Bablu Gupta@Babula Gupta vs State Of Orissa

The accused-petitioner by invoking the power of this Court under Section 482 of Cr.P.C. seeks for quashment of the order dated 02.12.2006 passed by the learned S.D.J.M., Khurda in I.C.C. No.78 of 2005 taking cognizance of offences under Sections 294, 506 and 304 of I.P.C. and issuing summons for appearance of the accused-petitioner.

Facts material may be briefly stated as follows:-

The petitioner is an Ayurvedic practitioner. On 09.12.2003 the complainant, who is arraigned as opposite party no.1 herein, had taken her minor son who was suffering from Diarrhoea, to the petitioner for treatment. It is alleged that while the complainant was taking her son to Government Hospital, on the way the complainant volunteered to treat the son of the complainant at his clinic. The petitioner administered some injection and medicine and on taking the same, the son of the complainant died. When the complainant came in confrontation with the petitioner, the latter abused and criminally intimidated the complainant, for which on the same date, the complainant lodged a report at Tangi Police Station giving rise to registration of Tangi P.S. Case No.281 dated 09.12.2003 under Sections 304(A), 294 and 506 of IPC against the accused-petitioner. On completion of investigation, however, police submitted final report on the ground that the son of the complainant died a natural death due to diarrhea and that the complainant being biased by her kinsmen lodged the report with police with exaggerated facts, with a view to claim compensation. On receiving the final report, the learned S.D.J.M., Khurda noticed the Informant- complainant inviting her objection / protest, if any. The complainant filed a protest petition on 30.04.2005 which was registered as a complaint. The learned S.D.J.M., Khurda recorded initial statement of the complainant under Section 200 of Cr.P.C. followed by an inquiry under Section 202 of Cr.P.C., in course of which two witnesses were examined. On the basis of the written complaint, initial statement of the complainant and the statements of the witnesses recorded under Section 202 of Cr.P.C., the learned S.D.J.M., Khurda passed the impugned order taking cognizance of the offences indicated above and issuing process to the accused-petitioner for appearance.

I have heard the learned counsel for both the sides and perused the impugned order and other relevant papers on record.

The impugned order itself shows that the same was passed without any reference to the police papers. A bare perusal of the complaint petition, initial statement of the complainant and the statements of the witnesses recorded under Section 202 of Cr.P.C., on the basis of which the impugned order was passed, would show that there is nothing to make out any prima-facie case of culpable homicide. As per the statement of the complainant, the petitioner administered some liquid medicine to her minor son who admittedly was suffering from Diarrhoea, and that the petitioner also gave two tablets to the complainant with an advice to administer the same to the patient. It is further stated by the complainant that when the condition of her son became serious, the petitioner advised her to shift him to Tangi Hospital where he was declared dead. It is also stated by the mother of the complainant, the witness examined under Section 202 of Cr.P.C. that the petitioner had advised the complainant to take the patient to Tangi Hospital, when his condition became serious. It is alleged in the complaint that the petitioner without knowing the method of treatment of a serious Diarrhoea patient applied some medicine without knowing its nature and character. But, there is nothing from the side of the complainant to show that the medicines prescribed or administered by the petitioner who admittedly was an Ayurvedic practitioner were wrong medicines or there was any rashness or negligence on his part while treating the child. There is no averment in the complaint that application of any injection was the immediate cause of the death of the child. Further, according to the complaint, after returning from Tangi Hospital when the complainant out of anger demanded the medicine prescription from the petitioner, the latter abused and threatened her.

In the case at hand, the law was set into motion not with the filing of the protest petition / complaint before the S.D.J.M., but with the presentation of the F.I.R. before the police on the very date of the incident. Police also in exercise of their statutory power conducted investigation and submitted final report. In course of investigation, at the instance of the Investigating Officer the dead body of the child was subjected to postmortem examination, and the used / sample medicines and visceral materials of the deceased were also subjected to chemical examination under the order of the learned S.D.J.M., Khurda. Basing upon the expert opinions besides other materials collected during investigation, the Investigating Officer submitted the final report as a mistake of fact. Since the Informant (complainant) objected to the said final report by way of filing the protest petition which was treated as complaint, the learned S.D.J.M., Khurda while passing the impugned order ought to have satisfied himself that the protest raised by the complainant against the police investigation, was substantiated by materials, or that the materials produced by the complainant before the learned S.D.J.M., Khurda were sufficient to make out a prima-facie case independent of the contrary opinion final report of the Investigating Officer. In a case of the present nature, the medical report and chemical examination reports assume more relevance and significance. The learned S.D.J.M., Khurda has not made any reference to those papers on record. Since the complainant while raising the protest has not produced any materials contrary to those papers, and she having failed to place materials to make out any prima-facie case under Sections 294, 506 and 304 of IPC, the impugned order cannot be legally sustained. Keeping in view the law laid down by the Apex Court in the case of State of Haryana and others vrs. Ch. Bhajan Lal and others, reported in 1992 AIR 604, this Court is of the opinion that continuance of the proceeding of the complaint case will result in sheer abuse of the process of the Court.

In the result, this CRLMC is allowed. The impugned order with the consequential proceeding in I.C.C. No.78 of 2005 on the file of the learned S.D.J.M., Khurda stands quashed.