CRLRC/1735/2012 of Dr. L.Sudhakar, Vs P.Rama Krishna Reddy, on 31 December 2012

ORDER:

This Criminal Revision Case is directed against the order, dated13.08.2012, passed in P.R.C.No.1 of 2004 on the file of the ChiefMetropolitan Magistrate, Hyderabad, whereby and whereunder thelearned Chief Metropolitan Magistrate took cognizance of the offencespunishable under Sections 304-A, 316 and 201 IPC and registered thecase as P.R.C.No.1 of2004.

2. The 1[st] respondent is the complainant in P.R.C.No.1 of 2004 onthe file of the Chief Metropolitan Magistrate, Hyderabad. The petitioneris the accused No.3 in the said P.R.C. The 1[st]respondent/complainant filed a complaint against the petitioner andothers alleging, inter alia, that their negligent treatment of his daughterSmt.Srilatha Reddy when she admitted in Shalini Maternity Hospitalfor delivery, resulted her death as well as death of her unborn child. The complainant examined himself as PW.1 besides examining hisson-in-law as PW.2 before pre-cognizance stage. The learnedChief Metropolitan Magistrate considered the sworn statements of PWs.1 and 2 and took cognizance of the offences punishable underSections 304-A, 316 and 201 IPC and registered the case asP.R.C.No.1 of 2004, by order, dated 27.02.2004. The petitioner andother accused challenged the order, dated 27.02.2004, by filingCriminal Revision Case Nos.793, 1015 and 1028 of 2005. This court,by a common order, dated 01.07.2011, allowed the Criminal RevisionCases and remanded the matter back to the committal Court for takingnecessary further steps as indicated therein. For better appreciation, Imay refer relevant portion of the said common order and it is thus:

“By virtue of Section 208 read with Section 209 Cr.P.C., as it happened tobe a Sessions Case, the statements of all the witnesses concerned shouldhave been recorded before examining the question of taking cognizance of thecase, therefore, for not doing so, the impugned order is not maintainable andaccordingly, it is liable to be set aside. Consequently, the learned Magistratehas to record the statements of the remaining witnesses. After recording thestatements of all the witnesses concerned and taking into consideration thematerial available and applying mind, the learned Magistrate has to examine theissue about taking cognizance of the case independently.

For the foregoing reasons, the impugned order is set aside and the matteris remanded back to the learned Magistrate for taking necessary further stepsas observed above. Further, he is directed to see that necessary formalitiesare completed within a period of six months.”

After remand of the matter, the complainant filed Crl.M.P.No.2090 of2012 under Section 296 Cr.P.C. to permit him to file affidavits ofmedical doctors duly attested by the Notary and to admit the same inthe evidence as their evidence is in the nature of formal character. Thelearned Chief Metropolitan Magistrate heard the complainant as wellas the accused and proceeded to allow the application, by order, dated30.07.2012. Thereupon, the complainant filed the notarized affidavitsof Dr.Gurrala Shekar Reddy, Dr.P.Vidya Sagar, Dr.J.MadhusudanReddy and Dr.V.Saraswathi. The learned Chief MetropolitanMagistrate considered their notarized affidavits and proceeded to takecognizance for the offences punishable under Sections 304-A, 316and 201 IPC, by order, dated 13.08.2012. The said order is assailed inthis Criminal Revision Case by A3 Dr.L.Sudhakar.

3. Heard Sri Srinivas Polavarapu, learned counsel appearing for thepetitioner/A3 and Sri D.Prakash Reddy, learned senior counselrepresenting Sri V.Ramachander Goud, learned counsel appearing forthe 1[st] respondent/complainant.

