^) ^'^. ^^ ^ ^ ^ v^\^ c 1^^' IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR W.P.(Criminal) N0. T^^ /2009 8i«H|laBwiCh PETITIONER RESPONDENTS Dr. Rajendra Narayan Paridha, S/o. Haribandhu Paridha, Aged about 44 years., R/o. Paridha Nursing Home, Behind Collector Bungalow, Ambikapur, District Surguja (CG) VERSUS 1] State of Chhattisgarh, through: Secretary^ Department of Home, D.K.S. Bhawan Mantralaya, Raipur, District Raipur (CG) 2] Director.., General of Police, State of Chhattisgarh, Police Headquarter, Raipur (CG) J 3] Superintendent of Police, Ambikapur, District Surguja (CG) 4] Police Station Ambikapur, through: Incharge::of Police Station Ambikapur, District Surguja (CG) 5] Collector, Ambikapur, District Surguja 6] Sub-Divisional Magistrate, Ambikapur., District Surguja (CG) 7] Rakesh Bansal, S/o. Late Shriram Agrawal, Aged about 32 years^ R/o. Near Jaistambh Chowk, Ambikapur, District Surguja (CG) WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA 11 PARTICULARS OF THE PETITIONER (S): HIGH COURT OF CHHATTISGARH. BILASPUR SINGLE BENCH: HON'BLE SHRI MANINDRA MOHANSHRIVASTAVA, J. Writ Petition (Cr.t No.702 of 2009 PETITIONER Dr. Rajendra Narayan Paridha Versus RESPONDENT8 State of Chhattisgarh and Others ORDER POSTON s"n'JULY, 2010 Sd/- Manindra Mohan Shrivastava Jude ^ 'c' HIGH COURT OF CHHATTISGARH : BILASPUR SINGLE BENCH: HON'BLE SHRI MANINDRA MOHAN SHRIVASTAVA. J. PETITIONER RESPONDENTS Writ Petition(Criminall No.702/2009 Dr. Rajendra Narayan Paridha Versus State of Chhattisgarh and others WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA Appearance: - Shri Manoj Paranjpe, counsel for the petitioner. Shri Satish Gupta, Government Advocate for the State/respondents No.1 to 6. Shri Goutam Bhaduri, counsel for respondent No.7. (Passed on ORDER -sJu^,2010) By this petition filed under Article 226/227 of the Constitution of India, the petitioner has prayed for quashing F.1.R. No.156/2007 registered at Police Station Ambikapur, District Surguja lodged by respondent No.7-Rakesh Bansal. The petitioner has further prayed for quashing of order dated 24-09-2008 (Annexure P-1) passed by the learned Sessions Judge, Ambikapurin Sessions Trial No.478/2007 (State of Chhattisgarh vs. Dr. R. N. Paridha) rejecting petitioner's application filed under Section 173(8) read with Section 91 of Cr.P.C. and has also prayed that the aforesaid application be allowed and direction may be issued to the learned Sessions Judge to exercise his power and direct further investigation by any independent agency. (2) Relevant facts giving rise to the instant petition and necessary for decision of the case are that Smt. Sonu Bansal W/o respondent No-7-Rakesh Bansal, having pregnancy, was examined by the petitioner-Dr. R. N. Paridha on .^-i^ /€^1':% i^] '^^-y various dates. Allegedly, though severe complications had taken place resulting in death of one foetus and other foetus being seriously infected, the petitioner acted with gross negligence, it is alleged that time and again when complications increased, Smt. Sonu Bansal W/o respondent No.7-Rakesh Bansal was taken to the petitioner- Dr. R. N. Paridha, but the petitioner did not take care and kept on reporting that development of the foetusinside the womb was proper. It is further alleged that on 14-09-2006, the pregnancy was examined by the petitioner and it was reported to be normal. On 23-09-2006, though complaintwas made regarding certain complications, thepetitioner-Dr. R. N. Paridha again reported that everything was normal. Further allegation is that on 27-09-2006, Smt. Sonu Bansal complained regarding negligible movement of the foetus inside the womb and that skin eruptions had taken place. Further on 28-09-2006, she was taken to the Nursing Home of the petitioner but there was no proper attendance and after delay of about four hours, she was superficially examined by the petitioner-Dr. R. N. Paridha followed by sonography test whereupon it was reported that everything was normal. Finally, the pregnant lady was taken to another hospital where the Doctor upon examination declared that one of the foetus in the womb is dead since three days and the other is seriously infected. (3) Complaint was made by the aggrieved lady and the respondent No.7, her husband, whereupon an enquiry was made by a team constituted by the Collector consisting of Sub Divisional Officer, Civil Surgeon, Gynecologist and Tahsildar. The Sub Divisional Officer, Ambikapur submitted in his report that the unfortunate death of foetus in the womb and the other foetus getting seriously infected was caused due to gross negligence on the part of the petitioner. First Information Report was lodged by Rakesh Bansal, husband of Smt. Sonu Bansal on 29-03-2007. After investigation, a charge sheet was filed by the ^:.'