Daljit Singh Gujral & Ors vs Jagjit Singh Arora & Ors

4. The Appellants herein are in the management of a hospital named, INSCOL Multispecialty Hospital, Chandigarh. On 1.8.2005, the wife of Respondent No.1, by name, Inderjeet Arora, approached Dr. Jayant Banerjee and, on his advice, she was referred to the above-mentioned hospital. She was admitted in the ICU by Dr. Jayant Banerjee and was attended by doctors of the hospital. Later, she was discharged from the hospital on 2.8.2005 on the request of son of Respondent No.1. On a total hospital bill of Rs.1,01,858/- a sum of Rs.30,000/- was paid and, for rest of the amount, a cheque was issued by Respondent No.1, husband of the patient. On 9.8.2005, the cheque was presented by the bankers of the hospital, but the same was dishonoured, which fact was brought to the notice of Respondent No.1 by the hospital authorities. Thereafter, the cheque was presented twice on 12.11.2005 as well as on 16.11.2005 but, on both occasions, the cheque was dishonoured. Later, a legal notice under Section 138 of the Negotiable Instruments Act, 1881, was issued to Respondent No.1 claiming the cheque amount. According to the Appellants, this annoyed Respondent No.1 and a complaint was filed against the doctors of the hospital before the Punjab Medical Council. The Medical Board met on 3.10.2006 and, after examining the complaint as well as the comments of the doctors, passed an order on the same date exonerating Dr. Jayant Banerjee holding that proper procedure was followed and there was no gross negligence on the part of the hospital authorities or the Doctors. Respondent No.1, after a lapse of two years, on 9.6.2008, filed a complaint under Section 156(3) Cr.P.C. before the Chief Judicial Magistrate, UT Chandigarh for registration of FIR against the Appellants for the commission of offence under various sections, including Section 15(2)(3) of the Indian Medical Council Act, 1956. The learned Judicial Magistrate, First Class, Chandigarh, on 13.6.2008 sent the complaint for registration as it was under Section 156(3) Cr.P.C. The said order was challenged by the Appellants by filing Crl. Misc. Petition No.17013 of 2008 before the Punjab & Haryana High Court. The High Court vide its order dated 19.2.2009 quashed the FIR by granting liberty to Respondent No.1 to approach the Judicial Magistrate, First Class, Chandigarh. Before the Judicial Magistrate, First Class, Chandigarh, Respondent No.1 submitted that he did not want to press the complaint under Section 156(3) Cr.P.C., but requested that the complaint be treated as under Section 202 Cr.P.C. The learned Magistrate, entertaining the said request, passed the order dated 26.7.2011 and summoned the Appellants to face the trial for the offences punishable under Section 420/467/468/471/ 326/120-B IPC and under Section 15 of the Indian Medical Council Act.

5. Aggrieved by the summoning order, as already stated, the Appellants preferred Crl. Misc. No.M-25733 of 2011 before the High Court for quashing the complaint Case No.7506/09/11. The High Court vide impugned order, dismissed the Crl. Misc. Petition. Later, Respondent No.1 filed an application being Crl. Misc. No.7776 of 2013 in Crl. Misc. No.M-25733 of 2011, requesting the Court to carry out the correction of the judgment praying that the word “death” or “died” be stated to be read as “brink of death”. Review Petition was allowed by the High Court vide its order dated 11.2.2013, without notice to the appellants. Those orders, as already indicated, are under challenge in these appeals.

6. We heard Shri P.S. Patwalia, learned senior counsel for the Appellants, as well as Shri Jagjit Singh Arora, who appeared in person. Shri Patwalia submitted that the judgment as well as the order in the review petition is vitiated by serious error on the face of the record and liable to be set aside and the High Court be directed to rehear the matter in accordance with law. Respondent No.1, the party-in-person, on the other hand, submitted, on facts as well as on law, that the judgment and the order in the review petition are unassailable and, therefore, the matter could be examined by this Court on merits.

The learned Single Judge cannot correct an issue which has been framed and answered. As already indicated, the first issue framed is with regard to the “wrong treatment and consequential death of a patient” and it was that issue which was answered, then we fail to see how the application preferred by the Respondents for review can be treated as an application for correcting accidental omission or typographical error, that too without notice to the appellants herein.

14. We may also further indicate that the learned Single Judge has expressed the opinion so expressively in the judgment which practically forecloses all the defences available to the parties, who are supposed to face the trial. The learned Single Judge, though ultimately indicated that the view is only a prima facie view, but a reading of the entire judgment, it would show otherwise. Judgment cannot be sustained on any ground. Consequently, the judgment dated 16.11.2012 as well as the subsequent order 11.2.2013 passed in the review petition, would stand set aside. The High Court is directed to rehear Crl. Misc. Petition No.M-25733 of 2011 afresh.

15. The Appeals are, accordingly, allowed.