IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.5457/2014 BETWEEN:
1. SMT. DR. SHASHIKALA W/O DR.VENKATESH AGED ABOUT 38 YEARS, (S.L.V. NURSING HOME) B.M.ROAD, NAGAMANGALA TOWN, MANDYA DISTRICT-571432 2. DR.VENKATESH S/O SRINIVASAGOWDA, AGED ABOUT 44 YEARS, BOTH ARE RESIDING AT S.L.V NURSING HOME BUILDING, B.M.ROAD, NAGAMANGALA TOWN, MANDYA DISTRICT-571432 ... PETITIONERS (BY SRI.A.V.RAMAKRISHNA, ADVOCATE) AND:
1. JAFFAR S/O ABDUL JABBER, AGED ABOUT 30 YEARS, R/AT MURAD NAGAR, T.B.LAYOUT, NAGAMANGALA TOWN, MANDYA DISTRICT-571432.
2. STATE BY NAGAMANGALA TOWN POLICE, REP. BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, HIGH COURT BUILDING, BANGALORE-560 001. ... RESPONDENTS (BY SRI: NASRULLA KHAN, HCGP FOR R2 R-1 SERVED AND UNREPRESENTED) THIS CRIMINAL PETITION IS FILED U/S. 482 CR.P.C PRAYING TO QUASH THE ORDER DATED:10.9.13 PASSED BY THE SR.C.J. AND JMFC, NAGAMANGALA IN C.C.NO.524/13 (CR.NO.131/11) CONSEQUENTLY QUASH ALL FURTHER PROCEEDINGS IN THE SAID CASE.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioners have sought to quash the order dated 10.09.2013 passed by the Senior Civil Judge and JMFC, Nagamangala, in C.C.No.524/2013, whereby the learned Magistrate has directed summons to the petitioners to face charges for an offence punishable under Section 304-A of IPC.
2. The essential facts necessary for disposal of the petition are that, respondent No.1 herein filed a complaint before respondent No.2-police alleging that the petitioners herein were negligent in performing their duty as Medical Officers, as a result of which, his sister died in the Nursing Home run by the petitioners on 03.09.2011. After investigation, the Investigating Officer submitted a ‘B’ summary report. The complainant submitted his protest petition and let in his sworn statement. Considering the said sworn statement, by the impugned order, the learned Magistrate has directed summons to the petitioners.
3. Placing reliance on the decision of the Hon’ble Apex Court in the case of Jacob Mathew vs. State of Punjab and Another (2005) 6 SCC 1, with reference to paragraphs – 50, 51 and 52, learned counsel for the petitioners would submit that without securing prima-facie evidence by way of credible opinion of another competent Doctor, the learned Magistrate could not have taken cognizance of the alleged offence and could not have issued summons to the petitioners.
Further, he submitted that the learned Magistrate has also failed to consider the ‘B’ report and without rejecting the ‘B’ report, has passed the impugned order contrary to the law laid down by the court in Dr.Ravi Kumar vs. Mrs. K.M.C. Vasantha & Another, ILR 2018 KAR 1725. On these two grounds, he seeks quashing of the criminal proceedings.
4. Learned HCGP for respondent No.2- has argued in support of the impugned order contending that the material produced by the 2nd Respondent clearly make out the ingredients of an offence punishable under Section 304-B of IPC and therefore, there is no reason to quash the proceedings.
5. Respondent No.1 – complainant though served, has not entered appearance and has not controverted to the assertions made in the petition.
6. After hearing the learned counsel for petitioner and on going through the materials on record, in my view, the impugned order deserves to be quashed for the following reasons.
7. Firstly, it is not in dispute that after investigation, the Investigating Officer submitted a ‘B’ summary report before the learned Magistrate. The procedure as to acceptance or rejection of ‘B’ summary report is considered by this Court in the case of Dr.Ravi Kumar vs. Mrs.K.M.C.Vasantha & Another ILR 2018 KAR 1725, and it is held as under:-
“5. xxxxxxxxxxxxxxxx It is well recognized principle of law that, once the police submit ‘B’ Summary Report and protest petition is filed to the same, irrespective of contents of the protest petition, the court has to examine the contents of ‘B’ Summary Report so as to ascertain whether the police have done investigation in a proper manner or not and if the court is of the opinion that the investigation has not been conducted properly, the court has got some options to be followed, which are,-
i) “The court after going through the contents of the investigating papers, filed u/s 173 of Cr.P.C., is of the opinion that the investigation has not been done properly, the court has no jurisdiction to direct the Police to file the charge sheet however, the Court may direct the Police for re or further investigation and submit a report, which power is inherent under section 156(3) of Cr.P.C, but before taking cognizance such exercise has to be done. This my view is supported by the decisions of the Hon’ble Apex Court in a decision reported in AIR 1968 S.C. 117 between Abhinandan Jha and Dinesh Mishra (para 15) and also Full Bench decision of Apex Court reported in (1980) SCC 91 between Kamalapati Trivedi and State of West Bengal.
ii) If the court is of the opinion that the material available in the ‘B’ Summary Report makes out a cognizable case against the accused and the same is sufficient to take cognizance, and to issue process, then the court has to record its opinion under Sec.204 of Cr.P.C., and the Court has got power to take cognizance on the contents of ‘B’ Summary Report and to proceed against the accused, by issuance of process.
iii) If the court is of the opinion that the ‘B’ Summary Report submitted by the Police has to be rejected, then by expressing its judicious opinion, after applying its mind to the contents of ‘B’ report, the court has to reject the ‘B’ Summary Report.
iv) After rejection of the ‘B’ Summary Report, the court has to look into the private complaint or Protest Petition as the case may be, and contents therein to ascertain whether the allegations made in the Private complaint or in the Protest Petition constitute any cognizable offence, and then it can take cognizance of those offences and thereafter, provide opportunity to the complainant to give Sworn Statement and also record the statements of the witnesses if any on the side of the complainant as per the mandate of Sec.200 Cr.P.C.”
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8. Secondly, with regard to prosecution of medical professionals for medical negligence, the Hon’ble Apex Court has laid down certain guidelines in the decision relied on by the learned counsel for the petitioner in Jacob Mathew’s case. In paragraph Nos.50, 51 and 52 thereof, it is held as under:-
“50. As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by the police on an FIR being lodged and congnizance taken. The investigation officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to a rash or negligent act within the domain of criminal law under Section 304-A IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered to his reputation cannot be compensated by any standards.
51. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasis the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefer recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.
52. Statutory rules or executive instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service, qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying the Bolam test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been leveled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld”.
9. The impugned order discloses that the learned Magistrate has proceeded to issue summons to the petitioners without rejecting the ‘B’ report and without adverting is mind to the facts of the case. The learned Magistrate has not recorded any opinion as to whether the facts on record were sufficient to make out the ingredients of offence punishable under Section 304-A of IPC. The learned Magistrate has relied only on the sworn statement of the complainant contrary to the observations made by the Hon’ble Supreme Court in the above decision. For all these reasons, the impugned order cannot be sustained.
10. Consequently, the petition is allowed. The impugned order dated 10.09.2013 passed in C.C.No.524/2013 by the learned Senior Civil Judge and JMFC, Nagamangala, is hereby set aside and the matter is remanded to the trial court to consider the ‘B’ report afresh in the light of the observations made by this Court in Dr.Ravi Kumar’s case (supra). All the contentions urged by both the parties are left open.
Sd/- JUDGE Srl.