SHRAWAN KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application has been filed by the petitioner under Section 482 of the Code of Criminal Procedure (hereinafter to be referred to as the 'Code') for quashing of the entire criminal proceeding, including the order dated 22nd August 1996 passed by the learned Chief Judicial Magistrate, Patna, in Kadamkuan P.S. Case No. 40 of 1995 registered under Section 304-A of the Indian Penal Code. By the said order, the learned Chief Judicial Magistrate rejected the petition filed by the petitioner for acceptance of final form pursuant to the investigation made under Section 173 (8) of the Code.

(2.) The petitioner who is a doctor started a new born care centre with all modern technology and equipments. In the said centre, the petitioner also provided service of expert technicians and nurses. The aforesaid criminal case was instituted on the basis of the First Information Report lodged by one Dinesh Kumar on 28-1-1995 alleging inter alia that he had brought this child for treatment in the Nursing Home of the petitioner. At the time of admission, the child was fully healthy and from 23- 1-1995 to 25-1-1995, the petitioner treated the child, but after 25-1-1995 to 28-1-1995, the. petitioner was not taking care and used to go out of his residence saying that there was some function in Boring Road at his father-in-law's place and he will not come in the night. On 27-1-1995, in the night when allegedly the petitioner was at his in-laws, place at Boring Road, Patna, the condition of the child deteriorated. On being informed by his staff, the petitioner came at 9 A.M. in the morning. By that time, the child became very serious. Thereafter the petitioner injected an injection but the child died. The informant, therefore, alleged that the petitioner had not taken proper care and had negligently treated the son of the informant as a result of which the child died. It appears that on the basis of the FIR, initially the Police investigated the case and without taking evidence of competent witnesses, submitted a charge-sheet under Section 304-A, I.P.C. on 31-7-1995 and on the basis of the aforesaid charge-sheet, cognizance was taken on 3-8-1995 by the Chief Judicial Magistrate, Patna, against the petitioner. It is stated by the petitioner that in the mean time, the petitioner had represented before the High Police Officers about the perfunctory nature of investigation in the present case and the City Superintendent of Police consequently sought permission from the Judicial Magistrate, Patna that further investigation under Section 173(8) of the Code was required to be made in the case. On the basis of further investigation, the Police reached the conclusion that it was a case of mistake of fact. The Police accordingly submitted the report, pursuant to the investigation made under Section 173(8) of the Code. After the report was submitted, a petition was filed by the petitioner in the Court of Judicial Magistrate in whose file the case was transferred by the then learned Chief Judicial Magistrate for enquiry and trial. It is stated in the said petition that the learned Judicial Magistrate informed the Advocate of the petitioner that it was not a cognizance taking court and the course open to the petitioner was to move before the Chief Judicial Magistrate for recalling the file and passing appropriate order in the light of final form submitted by the Police after cognizance undar Section 173(8) of the Code. The petitioner accordingly filed a petition in the Court of Chief Judicial Magistrate, Patna on 22-4-1996 with a prayer to recall the case from the Court of Judicial Magistrate, 1st Class, Patna and to consider the final form submitted by the Police. The learned Chief Judicial Magistrate heard the matter and passed an order on 22-8-1996 whereby the learned Chief Judicial Magistrate rejected the petitioner on the ground that since cognizance had been taken earlier, the petition filed by the petitioner was not maintainable. The order dated 22nd August, 1996 is impugned in this application.

(3.) I have heard Mr. S.D. Sanjay learned Counsel appearing for the petitioner and the learned A.P.. Mr. Sanjay learned Counsel extraneously argued that the learned court below completely misconstrued the provisions of Section 173 (8) of the Code, the learned Counsel submitted that Section 173 (8) of the Code was introduced by the Legislature to meet the situation which was existing in the present case. The learned Counsel submitted that the learned Court below committed serious illegality in holding that it has no jurisdiction to drop the proceeding on the basis of subsequent report submitted by the Police. The learned Counsel put heavy reliance on the decision of the Supreme Court in Ram Lal Narang v. State, AIR 1979 SC 1791.