H.V. PHOPALE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is an application made by Dr. H. V. Phopale, Superintendent of the St. George's Hospital, praying that certain observations made by the Chief Presidency Magistrate in his order dated December 8, 1964, be expunged. In Criminal Case No. 74/P of 1964 the evidence of Dr. Bhakta, who had conducted post -mortem examination, was considered necessary by the prosecution. Dr. Bhakta is attached to the St. George's Hospital as an Honorary Surgeon. According to the usual practice, a letter of request was sent to the Superintendent as the head of the hospital requesting him that Dr. Bhakta should be asked to attend the Court on November 17, 1964. Dr. Bhakta did not appear on that date. So on November 17, 1964, another letter of request was sent fixing the date as on November 24, 1964. On this date also Dr. Bhakta did not appear. A third letter is alleged to have been sent fixing the date as on November 30, 1964. There is some doubt as to whether that letter ever reached the St. George's Hospital. Dr. Bhakta did not appear on the date fixed, i.e. on 30th. It, however, appears from the Rojnama that another doctor was present. On the 30th the learned Magistrate passed an order directing that a personal summons should be issued to Dr. Bhakta. The summons directed that the case was fixed on December 8, 1964 and that the doctor should appear on that date. It does not appear from the summons, the original of which was showd to us, that a copy was sent to Dr. Phopale, the head of the hospital. Unfortunately, Dr. Bhakta did not appear even on the 8th notwithstanding that the summons was personally served on him. The Chief Presidency Magistrate, therefore, sent Sub -Inspector Baviskar to approach the Superintendent and to apprise him of what was happening. Baviskar met Dr. Phopale and made a report to the Chief Presidency Magistrate. It appears that he made an oral report to the Chief Presidency Magistrate. In any case there is no written report on the record of the case. The purport of the report, as given by the Magistrate in his order, is as follows:

(2.) PROCEEDING with the narration of the facts, the Magistrate then goes on to point out that these are not the only two cases in which the doctors at the St. George's Hospital have disrespected the Court's summons and letters of request. To quote his own words:

(3.) DEALING with the last point, viz. whether the observations were necessary for the decision of the case, it may be noted that Dr. Bhakta on whom the summons was served did not attend the Court on the date fixed. All that the Magistrate then need do was to issue a warrant against him and that is exactly what he has done. This is the only effective order which the Magistrate could pass in the circumstances of the case. If he wanted any further enquiry into the conduct of Dr. Bhakta or even of the Superintendent of the Hospital, he should have instituted a separate enquiry which had nothing to do with the case on hand. It is thus clear that the observations made by the learned Magistrate had no relevance to the decision on the point which the Magistrate was deciding, viz. whether the conduct of Dr. Bhakta was so contemptuous as to warrant the issuing of warrant bailable or non -bailable.