CWP No. 4431 of 2007 [1] IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP No. 4431 of 2007 Date of Decision: 30.03.2010 Harbhajanjit Singh ..Petitioner Versus Punjab State Human Rights Commission and others ..Respondents CORAM: HON'BLE MR. JUSTICE MUKUL MUDGAL, CHIEF JUSTICE HON'BLE MR. JUSTICE JASBIR SINGH 1.Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present : Mr. BBS Sobti, Advocate, for the petitioner. Mr. Rupinder Khosla, Addl. A.G. Punjab for respondents No.2 to 4. Mr. Balwinder Singh, Advocate, for respondent No.6. --- MUKUL MUDGAL, C.J. (Oral) 1. Petitioner has filed the instant petition against order dated 16.01.2007 passed by respondent No.1 dismissing his complaint filed for issuance of direction to respondents No.3 and 4 to register a criminal case against respondents No.5 and 6. As per facts on record, the wife of the petitioner gave birth to a male child on 8.8.2002. She CWP No. 4431 of 2007 [2] was admitted in a hospital run by respondent No.5 and for birth of the child caesarean operation (caesarean section) was done by respondent No.6. It was allegation of the petitioner that due to negligence on the part of respondents No.5 and 6, in providing timely medical aid to his wife, she died on 12.08.2002. Her post mortem was conducted on 13.08.2002. On a complaint made when police did not register a case, the petitioner made a representation to respondent No.3 who referred his complaint for opinion of the District Attorney (Legal). As per opinion given by the above officer, a case was made out against respondents No. 5 and 6 under the provisions of Section 304-A of the Indian Penal Code. Thereafter when nothing was done, the petitioner filed a complaint before respondent No.1 which was dismissed on 16.01.2007. Hence this writ petition. 2. The prayer made in the writ petition is as follows:- “issue a writ in the nature of certiorari for quashing the order dated 16.1.2007 passed by respondent No.1 in complaint No. 7621 of 2003 vide which the complaint filed before respondent No.1 by the petitioner vide Complaint No. 7621 of 2003 was dismissed, copy of which is attached herewith as Annexure P-1 and to issue a writ in the nature of mandamus directing respondents No.2 to 4 to register a criminal case in Police Station City Nawanshaher against respondents No.5 and 6 under Sections 304-A and 201 of Indian Penal Code for causing the death of Smt. Sunita Rani, wife of petitioner by their rash and negligent acts and thereafter also for destroying the evidence.” 3. Apart from challenging order dated 16.01.2007 passed by respondent No.1, the petitioner lays emphasis that the order passed by respondent No.1 is erroneous because it did not direct registration of a criminal case against respondents No.5 and 6. CWP No. 4431 of 2007 [3] 4. The Punjab State Human Rights Commission (respondent No.1) was confronted with the following proposition:- “Whether the violation of human rights, by a public servant, could result on the allegation that he was negligent in not registering a criminal case on a complaint, inspite of a prima-facie opinion of the District Attorney (Legal) that a criminal case was made out against them?” 5. Respondent No.1 gave ample opportunity to both the parties to address the arguments. Both the parties produced their evidence in the shape of documents. On record, the following facts were noted by respondent No.1 that S.H.O. (respondent No. 3) after receipt of legal opinion given by the District Attorney also sought the expert opinion of Civil Surgeon regarding cause of death of the wife of the petitioner. A Board of Doctors was constituted which opined that the cause of death of the deceased was accumulation of water in her lungs which led to pneumonia and there was no fault or foul play on the part of any one. It was further noted that complainant had not placed on record the post mortem report of the deceased to show that the constitution of the Board of Doctors by Civil Surgeon was not justified. Thereafter, it was observed that when prima-facie no material was available before the Investigating Officer, it was not obligatory on his part to straightway register an FIR. 6. In any case, whether or not a criminal case could be registered in so far as Punjab State Human Rights Commission is concerned, would depend on the findings of the Commission holding that there was violation of human rights. CWP No. 4431 of 2007 [4] 7. Since the allegations alleging violation of human rights have been found to be unsubstantiated, direction to register an FIR could not be given. Action under Section 18(a)(i) could only have been taken if there was a finding of violation of human rights. No violation of human rights having been found, therefore, initiation of criminal proceedings by registering a criminal case was obviously unjustified. Section 18 of the Act reads as follows:- “ 18. The Commission may take any of the following steps during or upon the completion of an inquiry held under this Act namely : (1) where the inquiry discloses, the commission of violation of human rights or negligence in the prevention of violation of human rights or abetment thereof by a public servant, it may recommend to the concerned Government or authority- i) to make payment of compensation or damages to the complainant or to the victim or the members of his family as the Commission may consider necessary; ii) to initiate proceedings for prosecution or such other suitable action as the Commission may deem fit against the concerned person or persons; iii) to take such further action as it may think fit.” b) approach the Supreme Court or the High Court concerned for such directions, orders or writs as that Court may deem necessary; c) recommend to the concerned Government or authority at any stage of the enquiry for the grant of such immediate interim relief to the victim or the members of his family as the Commission may consider necessary; d) subject to the provisions of clause (e), provide a copy of the inquiry report to the petitioner or his representative; (e) the Commission shall send a copy of its inquiry report together with its recommendations to the concerned Government or authority and the concerned Government or authority shall, within a period of one month, or such further time as the Commission may allow, forward its comments on the report, including the action taken or CWP No. 4431 of 2007 [5] proposed to be taken thereon, to the Commission; f) the Commission shall publish its inquiry report together with the comments of the concerned Government or authority, if any, and the action taken or proposed to be taken by the concerned Government or authority on the recommendations of the Commission.” 8. It is also an admitted fact that to claim compensation regarding death of her wife, petitioner initiated proceedings against respondents No.5 and 6 before the competent forum. The compensation was awarded to him and matter is now pending before the Appellate Authority in appeals moved by both the parties. 9. In this view of the matter, we are of the view that the proper course for the petitioner was to seek an appropriate remedy under the Criminal Procedure Code provided there was a case made out. Accordingly, we dispose of this writ petition with the aforesaid observation, however, giving liberty to the petitioner to adopt such proceedings which are available to him under the Criminal Procedure Code. It is further made clear that since the findings recorded by the Punjab State Human Rights Commission are in the nature of recommendations, therefore, the same would not be conclusive if recourse to criminal proceedings is resorted to by the petitioner. (MUKUL MUDGAL) CHIEF JUSTICE (JASBIR SINGH) JUDGE 30.03.2010 'ravinder'