THE COURT MADE THE FOLLOWING: ORDER Heard the learned counsel for the petitioner and the learned High Court Government Pleader. Perused the records.
2. The petitioner, who is a practicing doctor, approached this court for quashing of the entire proceedings in CC No.54185/2014 initiated by the respondent - Indiranagar Police Station for the offences punishable under section 338 read with Section 34 of IPC. Though the respondent No.2 served with notice issued by this court he remained absent and not represented.
3. The learned counsel for the petitioner Sri. R. Nataraj strenuously contends that the charge sheet filed by the police is not tenable as the police had requested for the report before filing the charge sheet from the Karnataka State Dental Council and in fact the Karnataka State Dental Council has submitted a report dated 13.1.2014, annexed with the proceedings of enquiry committee held on 23.3.2013 against the petitioner herein. The said Dental Councils report discloses that the parties have compromised the matter. The Investigating Officer without properly looking into the said documents and even without taking the opinion from the doctor with regard to the culpability of the offence by the accused u/s.338 of IPC, filed a charge sheet before the jurisdictional Magistrate. The jurisdictional Magistrate without looking into the principles laid down in a case reported in (2005) 6 SCC
1 between Jacob Mathew Vs. State of Punjab and another, taken cognizance and issued summons to the petitioner.
4. Though the learned counsel for the petitioner relied upon the Dental Councils report alleging that, the same has not been properly relied upon by the Investigating Officer, but this court cannot directly rely upon the said document to draw an inference that on terms, the parties have compromised the matter because the terms of compromise has not been specifically stated in the said document.
5. The learned counsel for the petitioner has further submitted with reference to the medico legal aspect, before invoking Section 338 of IPC. Unless an experts report is available to the court, the court cannot step into the shoes of the expert and draw any inference while exercising power u/s.482 of Cr.P.C.. Therefore, what remains for the consideration of this court is whether filing of the charge sheet by the police against the petitioner without taking an opinion of the doctor with regard to the culpable medical negligence of the petitioner or not, or whether the cognizance taken on the basis of such charge sheet is valid and tenable.
6. In this background, it is worth to mention here the relevant paragraph of the Hon'ble Apex Court in Jacobs case noted supra which reads as follows:
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 a 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 and 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.
7. In view of the above decision, it is virtually running like a statutory principle because the Supreme Court has specifically stated till the relevant rules or acts are framed, the said guidelines issued by the Supreme Court shall be treated as statutory guidelines, to the Investigating Agency and to the private complainants and the Courts. Therefore, on careful perusal of the said paragraph it is mandatory on the part of the Investigating Officer that he should before proceeding against doctors for implicating them for rash or negligent Act under any penal provisions, he should obtain an independent and competent medical opinion preferably from the doctor in Government service qualified in that branch of medical practice who can normally expected to give impartial and unbiased opinion applying the Bolam test during the course of investigation. Therefore, it goes without saying that when once the Investigating Officer collects any material against the accused regarding medical Negligence, all those materials should be placed before an expert doctor for opinion. Without obtaining such medical opinion, the Investigating Officer cannot further proceed against the accused either for arrest or for lodging the charge sheet against him.
8. In the above said background, coming back to the facts of this particular case, though the charge sheet contains the allegations of negligence on the part of the petitioner and charges leveled against her u/s.338 of IPC. But the fact remains that the entire investigation papers do not disclose that the Investigating Agency has complied with the above said guidelines of the Hon'ble Apex Court before lodging the charge sheet against the petitioner. The learned Judge who took cognizance of the offence has also not bestowed his opinion to the above said guidelines of the Hon'ble Supreme Court.
9. Under the above said facts and circumstances of the case, I am of the opinion, filing of the charge sheet by the police without adhering to the above said guidelines of the Hon'ble Supreme Court and taking cognizance by the learned Magistrate are bad in law and the same are liable to be quashed. However, the proceedings cannot be left in the middle, in such a manner without giving any opportunity to the Investigating Agency to conclude the said investigation logically by taking recourse as per the guidelines of the Hon'ble Apex Court. Hence, in view of the above, I proceed to pass the following: ORDER The petition is partly allowed. The proceedings in CC No.54185/2014 pending on the file of the X Addl. CMM, Mayo Hall, Bengaluru City, and the order taking cognizance against the accused is hereby quashed. Learned X Addl. CMM, is hereby directed to return the entire case sheet papers to the Investigating Officer for the purpose of complying with the direction of the Hon'ble Apex Court in the above noted JACOB MATHEWs case. The Investigating Officer is also hereby directed after receiving the charge sheet he should bestow his attention to the decision of the Apex Court in Jacob Mathews case and report submitted by the Dental Council and if necessary further examine the complainant with regard to the terms and then take appropriate decision and file appropriate report before the court. Sd/- JUDGE
Comments