Jharkhand High Court
Dr. Makardhwaj Prasad @ Dr. M. Prasad vs The State Of Jharkhand on 27 November, 2024
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND, RANCHI
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W.P. (Cr) No. 528 of 2023
—-
Dr. Makardhwaj Prasad @ Dr. M. Prasad, aged about 66 years, s/o late Sri
Ram Naresh Saw, r/o Lohar Kulhi, PRASAD CLINIC, ISM (Dhanbad), PO
Saraidhela, PS: Saraidhela, District Dhanbad, Jharkhand, PIN 826004
…. Petitioner
— Versus —
1.The State of Jharkhand
2.Vijay Ravidas, aged about 39 years, s/o late Raghu Das, R/o Saraidhela
Das Pada, PO: Saraidhela, PS:Saraidhela, District Dhanbad, Jharkhand, Pin
826004. …. Respondents
—-
CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
—
For the Petitioner :- Mr. Abhishek Krishna Gupta, Advocate
Mr. Neha Agarwal, Advocate
For the State :- Mr. Shubham Gautam, Advocate
For the Respondent No.2 :- Md. Zaid Ahmed, Advocate
----
9/27.11.2024 Heard the learned counsel appearing on behalf of the
petitioner as well as the learned counsel appearing on behalf of the
respondent State and the learned counsel appearing on behalf of the
respondent no.2.
2. This petition has been filed for quashing of the entire
criminal proceeding arising out of Saraidhela P.S. Case No.184 of 2022
dated 12.10.2022 registered under sections 304A, 406, 420, 34 of the
IPC and section 3(1)(r)(s) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989, pending in the court of learned
Additional Sessions Judge-I cum Special Judge (SC/ST), Dhanbad.
3. The complaint case has been filed alleging therein that on
12.10.2022 that is after around five months an FIR bearing Saraidhela
1 [W.P. (Cr) No. 528 of 2023]
PS Case No.184 of 2022 dated 12.10.2022 got registered against the
petitioner herein and four un-named persons under sections 304A, 406,
420, 34 of IPC and sections 3(1)(r)(s) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989. The key aspect of
the written complaint/ report which formed the basis of FIR are as
follows:
(i) That the complainant is a poor member of scheduled caste.
That on 24.5.2020 complainant’s mother namely, Kusum Devi suddenly
fell ill. There upon she was taken to the petitioner’s Prasad Clinic.
Dr. M. Prasad, after examining complainant’s mother Kusum Devi,
admitted her to his clinic. After diagnosing her to be suffering from stone
in the Gall Bladder, operation was suggested. Dr. M.Prasad, took around
Rs.One lakh in the name of operation and medicine from the
complainant. Dr. M. Prasad, on 26.5.2020 operated complainant’s
mother. After operation complainants mother was discharged on
30.05.2020. On 8.6.2020, once against complainant’s mother suddenly
started feeling unwell. As a result, she was again taken to Prasad Clinic.
Thereupon after examination Dr. M. Prasad admitted her in his clinic.
The complainant’s mother was admitted in the Clinic for four days.
During this period complainant’s mother position deteriorated and was
having burning sensation body started to become black and bubbles like
things erupted in her body. Dr. M. Prasad entagled him for four days.
During this period complainant spent around Rs.Fifty thousand. On
14.06.2020 Dr. M. Prasad, referred complainant’s mother to Medica
Hospital, Ranchi for better treatment where upon she was treated and
during the course of treatment complainant’s mother died on 17.6.2020.
The Doctor of Medica Hospital, Ranchi told the complaint as well as
2 [W.P. (Cr) No. 528 of 2023]
written in the death certificate that the cause of death is infection and
medicine reaction. On 17.6.2020 the complainant got a written complaint
to such effect received at Saraidhela Police Station. However the
Saraidhela Police Station neither conducted postmortem nor took any
action. As a result of inaction on the part of the police station, on
6.7.2020 a pleader notice was sent to Dr. M. Prasad. The complainant’s
mother was retired employee of BCCL and was pension holder. After
sending pleader notice the complainant came to know that Dr. M. Prasad
is not a surgeon. Still he conducted operation and as a result of wrong
treatment complainant’s mother died. On 14.7.2020 the complainant
once again reported against Dr. M. Prasad at Saraidhella Police Station.
