It is true that normally a victim is not participating in
the discharge proceedings under Section 227 Cr.P.C. If in a
case wherein the victim is not sufficiently represented by the
prosecution and in cases where the interest of the victim is not
being adequately protected, there is nothing wrong on the part
of the victim in stepping in with a request for being heard, and in
such cases, the cries of the victim should not remain unheard.
From the aforesaid dictum laid down by the Apex Court it cannot
be said that the victim has no right to be heard during the
discharge proceedings.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE B.KEMAL PASHA
3RD DAY OF DECEMBER 2014
Crl.Rev.Pet.No. 1903 of 2014 ()
DR.AJITH, S/O. RADHAKRISHNAN,
AYILAM VEEDU, CHERAVALLI MURI
Vs
STATE OF KERALA
This second round of revision has been preferred by the
accused in Sessions Case No.1675 of 2011 of the Additional
Sessions Judge-V, Kollam, challenging order dated 24.10.2014
passed by the learned Additional Sessions Judge in
Crl.M.P.No.2387 of 2013.
2. The incident relates to the case had occurred on
14.12.2004, when a hapless young lady had taken the chance to
have a medical consultation, that too casually, for her abdominal
pain at the hospital in question. She walked in to the casualty for
a consultation. The Doctor at the casualty had examined her and
administrated Cyclopam injection and Digene gel and she was
asked to go home. Thereafter the twist occurred, when she was
further advised to meet the Surgeon also. As advised, she met
the Surgeon. The Surgeon could not find anything to intervene;
but advised her to consult the Gynecologist also. Then the victim
met the Gynecologist. The Gynecologist suggested that there
was some sort of urinary infection and she was administrated
with Ampicillin injection, allegedly after taking the test dose.
Immediately after the injection, she developed respiratory
difficulties. Noting down the complications, the first petitioner,
Doctor administrated Diazapam injection. Immediately, her
condition worsened and she had to be connected to a ventilator.
As there was no ventilator facility at the hospital, she was
directed to be shifted to VSM Hospital, Mavelikkara where such
a facility was available. By the time, she reached the hospital, it
seems that she was almost dead. Her heart beat and pulse
were not readable. Even though she was connected to the
ventilator and medicines were administrated, she could not be
resuscitated. Soon after, her death was declared.
3. As in the case of normal death, her dead body was
taken to her house and it was buried. In the mean time, the
defacto complainant, who is the mother of the victim, could smell
rat about the gross negligence from the part of the doctors who
had administrated medicines to her, she filed a complaint and
the law was set in motion. The dead body was disinterred and
autopsy was conducted. The matter was investigated by the
local police at first. Dissatisfied with the snail pace of
investigation by the local police, the defacto complainant
approached this Court seeking a proper investigation, which has
culminated in handing over the investigation to the Crime
Branch.
4. The Crime Branch investigated the matter and filed a
final report alleging an offence under Section 304 IPC. On
committal to the Court of Session, the case was made over to
the learned Additional Sessions Court. Petitioners filed the
aforesaid Crl.M.P. seeking a discharge. The matter was heard
under Section 227 of the Cr.P.C. The learned Additional
Sessions Judge initially found that a charge under Section 304-A
will alone lie and consequently by invoking the power under
Section 228(1A) of Cr.P.C., the court below transferred the case
to the Judicial First Class Magistrate's Court, Karunagapplly.
Dissatisfied with the findings entered by the court below in the
said Crl.M.P., the petitioners preferred Crl.R.P. before this Court
as Crl.R.P.296/2014. This Court, after hearing both sides,
passed an order on 28.08.2014 thereby allowing the criminal
revision and by setting aside the order impugned in it, by giving
the following directions.
(a) The impugned order passed by the court
below in Crl.M.P.No.2387 of 2013 will stand set
aside, and the application for discharge will
stand restored to files.
(b) The learned trial judge will reconsider
the application for discharge, hear both sides in
detail, examine the whole prosecution records
as meant under Section 227 Cr.P.C. and take
decision afresh for one of the options available
under Section 228 of Cr.P.C. and pass
appropriate judicious order.
(c) Crl.M.A. No.3677 of 2014 brought by the
mother of the deceased will stand closed for
the time being. In case, she makes an
application for being heard in the court below,
it shall be considered by the trial court, and if
felt necessary, or if found that she has legal
right to be heard, or that she requires to be
heard in the interest of justice, appropriate
orders can be passed by the trial court.
(d) The trial court is hereby directed to take
decision on the application for discharge,
without any delay. Efforts shall be made for
disposal within four months."
5. The learned Additional Sessions Judge again heard
the matter and passed the impugned order by which the court
below found that there are sufficient grounds to proceed for an
offence under Section 304 IPC. Consequently, a charge under
Section 304 IPC has been framed. It is the said order which is
under challenge herein.
