1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application (ABA) No. 48 of 2011 Smt. Pramila W/o Ratnam Amraj ..VERSUS.. State of Maharashtra, through P.S.O., P.S., Ballarsha, Dist. Chandrapur Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. R.P.Joshi, Advocate for the applicant Mr. C.N.Adgokar, A.P.P. for respondent/State. CORAM : Prasanna B. Varale, J. DATED : 22 nd Febru ary , 2011 . Heard Mr. R.P. Joshi, learned Advocate for the applicant and Mr. C.N.Adgokar, learned APP for the State. By the present application under Section 438 of the Code of Criminal Procedure, the applicant is seeking anticipatory bail in connection with Crime No. 189/2010, registered at Police Station, Ballarsha, Dist. Chandrapur, for the offence punishable under Section 304 of Indian Penal Code. The brief facts of the case are that a report was lodged at Police Station, Ballarshah on 12/10/2010 by one Sanjay Zillewar stating therein that he is residing with his brother Narsingh and sister-in-law Tirumala Zillewar. It is further stated in the report that on 13/10/2010, his brother Narsingh, who was accompanied with his wife Tirumala, went to the applicant. They were followed by his wife Sapna. Thereafter, he received a phone call from his wife about the death of his sister-in-law Tirumala. In the meantime, Police Station, Ballarsha also received memo from Rural Hospital, Ballarsha about the death of Tirumala. Hence, on the basis of the report of Sanjay and on receiving memo from Rural Hospital, Ballarsha, Murg was 2 registered. In the enquiry, it was revealed that the applicant had kept the deceased for delivery purpose in her house and at the time of delivery, the applicant gave cut on the private part of the victim by scissor when the head of fetus came out, which caused excessive bleeding to the victim. The victim was screaming in pains. The applicant gave two stitches. The victim became unconscious and was serious. The sister-in-law of the victim, who was present there, requested the applicant to provide immediate medical assistance. As the victim was serious, the applicant advised to take the victim to the hospital of one Dr. Allurwar. Though, the victim was taken to the hospital of Dr. Allurwar, he expressed his inability to provide any medical assistance and directed to take the patient to the Government hospital. So, the victim was shifted to the Government hospital. The doctor available at the hospital declared the victim dead. Initially, the applicant apprehending her arrest, had approached to the court of learned Extra Joint Ad-hoc Additional Sessions Judge-2, Chandrapur by filing Misc. Criminal Application No. 494/2010, which was rejected by order dated 18/11/2010. Thereafter, the applicant by filing Criminal Application No. 1872/2010, approached this Hon'ble High Court for seeking pre- arrest bail. This Court, by order dated 10/12/2010 rejected the application. The present application is the second attempt of the applicant. Mr. R.P.Joshi, learned Advocate for the applicant submitted that on the earlier occasion the material was not placed before this Court about the experience of the applicant as Auxiliary Nurse- Midwife. In this respect, learned Advocate submitted that the applicant has completed two years training in the course of Auxiliary Nurse-Midwife from 01/1/1964 to 31/12/1965 and she is qualified to undertake the duties of a Trained Auxiliary Nurse Midwife. The 3 learned Advocate by inviting my attention to the certificate, which is placed on record at 'annexure-1', submitted that the applicant has completed her training satisfactorily from Karim Nagar, State of Andhra Pradesh and after her marriage, she is staying with her husband at Ballarpur, Dist. Chandrapur. He further submitted that the applicant has served as 'Staff Nurse' in one private nursing home from 1978 to 1994 and thereafter, she is serving the people of Ballarpur and nearby villages so also providing nursing services in case of urgent deliveries. Learned Advocate further submitted that the Municipal Council, Ballarpur has also issued a certificate giving 'No Objection' to the applicant for providing nursing practice. With the help of these documents, learned Advocate for the applicant submitted that as this material was not placed before this Court, this Court has observed that the applicant was not having any professional or any academic qualification. Learned Advocate for the applicant further submitted that even considering the material, the offence under Section 304 of IPC is not attracted against the applicant as the applicant is having at her credit number of cases of successful deliveries in Ballarsha as well as in the nearby villages. Learned Advocate also submitted that as per the instructions received by him, it was the third delivery of the victim and the victim who gave birth to a girl child was in shock and was not in a position to cooperate the applicant, who was providing her medical help. Mr. Joshi, learned Advocate placed heavy reliance on the latest judgment of the Apex Court in the case of Siddharam Satlingappa Mhetre .vs. State of Maharashtra, reported in (2011) 1 Supreme Court Cases 694. Per contra, Mr. Adgokar, learned A.P.P. for the State