Dr. Harihar Nath Garg v. State Of M.P.

1. This petition is filed under Section 482, Cr.PC. By this petition, the petitioner has prayed for quashing of proceedings in Criminal Case No. 161/96 registered in G.R.P., Police Station, Guna, for committing offence under Section 491/34, IPC and the proceedings pending in the Court of Judicial Magistrate Class First, Shadhora, in Criminal Case No. 560/99, in which the charges under Sections 491 and 304A, IPC are framed against the present applicant. The said order is confirmed in Criminal Revision No. 44/2000 by the Addl. Sessions Judge and the Special Judge, Guna, by order dated 10-4-2000.

2. The facts giving rise to the criminal case are that on 28-6-1996, a complaint was lodged by some of the employees of Railway that one Jeep from Civil Hospital came to the Railway Station. From the said Jeep one Sunderlal and Pawan and some other persons got down and threw a body of a person, namely, Ghasiya, who died immediately thereafter on the Station and returned back. The present applicant is a doctor in the Civil Hospital. It is alleged that the deceased had approached to the Hospital for his treatment. He was 80 years old person and suffering from Leprosy, and the petitioner without giving him medical help thrown him on the Railway Station. The deceased died for want of proper treatment. Hence, a complaint was filed with the police. On the basis of the complaint, a case was registered against the present petitioner. The present petitioner being a Government servant, permission to prosecute the present petitioner was sought from the Government and the Government granted permission on 28-11-1997 for prosecuting the petitioner for committing the offence under Section 491, IPC. On 17-1-1997, a challan was filed. The charge was framed against the present petitioner on 23-2-2000. This order was also challenged before the Revisional Court. The said revision is dismissed by the impugned order, hence, the petition is filed under Section 482, Cr.PC.

3. The first contention raised by Shri R.D. Jain, the learned Counsel for the petitioner is that the Court below has erred in taking cognizance of the offence under Sections 491 and 304A, IPC. According to him, the maximum punishment for committing offence under Section 491, IPC is three months, hence, the challan should have been filed within one month from the date of committing the offence. In the present case, the challan is filed after a lapse of one month, hence, the proceedings under Section 491, IPC are barred by time and are not maintainable. As regards the charge under Section 304A, IPC is concerned, the limitation is three years. According to him, on the date of the framing of the charge three years were already over. At the same time, according to him, the sanction granted by the Government to prosecute the present petitioner was only for committing the offence under Section 491, IPC. Hence according to him, the proceedings are not only barred by limitation, but also not maintainable for want of sanction under Section 197, Cr.PC. He further submitted that there is no evidence on record to show that the present petitioner ever refused to treat the deceased, hence, in absence of any evidence, the Court should not have taken cognizance of the offences.

4. As regards offence under Section 491, IPC is concerned, I find that the charge-sheet was filed on 17-1-1997 while the date of incident is 27-6-1996. Hence, the proceedings for committing offence under Section 491, IPC are concerned, it prima facie appears to be barred by limitation.

5. As regards the case under Section 304A is concerned, the limitation for filing the challan is three years and the challan is filed within that period. Hence, the bar of limitation for prosecuting the petitioner under Section 304A, IPC is not available to the present petitioner. The petitioner has challenged the proceedings under Section 304A, IPC on the ground that there is no proper sanction under Section 197, Cr.PC. There is no prima facie evidence to make out a case under Section 304A, IPC; at the most, a case for civil negligence is made out, and therefore, the proceedings for committing offence under Section 304A, IPC should be quashed.

6. The learned Counsel for the petitioner has invited my attention to the sanction dated 28-11-1997. At that time, the permission was sought from the Government for prosecuting the petitioner for committing offence under Section 491, IPC. However, at the time of framing of the charge, the Court found that offence under Section 304A, IPC is also made out. The charge was framed under Section 304A, IPC for the first time on 23-2-2000.

7. After perusing the sanction, I find that the sanction is granted against the petitioner for committing offence under Section 491, IPC. However, from the perusal of the statements and the fact mentioned in the sanctioned letter, it appears that there are allegations to constitute offence under Section 304A, IPC. Now the question is whether omission to mention Section 304A, IPC in the sanctioned letter will itself by vitiates the entire proceedings or not.

8. As regards the question of sanction is concerned, I find that this question is not raised by the petitioner either before the Magistrate or before the Revisional Court before whom the proceedings were challenged and the revision was dismissed by the Revisional Court by order dated 10-4-2000. Hence, the petitioner cannot be permitted to raise the question of sanction for the first time before this Court and on this ground itself, the present petition deserves to be dismissed.