Thereupon the police gave an assurance of action. On 14.07.2020 at
around 7.00 pm, while complainant was at his residence the accused Dr.
M. Prasad and four unknown persons came to the complainant house
and started calling the complainant. The moment the complainant came
out of his house, the accused Dr. M. Prasad abused the complaint in his
caste in the presence of the local people and committed atrocity. Dr. M.
Prasad not being a surgeon conducted wrong treatment and by
deceiving cheated Rs. Two lakhs, the complainant sustained a loss of
Rs.Five Lakhs and on being complaint he abused him by caste name and
spitted on his mouth and such act is a cognizable offence under IPC and
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.
4. The learned counsel for the petitioner submits that the said
complaint case was sent by the learned court under section 156(3) of
the Cr.P.C for registration of the F.I.R and investigation by the order
dated 26.05.2022 and thereafter the F.I.R has been registered. He
submits that the police has started investigation and the investigating
3 [W.P. (Cr) No. 528 of 2023]
officer has issued notice under section 41A of the Cr.P.C and the
petitioner has replied the same. He submits that the petitioner is a
qualified doctor and he is having a degree of M.B.B.S and he is a
renowned physician. He further submits that the petitioner runs a clinic
in the name of Prasad Clinic situated at Lohar Kulhi, Saraidhela,
Dhanbad. He also holds the post in the Department of Anatomy in a
renowned medical college-cum- hospital namely, Shahid Nirmal Mahto
Medical College and Hospital, Dhanbad. He further submits that the
mother of the respondent no.2 was admitted on 24.05.2020 in Prasad
Clinic and she was operated on 26.05.2020 and finally she was
discharged on 30.05.2020 and on the day of discharge she was
absolutely well except certain symptom of weakness as is evident from
the discharge ticket dated 30.05.2020 as contained in Annexure-6. He
submits that such weakness was there in consequence of surgery of an
old lady aged about 67 years. He further submits that the said surgery
was not made by this petitioner and the surgery was made by a
renowned surgeon who was a visiting doctor of the said clinic namely Dr.
Rajiv Kumar. She was again admitted in the said clinic on 08.06.2020
and was discharged on 10.06.2020. During her admission she was
attended by the petitioner, doctor, surgeon and other doctors of Prasad
Clinic and on 10.06.2020 she was alright except weakness. He then
submits that mother of the respondent no.2 was further re-examined by
another doctor namely, Dr. K.S. Narain and Ultrasonography of whole
abdomen was done and operation was found to be correct as contained
in Annexure-8. Thereafter, she was again admitted on 12.06.2020 with
regard to fever and discharged on 14.06.2020 and she was referred to
Medica Hospital at Ranchi and she was treated in Medica Hospital from
4 [W.P. (Cr) No. 528 of 2023]
14.06.2020 to 17.06.2020 and while undergoing treatment there, she
died. He submits that thereafter the petitioner has received a legal
notice from one of the son of the deceased demanding a sum of Rs.10
lacs (ten lacs) which was refused by the petitioner and thereafter the
present complaint case has been lodged falsely against the petitioner
and even SC/ST Act has been inserted maliciously. He submits that
thereafter the F.I.R was registered pursuant to the order of the learned
court. He further submits that if the medical negligence is proved, then
only the case can be registered and there are lines of judgments of
Hon’ble Supreme Court as well as the High Court. He relied in the case
of “Jacob Mathew v. State of Punjab” (2005) 6 SCC 1.
5. Learned counsel for the respondent State submits that only
the F.I.R is registered and the investigation is not complete.
6. Learned counsel for the respondent no.2 has opposed the
prayer and submits that medical negligence is there and that is why
death occurred and the petitioner is liable and as such the learned court
has rightly passed the order under section 156(3) of the Cr.P.C. He
submits that this writ petition may kindly be dismissed.