\ i'-:?'?' i: '^^ ^..' / ^^e^-- ^'"ZT^.S''-' ^ Police Station Surguja at Ambikapur in the Court of Chief Judicial Magistrate, Ambikapur alleging commission of offence under Section 304, 316, 338 and 201 ofthe Indian Penal Code. On 26-11-2007, the petitioner filed an application under Section 173(8) of the Cr.P.C. to call for a report on further investigation from the Police. On 04-12-2007, the petitioner moved an application under Section 91 of Cr.P.C. before the Chief Judiciat Magistrate, Ambikapur praying for issuance of a direction to the Police to produce and furnish copy of medical report submitted by two medical experts. Thereafter, the learned Chief Judicial Magistrate, Ambikapur vide its order dated 22-12-2007 rejected the said application. After criminal case was committed for trial before the Court of competent jurisdiction namely Sessions Judge, Ambikapur it was registered as Sessions Trial No.478/2007. The petitioner again submitted an application under Section 173(8) read with Section 91 ofthe Cr.P.C. on 05-01-2008 before the trial Court to call for the medical reports and a report on further investigation. Vide impugned order, the learned trial Court vide its order dated 24-09-2008 rejected the application giving rise to this petition. (4) By this petition, the petitioner has not only assailed legality and validity of order dated 24-09-2008 passed by the learned Sessions Judge rejecting his application under Section 173(8) read with Section 91 of the Cr.P.C. but has also prayed forquashing F.I.R.No.156/2007. (5) Submission of learned counsel for the petitioner is that the F.1. R. wherein commission of offence under Sections 304, 316, 338 and 201 of the Indian Penal Code has been alleged as also criminal proceedings in Sessions Trial No.478/2007 is liable to be quashed, as no case against the petitioner is made out, even though the entire prosecution case is taken on its face value. Further submission of learned counsel for the petitioner is that the FIR and entire 4 criminal proceedings are liable to be quashed as the same have been instituted and are being continued in complete violation of guidelines issued by the Hon'ble Supreme Court in the case of Jacob Mathewv. State of Punjab and another, 2005 AIR SCW 3685. (6) Elaborating his submission, learnedcounsel for the petitioner argued that in the present case, the petitioner performed his duties as a Medical Practitioner and the entire basis of the criminal case is false report submitted by the Sub Divisional Officer which is contrary to the report of two expert members of the enquiry committee namely Dr. P. K. Shrivastava, Civil Surgeon, Ambikapur and Dr. Sushma Sinha, Gynecologist, who opined that the petitioner while treating Smt. Sonu Bansal has not committed any recklessness, gross negligence or Unintelligent act or Carelessness and it was only a case of Misdiagnosis. It is argued that as the two expert members of the committee headed by Sub Divisional Officer clearly opined in favour of the petitioner, no criminal case couldbe registered nor petitioner could be prosecuted relying upon the verdict of the Supreme Court in the case of Jacob Mathew (supra). Learned counsel for the petitioner contended that the report of the enquiry committee was false and could not be made basis to register criminal case against him. (7) Further submission of learned counsel for the petitioner is that the petitioner is a Medical Practitioner and he has treated Smt. Sonu BansalW/o Rakesh Bansal to the best of his understanding and it was not a case of such a nature as to warrant registration of criminal case alleging criminal negligence. He further submits that even if the material placed before the Court is considered as it is, ingredients of offence alleged are not made out. According to learned counsel for the petitioner, the Police did not conduct fair investigation. The petitioner requested Thana Incharge, Superintendent of \\ft\ Police as also the Director General of Police to hold proper investigation in accordance with the directions of the Hon'ble Supreme Court in the case of Jacob Mathew (supra) and take into consideration the medical opinion of Dr. P. K. Shrivastava, Civil Surgeon and Dr. Sushma Sinha, Gynecologist before initiating any criminal proceedings, but no heed was paid to the same, nor those reports were brought on record along with the charge sheet and ignoring those reports, the Police filed charge sheet. (8) As far as rejection of petitioner's application vide impugned order dated 24-09-2008 is concerned, it is contended that the learned Sessions Judge/trial Court has rejected petitioner's application mechanically without considering the same on merits only on the