AI Structured Summary
Not yet generated for this judgment
Judgment
The petitioner has approached this Court for quashing the order dated 23.05.2013 passed by learned Chief Judicial Magistrate, Motihari, East Champaran in connection with Motihari Town P.S. Case No. 416/2009 whereby finding prima facie case under sections 224, 225, 120(B) of the Indian Penal Code, he has issued process against the petitioner for appearance to face trial.
In nutshell the prosecution case is that on 16.12.2009 at about 06:15am, informant being a police officer of Motihari Town P.S. got information that one under-trial prisoner, Manjelal Sahni, who had been shifted to Motihari Sadar Hospital from Motihari jail for better treatment, has somehow escaped from police custody from the general ward of the hospital where his treatment was going on. It is also alleged that in course of his treatment at Sadar Hospital, five constables were deputed to keep watch over him, but on the pretext of going to toilet, the said Manjelal Sahni, an accused, fled away. The guards on duty could not keep watch over them.
The informant also alleges that alongwith the aforesaid accused undergoing treatment at Sadar Hospital, some members of his family were also present there. The informant alleges that from perusal of the treatment chart of the accused, it was evident that there was no case for his admission in the hospital for such minor illness, but the accused got himself admitted in the hospital for treatment only for the purpose of escaping, for which the petitioner being attending doctor and other employees of the hospital are equally responsible.
On the basis of aforesaid written report, an FIR as Motihari Town P.S. Case No. 416/2009 dated 16.12.2009 was registered under sections 224, 225 and 120(B) of the Indian Penal Code implicating Manjelel Sahni, the accused who fled away alongwith his family members.
Having registered the case, police commenced investigation and after conclusion of investigation, charge-sheet was submitted, whereafter vide order dated 23.05.2013, learned A.C.J.M.-V, Motihari, East Champaran took cognizance of offences under Section 224, 225, 120B of the Indian Penal Code and issued processes against the petitioner and one Ramesh Kumar Sinha on the basis of supplementary charge-sheet submitted against them.
Learned counsel appearing on behalf of the petitioner submits that petitioner being a Government doctor, was posted at the relevant time in Sadar Hospital, Motihari where the under-trial prisoner, namely Manjelal Sahni, was admitted for treatment on the reference being made by the jail doctor through jail Superintendent, which was duly recommended by Superintendent of Sadar Hospital, Motihari for better treatment. It is contended that petitioner being doctor has been discharging his duty as per his shifts in different wards of the Sadar Hospital.
Learned counsel points out that for keeping close watch over the under-trial prisoner, who was admitted in the Sadar Hospital for better treatment, five armed police constables were deputed for safety and security, but for the laches committed by those duty police constables, who did not discharged their duties properly, the petitioner being doctor, has been made a scape-goat.
The petitioner who was the attending doctor, has no role to play, at all, in any manner with the escape of the under-trial prisoner. From the FIR itself it is evident that with the under-trial prisoner, there were five police constables and the informant has also found that many family members of the under-trial prisoner were also present in the hospital, on the day when he fled away through window of the toilet. Learned counsel pointing out the objectionable conduct of the informant, who being a police officer, did not implicate the police constables, who were on duty when the under-trial prisoner fled away, as all such police constables have not been made an accused in the aforesaid FIR.
In-spite of having recorded a finding in the first information report that all those police constables prima facie appear to be guilty in escaping of the prisoner, it is pointed out that in the course of investigation no material and evidence has come implicating or connecting the petitioner being doctor of the hospital in any manner to the alleged crime and specially with the escape of the under-trial prisoner. At last, he submits that petitioner has neither been named in the FIR nor has been charge-sheeted in the first charge-sheet, but his name has deliberately been included in the supplementary charge-sheet by the police, without there being absolutely any evidence against him.
From the perusal of the record it appears that notice was duly served upon the opposite party no. 2, police sub-inspector, whereafter opposite party no. 2 entered appearance through learned counsel, whose name appears in the cause list. However, when the case was called out today, despite repeated calls, no one appeared on behalf of opposite party no. 2.
Mr. Ahmad Ali, learned Additional Public Prosecutor for the State submits that the petitioner is not named in the FIR, but his name has come in course of investigation and accordingly, a supplementary charge-sheet was submitted against him. However, learned Additional Public Prosecutor fairly admits that there was negligence on the part of the police officer who submitted the written report that he did not make all those five constables accused in connection with the present crime, as those constables were primarily responsible for the safety and security of the under-trial prisoner and for that purpose they were exclusively deputed in the hospital and in their presence during duty hours, the under-trial prisoner, Manjelal Sahni, fled away.
