IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.2544 of 2008 Sri Dilip Sen, Son of Late Dr. S.N.Sen, the then Financial Secretary, Indian Medical Association, Bihar State Branch, I.M.A. Building, Dr.A.K.N.Sinha Path, South East of Gandhi Maidan, Patna ------------------------- Petitioner Versus 1. THE STATE OF BIHAR 2. Bihar State AIDS Control Society through its Joint Director, Institute of Health & Family Welfare Building, Sheikhpura, Patna-14 -------------------- Opp.Parties. ----------- For the petitioner : Mrs. Anjana Prakash, Sr. Advocate, and Mr. Rakesh Kumar Sinha,Advocate For the State : Dr. Mayanand Jha, A.P.P. ------------- O R D E R The doctor-petitioner who at the relevant time was the Finance Secretary of the Bihar State Branch of the Indian Medical Association and who with others has been impleaded as accused in Complaint Case no.2216( M) of 2005, is aggrieved by and has prayed for the quashing of the entire criminal proceeding emanating therefrom including the order dated 11.8.2005 passed therein by the learned Sub Divisional Judicial Magistrate,Patna , whereby he has taken cognizance for offences under Sections 384,499,500 and 120B I.P.C. against all the accused including the petitioner. It may be stated at the very threshold that although the complainant, impleaded herein as Opp.Party no.2, was duly served with notice, he has, for reasons best known to him, chosen not to appear and contest the case. It appears that in carrying out the aims , objectives and directions of the National AIDS Control Organisation( hereinafter - 2 - referred to as “NACO”) the Bihar State AIDS Control Society (hereinafter referred to as “BSACS”) was bound to organize training workshops , raise funds and resources by way of grants for fulfillment of the aims and objectives of AIDS Control in any District Hospital in the State of Bihar. Having formed the opinion that the Patna Medical College & Hospital (hereinafter referred to as “the P.M.C.H.) was logistically suited for such purpose and to set up one of the two Anti Retroviral Treatment Centers meant for Bihar, it was decided to install the CD4 Counter equipment therein for which funds and assistance was to be given by BSACS. It further appears that as per guidelines of NACO, the ARV Treatment Programme is to be led by the Head of the Department of Medicine of each institution and faculty was also to be drawn from the Paediatric Department and linkages with VCCTC, Department of Microbiology and other related Departments were to be established. The matter was discussed and accepted by the then Superintendent , P.M.C.H. who wrote a letter dated 22.7.2005 to the Special Secretary-cum- Project Director, BSACS accepting the proposal to install the ARV Center in the Department of Medicine. It also appears that in this connection when Dr. Gopal Prasad, Assistant Director (STD) went to inform the Superintendent , P.M.C.H. on 25.6.2005 of the arrival of the engineers from Delhi for installation of the CD4 Center in the Department of Medicine and of the team also training the concerned doctors and staff in the matter of operating the CD4 machine , the Superintendent became furious and rebuked Dr. Prasad not to teach - 3 - him as to how and where the CD4 machine was to be installed and the teaching job better to left to the doctors and not get directions from the officers of the complainant . He further asserted that the CD4 unit be installed in the VCTC, Microbiology Department. Repeated attempts by the officers of the complainant to reason with the Superintendent yielded no positive result. Accordingly, the complainant revised the order and having decided to withdraw support it provides to the Blood Bank in the P.M.C.H. and shift the ART etc. from P.M.C.H. to the Jai Prabha Hospital at Patna and the decision was communicated to the concerned authorities on 27.7.2005 and to the Superintendent, P.M.C.H. on 28.7.2005. An innocuous word used in the letter became the bone of contention between the Superintendent , P.M.C.H. and the Project Director and in order to shield the Superintendent, P.M.C.H. “ the war of attrition” was taken up by the Indian Medical Association,Bihar State Branch, as a purported offence against the “doctors’ community” at large and a news item appears to have been published at page 4 of the Patna Edition of the News daily “ TIMES OF INDIA” under the heading “ IMA sees red over alleged derogatory remark by bureaucrat” , wherein it was mentioned that the I.M.A. Bihar Unit decided to raise the issue against the Project Director of the complainant society at the National level saying that the BSAIDSS Project Director and I.A.S. Officers, must be punished for his remarks against the medical fraternity and it was further alleged that the Project Director of the complainant society in his - 4 - official noting reportedly made derogatory remarks against doctors of P.M.C.H. and called them names. The publication of the news item appears to have offended, the complainant who reasonably felt defamed by the news item and accordingly filed the complaint alleging commission of offences under Sections 384,499,500,506 and 120B I.P.C. It has been submitted on behalf of the petitioner that it would be apparent from perusal of the complaint petition that the complainant had not mentioned the name of the petitioner anywhere in the complaint petition in connection with his involvement in the dispute over the issue of installation of the CD4 instrument in the premises of the P.M.C.H. It would also be apparent, it has been submitted, that the petitioner is nowhere in the picture in the entire episode and has been falsely implicated only by virtue of his being an office bearer of the Bihar State Branch of the Indian Medical Association, namely, the Finance Secretary. The grievance has also been made against the complainant who is said to be whimsical in exercise of his administrative power and in using filthy and derogatory remarks not only against the petitioner but also against entire doctors’ fraternity. Though the complainant who has been impleaded herein as Opp.Party no.2 was duly served with notice, he has chosen not to appear and contest this application, and as such, the submissions advanced by the learned counsel for the petitioner remains unrebutted. The learned A.P.P. appearing on behalf of the State has very - 5 - fairly conceded that the petitioner on perusal of the complaint petition does not appear to have been involved in any manner whatsoever with the alleged incident which led to the publication of the news item which purportedly aggrieved and heart the feelings of the complainant. No specific over act appears to have been alleged against the petitioner anywhere in the complaint petition. I have had the occasion to peruse the complaint petition and the impugned order passed by the learned Magistrate taking cognizance. In the whole of the complaint petition apart from the petitioner being arrayed as an accused , I find no allegation of any purported overt act to have been attributed to him nor is there any reference to the role played by the petitioner either in the “war of attrition” between the Project Director and the Superintendent, P.M.C. H. or in the publication of the news item. Due regard being had to the facts and circumstances of the case, the prosecution of the petitioner appears to be an abuse of the process of the court. Accordingly, the entire criminal proceeding arising out of Complaint Case No.2216 (M) of 2005 so far as the petitioner is concerned including the order dated 11.8.2005 taking cognizance is hereby quashed and the application is allowed. ( Abhijit Sinha, J ) Patna High Court,Patna Dated : the 10th April,2009 Nawal Kishore Singh/A.F.R.