ground that similar application filed by the petitioner earlier before the Committal Court/Chief Judicial Magistrate was rejected on 22-12-2007 and the petitioner suppressed this fact while filing the similar application before the trial Court and further that t.he petitioner did not take any remedy against the order dated 22-12-2007, which attained finality. Learned counsel for the petitioner argued that order dated 22-12-2007 was not on merits as the learned Magistrate only observed that it would not be proper to keep the proceedings pending till obtaining medical report and the petitioner may take such a ground at the time of framing of charges or at the stage of defence during trial. Learned counsel for the petitioner further argued that in view of the provisions contained in Section 173 (8) Cr.P.C., it isalways open for the investigating officer to produce additional documents and he may forward to the Magistrate, further report regarding such evidence in the form prescribed and there is no embargo. While rejecting petitioner's application under Section 173(8) read with Section 91 ofthe Cr.P.C., the learned Sessions Judge ignored the aforesaid provision of law and committed serious illegality in not directing further investigation. Learned counsel for the petitioner has placed reliance on ^ \\)t9 the judgment of the Supreme Court in the case of Peps/ Foods Limited & Another vs. Special Judicial Magistrate & Others, AIR 1998 SC 128, Central Bureau of Investigation v. R. S. Pai and another, AIR 2002 SC 1644, Dinesh Dalmia v. C.B.I., 2007 AIR SCW 6112 and Nirmal Singh Kahlon v. State ofPunjab & Others, 2009 AIR SCW 60. (9) Per contra, submission of learned counsel for the respondents/State is that the instant petition itself is not maintainable as the petitioner is having other alternative efficacious remedy available under the law. It is further argued by learned counsel for the respondents that the FIR as also the material placed in the charge sheet clearly makes out a case of trial against the petitioner in as much as from the statement of prosecution witnesses recorded under Section 161 ofthe Cr.P.C., particularly that of Doctors, it cannot be said that initiation of criminal proceedings was based under some law or abuse the process of law. It is also submitted that in view of the statement of Doctors, who subsequently treated Smt. Sonu Bansal W/o the complainant-Rakesh Bansal, case for prosecution against the petitioner, at this stage, is made out. It is further submitted that it is not a case where the petitioner is being prosecuted without medical opinion as contained in the guidelines ofthe Supreme Court in the case of Jacob Mathew (supra). In his submission, there is no violation of the guidelines of the Supreme Court while subjecting the petitioner to prosecution for commission of alleged offences. (10) Learned counsel for respondent No.7 submitted thatfrom a bare perusal of the case of the prosecution, the statement of prosecution witnesses and the enquiry report, it would be revealed that the petitioner is guilty of gross criminal negligence in treating Smt. Sonu Bansal W/o the respondent No.7-Rakesh Bansal. It is argued that the manner in which, the petitioner treated Smt. Sonu ..;-^urr?. ^ •^,^"^',' f^.^ '^^: <J yy ^. >. <' Bansal W/o the respondent No.7-Rakesh Bansal clearly shows that it was not a case of mere Misdiagnosis but case of recklessness and carelessness, as in spite of the pregnant lady being taken to the petitioner, her ailments and development of foetus was not examined and rather false report of diagnosis was given that everything was alright whereas on the date of such repori:, one of such foetus in the womb had already died and the other suffered serious infection. The moment pregnant lady was taken to other doctors, it was revealed that one of the twins' had already died three days before and the other was suffering from serious infection, who also died. Learned counsel for respondent No.7 submits that this was a case of gross negligence and there is overwhelming material on record contained in the charge sheet which fully justifies the prosecution of the petitioner. It is further argued that the learned Court below has not committed any illegality in rejecting petitioner's application filed under Section 173(8) read with Section 91 ofthe Cr.P.C. in as much as the petitioner could not seek any direction from this Court that the Police must investigate the case in a particular manner. If the petitioner seeks to place reliance upon the report of two doctors in support of his case, it is for the petitioner to prove the same in his defence at appropriate stage of the trial, but on the grounds raised, it cannot be said that there was any illegality in rejecting petitioner's application vide impugned order dated 29-04-2008. In support of his contention, learned counsel for respondent No.7 has placed reliance upon on the ratio of the judgment of the Supreme Court in the cases of Martin F. D'Souza v. Mohd. Ishfaq , 2009 AIR SCW 1807, Jacob Mathew v. State of Punjab and another, 2005 AIR SCW 3685, N. P. Jharia v. State of M.P., 2007 AIRSCW 4834. (11) Learned counsel for the respondents have raised a preliminary objection with regard to maintainability of this petition under Article 226/227 of the ^— :^T::1^. -, ^•^^•'\ r ^-: -4 ^. ^. ":'\.