6. It seems that the charge has been read over to the
petitioners, plea has been recorded and the matter has been
scheduled for trial.
7. Heard the learned counsel for the petitioners, the
learned counsel for the defacto complainant and the learned
Public Prosecutor.
8. Initially, the learned counsel for the petitioners has
objected that the defacto complainant has no right of audience
in the matter and therefore, the learned counsel for the defacto
complainant may not be permitted to argue the matter. I find
little merit in the said argument. It seems that the law was set in
motion in this case on a complaint preferred by the defacto
complainant herein. In a criminal trial, it is trite that there cannot
be any question of locus standi. In this particular case, it seems
that the 4th accused had approached this Court through
Crl.M.C.3094/2013 for getting all the proceedings against him in
this case quashed. The defacto complainant was impleaded in
that matter. It seems that the proceedings against the 4th
accused has been quashed with a finding that at the appropriate
stage of the trial if it is found that he should also be impleaded,
there is nothing wrong on the part of the trial court in invoking
the power under Section 319 Cr.P.C. It was also found that in
case the prosecution does not choose to examine the 4th
accused as a prosecution witness, he should be examined as a
court witness by the trial court.
9. It seems that all along the proceedings the defacto
complainant has been actively participating. When the provision
under Section 227 Cr.P.C. says that the prosecution has to be
heard, in this particular case it cannot be said that the defacto
complainant is not a part of the prosecution. Over and above all
these, the victims in crimes and their relatives are no longer a
forgotten mass in criminal justice dispensing system. They have
also their own rights to be protected. They are not supposed to
swallow all what are being done by the investigation or
prosecution. They should never be treated as persons expected
to be mute spectators in judicial process.
10. The learned counsel for the petitioners have invited
the attention of this Court to the decision in Ajay Kumar Parmar
v. State of Rajasthan[2012 (4) KLT SN 61 Case No.49(SC)]
wherein it was held that the court should not pass an order of
acquittal by resorting to a course of not taking cognizance,
where prima facie case is made out by the Investigating Agency.
More so, it is the duty of the court to safeguard the right and
interests of the victim, who does not participate in discharge
proceedings.
11. It is true that normally a victim is not participating in
the discharge proceedings under Section 227 Cr.P.C. If in a
case wherein the victim is not sufficiently represented by the
prosecution and in cases where the interest of the victim is not
being adequately protected, there is nothing wrong on the part
of the victim in stepping in with a request for being heard, and in
such cases, the cries of the victim should not remain unheard.
From the aforesaid dictum laid down by the Apex Court it cannot
be said that the victim has no right to be heard during the
discharge proceedings.
12. The learned counsel for the petitioners is also relying
on the decision in R.S. Mishra v. State of Orissa[AIR 2011 SC
1103] wherein it was held:
"It is also to be noted that a discharge order
is passed on an application by the accused on
which the accused and the prosecution are
heard. At the stage of discharging an accused
or framing of the charge, the victim does not
participate in the proceeding. While framing
the charge, the rights of the victim are also to
be taken care of as also that of the accused."
13. From the aforesaid dictum also it cannot be said that
the victim can have no right of audience at all. The Apex Court
has laid down the law that while passing order under Section
227 Cr.P.C. the interest of the victim should also be considered
as in the case of the accused. The said dictum was laid down by
considering that in normal cases, the victims do not participate
in discharge proceedings. From all these, I do not find any merit
in the argument forwarded by the learned counsel for the
petitioners that the defacto complainant has no right of
audience.
14. Coming to the next aspect, the question to be
considered is whether the impugned order passed by the court
below suffers from any illegality, irregularity or impropriety. On
hearing either side, this Court is faced with a peculiar
circumstance wherein this Court is called upon now to decide
whether a charge under Section 304 IPC will lie in the matter or
not. If a charge under Section 304 will lie in the matter, it cannot
be said that the impugned order passed by the court below is
illegal, irregular or improper. This Court is of the view that, the
said question has to be considered only by having recourse to
the contents of the documents available at present, i.e.,
documents produced by the prosecution along with the final
report. What is envisaged under Section 227 Cr.P.C. is not a
threadbare examination of the entire evidence in the matter as in
the case of passing a judgment at the conclusion of the trial.
The court is not expected to balance the evidence whereas the
court need only decide whether there are sufficient grounds to
proceed or not. In short, it is trite that what the court has to
decide under Section 227 Cr.P.C. is whether there is a prima
facie case or not. If it is shown that there is a prima facie case
to proceed on an offence under Section 304 IPC, it has to be
considered that there are sufficient grounds to proceed within
the meaning of Section 227 Cr.P.C.
