maintained by a local or other authority;

(b) shall practise medicine in any State;

(c) shall be entitled to sign or authenticate a medical or fitness certificate or any other certificate required by any law to be signed or authenticated by a duly qualified medical practitioner;

(d) shall be entitled to give evidence at any inquest or in any court of law as an expert under Section 45 of the Indian Evidence Act, 1872 (1 of 1872) on any matter relating to medicine.

(3) Any person who acts in contravention of any provision of sub-section (2) shall be punished with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.]"

In a casual way, the private complaints have been filed

against the medical professional under the various sections of IPC which

was also considered by the Hon'ble Supreme Court in paragraph no.50 of

the case of 'Jacob Mathew'(supra). The negligence with regard to

operation was considered by the Hon'ble Supreme Court in the case of

'P.D. Khandekar v. Bar Council of Maharashtra', (1984) 2 SCC 556,

paragraph no.8 of the said judgment is quoted below:

"8. There is a world of difference between the giving of improper legal advice and the giving of wrong legal advice. Mere negligence unaccompanied by any moral delinquency on the part of a legal practitioner in the exercise of his profession does not amount to professional misconduct. In re a Vakil, [ILR (1925) 49 Mad 523 (FB). Reported at AIR 1926 Mad 568 as In re Munuswami Naidu] Coutts Trotter, C.J. followed the decision In re G. Mayor Cooke [(1889) 33 Sol Jour 397] and said that:

"Negligence by itself is not professional misconduct; into that offence there must enter the element of moral delinquency. Of that there is no suggestion here, and we are therefore able to say that there is no case to investigate, and that no reflexion adverse to his professional honour rests upon Mr M." The decision was followed by the Calcutta High Court In re An Advocate [AIR 1935 Cal 484 : ILR (1935) 62 Cal 158 : 36 Cri LJ 1130] and by the Allahabad High Court In the matter of An Advocate of Agra [ILR 1940 All 386. Reported at AIR 1940 All 289 : 41 Cri LJ 620 as In re Prem Narain] and by this Court In the matter of P. An Advocate [AIR 1963 SC 1313 : (1964) 1 SCR 697 : 1963 (2) Cri LJ 341]."

Admittedly the petitioner was a practicing doctor. He has

issued the certificate in terms of section 15 of the Indian Medical Council

Act, 1956 and there is no allegation of taking any graft from any of the

person including the complainant. The complainant has fairly stated that

he has not lodged the case against the petitioner.

In view of the above facts and the reasons and analysis as

discussed hereinabove, the entire criminal proceeding in connection with

Kotwali P.S.Case No.687 of 2011, corresponding to G.R. No.3730 of 2011

including the order taking cognizance dated 05.01.2022 so far as the

petitioner is concerned, pending in the court of learned Chief Judicial

Magistrate, Ranchi is quashed.

Cr.M.P. No.746 of 2022 is allowed and disposed of.

It is made clear that the proceeding is quashed against the

petitioner only and so far as others are concerned, the trial court will

proceed in accordance with law.

Pending petition, if any, also stands disposed of.

( Sanjay Kumar Dwivedi, J.)

SI/,