7. In view of the above submission of the learned counsels
appearing on behalf of the parties, the Court has gone through the
materials on record including the courter affidavit filed by the respondent
no.2. In the counter affidavit filed by the respondent no.2, the facts
which has been argued by the learned counsel for the petitioner is not
denied. Thus, it is admitted position that mother of the respondent no.2
was treated on different dates, however, she was discharged from the
hospital after curing of the ailment. The subsequent complaint was also
dealt with by the said Clinic and she was again discharged as has been
5 [W.P. (Cr) No. 528 of 2023]
noted in the argument of the learned counsel appearing on behalf of the
petitioner and finally she was being treated in Medica Hospital at Ranchi
and in course of treatment there, she has left for her heavenly abode.
Thus, it is crystal clear that what medical negligence made by this doctor
while treatment upon the mother of the respondent no.2 is not disclosed
and if such a situation is there for making out a case of medical
negligence, one has to comply the direction of the Hon’ble Supreme
Court rendered in the case of “Jacob Mathew v. State of Punjab”
(supra), wherein at paragraph nos.48, 49, 50, 51 and 52, it has been
held as under :
“48. We sum up our conclusions as under:
(1) Negligence is the breach of a duty caused by
omission to do something which a reasonable man
guided by those considerations which ordinarily regulate
the conduct of human affairs would do, or doing
something which a prudent and reasonable man would
not do. The definition of negligence as given in Law of
Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh),
referred to hereinabove, holds good. Negligence becomes
actionable on account of injury resulting from the act or
omission amounting to negligence attributable to the
person sued. The essential components of negligence are
three: “duty”, “breach” and “resulting damage”.
(2) Negligence in the context of the medical profession
necessarily calls for a treatment with a difference. To infer
rashness or negligence on the part of a professional, in
particular a doctor, additional considerations apply. A
case of occupational negligence is different from one of
professional negligence. A simple lack of care, an error of
judgment or an accident, is not proof of negligence on the
part of a medical professional. So long as a doctor follows
a practice acceptable to the medical profession of that
day, he cannot be held liable for negligence merely
because a better alternative course or method of
treatment was also available or simply because a more
skilled doctor would not have chosen to follow or resort to
that practice or procedure which the accused followed.
When it comes to the failure of taking precautions, what
6 [W.P. (Cr) No. 528 of 2023]
has to be seen is whether those precautions were taken
which the ordinary experience of men has found to be
sufficient; a failure to use special or extraordinary
precautions which might have prevented the particular
happening cannot be the standard for judging the alleged
negligence. So also, the standard of care, while assessing
the practice as adopted, is judged in the light of
knowledge available at the time of the incident, and not
at the date of trial. Similarly, when the charge of
negligence arises out of failure to use some particular
equipment, the charge would fail if the equipment was
not generally available at that particular time (that is, the
time of the incident) at which it is suggested it should
have been used.
(3) A professional may be held liable for negligence on
one of the two findings: either he was not possessed of
the requisite skill which he professed to have possessed,
or, he did not exercise, with reasonable competence in the
given case, the skill which he did possess. The standard to
be applied for judging, whether the person charged has
been negligent or not, would be that of an ordinary
competent person exercising ordinary skill in that
profession. It is not possible for every professional to
possess the highest level of expertise or skills in that
branch which he practices. A highly skilled professional
may be possessed of better qualities, but that cannot be
made the basis or the yardstick for judging the
performance of the professional proceeded against on
indictment of negligence.
(4) The test for determining medical negligence as laid
down in Bolam case, holds good in its applicability in
India.
(5) The jurisprudential concept of negligence differs in
civil and criminal law. What may be negligence in civil law
may not necessarily be negligence in criminal law. For
negligence to amount to an offence, the element of mens
rea must be shown to exist. For an act to amount to
criminal negligence, the degree of negligence should be
much higher i.e. gross or of a very high degree.
Negligence which is neither gross nor of a higher degree
may provide a ground for action in civil law but cannot
form the basis for prosecution.
(6) The word “gross” has not been used in Section
304-A IPC, yet it is settled that in criminal law negligence
or recklessness, to be so held, must be of such a high
7 [W.P. (Cr) No. 528 of 2023]
degree as to be “gross”. The expression “rash or negligent
act” as occurring in Section 304-A IPC has to be read as
qualified by the word “grossly”.
(7) To prosecute a medical professional for negligence
under criminal law it must be shown that the accused did
something or failed to do something which in the given
facts and circumstances no medical professional in his
ordinary senses and prudence would have done or failed
to do. The hazard taken by the accused doctor should be
of such a nature that the injury which resulted was most
likely imminent.