9. Counsel for the petitioner further submits that the question of sanction goes to the root of the jurisdiction, therefore, he may be permitted to raise the said question before this Court; that it was not raised before the two Courts below.

10. As regards non-mention of Section 304A, IPC in sanction letter is concerned, I am of the opinion that the said omission will not vitiate the proceedings. On the perusal of the sanction letter, it appears that there are allegations against the present petitioner in the sanction letter itself that the petitioner, who was the doctor in the Government Hospital, has refused to treat him and the patient was thrown in the Railway Station in the Jeep of the Government Hospital. As there are prima facie allegations mentioned in the sanctioned letter itself, mere non-mentioning of a Section or mere wrong mentioning of the section will not affect the entire proceedings. The Government has granted sanction for prosecuting the present petitioner on the set of facts mentioned in the sanction letter. Mentioning or non-mentioning of any section does not affect the statement of allegations recorded in the sanction letter. The sanction is granted to prosecute the petitioner on the set of allegations recorded in the sanction letter, hence, I am not convinced that mere non-mentioning of the Section will vitiate the entire proceedings. Hence, these arguments have also no substance.

11. The Counsel for the applicant has urged that the allegation will constitute only a civil negligence and not criminal liability under Section 491, IPC. He invited my attention to the judgment of the Hon'ble Apex Court in the case of State of W.B. v. Mohammed Khalid [(1995) 1 SCC 684]. The facts in the aforesaid case are quite distinguishable from the present case. In the present case, the petitioner is a Government employee. He is paid a salary to treat all the patients approaching to the Government Hospital. The case of the Government Doctor stands on a different footings to that of the private doctor. The doctor in the Government Hospital is duty bound to attend all the patients approaching to the Hospital for their treatment and the Government pays salary to the doctors appointed in the Government Hospital to treat these patients who cannot afford to engage a private doctor to treat themselves. The doctor in the Government Hospital cannot refuse to examine or treat a patient approaching the Government Hospital. Hence, the law laid down by the Hon'ble Apex Court in the case of State of W.B. v. Mohammed Khalid (supra) does not apply to the present case.

12. The Counsel for the applicant next urged that the cause of death is a heart-attack and not refusal of the petitioner to treat the said patient. From the perusal of the post-mortem report, it appears that the doctors have opined that they could not give a definite opinion about the cause of death. Hence, the arguments raised by the Counsel for the petitioner has also no substance.

13. Counsel for the petitioner has further urged that there is no evidence to show that the present petitioner has refused to examine the patient. He invited my attention to the statements recorded under Section 161, Cr.PC. I have perused the said statements, particularly the statements of Devendra Kumar Tyagi, Ramkishan, Parmal Singh and Narendra Singh, which clearly go to show that the deceased was thrown on the Railway Station. He was brought to the Railway Station in the Jeep owned by the Civil Hospital, where the petitioner is doctor. After throwing the deceased on the Railway Station, the deceased died. He was suffering from Leprosy. The question whether the deceased could have been saved after the treatment or not, is not a relevant question in the present case because the doctors cannot be held responsible for the death of a patient if they treat the patient with reasonable care and prudence. Mere erroneous diagnosis or erroneous treatment can also not be a ground for prosecuting the doctor, if he treats the patient with reasonable care. But in the present case the allegations are that the doctor has not at all treated the patient, who was suffering from Leprosy and was 80 years of age. It is expected from the doctor to treat the patient by claiming his full efforts to treat him, but the allegations prima facie show that the doctor has failed to take any care of the patient, and hence, he is prima facie negligent in discharging of his duties to attract the provisions of Section 304A, IPC.

14. As regards question of evidence about refusal of treatment is concerned, Village Shadhora is a small village. Nothing was brought on record to show that any other doctor was appointed in the Civil Hospital. The present petitioner being posted there as B.M.O. was definitely responsible for the said negligence. There is evidence to show that the deceased was brought to the Railway Station in the Jeep of the Government Hospital. The two Courts below have reached to the conclusion that the offence under Section 304A is made out after appreciating the evidence.

15. All these facts prima facie constitute the allegations against the present petitioner. Hence, the Trial Court has rightly framed charge under Section 304A, IPC against the present petitioner.

16. Considering all these facts, this petition is partly allowed. Charge framed against the present petitioner for committing offence under Section 491, IPC is struck down while part of the order framing charge under Section 304A, IPC is maintained. The petition is disposed of.