even before the issuance of process. His evidence is recorded
on 16/11/2002. Dr. Pramod Jadhav is having qualification
as M.B.B.B., M.S., though his specialization is in E.N.T. His
evidence would reveal that after examining the discharge
card, which contains the treatment given to Vijay at M.G.M.
Hospital, he has stated on oath as under :
“ Due to such treatment [discharge
card treatment], patient can die, such
treatment was wrongly given ”.
While considering the above, one need not go by
the words used by the deponent in strict manner. The same
is having the element of negligence. Now the degree of
negligence has to be proved by complainant at later stage
when he will be required to adduce evidence to prove charge.
The learned Magistrate and the learned
revisional Court, therefore, were right in issuing the process
against the present applicants for the offence punishable u/s
304A of the Indian Penal Code, which is confirmed by the
learned revisional Court.
Ultimately, it will be for the complainant to
prove the charge by adducing required evidence. A private
complainant can not always have the knowledge of the
medical science, however, in the present case, there is
evidence on record to show that Dr. Jamil Deshmukh who
was not expected to prescribe and administer alopathic
medicine, has done it and in order to save him, Dr. Sarode
has stepped in on the case papers. Coupled with Dr. Jadhav's
evidence, I see no reason to take other view than taken by the
Courts below in respect of the issuance of process against
these 2 applicants. Hence, both these Criminal Applications
are dismissed.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 1729 OF 2003
Vijay S/o Balkrishna Sarode
Age : 35 Yrs., Occ. : Medical
Practitioner, R/o : Shri
..... APPLICANT/
[ORIGINAL ACCUSED NO. 4]
V E R S U S
The State of Maharashtra
CORAM : V.M.DESHPANDE, J.
DATE OF JUDGMENT : 13th FEBRUARY, 2015
Citation;2015 ALLMR(CRI)1889
These two Criminal Applications filed u/s 482 of
the Code of Criminal Procedure can be decided by this
common Judgment, since both arises out of the Judgment
and order passed by the learned 4th Additional Sessions
Judge, Aurangabad dated 27/07/2003 in Criminal Revision
No. 15/2003, whereby the learned revisional Court dismissed
the Revision filed by them and confirmed the order of
issuance of process against them for the offence punishable
u/s 304A of the Indian Penal Code by the learned Judicial
Magistrate First Class, 16th Court in R.C.C. No. 1285/2002
2.
dated 27/12/2002.
The brief facts leading to the present
proceedings u/s 482 of the Code of Criminal Procedure can
be narrated as under :
Respondent No. 2 Laxman Shamrao Ingle is the
complainant. He filed Private Complaint in the Court of the
learned Magistrate. In the said Complaint, the applicant in
Criminal Application No. 1730/2003, Dr. Jamil Deshmukh is
shown as accused No. 1, whereas the applicant in Criminal
Application No. 1729/2003, Dr. Vijay Balkrishna Sarode is
shown as accused No. 5. Besides these applicants, 4 others
were also shown as accused persons in the said criminal case.
For the sake of convenience, the parties will be
3.
referred to as per their original position in the Complaint.
4.
Undisputedly, accused No. 1 possesses
qualification of B.H.M.S. and is registered under the Bombay
Homeopathic Medical Council Act, 1954 [hereinafter referred
to as the 'Act' for the sake of brevity], whereas accused No. 5
is duly qualified Doctor. The Complaint proceeds that the
complainant was required to admit his son Vijay on
09/03/2001 for giving alopathic treatment in M.G.M.
Medical College and hospital at Aurangabad. According to
the Complaint, accused No. 1 though a Homeopath,
prescribed alopathic medicines and administered various
injections intravenous to Vijay. It is further alleged in the
Complaint that in spite of administering heavy doses of
injection, such as voveron, ciprofloxacilline and others, the
condition of his son Vijay was deteriorating and, therefore,
when the complainant enquired about the prognosis of his
son, accused No. 1 abused him and forcefully discharged his
son Vijay. That time, his son went in 'coma'. The Complaint
further proceeds that thereafter he was required to take his
son to the Govt. Medical College, Aurangabad where he was
told that the condition of his son is critical and his both
kidneys are failed. The Complaint further states that the
Doctors of Govt. Medical College, Aurangabad remarked as to
how at such critical
stage, the patient was discharged.