4. Sri Srinivas Polavarapu, learned counsel appearing for thepetitioner/A3 submits that the committal Court committed serious errorin acting on the notarized affidavits of the witnesses instead of theirsworn statements for taking cognizance of the offences punishableunder Sections 304-A, 316 and 201 IPC. He would also submit thatthe evidence of doctors, in the given facts and circumstances, cannotbe said to be formal in character and therefore, Section 296 Cr.P.C.cannot be made applicable to the present case. According to thelearned counsel, even though the petitioner has not challenged theorder passed in Crl.M.P.No.2090 of 2012, it does not preclude thepetitioner to challenge the order taking cognizance of the offences bythe committal Court since the order passed in Crl.M.P.No.2090 of 2012merges with the order of taking cognizance of the offences. A furthercontention has been advanced that the doctors whose notarizedaffidavits have been placed on record are not the government doctorsand there is no reasonable explanation from the 1[st]respondent/complainant for not securing the opinion from thegovernment doctors. The opinion of the government doctors toprosecute the petitioner and other accused for medical negligence ismandatory in view of the judgment of the Supreme Court in Jacob Mathew v. State of Punjab & Anr.[[1]].Leaned counsel laid much emphasis on para.52 of the cited judgment and it is thus:

“Statutory rules or Executive Instructions incorporating certain guidelinesneed to be framed and issued by the Government of India and/or the StateGovernments in consultation with the Medical Council of India. So long as it isnot done, we propose to lay down certain guidelines for the future which shouldgovern the prosecution of doctors for offences of which criminal rashness orcriminal negligence is an ingredient. A private complaint may not be entertainedunless the complainant has produced prima facie evidence before the Court inthe form of a credible opinion given by another competent doctor to support theneed to be framed and issued by the Government of India and/or the StateGovernments in consultation with the Medical Council of India. So long as it isnot done, we propose to lay down certain guidelines for the future which shouldgovern the prosecution of doctors for offences of which criminal rashness orcriminal negligence is an ingredient. A private complaint may not be entertainedunless the complainant has produced prima facie evidence before the Court inthe form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. Theinvestigating officer should, before proceeding against the doctor accused ofrash or negligent act or omission, obtain an independent and competent medicalopinion preferably from a doctor in government service qualified in that branchof medical practice who can normally be expected to give an impartial andunbiased opinion applying the Bolam's test to the facts collected in theinvestigation. A doctor accused of rashness or negligence, may not be arrestedin a routine manner (simply because a charge has been levelled against him).Unless his arrest is necessary for furthering the investigation or for collectingevidence or unless the investigation officer feels satisfied that the doctorproceeded against would not make himself available to face the prosecutionunless arrested, the arrest may be withheld.”

5. Sri D.Prakash Reddy, learned Senior Counsel submits that the 1[st]respondent/complainant produced the notarized affidavits of fourwitnesses on obtaining permission from the committal Magistrate asper the order, dated 30.07.2012, passed in Crl.M.P.No.2090 of 2012and as the said order is not assailed by the petitioner/accused, it isimpermissible for the petitioner to contend that the order passed by thecommittal Magistrate basing on the notarized affidavits of fourwitnesses is not in accordance with the provisions of law. It is alsosubmitted by the learned senior counsel that the evidence of fourdoctors is formal in character and the evidence of the witnesses formalcharacter can be by way of affidavits as provided under Section 296Cr.P.C. and therefore, the order impugned in the Criminal RevisionCase cannot be found fault, in which case, the Criminal Revision Caseis liable to be dismissed. A further submission has been made thateven as per the judgment of the Supreme Court in Jacob Mathew’scase (1 supra), what is required is the opinion of another competentdoctor to support the charge, rashness or negligence on the part of theaccused-doctor and it is not mandatory for the complainant to place onrecord the opinion of only the government doctor. What is stated in thejudgment is medical opinion preferably from a doctor in governmentservice and it does not exclude the opinion given by the qualifieddoctor in the branch of the medical practice. In support of hissubmission, reliance has been placed on the judgment of the SupremeCourt in State of Punjab v. Naib Din (in Appeal (Crl.) 995 of2001, dated 28.09.2001) and the judgment of the Allahabad High Court inKallu Pal son of Langad (Daroga) v. State of U.P. & Anr.[[2]]

6. I have given my anxious consideration to the contentionsadvanced by the learned counsel appearing for the parties.

7. The point that arises for adjudication in this Criminal RevisionCase is: Whether the evidence of four doctors can be treated of formalcharacter coming within the purview of Section 296 Cr.P.C.?

