The single-judge bench of the Jharkhand High Court held that Section 202 (2) provides that if the case is exclusively triable by the court of sessions, it is incumbent upon the Enquiry Court to call upon the complaint to examine all the complaint witnesses in support of the allegations made in the complaint.
Brief facts
The factual matrix of the case is that the complaint was filed against the accused in which it was alleged that the complaint was pregnant and the broker of the hospital took her to the Doctor who was on duty. Then, the doctor stated that this case was not a case of normal delivery and there was a risk to the life of both the child and the mother, therefore, they were directed to deposit 10,000/- rupee at the counter. Even after the operation, the child and the complainant both were admitted to the hospital in order to extort more money. It was furthermore alleged that the complainant was suffering from pain and got no relief even after taking medications prescribed by the doctor. Then, the flesh began to ooze from the operating part and she was advised for the second operation for which Rs. 1,25,000/- was taken from the complainant and the condition of the complaint remained the same. Thereafter, in order to save her life, she went to another doctor and the complainant incurred Rs. 6,57,000/- in her treatment. The complaint was filed and on the basis of the statement of enquiry, the witness passed the summoning order against Dr. Punam Sinha for the offense under Sections 308, 338 of I.P.C. The discharge application was filed and the trial court rejected the same. Aggrieved by this, the criminal revision is filed.
Observations of the court
The Hon’ble Court observed that the court dealing with the discharge application must consider the allegation made in the complaint or in the F.I.R. as well as the evidence gathered by the I.O. to bolster the allegations in the F.I.R. The court should reject the discharge application if there is insufficient evidence to support the prosecution of the charges made in the F.I.R., the complaint, and the evidence gathered by the I.O. If, on the other hand, the court is certain that none of the charges in the F.I.R. or the complaint's allegations supports the existence of an offence, the discharge application should be allowed.
The court furthermore observed that at this stage, the appreciation of the evidence or marshalling of the evidence is not permissible. The court cannot conduct the mini trial at the time of framing charge.
The court relied upon the judgments titled Palwinder Singh vrs. Balwinder singh, Sanghi Brothers (Indore) Pvt. Ltd. vrs. Sanjay Choudhary & ors, RukminiNarvekarvrs. Vijaya Satardekar & Ors., and Central Bureau of Investigation vrs. Mukesh Pravinchandra Shroff & Ors.
The court noted that in the present case, the enquiry court committed the case to the court of session without examining all the witnesses which are shown in the complaint. From the very perusal of the provision of Section 202 of Cr.P.C., it is found that the proviso of Section 202(a) Section 202(b) and Section 202 (2) provides that if the case is exclusively triable by the court of sessions, it is incumbent upon the Enquiry Court to call upon the complaint to examine all the complaint witness in support of the allegations made in the complaint.
The court furthermore noted that the medical negligence in the instant case is not supported by the expert evidence.
Based on these considerations, the court was of the opinion that no alleged offence under Sections 308 and 338 of I.P.C. is made out from the evidence adduced on behalf of the complainant
The decision of the court
With the above direction, the court allowed the criminal revision.
Case Title: Dr. Punam Sinha @ Punam Sinha Vs. The State of Jharkhand
Coram: Hon’ble Mr. Justice Subhash Chand
Case No.: Cr. Rev. No. 648 of 2023
Advocate for the Petitioner: Mr. Abhay Kumar Chaturvedi, Advocate
Advocate for the State: Mr. Subodh Kumar Dubey, A.P.P.
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