15. The learned counsel for the petitioners has argued
that in order to sustain a criminal liability in such matters of
alleged medical negligence, the prosecution has to establish
gross negligence on a higher standard for making out sufficient
grounds for proceeding. According to the petitioners, especially
when the deceased was working as a staff nurse in another
hospital, she ought to have taken due care in revealing the fact
that she was epileptic. At this juncture, the said argument is
challenged by the learned counsel for the defacto complainant
by arguing that the defacto complainant has no case that the
victim had ever suffered epilepsy. According to him, the
deceased was not suffering from epilepsy, and the so called
'epilepsy' is an invention by some so called medical experts in
order to aid the petitioners.
16. Let us assume that the victim in this case was
suffering from epilepsy. Even in such a case, can it be said that
the doctors who are administrating the medicines by way of
injection had no duty to enquire whether the victim had any such
disability or not? If it is shown that the petitioners as doctors
had no duty to enquire whether the victim was suffering from any
disability or whether she was epileptic or not etc., then it could
be said that there was no culpable negligence of the highest
standard in not enquiring about the said aspect. At the same
time, in medical jurisprudence, it is a basic duty cast upon a
doctor to enquire the victim as to whether the victim was
suffering from any such disability or disabilities, prior to
administrating such medicines.
17. Now the question is whether the negligence in not
enquiring as to whether the victim was suffering from any such
disability or not, is a gross negligence of high standard or not. In
this particular case, it seems that Ampicillin injection was
administrated, may be or may not be after test dose, and the
same is a matter to be proved. Even if it is administrated after
test dose, it seems that she had developed respiratory trouble.
Cases are not unknown even in cases where test dose was
administrated, reactions had arisen even after the stipulated
time. If, as a matter of fact, Ampicillin injection was administrated
after the test dose and after the expiry of the waiting period, it
cannot be said that there was any sort of negligence on the part
of the persons administering Ampicillin injection. The trouble in
this case started after that. It seems that when she developed
utter discomfort and respiratory problem, Diazapam injection
was administrated. At that time, the persons who were behind it,
as medical professionals, had a basic duty to ascertain whether
she had any disability like epilepsy, hyper tension, cardiac
problems etc. In the state of such restlessness, the victim might
not have exercised the caution to reveal her disabilities, even if
such disabilities were there. That does not absolve the doctors
from exercising the basic care in enquiring about any such
disabilities, if at all exist.
18. This Court is not expressing any opinion as to the
cause of death of the deceased. The question to be considered
is whether there are basic materials to frame a charge under
Section 304 IPC or not. The learned counsel for the petitioners
has invited the attention of this Court to a catena of decisions.
In P.Vijayan v. State of Kerala[AIR 2010 SC 663] it was held:
"The words "not sufficient ground for
proceeding against the accused" clearly show
that Judge is not a mere Post Office to frame
the charge at the behest of the prosecution, but
has to exercise his judicial mind to fact of case
in order to determine whether a case for trial
has been made out by prosecution. In assessing
this fact, it is not necessary for the Court to
enter into the pros and cons of the matter or
into a weighing and balancing of evidence and
probabilities which is really the function of the
Court, after the trial starts. At the stage of S.
227 the Judge has merely to sift the evidence in
order to find out whether or not there is
sufficient ground for proceeding against the
accused. In other words, the sufficiency of
ground would take within its fold the nature of
the evidence recorded by the police or the
documents produced before the court which ex
facie disclose that there are suspicious
circumstances against the accused so as to
frame a charge against him."
19. It was clearly observed that the duty of the judge at
the stage of Section 227 Cr.P.C. is merely to sift the evidence in
order to find out whether or not there is sufficient ground for
proceeding against the accused and a rowing enquiry is not
expected. In State of Karnataka v. LMuniswamy[AIR 1977 SC
1489] it was held:
"It is clear from S.227 of the new Code that
the Sessions Court has the power to discharge
an accused if after perusing the record and
hearing the parties he comes to the conclusion,
for reasons to be recorded that there is no
sufficient ground for proceeding against the
accused. The object of the provision which
requires the Sessions Judge to record its reasons
is to enable the superior Court to examine the
correctness of the reasons for which the
Sessions Judge has held that there is or is no
sufficient ground for proceeding against the
accused. The High Court therefore is entitled
to go into the reasons given by the Sessions
Judge in support of his order and to determine
for itself whether the order is justified by the
facts and circumstances of the case."
20. It was also held therein that,
"For the purpose of determining whether there
is sufficient ground for proceeding against the
accused the court possess comparatively wider
discretion in the exercise of which it can
determine the question whether the material
on the record, if unrebutted, is such on the
basis of which a conviction can be said
reasonably to be possible".
In cases wherein a possibility of conviction on a proper charge
itself is a ground for reckoning the acts as one having sufficient
ground to proceed.
21. My attention has been invited to the decision in Sati
Kanta Guha v. State of West Bengal[1977 Crl.L.J. 1644]
wherein the Division Bench of the Calcutta High Court held that
hearing under Section 227 Cr.P.C. is not an empty formality
whereas it is a valuable right conferred on the accused to
challenge that there are no sufficient grounds to proceed.