(8) Res ipsa loquitur is only a rule of evidence and
operates in the domain of civil law, specially in cases of
torts and helps in determining the onus of proof in actions
relating to negligence. It cannot be pressed in service for
determining per se the liability for negligence within the
domain of criminal law. Res ipsa loquitur has, if at all, a
limited application in trial on a charge of criminal
negligence.
49. In view of the principles laid down hereinabove
and the preceding discussion, we agree with the
principles of law laid down in Dr. Suresh Gupta case and
reaffirm the same. Ex abundanti cautela, we clarify that
what we are affirming are the legal principles laid down
and the law as stated in Dr. Suresh Gupta case. We may
not be understood as having expressed any opinion on the
question whether on the facts of that case the accused
could or could not have been held guilty of criminal
negligence as that question is not before us. We also
approve of the passage from Errors, Medicine and the
Law by Alan Merry and Alexander McCall Smith which has
been cited with approval in Dr. Suresh Gupta case1 (noted
vide para 27 of the Report).
Guidelines — Re: prosecuting medical professionals
50. As we have noticed hereinabove that the cases of
doctors (surgeons and physicians) being subjected to
criminal prosecution are on an increase. Sometimes such
prosecutions are filed by private complainants and
sometimes by the police on an FIR being lodged and
cognizance taken. The investigating officer and the
private complainant cannot always be supposed to have
knowledge of medical science so as to determine whether
the act of the accused medical professional amounts to a
rash or negligent act within the domain of criminal law
under Section 304-A IPC. The criminal process once
8 [W.P. (Cr) No. 528 of 2023]
initiated subjects the medical professional to serious
embarrassment and sometimes harassment. He has to
seek bail to escape arrest, which may or may not be
granted to him. At the end he may be exonerated by
acquittal or discharge but the loss which he has suffered
to his reputation cannot be compensated by any
standards.
51. We may not be understood as holding that
doctors can never be prosecuted for an offence of which
rashness or negligence is an essential ingredient. All that
we are doing is to emphasise the need for care and
caution in the interest of society; for, the service which the
medical profession renders to human beings is probably
the noblest of all, and hence there is a need for protecting
doctors from frivolous or unjust prosecutions. Many a
complainant prefer recourse to criminal process as a tool
for pressurising the medical professional for extracting
uncalled for or unjust compensation. Such malicious
proceedings have to be guarded against.
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 or 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
levelled 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
9 [W.P. (Cr) No. 528 of 2023]
available to face the prosecution unless arrested, the
arrest may be withheld.”
8. In view of the above judgment of the Hon’ble
Supreme Court in a case of medical negligence competent medical
opinion with regard to the negligent act or omission by an
independent doctor is necessary as has been held by the Hon’ble
Supreme Court in the case of “Jacob Mathew v. State of
Punjab”(supra), particularly, at paragraph no.52 of the said
judgment. The case of the petitioner further strengthened in light
of further examination of Dr. K.S. Narain as operated part was
found to be correct which has come in the ultrasonography of the
entire abdomen. The judgment rendered in the case of “Jacob
Mathew v. State of Punjab”(supra) has been followed in
different High Courts including Jharkhand High Court. In the case
of Biswajith Bandopadyay and Ors v. The State of
Jharkhand and Ors, MANU/JH/1662/2019, and in the case
of Martin F.D’Souza v. Mohd. Ishfaq, (2009) 3 SCC 1 .
Paragraph no.106 of the said judgment is quoted below:
“106. We, therefore, direct that whenever a complaint
is received against a doctor or hospital by the Consumer Fora
(whether District, State or National) or by the criminal court
then before issuing notice to the doctor or hospital against
whom the complaint was made the Consumer Forum or the
criminal court should first refer the matter to a competent
doctor or committee of doctors, specialised in the field relating
to which the medical negligence is attributed, and only after
that doctor or committee reports that there is a prima facie
case of medical negligence should notice be then issued to the
doctor/hospital concerned. This is necessary to avoid
harassment to doctors who may not be ultimately found to be
negligent. We further warn the police officials not to arrest or
harass doctors unless the facts clearly come within the
parameters laid down in Jacob Mathew case, otherwise the
policemen will themselves have to face legal action.”