^ ^ Constitution of India on two fold submissions. As far as prayer for quashing FIR, charge sheet and criminal proceedings is concerned, learned counsel for the respondents submitted that the charges have not yet been framed and the petitioner would get an opportunity to submit before the learned trial Court at the stage of framing of charge that no case worth framing of charge is made out, and therefore, on this count alone, this petition is not liable to be entertained and deserves to be dismissed being an attempt to pre-empt the criminal proceedings. The second limb of submission is that in so far as order dated 24-09-2008 rejecting petitioner's application under Section 173(8) ofthe Cr.P.C. is concerned, there exists a remedy of revision under Section 397 thereof before this Court, which is quite efficacious and effective, and therefore, this petition, in so far as challenge to order dated 24-09-2008 is concerned, is liable to be dismissed on the ground of availability of an alternative remedy. Learned counsel for the respondents further stresses upon the objection by submitting that there are no extra-ordinary grounds to warrant interference without petitioner availing alternative remedy of challenging the order by way of revision. (12) In so far as objection with regard to maintainability of the petition for quashing entire criminal proceedings including FIR and charge sheet is concerned, it is relevant to refer to the observations made by the Supreme Court in the case of Pepsi' Foods Limited & Another (supra), dealing with the serious objection with regard to maintainability of the proceedings. Itwas held:- "22. It is settled that the High Court can exercise its power of judicial review in criminal matters. In State of Haryana and Others vs. Bhajan Lal and Others, 1992 Supplementary (1) Supreme Court Cases 335, this Court examined the extraordinary power under Article 226 of the Constitution and also 4''^^- y f k\, b»•r^ ^' the inherent powers under Section 482 of the Code which it said could be exercised by the High Couri: either to prevent abuse of the process of any court or otherwise to secure the ends of justice. While laying down certain guidelines where the court will exercise jurisdiction under these provisions, it was also stated that these guidelines could not be inflexible or laying rigid formulae to be followed by the courts. Exercise of such power would depend upon the facts and circumstances ofeach case but with the sole purpose to prevent abuse of the process of any court or otherwise to secure the ends of justice. One of such guidelines is 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. Under Article 227 the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior courts and to see that the stream of administration of justice remains clean and pure. The power conferred on the High Court under Articles 226 and 227 of the Constitution and under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised while invoking these powers. When the exercise of powers could be under Article 227 or Section 482 of the Code it may not always be necessary to invoke the provisions of Article 226." "29. No doubt the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial." 10 5_c,\ (13) In view of the above, l am not inclined to uphold the objection of learned counsel for the respondents with regard to maintainability of this petition in so far as prayer for quashing FIR, Charge sheet and criminal proceedings are concerned only on the ground that the petitioner at the stage of framing of charge will have an opportunity to submit that the charges are not liable to be framed on the basis of the material available before the Court. (14) However, the other objection raised by the learned counsel for the respondents that there exists alternative remedy of filing revision under Section 397 of the Cr.P.C. against the order dated 24-09-2008 has substance. It needs to be noted that present is a petition filed under Article 226/227 of the Constitution of India.The petitioner has not only prayed for quashing of order dated 24-09-2008 rejecting his application under Section 173(8) ofthe Cr.P.C. but