The Single Bench of the Delhi High Court in the case of Kamla vs NCT of Delhi & Anr. consisting of Justice Asha Menon while allowing a criminal miscellaneous petition observed that improper investigations cannot lead to interpretation of law in favour of the respondent, at the expense of the victim.
Facts
The petitioner’s husband took ill, and she (Kamla) accompanied him to the clinic of the respondent No.2 (Prem Shanker) where he gave him some injection. The petitioner’s husband, feeling restless and uncomfortable, collapsed in the gali outside the clinic and died there. An FIR was lodged at Police Station u/s 304A IPC.
Procedural History
After framing of charges, the respondent No.2 filed an application u/s 468 CrPC submitting that the case was time barred which was dismissed as being not maintainable. He then filed a revision petition before the learned Sessions Court. The learned ASJ allowed that revision petition and held that the cognizance could not have been taken under the Delhi Bharatiya Chikitsa Parishad Act, 1998 (“DBCP Act”), as there was no complaint from an officer empowered under the Rules framed under the DBCP Act, and since cognizance has been taken later than three years from the date of the incident i.e., with a delay of more than 11 years, and there being no specific order of condonation of delay, the respondent No.2 was discharged.
Contentions Made
Petitioner: An observation was made in the State Commission that the respondent No.2 was not qualified to practice medicine, whether Allopathic or Ayurvedic. When the learned MM had taken cognizance and proceeded to frame the charge, the clock could not be set back to the stage of cognizance to determine whether delay existed, and if so, whether it ought to be condoned. The initial reports filed by the I.O. was one for cancellation, which was submitted to the learned MM, who had directed further investigations and then the charge-sheet had been filed in 2013. Thus clearly, if there was any delay, it stood condoned by the various orders of the learned MM even if no application for condonation of delay had been filed along with the charge-sheet or the matter was not specifically dealt with by the learned MM. No objection had been taken by the respondent No.2 at the time he was summoned to face trial. Such belated objections ought not to have been entertained by the learned ASJ. Reliance was placed on Arun Vyas v. Anita Vyas and Bharat Damodar Kale and Anr. v. State of A.P.
Respondent: Without an application accompanying the delayed chargesheet and an explicit order, the learned MM could not have taken cognizance and the revision petition had been rightly allowed by the learned ASJ.
Observations of the Court
The Bench observed that the learned ASJ overlooked that after the FIR had been registered on 1st September 1999, the first I.O. had submitted a Cancellation Report on 11th October 2000 u/s 173 CrPC, about which the petitioner came to know only when such a stand was taken by the respondent No.2 in his reply to the appeal filed by the petitioner before the National Consumer Disputes Redressal Commission (NCDRC). It is then that the petitioner preferred a complaint u/s 200 CrPC against the Cancellation Report, which amounts to a protest petition to the Cancellation Report no doubt, taken as a complaint case by the Magistrate. Thus, the protest petition must be seen to be in continuity of the FIR, which was lodged timely. Further, the respondent No.2 is not eligible to prescribe any type of Ayurvedic Medicines in the Indian Systems of Medicine. His prosecution had been recommended u/s 29/30 of the DBCP Act.
It was also observed that delay that occurred in the court cannot inflict a suffering on an innocent party. Various observations had also been made by the learned MM regarding the carelessness and negligent conduct of the first I.O while investigating the case in its 2013 order.
Judgment
The impugned order was set aside. The trial was to proceed from the stage it was, when the impugned order was passed, and shall proceed to its logical end. The respondent No.2 was directed to appear before the learned Trial Court on 20th May 2022, when the learned MM was to fix further dates for the trial. It might also require the respondent No.2 to furnish bail bonds on terms as considered appropriate.
Case Name: Kamla vs NCT of Delhi & Anr.
Citation: CRL.M.C.1249/2018
Bench: Justice Asha Menon
Decided on: 06th May 2022
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