The learned Additional Public Prosecutor also submits that learned trial Court having perused the case diary and evidence collected in course of investigation as well as having perused the supplementary charge-sheet, finding prima facie case under the sections 224, 225 and 120(B) of the Indian Penal Code took cognizance of the offences and issued process, so the petitioner may be relegated to face the trial because his defence could only be seen and examined by the trial Court.
Heard learned counsel for the respective parties and perused the record and the case diary.
It is a peculiar case where five police constables were deputed to safeguard the custody of the under-trial prisoner while he was undergoing treatment at the Sadar Hospital, Motihari. But, those police constables responsible for safety, security and keeping watch over the under-trial prisoner, were not made accused in the present case nor in the charge-sheet or supplementary charge-sheet. This shows the approach of the police which discards all settled legal principles and statutory provisions in this regard when the persons of their department found involved in any act of crime or found prima facie responsible for guilty of dereliction in duty.
From perusal of the FIR as well as the case diary, it is very much evident that the petitioner who being a Government doctor, was posted at relevant point of time in the Motihari Sadar Hospital and he also treated the under-trial prisoners in course of discharge of his official duties. He examined the patient, he prescribed medicines and he followed-up his check-up in a routine manner in his rounds of duty while visiting all the patients in Sadar Hospital, Motihari.
He can, by no stretch of imagination be said to be responsible for aiding in any manner the under-trial prisoner, Manjelal Sahni, in escaping from police custody. Even in the first information report no allegation, at all, has been levelled against him nor has he been made an accused, but the informant having examined the medical treatment chart of the under-trial prisoner, raises a suspicion that for a minor illness why the under-trial prisoner had been admitted in the hospital, and for such admission he suspects the role of the petitioner being doctor of the hospital.
Any under-trial prisoner who remains in judicial custody, in case of any illness during such custody, can only be admitted in the Sadar Hospital of the district for better treatment, after due recommendation of the jail doctor and Superintendent of Sadar Hospital, because unless the jail doctor made a reference for his better treatment at some other hospital than the jail hospital, no under-trial prisoner could be shifted from jail to other hospital for treatment of his/her disease.
Thus, for admission of the under-trial prisoner in the hospital for treatment, petitioner being a Government doctor, posted in the Sadar Hospital, could not be held accountable or responsible for his admission in any manner. Being a doctor, the primary duty of the petitioner is to treat the patient irrespective of their caste, creed, religion or status as he is no way concerned, as to whether the person, whom he is treating is a criminal or a police officer or any common people, his only job is to provide treatment whosoever comes to him or whosoever is admitted in the hospital.
From perusal of the case diary it is manifestly evident that in the course of investigation, neither an iota of evidence has been collected nor a suspicion has been raised in any manner connecting the petitioner with the alleged act of escape of under-trial prisoner. Except for the suspicion so raised by the informant, there is no evidence, at all, which could justify the implication of the petitioner in the aforesaid case.
Further ingredients of the offences as stipulated under sections 224, 225 and 120(B) of the Indian Penal Code do not appear to have been attracted against the petitioner. Section 224 of the Indian Penal Code speaks of crime related to resistance or obstruction by a person to his lawful apprehension, whereas offence under Section 225 of the Indian Penal Code speaks of resistance or obstruction to lawful apprehension of another person. The ingredients of the two aforesaid sections are not, at all, attracted in the present case, where the petitioner has been sought to be implicated as there was no allegation against the petitioner for causing any obstruction or putting any resistance with respect to lawful apprehension of under-trial prisoner.
In the factual and legal conspectus discussed hereinabove, the present criminal proceeding initiated against the petitioner appears to be an outcome of total non-application of judicial mind on the part of the learned trial Court, which in absence of any cogent, credible and legally tenable evidence, took cognizance of offences of the aforesaid sections which is not attracted against the petitioner in the present case.
Accordingly, the order dated 23.05.2013, taking cognizance of offences under sections 224, 225 and 120(B) of the Indian Penal Code passed by the learned Chief Judicial Magistrate, Motihari in connection with Motihari Town P.S. Case No. 416/2009 is quashed and set aside qua the petitioner only and as such all the criminal proceedings emanating therefrom are also quashed and set aside.
Thus, this application stands allowed in the aforesaid terms.