also prayed for quashing of FIR and the entire criminal proceedings. In so far as grievance assigning on account of rejection of petitioner's application under Section 173(8) of the Cr.P.C. and for direction for further investigation by any independent agency is concerned, the petitioner seeks to invoke supervisory jurisdiction of this Court under Article 227 of the Constitution of India. Though, it is well settled that existence of alternative remedy does not operate as a bar for entertaining petition under Article 226/227 of the Constitution of Indja, yet the same is relevant while exercising discretionary and supervisory jurisdiction. Ordinarity, this Court is not inclined to exercise its jurisdiction under Article 226/227 of the Constitution of India where an efficacious alternative remedy exists. But this is not a rule of thumb. In appropriate cases, notwithstanding availability of alternative remedy, interference may be called for. There are well known, though not exhaustive, circumstances when this Couri: would not insist upon availing alternative remedy before entertaining apetition under Article 226/227 of the Constitution 11 of India. In cases of lack ofjurisdiction, violation of principles of natural justice, malafide or where validity of statute is under challenge, ordinarily alternative remedy is not insisted upon. However, these are not exhaustive circumstances. In appropriate cases, discretion may be exercised and a petition may be entertained notwithstanding existence of alternative remedy. However, it is for the petitioner to demonstrate and make out a case warranting departure from normal rule of exhaustion of statutory alternative remedy before taking recourse to proceedings under Article 226/227 of the Constitution of India. In so far as challenge to order dated 24-09-2008 passed by the learned trial Court is concerned, the petitioner has not been able to come out with any extra-ordinary circumstances so as to invoke extra-ordinary jurisdiction either under Article 226 or 227 ofthe Constitution of India. The grievance of the petitioner has been that the petitioner prayed for issuance of direction to the investigating agency to make further enquiry after submission ofthe charge sheet. The grievance ofthe petitioner has been that the Court below has rejected the application under Section 173(8) ofthe Cr.P.C. without going into the merits only on the basis that earlier such application was moved before the Magistrate, who rejected the same. In the opinion of this Court, it does not constitute any special case so as to depart from the normal rule of exhaustion of alternative remedy. These grievances could well be agitated by the petitioner by filing revision as provided under Section 397 of the Cr.P.C. No extra-ordinary reasons exist so as to warrant exercise ofjurisdiction underArticle 227 ofthe Constitution of India. It is not the case of learned counsel for the petitioner that the remedy of revision is not available. Accordingly, the second objection raised by learned counsel for the respondents is sustained. This Court is not inclined to go into the aspect of correctness or otherwise of order dated 24-09-2008 passed by the learned Court below wherein petitioner's application under Section 173(8) ofthe Cr.P.C. 12 \J^J^ has been rejected. However, it would be open for the petitioner to take recourse to the remedy of filing revision under Section 397 of the Cr.P.C. and take all those grounds which have been taken before this Court to assail the legality and validity of order dated 24-09-2008 (Annexure P-1). (15) Prayer for quashing of FIR No. 156 of 2007 registered at Police Station Ambikapur is based on two-fold submissions. Firstly that, the petitioner, who is a Medical Practitioner, has been subjected to prosecution in complete violation of the mandatory guidelines issued by the Supreme Court in the case Jacob Mathew (supra). The second limb of submission is that the entire proceedings are otherwise abuse of the process of law. There is no medical evidence on record and there is no report of medical experts to show that the petitioner was guilty of criminal negligence and even ifthe case ofthe prosecution is accepted as it is, on it's face value, no case is madeout for subjecting the petitioner to criminal trial on the allegations contained in the FIR. (16) In order to appreciate the first submission of learned counsel for the petitioner, it would be extremely relevant to reproduce the conclusion drawn by the Supreme Court in the case of Jacob Mathew (supra), which is as under:- 49. We sum up our conclusions as under: (1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law ofTorts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the actor omission amounting