Tuesday, 25 October 2016

Whether victim has right to be heard in application of accused for discharge?

    It is true that normally a victim is not participating in

the discharge proceedings under Section 227 Cr.P.C. If in a

case wherein the victim is not sufficiently represented by the

prosecution and in cases where the interest of the victim is not

being adequately protected, there is nothing wrong on the part

of the victim in stepping in with a request for being heard, and in



such cases, the cries of the victim should not remain unheard.

From the aforesaid dictum laid down by the Apex Court it cannot

be said that the victim has no right to be heard during the

discharge proceedings.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                      PRESENT:

                          MR. JUSTICE B.KEMAL PASHA

         3RD DAY OF DECEMBER 2014

                                        Crl.Rev.Pet.No. 1903 of 2014 ()
                                           
         DR.AJITH, S/O. RADHAKRISHNAN,
            AYILAM VEEDU, CHERAVALLI MURI
           
Vs
           STATE OF KERALA
             

     This second round of revision has been preferred by the

accused in Sessions Case No.1675 of 2011 of the Additional

Sessions Judge-V, Kollam, challenging order dated 24.10.2014

passed    by    the      learned         Additional         Sessions        Judge in

Crl.M.P.No.2387 of 2013.

     2.    The incident relates to the case had occurred on

14.12.2004, when a hapless young lady had taken the chance to

have a medical consultation, that too casually, for her abdominal

pain at the hospital in question. She walked in to the casualty for

a consultation. The Doctor at the casualty had examined her and

administrated Cyclopam injection and Digene gel and she was

asked to go home. Thereafter the twist occurred, when she was


further advised to meet the Surgeon also. As advised, she met

the Surgeon. The Surgeon could not find anything to intervene;

but advised her to consult the Gynecologist also. Then the victim

met the Gynecologist. The Gynecologist suggested that there

was some sort of urinary infection and she was administrated

with Ampicillin injection, allegedly after taking the test dose.

Immediately after the injection, she developed respiratory

difficulties. Noting down the complications, the first petitioner,

Doctor administrated Diazapam injection. Immediately, her

condition worsened and she had to be connected to a ventilator.

As there was no ventilator facility at the hospital, she was

directed to be shifted to VSM Hospital, Mavelikkara where such

a facility was available. By the time, she reached the hospital, it

seems that she was almost dead. Her heart beat and pulse

were not readable. Even though she was connected to the

ventilator and medicines were administrated, she could not be

resuscitated. Soon after, her death was declared.


      3.     As in the case of normal death, her dead body was

taken to her house and it was buried. In the mean time, the

defacto complainant, who is the mother of the victim, could smell

rat about the gross negligence from the part of the doctors who

had administrated medicines to her, she filed a complaint and

the law was set in motion. The dead body was disinterred and

autopsy was conducted. The matter was investigated by the

local police at first. Dissatisfied with the snail pace of

investigation by the local police, the defacto complainant

approached this Court seeking a proper investigation, which has

culminated in handing over the investigation to the Crime

Branch.

      4.     The Crime Branch investigated the matter and filed a

final report alleging an offence under Section 304 IPC.       On

committal to the Court of Session, the case was made over to

the learned Additional Sessions Court.      Petitioners filed the

aforesaid Crl.M.P. seeking a discharge. The matter was heard


under Section 227 of the Cr.P.C. The learned Additional

Sessions Judge initially found that a charge under Section 304-A

will alone lie and consequently by invoking the power under

Section 228(1A) of Cr.P.C., the court below transferred the case

to the Judicial First Class Magistrate's Court, Karunagapplly.

Dissatisfied with the findings entered by the court below in the

said Crl.M.P., the petitioners preferred Crl.R.P. before this Court

as Crl.R.P.296/2014.       This Court, after hearing both       sides,

passed an order on 28.08.2014 thereby allowing the criminal

revision and by setting aside the order impugned in it, by giving

the following directions.

             (a)    The impugned order passed by the court

             below in Crl.M.P.No.2387 of 2013 will stand set

             aside, and the application for discharge will

             stand restored to files.

             (b)    The learned trial judge will reconsider

             the application for discharge, hear both sides in

             detail, examine the whole prosecution records

             as meant under Section 227 Cr.P.C. and take

             decision afresh for one of the options available



             under    Section  228  of   Cr.P.C.   and   pass

             appropriate judicious order.

             (c) Crl.M.A. No.3677 of 2014 brought by the

             mother of the deceased will stand closed for

             the time being.      In case, she makes an

             application for being heard in the court below,

             it shall be considered by the trial court, and if

             felt necessary, or if found that she has legal

             right to be heard, or that she requires to be

             heard in the interest of justice, appropriate

             orders can be passed by the trial court.

             (d) The trial court is hereby directed to take

             decision on the application for discharge,

             without any delay. Efforts shall be made for

             disposal within four months."

      5.     The learned Additional Sessions Judge again heard

the matter and passed the impugned order by which the court

below found that there are sufficient grounds to proceed for an

offence under Section 304 IPC. Consequently, a charge under

Section 304 IPC has been framed. It is the said order which is

under challenge herein.



       6.    It seems that the charge has been read over to the

petitioners, plea has been recorded and the matter has been

scheduled for trial.

       7.    Heard the learned counsel for the petitioners, the

learned counsel for the defacto complainant and the learned

Public Prosecutor.