22. In Dilawar Babu Kurane v. State of Maharashtra
[AIR 2002 SC 564], it was held that in exercising the powers
under Section 227 Cr.P.C. the Judge while considering the
question of framing charge on a particular offence, has the
undoubted power to sift and weigh the evidence for the limited
purpose of finding out whether or not a prima facie case against
the accused has been made out.
23. In Mahadev Prasad Kaushik v. State of Uttar
Pradesh[(2008) 14 SCC 479], it was held:
"There is thus distinction between Section 304
and Section 304-A. Section 304-A carves out
cases where death is caused by doing a rash or
negligent act which does not amount to culpable
homicide not amounting to murder within the
meaning of Section 299 or culpable homicide
amounting to murder under Section 300 IPC. In
other words, Section 304-A excludes all the
ingredients of Section 299 as also of Section 300.
Where intention or knowledge is the "motivating
force" of the act complained of, Section 304-A
will have to make room for the graver and more
serious charge of culpable homicide not
amounting to murder or amounting to murder as
the facts disclose. The section has application to
those cases where there is neither intention to
cause death nor knowledge that the act in all
probability will cause death."
24. My attention has been invited to a series of decisions
by the learned counsel for the petitioners to point out that
normally it cannot be expected from a doctor that he would be
negligent in carrying out a surgical operation or in prescribing
medicines. It is common sense that normally a doctor will not do
like that as it would be an end of his career. At the same time,
in a case wherein there is culpable negligence on the part of the
medical practitioner in prescribing medicine without taking care
of its adverse impact in a patient labouring under some disorder,
and if it causes death, can it not be said that it will fall under the
definition of culpable homicide within the meaning of Section
299 I.P.C? If the prosecution is able to prove that such a death
was caused with the knowledge that it would endanger the life of
that person, definitely it will attract culpable homicide within the
meaning of Section 299 IPC. Even if it is shown that such
knowledge was there and culpable homicide was caused,
definitely it would fall within the category under Section 304 Part
II IPC. In such cases wherein doctors are involved, can they be
left scot free with their white cot even when there is culpable
negligence. It is a fact, that has to be established by the
prosecution in trial as to whether there was culpable negligence
or not. That question cannot be decided merely on the basis of
documents produced by the prosecution at the time of hearing
under Section 227 of the Cr.P.C. alone. The evidence in this
case will not be mere documentary evidence alone. The oral
evidence has also to be considered. There is a disability on the
part of the court in relying on oral evidence at the stage of
hearing under Section 227 Cr.P.C.The court may, for the limited
purpose, go through even the statements recorded under
Section 161 Cr.P.C. At the same time, it is not at all safe on the
part of a court dealing with a serious matter to have a
threadbare examination of the matters contained in the
statements recorded under Section 161 Cr.P.C. produced by the
prosecution. There may be embellishments or exaggerations in
such statements. The court should not be carried away by going
through the said statement by making a threadbare examination.
25. For the limited purpose of satisfying whether there are
sufficient grounds to proceed, what is expected is to consider
whether there is a prima facie case or not. On considering the
entire aspects relating to the matter in this particular case, I am
unable to say that this is a case wherein there are no sufficient
materials to proceed with. I do not find any illegality, irregularity
or impropriety in the impugned order passed by the court below.
It seems that the court below has rightly complied with the
directions passed by this Court in the order passed in the earlier
Criminal Revision. I cannot find fault with the court below in not
making a detailed discussion in the matter. If such a detailed
discussion is made, definitely, it will tend to reflect during the
trial. What was expected from the court below was only to enter
a finding as to whether there was a prima facie case or not. The
court below has come to the conclusion that there is a prima
facie case and all the other matters raised by the learned
counsel for the accused were only questions that could be
decided during trial. It seems that the court below has not
transgressed illegally to any other area, apart from confining to
the scope of consideration under Section 227 Cr.P.C.
26. The learned counsel for the defacto complainant has
argued that the defacto complainant is aged above 80 and she
wants to see the disposal of the case during her life time. It is
also pointed out that she is a cancer patient. Let a decision be
given, whether it be an acquittal or conviction; let the trial
continue. The defacto complainant has got a specific case that
the petitioners are eager in postponing a final decision in the
matter and the present proceedings are a reflection of it. It has
also been pointed out that the petitioners have preferred a
transfer petition also before this Court for getting the matter
transferred to some other court. As the said matter is not before
me, I am not making any opinion on it. Whatever it is, it seems
that there is a conscious attempt to postpone a final decision in
the matter. I do not find any merit in the present Criminal
Revision Petition, and the same is only to be dismissed, and I do
so.
In the result, this Crl.R.P. is dismissed.