Vijay, who was admitted in the Govt. Medical College,
18/03/2001.
Aurangabad in unconscious stage, ultimately died on
The Complaint further proceeds that after the
5.
death of his son, when he made inquiry with the original
accused Nos. 2, 3 viz. trustees, Dean of the M.G.M. College,
he was informed that accused No. 1 Jamil Deshmukh, being
a Homeopathic Doctor, he is not supposed to give alopathic
he has not given treatment, he in collusion with accused No.
1 represented that he had given treatment to the deceased
son of the complainant.
treatment. The Complaint states that accused No. 5, though
6.
The verification statement of complainant
was recorded before the learned Magistrate. Even before the
issuance of process, 2 witnesses Bhimrao Ganpat Gadekar
and Dr. Parmod Eknathrao Jadhav were examined by the
complainant.
The learned Magistrate, on 27/12/2002, passed
7.
order and thereby issued process against all accused for the
offence punishable u/s 304A of the Indian Penal Code read
with section 15 (3) of the Medical Council Act, 1956.
All accused persons filed Revision in the
8.
Court of Sessions Judge, Aurangabad challenging the
correctness of the order of issuance of process by the learned
Magistrate. The said Revision was registered as Criminal
Revision No. 15/2003. The said Revision was allotted on the
file of 4th Additional Sessions Judge, Aurangabad.
The learned Revisional Court, after hearing the
parties to the Revision, partly allowed the Revision. The
revisional Court maintained the order of issuance of process
against accused No. 1 Dr. Jamil Deshmukh and accused No. 5
Vijay Balkrishna Sarode for the offence punishable u/s 304A
of the Indian Penal Code.
The learned revisional Court set aside the order
of issuance of process against all the accused u/s 15 (3) of
the Medical Council Act, 1956.
The learned revisional Court dropped the
proceedings against original accused Nos. 2, 3, 4 and 6.
9.
It is against this order passed by the learned
revisional Court, the original accused Nos. 1 and 5 are before
this Court through these two Criminal Applications filed u/s
482 of the Code of Criminal Procedure.
Heard Mr. A.P.Bhandari, the learned counsel for
10.
the Applicants, Mr.V.H.Dighe, the learned A.P.P. for
Respondent No. 1 – State and Mr. B.V.Dhage,, the learned
counsel in both the Applications for the original complainant
With the assistance of the learned counsel, I have
gone through the record and proceedings placed before this
Court, which was called at the time of admission of the
present Criminal Applications.
in extenso.
11.
Mr. Bhandari, the learned counsel for the
applicants submitted that the order passed by the Courts
below issuing process u/s 304A of the Indian Penal Code is
required to be set aside in as much as there is nothing on
record to show that the accused persons were responsible for
the death of Vijay. He submitted that, even the entire
complaint and the documents are taken in its face value, it
does not show that there was any negligence on the part of
these two Doctors. He further submitted that, in fact, the
observations made by the learned revisional Court shows that
against the medical advise, the complainant took discharge of
his son and thereafter he was admitted in the Govt. Medical
College, Aurangabad and, therefore, there is every possibility
that at Govt. Medical College, Aurangabad there was no
proper treatment given to his son, resulting to his death. He
relied upon the authoritative pronouncement of Hon'ble Apex
Court reported in Jacob Mathew Vs. State of Punjab and
another AIR 2005 Supreme Court 3180.
12.
Per contra, the learned counsel for the
complainant submitted that the negligence on the part of
these 2 Doctors is writ large. According to him, though Dr.
Jamil Deshmukh was a Homeopath, he has prescribed and
administered various alopathic injections and Dr. Sarode is in
collusion with him.
At the time of issuance of process, the learned
13.