10 [W.P. (Cr) No. 528 of 2023]
9. In view of the judgment rendered by the Hon’ble Supreme
Court in the case of Martin F.D’Souza v. Mohd. Ishfaq(supra), the
doctors are not required to be harassed unless the facts clearly come
within the parameters laid down in the case of “Jacob Mathew v.
State of Punjab”(supra).
10. Looking to the contents of the complaint petition, the
allegations are made that in the house of the respondent no.2 the caste
name has been taken and if such a situation is there, then the said
occurrence is not taken place in ‘public view’ and in light of that the case
of the petitioner is covered in view of the judgment rendered by the
Hon’ble Supreme Court in the case of Hitesh Verma v. State of
Uttarakhand, reported in (2020) 10 SCC 710 wherein at paragraph
no.14 and 15 of the said judgment, it has been held as under:
“14. Another key ingredient of the provision is insult
or intimidation in “any place within public view”. What is to
be regarded as “place in public view” had come up for
consideration before this Court in the judgment reported
as Swaran Singh v. State [Swaran Singh v. State, (2008) 8
SCC 435 : (2008) 3 SCC (Cri) 527] . The Court had drawn
distinction between the expression “public place” and “in
any place within public view”. It was held that if an offence
is committed outside the building e.g. in a lawn outside a
house, and the lawn can be seen by someone from the
road or lane outside the boundary wall, then the lawn
would certainly be a place within the public view. On the
contrary, if the remark is made inside a building, but some
members of the public are there (not merely relatives or
friends) then it would not be an offence since it is not in
the public view (sic) [Ed. : This sentence appears to be
contrary to what is stated below in the extract from Swaran
Singh, (2008) 8 SCC 435, at p. 736d-e, and in the
application of this principle in para 15, below:”Also, even if
11 [W.P. (Cr) No. 528 of 2023]
the remark is made inside a building, but some members
of the public are there (not merely relatives or friends) then
also it would be an offence since it is in the public view.”] .
The Court held as under : (SCC pp. 443-44, para 28)
“28. It has been alleged in the FIR that Vinod Nagar,
the first informant, was insulted by Appellants 2 and 3 (by
calling him a “chamar”) when he stood near the car which
was parked at the gate of the premises. In our opinion, this
was certainly a place within public view, since the gate of a
house is certainly a place within public view. It could have
been a different matter had the alleged offence been
committed inside a building, and also was not in the public
view. However, if the offence is committed outside the
building e.g. in a lawn outside a house, and the lawn can
be seen by someone from the road or lane outside the
boundary wall, the lawn would certainly be a place within
the public view. Also, even if the remark is made inside a
building, but some members of the public are there (not
merely relatives or friends) then also it would be an
offence since it is in the public view. We must, therefore,
not confuse the expression “place within public view” with
the expression “public place”. A place can be a private
place but yet within the public view. On the other hand, a
public place would ordinarily mean a place which is owned
or leased by the Government or the municipality (or other
local body) or gaon sabha or an instrumentality of the
State, and not by private persons or private bodies.”
15. As per the FIR, the allegations of abusing the
informant were within the four walls of her building. It is not
the case of the informant that there was any member of
the public (not merely relatives or friends) at the time of
the incident in the house. Therefore, the basic ingredient
that the words were uttered “in any place within public
view” is not made out. In the list of witnesses appended to
the charge-sheet, certain witnesses are named but it could
not be said that those were the persons present within the
four walls of the building. The offence is alleged to have
12 [W.P. (Cr) No. 528 of 2023]
taken place within the four walls of the building. Therefore,
in view of the judgment of this Court in Swaran
Singh [Swaran Singh v. State, (2008) 8 SCC 435 : (2008)
3 SCC (Cri) 527] , it cannot be said to be a place within
public view as none was said to be present within the four
walls of the building as per the FIR and/or charge-sheet.”