Sd/- B.KEMAL PASHA, JUDGE
Print Page
the discharge proceedings under Section 227 Cr.P.C. If in a
case wherein the victim is not sufficiently represented by the
prosecution and in cases where the interest of the victim is not
being adequately protected, there is nothing wrong on the part
of the victim in stepping in with a request for being heard, and in
such cases, the cries of the victim should not remain unheard.
From the aforesaid dictum laid down by the Apex Court it cannot
be said that the victim has no right to be heard during the
discharge proceedings.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE B.KEMAL PASHA
3RD DAY OF DECEMBER 2014
Crl.Rev.Pet.No. 1903 of 2014 ()
DR.AJITH, S/O. RADHAKRISHNAN,
AYILAM VEEDU, CHERAVALLI MURI
Vs
STATE OF KERALA
This second round of revision has been preferred by the
accused in Sessions Case No.1675 of 2011 of the Additional
Sessions Judge-V, Kollam, challenging order dated 24.10.2014
passed by the learned Additional Sessions Judge in
Crl.M.P.No.2387 of 2013.
2. The incident relates to the case had occurred on
14.12.2004, when a hapless young lady had taken the chance to
have a medical consultation, that too casually, for her abdominal
pain at the hospital in question. She walked in to the casualty for
a consultation. The Doctor at the casualty had examined her and
administrated Cyclopam injection and Digene gel and she was
asked to go home. Thereafter the twist occurred, when she was
further advised to meet the Surgeon also. As advised, she met
the Surgeon. The Surgeon could not find anything to intervene;
but advised her to consult the Gynecologist also. Then the victim
met the Gynecologist. The Gynecologist suggested that there
was some sort of urinary infection and she was administrated
with Ampicillin injection, allegedly after taking the test dose.
Immediately after the injection, she developed respiratory
difficulties. Noting down the complications, the first petitioner,
Doctor administrated Diazapam injection. Immediately, her
condition worsened and she had to be connected to a ventilator.
As there was no ventilator facility at the hospital, she was
directed to be shifted to VSM Hospital, Mavelikkara where such
a facility was available. By the time, she reached the hospital, it
seems that she was almost dead. Her heart beat and pulse
were not readable. Even though she was connected to the
ventilator and medicines were administrated, she could not be
resuscitated. Soon after, her death was declared.
3. As in the case of normal death, her dead body was
taken to her house and it was buried. In the mean time, the
defacto complainant, who is the mother of the victim, could smell
rat about the gross negligence from the part of the doctors who
had administrated medicines to her, she filed a complaint and
the law was set in motion. The dead body was disinterred and
autopsy was conducted. The matter was investigated by the
local police at first. Dissatisfied with the snail pace of
investigation by the local police, the defacto complainant
approached this Court seeking a proper investigation, which has
culminated in handing over the investigation to the Crime
Branch.
4. The Crime Branch investigated the matter and filed a
final report alleging an offence under Section 304 IPC. On
committal to the Court of Session, the case was made over to
the learned Additional Sessions Court. Petitioners filed the
aforesaid Crl.M.P. seeking a discharge. The matter was heard
under Section 227 of the Cr.P.C. The learned Additional
Sessions Judge initially found that a charge under Section 304-A
will alone lie and consequently by invoking the power under
Section 228(1A) of Cr.P.C., the court below transferred the case
to the Judicial First Class Magistrate's Court, Karunagapplly.
Dissatisfied with the findings entered by the court below in the
said Crl.M.P., the petitioners preferred Crl.R.P. before this Court
as Crl.R.P.296/2014. This Court, after hearing both sides,
passed an order on 28.08.2014 thereby allowing the criminal
revision and by setting aside the order impugned in it, by giving
the following directions.
(a) The impugned order passed by the court
below in Crl.M.P.No.2387 of 2013 will stand set
aside, and the application for discharge will
stand restored to files.
(b) The learned trial judge will reconsider
the application for discharge, hear both sides in
detail, examine the whole prosecution records
as meant under Section 227 Cr.P.C. and take
decision afresh for one of the options available
under Section 228 of Cr.P.C. and pass
appropriate judicious order.
(c) Crl.M.A. No.3677 of 2014 brought by the
mother of the deceased will stand closed for
the time being. In case, she makes an
application for being heard in the court below,
it shall be considered by the trial court, and if
felt necessary, or if found that she has legal
right to be heard, or that she requires to be
heard in the interest of justice, appropriate
orders can be passed by the trial court.
(d) The trial court is hereby directed to take
decision on the application for discharge,
without any delay. Efforts shall be made for
disposal within four months."
5. The learned Additional Sessions Judge again heard
the matter and passed the impugned order by which the court
below found that there are sufficient grounds to proceed for an
offence under Section 304 IPC. Consequently, a charge under
Section 304 IPC has been framed. It is the said order which is
under challenge herein.