by inviting my attention to the reply filed by the State, submitted that 4 this Court after considering the material on record has rejected the earlier application of the applicant and there is no change in the circumstances. Learned APP has placed on record the material of investigation for perusal of the Court. He further submitted that the statement of sister-in-law of the victim clearly reveals that on 11/10/2010, she along with the victim went to the house of the applicant. The applicant told them to come with the report of Sonography. So on 12/10/2010, the sister-in-law of the victim and the victim went to the applicant with the Sonography report. The applicant after perusal of the report, told them to wait as the victim is expecting delivery. As even after two hours, no signs of delivery were seen, the applicant asked them to come on next day. On 13/10/2010, the applicant gave two injections to the victim. After some time, as the victim was suffering from labour pains and head of fetus came out, the applicant gave cut by scissor on the private part, which caused excessive bleeding to the victim. The victim was screaming with pains. The applicant gave stitches. The victim became unconscious. When it was found that the victim is in serious condition, the applicant told to shift the victim to the hospital of Dr. Alurwar. Learned APP submitted that from the material collected by the investigating agency, it is revealed that the applicant has acted in utmost negligent manner, which resulted into the death of the victim. He, therefore, prayed for rejection of the application. Though, the argument of Mr. R.P. Joshi, learned Advocate for the applicant looks attractive and though much emphasis is laid on the changed circumstances, I am unable to persuade myself to accept the submissions of learned Advocate for the applicant. This Court on earlier occasion has considered the material collected by the investigating agency and more particularly, the statement of sister-in- law of the victim. This Court on earlier occasion also considered the 5 ground raised by the applicant that the applicant is having vast experience as Auxiliary Nurse-Midwife and the incident in question is purely an accident. Learned Advocate for the applicant submitted that the applicant is ready to cooperate with the investigating agency. Per contra, learned APP by inviting my attention to the reply submitted that since the date of the registration of offence, the applicant is not available in the town and inspite of efforts to take search of the applicant on various dates i.e. on 22/12/2010, 14/01/2011, 25/01/2011 and 06/2/2011, the applicant was not traced out nor the details of her whereabouts could be collected and as such the applicant is trying to avoid her arrest. Though, Mr. Joshi, learned Advocate has placed heavy reliance on Siddharam Mhetre's case (supra), in my opinion, there cannot be any dispute on the proposition as the law laid down by the Apex Court, but in my considered opinion, the judgment in Siddharam Mhetre's case will not be applicable in the present case. The most important factor in the present case is that this is the second application of the applicant seeking anticipatory bail. It is not in dispute that the earlier application of the applicant is rejected and thus finally disposed of on merits, the attempt of the applicant is as good as seeking review of the order passed by this Court. In such a situation, in my opinion, the second application for anticipatory bail is not maintainable. It will be useful to refer to the judgment of the Full Bench of Calcutta High Court in the case of Maya Rani Guin .vs. State of West Bengal, reported in 2003 Cri.L.J. 1, wherein it is observed that - "20. ....... We are of the view that entertaining a second application for anticipatory bail would amount to review or reconsideration of the earlier order passed by a Division Bench having co-ordinate jurisdiction, as the accusation remains 6 unchanged. We also find merit in the submission of Mr. Moitra that the 'accusation' being the sine qua non and which remains the same, there cannot be any revival of "reasons to believe" or apprehension of arrest which was considered by the Court in the earlier application for anticipatory bail. 21. Accordingly, the first question under the present reference is answered in the negative. We are of the view that the second application for anticipatory bail, even if new circumstances develop after rejection or disposal of the earlier application, is not maintainable." In view of above the judgment in Maya Rani Guin's case, I am of the opinion that in the present case also there is no change in the accusation. In such a situation, in my opinion, this court cannot review its own judgment/order once the case is disposed by judgment or order, except to correct a clerical or arithmetical error and as such this second application for anticipatory bail is not maintainable. On considering the submissions of learned Advocate for the applicant and learned APP for the State, in my opinion, the application is devoid of merits and deserves to be rejected. In the result, the application is rejected and disposed of accordingly. JUDGE Diwale