11. In the case of Gorige Pentaiah v. State of Andhra
Pradesh reported in (2008) 12 SCC 531 wherein at paragraph no.6 it
has been held as under:
6. In the instant case, the allegation of Respondent 3
in the entire complaint is that on 27-5-2004, the appellant
abused them with the name of their caste. According to
the basic ingredients of Section 3(1)(x) of the Act, the
complainant ought to have alleged that the appellant-
accused was not a member of the Scheduled Caste or a
Scheduled Tribe and he (Respondent 3) was intentionally
insulted or intimidated by the accused with intent to
humiliate in a place within public view. In the entire
complaint, nowhere it is mentioned that the appellant-
accused was not a member of the Scheduled Caste or a
Scheduled Tribe and he intentionally insulted or
intimidated with intent to humiliate Respondent 3 in a
place within public view. When the basic ingredients of the
offence are missing in the complaint, then permitting such
a complaint to continue and to compel the appellant to
face the rigmarole of the criminal trial would be totally
unjustified leading to abuse of process of law.
12. Thus, it appears that maliciously the present case has been
filed and even the SC/ST Act has been added, however, the ingredient of
SC/ST Act is not made out.
13. At the initial stage also, the case can be quashed if the
parameters as laid down by the Hon’ble Supreme Court in the case of
State of Haryana v. Bhajanlal, reported in 1992 (Supp.) 1 SCC 335
13 [W.P. (Cr) No. 528 of 2023]
is made out. Paragraph no. 102 of the said judgment speaks as under:
“102. In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and of the
principles of law enunciated by this Court in a series of decisions
relating to the exercise of the extraordinary power under Article
226 or the inherent powers under Section 482 of the Code
which we have extracted and reproduced above, we give the
following categories of cases by way of illustration wherein
such power could be exercised either to prevent abuse of the
process of any court or otherwise to secure the ends of justice,
though it may not be possible to lay down any precise, clearly
defined and sufficiently channelised and inflexible guidelines or
rigid formulae and to give an exhaustive list of myriad kinds of
cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or
the complaint, even if they are taken at their face value and
accepted in their entirety do not prima facie constitute any
offence or make out a case against the accused.
(2) Where the allegations in the first information report and other
materials, if any, accompanying the FIR do not disclose a
cognizable offence, justifying an investigation by police officers
under Section 156(1) of the Code except under an order of a
Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or
complaint and the evidence collected in support of the same do
not disclose the commission of any offence and make out a case
against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable
offence but constitute only a non-cognizable offence, no
investigation is permitted by a police officer without an order of
a Magistrate as contemplated under Section 155(2) of the
Code.
(5) Where the allegations made in the FIR or complaint are so
absurd and inherently improbable on the basis of which no
prudent person can ever reach a just conclusion that there is
sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the
provisions of the Code or the concerned Act (under which a
criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a specific
provision in the Code or the concerned Act, providing
efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala
fide and/or where the proceeding is maliciously instituted with
14 [W.P. (Cr) No. 528 of 2023]
an ulterior motive for wreaking vengeance on the accused and
with a view to spite him due to private and personal grudge.”
14. In view of the above facts and analysis, the case of the
petitioner is coming within the parameters of paragraph no.102(5) and
102(7) in the case of State of Haryana v. Bhajanlal(supra).
15. In view of the above, it is crystal clear that maliciously the
present case has been lodged against the petitioner and it is an admitted
fact that death of the mother of the respondent no.2 has not taken place
in the hospital of the petitioner and she was discharged from that
hospital and she was subsequently treated in Medica hospital at Ranchi.
Even if the case is lodged under the Consumer Protection Act for
deficiency of services in light of Martin F.D’Souza v. Mohd.
Ishfaq(supra), the doctor is not required to be noticed at the threshold
and only after obtaining the opinion of expert, notice may be issued for
medical negligence of the doctor.
16. As a cumulative effect of the above discussion, reasons and
analysis, it is a malicious prosecution against the petitioner. Accordingly,
the entire criminal proceeding arising out of Saraidhela P.S. Case No.184
of 2022 dated 12.10.2022, pending in the court of learned Additional
Sessions Judge-I cum Special Judge (SC/ST), Dhanbad, is hereby,
quashed.
17. W.P.(Cr) No.528 of 2023 is allowed and disposed of.
( Sanjay Kumar Dwivedi, J.)
SI/,
A.F.R.
15 [W.P. (Cr) No. 528 of 2023]