6. It seems that the charge has been read over to the
petitioners, plea has been recorded and the matter has been
scheduled for trial.
7. Heard the learned counsel for the petitioners, the
learned counsel for the defacto complainant and the learned
Public Prosecutor.
8. Initially, the learned counsel for the petitioners has
objected that the defacto complainant has no right of audience
in the matter and therefore, the learned counsel for the defacto
complainant may not be permitted to argue the matter. I find
little merit in the said argument. It seems that the law was set in
motion in this case on a complaint preferred by the defacto
complainant herein. In a criminal trial, it is trite that there cannot
be any question of locus standi. In this particular case, it seems
that the 4th accused had approached this Court through
Crl.M.C.3094/2013 for getting all the proceedings against him in
this case quashed. The defacto complainant was impleaded in
that matter. It seems that the proceedings against the 4th
accused has been quashed with a finding that at the appropriate
stage of the trial if it is found that he should also be impleaded,
there is nothing wrong on the part of the trial court in invoking
the power under Section 319 Cr.P.C. It was also found that in
case the prosecution does not choose to examine the 4th
accused as a prosecution witness, he should be examined as a
court witness by the trial court.
9. It seems that all along the proceedings the defacto
complainant has been actively participating. When the provision
under Section 227 Cr.P.C. says that the prosecution has to be
heard, in this particular case it cannot be said that the defacto
complainant is not a part of the prosecution. Over and above all
these, the victims in crimes and their relatives are no longer a
forgotten mass in criminal justice dispensing system. They have
also their own rights to be protected. They are not supposed to
swallow all what are being done by the investigation or
prosecution. They should never be treated as persons expected
to be mute spectators in judicial process.
10. The learned counsel for the petitioners have invited
the attention of this Court to the decision in Ajay Kumar Parmar
v. State of Rajasthan[2012 (4) KLT SN 61 Case No.49(SC)]
wherein it was held that the court should not pass an order of
acquittal by resorting to a course of not taking cognizance,
where prima facie case is made out by the Investigating Agency.
More so, it is the duty of the court to safeguard the right and
interests of the victim, who does not participate in discharge
proceedings.
11. It is true that normally a victim is not participating in
the discharge proceedings under Section 227 Cr.P.C. If in a
case wherein the victim is not sufficiently represented by the
prosecution and in cases where the interest of the victim is not
being adequately protected, there is nothing wrong on the part
of the victim in stepping in with a request for being heard, and in
such cases, the cries of the victim should not remain unheard.
From the aforesaid dictum laid down by the Apex Court it cannot
be said that the victim has no right to be heard during the
discharge proceedings.
12. The learned counsel for the petitioners is also relying
on the decision in R.S. Mishra v. State of Orissa[AIR 2011 SC
1103] wherein it was held:
"It is also to be noted that a discharge order
is passed on an application by the accused on
which the accused and the prosecution are
heard. At the stage of discharging an accused
or framing of the charge, the victim does not
participate in the proceeding. While framing
the charge, the rights of the victim are also to
be taken care of as also that of the accused."
13. From the aforesaid dictum also it cannot be said that
the victim can have no right of audience at all. The Apex Court
has laid down the law that while passing order under Section
227 Cr.P.C. the interest of the victim should also be considered
as in the case of the accused. The said dictum was laid down by
considering that in normal cases, the victims do not participate
in discharge proceedings. From all these, I do not find any merit
in the argument forwarded by the learned counsel for the
petitioners that the defacto complainant has no right of
audience.
14. Coming to the next aspect, the question to be
considered is whether the impugned order passed by the court
below suffers from any illegality, irregularity or impropriety. On
hearing either side, this Court is faced with a peculiar
circumstance wherein this Court is called upon now to decide
whether a charge under Section 304 IPC will lie in the matter or
not. If a charge under Section 304 will lie in the matter, it cannot
be said that the impugned order passed by the court below is
illegal, irregular or improper. This Court is of the view that, the
said question has to be considered only by having recourse to
the contents of the documents available at present, i.e.,
documents produced by the prosecution along with the final
report. What is envisaged under Section 227 Cr.P.C. is not a
threadbare examination of the entire evidence in the matter as in
the case of passing a judgment at the conclusion of the trial.
The court is not expected to balance the evidence whereas the
court need only decide whether there are sufficient grounds to
proceed or not. In short, it is trite that what the court has to
decide under Section 227 Cr.P.C. is whether there is a prima
facie case or not. If it is shown that there is a prima facie case
to proceed on an offence under Section 304 IPC, it has to be
considered that there are sufficient grounds to proceed within
the meaning of Section 227 Cr.P.C.