Magistrate is not expected to deal with each and every aspect.
Suffice it to say, the learned Magistrate must be satisfied on
the basis of the Complaint, verification statement, available
documents and the other material that there exists prima
facie case
to proceed with against the accused persons.
The learned Magistrate is not required to go into the deep
probative value of the material on record. The learned
Magistrate before issuing process, undisputedly, has to
exercise his judicial mind. However, at that stage, the
learned Magistrate is required to find out whether there is
sufficient ground to proceed against the accused or not. He
is not required to determine the adequacy of evidence of
probability of the accused being guilty. It is not expected
from the learned Magistrate, at this stage, to embark upon
meticulous examination of evidence or material.
14.
The learned counsel has tried to submit that
from the observations of the learned revisional Court that on
14/03/2001 in the morning at 7.30 a.m., the complainant
himself has got his son discharged from M.G.M. Hospital
against medical advise. He submitted that the learned
last portion of paragraph 8 of the Judgment.
revisional Court gave clearcut finding to that effect in the
15.
Firstly, there was no occasion for the revisional
Court to make such observation. The learned Magistrate
after scrutinizing the complaint, the documents and the
evidence adduced on record before issuance of process, was
prima facie satisfied that there is material against accused
Nos. 1 and 2 and thereafter issued process. In fact, the
learned revisional Court has ultimately confirmed the said
order.
16.
The learned counsel invited my attention to the
said consent letter, which according to him, is given by the
present complainant. The perusal of the said letter, reflect
that the signature of the complainant is obtained on blank
paper and thereafter the material is written. This can be seen
with naked eyes since there is unusual space appearing in
between the completion of the material and the signature
complainant.
17.
Further, the medical papers ultimately shows
that the name of Dr. Sarode is appearing, thereby, prima facie
the allegation made by the complainant in the Complaint that
name of accused No. 5 Dr. Sarode is used only to protect
accused No. 1 Dr. Jamil Deshmukh and Dr. Sarode is in
collusion with him, get support.
What is important to note is that the evidence of
18.
Dr. Pramod Jadhav, who was Examined by the complainant
even before the issuance of process. His evidence is recorded
on 16/11/2002. Dr. Pramod Jadhav is having qualification
as M.B.B.B., M.S., though his specialization is in E.N.T. His
evidence would reveal that after examining the discharge
card, which contains the treatment given to Vijay at M.G.M.
Hospital, he has stated on oath as under :
“ Due to such treatment [discharge
card treatment], patient can die, such
treatment was wrongly given ”.
19.
While considering the above, one need not go by
the words used by the deponent in strict manner. The same
is having the element of negligence. Now the degree of
negligence has to be proved by complainant at later stage
when he will be required to adduce evidence to prove charge.
The learned Magistrate and the learned
20.
revisional Court, therefore, were right in issuing the process
against the present applicants for the offence punishable u/s
304A of the Indian Penal Code, which is confirmed by the
learned revisional Court.
Ultimately, it will be for the complainant to
21.
prove the charge by adducing required evidence. A private
complainant can not always have the knowledge of the
medical science, however, in the present case, there is
evidence on record to show that Dr. Jamil Deshmukh who
was not expected to prescribe and administer alopathic
medicine, has done it and in order to save him, Dr. Sarode
has stepped in on the case papers. Coupled with Dr. Jadhav's
evidence, I see no reason to take other view than taken by the
Courts below in respect of the issuance of process against
these 2 applicants. Hence, both these Criminal Applications
are dismissed. Rule discharged.
22.
At this stage, the learned counsel for the
applicants submitted that interim order was in operation in
their favour since 2003 and, therefore, requested that for
reasonable period the interim stay operating in their favour
be extended.
23.
Looking to the fact that the interim order was
operating in favour of the applicants since 2003, the interim
stay granted in their favour on 29/09/2004 shall remain in
operation for further period of 8 weeks from today. After the
expiry of said 8 weeks, the interim order shall be vacated
automatically without reference to this Court.
[V.M.DESHPANDE, J.]
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