8. Section 296 Cr.P.C. reads as hereunder:

“296. Evidence of formal character on affidavit:- (1) The evidence of anyperson whose evidence is of a formal character may be given by affidavit andmay, subject to all just exceptions, be read in evidence in any inquiry, trial orother proceeding under this Code.

(2) The Court may, if it thinks fit, and shall, on the application of theprosecution or the accused, summon and examine any such person as to thefacts contained in his affidavit.”

9. The emphasis in the above section is evidence of formalcharacter on affidavit. The 1[st] respondent/complainant filed complaintagainst the petitioner and others alleging that they acted negligentlywhile treating his daughter and the said negligent act caused the deathof his daughter and unborn child. As held by the Supreme Court inJacob Mathew’s case (1 supra), opinion of competent medical officeris essential before prosecuting the doctors for offences of whichcriminal rashness or negligence is an ingredient. Therefore, forentertaining a private complaint, credible opinion of a competentdoctor is mandatory. Thus, it cannot be said that the evidence of fourdoctors in the given facts and circumstances is of formal character. Their evidence is a substantive one. Under Section 200 Cr.P.C., aMagistrate taking cognizance of an offence on complaint shallexamine upon oath the complainant and the witnesses present, if any,and the substance of such examination shall be reduced to writing andshall be signed by the complainant and the witnesses, and also by the

Magistrate. Procedure contemplated under Section 200 Cr.P.C.cannot be defeated by adopting some other procedure, which is notprescribed even though it may be convenient to the complainant. TheMagistrate is under the obligation to reduce the substance of thestatements in writing which is to be signed by the complainant and thewitnesses. If the affidavits of the substantive witnesses are accepted, itwould go contrary to the provisions of Section 200 Cr.P.C. Therefore,the order passed by the learned Magistrate taking cognizance of theoffences punishable under Sections 304-A, 316 and 201 IPC basingon the notarized affidavits of four doctors cannot be found to be inaccordance with the procedure contemplated in Section 200 Cr.P.C.

10. A contention has been advanced by the learned Senior Counselthat the petitioner has not challenged the order, dated 30.07.2012,passed in Crl.M.P.No.2090 of 2012, and therefore, it is impermissiblefor the petitioner to challenge the said order in this Criminal RevisionCase.

11. The order, dated 30.07.2012, passed in Crl.M.P.No.2090 of 2012is in the nature of interlocutory order and no revision lies against suchan order in view of sub-section (2) of Section 397 Cr.P.C. The legalityof the orders passed at the interlocutory stage can be examined in arevision filed against the final orders. Therefore, non-filing of therevision case against the order, dated 30.07.2012, passed inCrl.M.P.No.2090 of 2012, does not fettered the powers of the Court toscrutinize the same in a revision case filed against the final orders.

12. In view of the above discussion, the Criminal Revision Case isallowed setting aside the order, dated 13.08.2012, passed inP.R.C.No.1 of 2004 on the file of the Chief Metropolitan Magistrate,Hyderabad, and remanding the matter back to the learned ChiefMetropolitan Magistrate giving liberty to the 1[st]respondent/complainant to produce the four doctors for their sworn statements being recorded by the committal Court. The committalCourt after recording the sworn statements of the doctors has to passorders in accordance with law within 8 (eight) weeks from the date ofreceipt of a copy of this Order.

Date:31[st] December, 2012.

______________________

B.SESHASAYANA REDDY, J.

cs

THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY

Criminal Revision Case No.1735 of 2012

Date:31stDecember, 2012

[1](2005) 6 SCC 1(2005) 6 SCC 1

[2]2008 Crl.L.J. 3229