SUDHABEN KANTILAL SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Invoking Articles 226 and 227 of the Constitution, the petitioner has called into question the judgment and order dated 10.01.2008 of learned Additional Sessions Judge, Junagadh in Criminal Revision Application No.30 of 2006 whereby the order dated 19.01.2006 of learned J.M.F.C., Junagadh in Criminal Case No.293 of 2000 discharging the petitioner under section 258 of the Cr.P.C. was set aside and regular trial by recording the evidence was ordered. The criminal proceeding against the petitioner were initiated by registration of an F.I.R. dated 09.02.1998 as C.R.No.40 of 1998 for the alleged offence punishable under section 304-A of the Indian Penal Code, 1860. A charge-sheet pursuant to that F.I.R. and investigation was also filed and the first order dated 19.01.2006 of learned J.M.F.C., Junagadh in Criminal Case No.293 of 2000 appeared to have been made on a cursory reading of the papers of investigation. It was, inter alia, concluded in that order that, if a doctor on duty does not attend a patient in his or her ward, it amounts to administrative negligence but not medical negligence.

(2.) In the facts of the present case, according to the complainant, the victim of the alleged offence was stated to have been dying out of excessive pain and bleeding after delivery by caesarean section, while the petitioner was on duty as the doctor but had consciously failed to attend or examine her. Against the backdrop of those broad facts, it was vehemently argued by learned counsel Mr.Buch that the statements of other witnesses recorded by police during the course of investigation were required to be carefully read to arrive at the conclusion that prima facie findings of fact recorded by learned Additional Sessions Judge in the impugned order were perverse and the impugned order suffered from manifest illegality. It was, however, argued by learned A.P.P. and seen from the record that the Court had adopted an appropriate course of action as the prima facie case made out against the petitioner required fulfledged trial. It was also seen that learned J.M.F.C. had jumped to an irrational conclusion in respect of the alleged negligence of the petitioner during the discharge of her duties as doctor in charge of the ward of the Government Hospital.

(3.) Learned counsel Mr.Buch relied upon orders and judgments of the Supreme Court in Rakesh Ranjan Gupta v. State of U.P. and Another, 1999 1 SCC 188 and Dr.Suresh Gupta v. Government of NCT of Delhi and Another, 2004 6 SCC 422 in support of his argument that it was permissible for this Court to analyze the material appearing against the petitioner, either in exercise of the power under section 482 of the Cr.P.C., 1973 or under Article 226 of the Constitution, to arrive at an appropriate conclusion and relieve the petitioner of the pain of facing trial.