15. The learned counsel for the petitioners has argued
that in order to sustain a criminal liability in such matters of
alleged medical negligence, the prosecution has to establish
gross negligence on a higher standard for making out sufficient
grounds for proceeding. According to the petitioners, especially
when the deceased was working as a staff nurse in another
hospital, she ought to have taken due care in revealing the fact
that she was epileptic. At this juncture, the said argument is
challenged by the learned counsel for the defacto complainant
by arguing that the defacto complainant has no case that the
victim had ever suffered epilepsy. According to him, the
deceased was not suffering from epilepsy, and the so called
'epilepsy' is an invention by some so called medical experts in
order to aid the petitioners.
16. Let us assume that the victim in this case was
suffering from epilepsy. Even in such a case, can it be said that
the doctors who are administrating the medicines by way of
injection had no duty to enquire whether the victim had any such
disability or not? If it is shown that the petitioners as doctors
had no duty to enquire whether the victim was suffering from any
disability or whether she was epileptic or not etc., then it could
be said that there was no culpable negligence of the highest
standard in not enquiring about the said aspect. At the same
time, in medical jurisprudence, it is a basic duty cast upon a
doctor to enquire the victim as to whether the victim was
suffering from any such disability or disabilities, prior to
administrating such medicines.
17. Now the question is whether the negligence in not
enquiring as to whether the victim was suffering from any such
disability or not, is a gross negligence of high standard or not. In
this particular case, it seems that Ampicillin injection was
administrated, may be or may not be after test dose, and the
same is a matter to be proved. Even if it is administrated after
test dose, it seems that she had developed respiratory trouble.
Cases are not unknown even in cases where test dose was
administrated, reactions had arisen even after the stipulated
time. If, as a matter of fact, Ampicillin injection was administrated
after the test dose and after the expiry of the waiting period, it
cannot be said that there was any sort of negligence on the part
of the persons administering Ampicillin injection. The trouble in
this case started after that. It seems that when she developed
utter discomfort and respiratory problem, Diazapam injection
was administrated. At that time, the persons who were behind it,
as medical professionals, had a basic duty to ascertain whether
she had any disability like epilepsy, hyper tension, cardiac
problems etc. In the state of such restlessness, the victim might
not have exercised the caution to reveal her disabilities, even if
such disabilities were there. That does not absolve the doctors
from exercising the basic care in enquiring about any such
disabilities, if at all exist.
18. This Court is not expressing any opinion as to the
cause of death of the deceased. The question to be considered
is whether there are basic materials to frame a charge under
Section 304 IPC or not. The learned counsel for the petitioners
has invited the attention of this Court to a catena of decisions.
In P.Vijayan v. State of Kerala[AIR 2010 SC 663] it was held:
"The words "not sufficient ground for
proceeding against the accused" clearly show
that Judge is not a mere Post Office to frame
the charge at the behest of the prosecution, but
has to exercise his judicial mind to fact of case
in order to determine whether a case for trial
has been made out by prosecution. In assessing
this fact, it is not necessary for the Court to
enter into the pros and cons of the matter or
into a weighing and balancing of evidence and
probabilities which is really the function of the
Court, after the trial starts. At the stage of S.
227 the Judge has merely to sift the evidence in
order to find out whether or not there is
sufficient ground for proceeding against the
accused. In other words, the sufficiency of
ground would take within its fold the nature of
the evidence recorded by the police or the
documents produced before the court which ex
facie disclose that there are suspicious
circumstances against the accused so as to
frame a charge against him."
19. It was clearly observed that the duty of the judge at
the stage of Section 227 Cr.P.C. is merely to sift the evidence in
order to find out whether or not there is sufficient ground for
proceeding against the accused and a rowing enquiry is not
expected. In State of Karnataka v. LMuniswamy[AIR 1977 SC
1489] it was held:
"It is clear from S.227 of the new Code that
the Sessions Court has the power to discharge
an accused if after perusing the record and
hearing the parties he comes to the conclusion,
for reasons to be recorded that there is no
sufficient ground for proceeding against the
accused. The object of the provision which
requires the Sessions Judge to record its reasons
is to enable the superior Court to examine the
correctness of the reasons for which the
Sessions Judge has held that there is or is no
sufficient ground for proceeding against the
accused. The High Court therefore is entitled
to go into the reasons given by the Sessions
Judge in support of his order and to determine
for itself whether the order is justified by the
facts and circumstances of the case."
20. It was also held therein that,
"For the purpose of determining whether there
is sufficient ground for proceeding against the
accused the court possess comparatively wider
discretion in the exercise of which it can
determine the question whether the material
on the record, if unrebutted, is such on the
basis of which a conviction can be said
reasonably to be possible".
In cases wherein a possibility of conviction on a proper charge
itself is a ground for reckoning the acts as one having sufficient
ground to proceed.
21. My attention has been invited to the decision in Sati
Kanta Guha v. State of West Bengal[1977 Crl.L.J. 1644]
wherein the Division Bench of the Calcutta High Court held that
hearing under Section 227 Cr.P.C. is not an empty formality
whereas it is a valuable right conferred on the accused to
challenge that there are no sufficient grounds to proceed.
22. In Dilawar Babu Kurane v. State of Maharashtra
[AIR 2002 SC 564], it was held that in exercising the powers
under Section 227 Cr.P.C. the Judge while considering the
question of framing charge on a particular offence, has the
undoubted power to sift and weigh the evidence for the limited
purpose of finding out whether or not a prima facie case against
the accused has been made out.
23. In Mahadev Prasad Kaushik v. State of Uttar
Pradesh[(2008) 14 SCC 479], it was held:
"There is thus distinction between Section 304
and Section 304-A. Section 304-A carves out
cases where death is caused by doing a rash or
negligent act which does not amount to culpable
homicide not amounting to murder within the
meaning of Section 299 or culpable homicide
amounting to murder under Section 300 IPC. In
other words, Section 304-A excludes all the
ingredients of Section 299 as also of Section 300.
Where intention or knowledge is the "motivating
force" of the act complained of, Section 304-A
will have to make room for the graver and more
serious charge of culpable homicide not
amounting to murder or amounting to murder as
the facts disclose. The section has application to
those cases where there is neither intention to
cause death nor knowledge that the act in all
probability will cause death."
24. My attention has been invited to a series of decisions
by the learned counsel for the petitioners to point out that
normally it cannot be expected from a doctor that he would be
negligent in carrying out a surgical operation or in prescribing
medicines. It is common sense that normally a doctor will not do
like that as it would be an end of his career. At the same time,
in a case wherein there is culpable negligence on the part of the
medical practitioner in prescribing medicine without taking care
of its adverse impact in a patient labouring under some disorder,
and if it causes death, can it not be said that it will fall under the
definition of culpable homicide within the meaning of Section
299 I.P.C? If the prosecution is able to prove that such a death
was caused with the knowledge that it would endanger the life of
that person, definitely it will attract culpable homicide within the
meaning of Section 299 IPC. Even if it is shown that such
knowledge was there and culpable homicide was caused,
definitely it would fall within the category under Section 304 Part
II IPC. In such cases wherein doctors are involved, can they be
left scot free with their white cot even when there is culpable
negligence. It is a fact, that has to be established by the
prosecution in trial as to whether there was culpable negligence
or not. That question cannot be decided merely on the basis of
documents produced by the prosecution at the time of hearing
under Section 227 of the Cr.P.C. alone. The evidence in this
case will not be mere documentary evidence alone. The oral
evidence has also to be considered. There is a disability on the
part of the court in relying on oral evidence at the stage of
hearing under Section 227 Cr.P.C.The court may, for the limited
purpose, go through even the statements recorded under
Section 161 Cr.P.C. At the same time, it is not at all safe on the
part of a court dealing with a serious matter to have a
threadbare examination of the matters contained in the
statements recorded under Section 161 Cr.P.C. produced by the
prosecution. There may be embellishments or exaggerations in
such statements. The court should not be carried away by going
through the said statement by making a threadbare examination.
25. For the limited purpose of satisfying whether there are
sufficient grounds to proceed, what is expected is to consider
whether there is a prima facie case or not. On considering the
entire aspects relating to the matter in this particular case, I am
unable to say that this is a case wherein there are no sufficient
materials to proceed with. I do not find any illegality, irregularity
or impropriety in the impugned order passed by the court below.
It seems that the court below has rightly complied with the
directions passed by this Court in the order passed in the earlier
Criminal Revision. I cannot find fault with the court below in not
making a detailed discussion in the matter. If such a detailed
discussion is made, definitely, it will tend to reflect during the
trial. What was expected from the court below was only to enter
a finding as to whether there was a prima facie case or not. The
court below has come to the conclusion that there is a prima
facie case and all the other matters raised by the learned
counsel for the accused were only questions that could be
decided during trial. It seems that the court below has not
transgressed illegally to any other area, apart from confining to
the scope of consideration under Section 227 Cr.P.C.
26. The learned counsel for the defacto complainant has
argued that the defacto complainant is aged above 80 and she
wants to see the disposal of the case during her life time. It is
also pointed out that she is a cancer patient. Let a decision be
given, whether it be an acquittal or conviction; let the trial
continue. The defacto complainant has got a specific case that
the petitioners are eager in postponing a final decision in the
matter and the present proceedings are a reflection of it. It has
also been pointed out that the petitioners have preferred a
transfer petition also before this Court for getting the matter
transferred to some other court. As the said matter is not before
me, I am not making any opinion on it. Whatever it is, it seems
that there is a conscious attempt to postpone a final decision in
the matter. I do not find any merit in the present Criminal
Revision Petition, and the same is only to be dismissed, and I do
so.
In the result, this Crl.R.P. is dismissed.
Sd/- B.KEMAL PASHA, JUDGE
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