       8.    Initially, the learned counsel for the petitioners has

objected that the defacto complainant has no right of audience

in the matter and therefore, the learned counsel for the defacto

complainant may not be permitted to argue the matter. I find

little merit in the said argument. It seems that the law was set in

motion in this case on a complaint preferred by the defacto

complainant herein. In a criminal trial, it is trite that there cannot

be any question of locus standi. In this particular case, it seems

that the 4th accused had approached this Court through

Crl.M.C.3094/2013 for getting all the proceedings against him in

this case quashed. The defacto complainant was impleaded in


that matter. It seems that the proceedings against the 4th

accused has been quashed with a finding that at the appropriate

stage of the trial if it is found that he should also be impleaded,

there is nothing wrong on the part of the trial court in invoking

the power under Section 319 Cr.P.C. It was also found that in

case the prosecution does not choose to examine the 4th

accused as a prosecution witness, he should be examined as a

court witness by the trial court.

      9.    It seems that all along the proceedings the defacto

complainant has been actively participating. When the provision


under Section 227 Cr.P.C. says that the prosecution has to be


heard, in this particular case it cannot be said that the defacto


complainant is not a part of the prosecution. Over and above all


these, the victims in crimes and their relatives are no longer a


forgotten mass in criminal justice dispensing system. They have


also their own rights to be protected. They are not supposed to


swallow all what are being done by the investigation or




prosecution. They should never be treated as persons expected


to be mute spectators in judicial process.


      10. The learned counsel for the petitioners have invited

the attention of this Court to the decision in Ajay Kumar Parmar

v. State of Rajasthan[2012 (4) KLT SN 61 Case No.49(SC)]

wherein it was held that the court should not pass an order of

acquittal by resorting to a course of not taking cognizance,

where prima facie case is made out by the Investigating Agency.

More so, it is the duty of the court to safeguard the right and

interests of the victim, who does not participate in discharge

proceedings.

      11.    It is true that normally a victim is not participating in

the discharge proceedings under Section 227 Cr.P.C. If in a

case wherein the victim is not sufficiently represented by the

prosecution and in cases where the interest of the victim is not

being adequately protected, there is nothing wrong on the part

of the victim in stepping in with a request for being heard, and in



such cases, the cries of the victim should not remain unheard.

From the aforesaid dictum laid down by the Apex Court it cannot

be said that the victim has no right to be heard during the

discharge proceedings.

      12. The learned counsel for the petitioners is also relying

on the decision in R.S. Mishra v. State of Orissa[AIR 2011 SC

1103] wherein it was held:

           "It is also to be noted that a discharge order

          is passed on an application by the accused on

          which the accused and the prosecution are

          heard. At the stage of discharging an accused

          or framing of the charge, the victim does not

          participate in the proceeding. While framing

          the charge, the rights of the victim are also to

          be taken care of as also that of the accused."

      13. From the aforesaid dictum also it cannot be said that

the victim can have no right of audience at all. The Apex Court

has laid down the law that while passing order under Section



227 Cr.P.C. the interest of the victim should also be considered

as in the case of the accused. The said dictum was laid down by

considering that in normal cases, the victims do not participate

in discharge proceedings. From all these, I do not find any merit

in the argument forwarded by the learned counsel for the

petitioners that the defacto complainant has no right of

audience.

      14. Coming to the next aspect, the question to be

considered is whether the impugned order passed by the court

below suffers from any illegality, irregularity or impropriety. On

hearing either side, this Court is faced with a peculiar

circumstance wherein this Court is called upon now to decide

whether a charge under Section 304 IPC will lie in the matter or

not. If a charge under Section 304 will lie in the matter, it cannot

be said that the impugned order passed by the court below is

illegal, irregular or improper. This Court is of the view that, the

said question has to be considered only by having recourse to



the contents of the documents available at present, i.e.,

documents produced by the prosecution along with the final

report. What is envisaged under Section 227 Cr.P.C. is not a

threadbare examination of the entire evidence in the matter as in

the case of passing a judgment at the conclusion of the trial.

The court is not expected to balance the evidence whereas the

court need only decide whether there are sufficient grounds to

proceed or not. In short, it is trite that what the court has to

decide under Section 227 Cr.P.C. is whether there is a prima

facie case or not. If it is shown that there is a prima facie case

to proceed on an offence under Section 304 IPC, it has to be

considered that there are sufficient grounds to proceed within

the meaning of Section 227 Cr.P.C.

      15. The learned counsel for the petitioners has argued

that in order to sustain a criminal liability in such matters of

alleged medical negligence, the prosecution has to establish

gross negligence on a higher standard for making out sufficient



grounds for proceeding. According to the petitioners, especially

when the deceased was working as a staff nurse in another

hospital, she ought to have taken due care in revealing the fact

that she was epileptic. At this juncture, the said argument is

challenged by the learned counsel for the defacto complainant

by arguing that the defacto complainant has no case that the

victim had ever suffered epilepsy. According to him, the

deceased was not suffering from epilepsy, and the so called

'epilepsy' is an invention by some so called medical experts in

order to aid the petitioners.

      16.    Let us assume that the victim in this case was

suffering from epilepsy. Even in such a case, can it be said that

the doctors who are administrating the medicines by way of

injection had no duty to enquire whether the victim had any such

disability or not? If it is shown that the petitioners as doctors

had no duty to enquire whether the victim was suffering from any

disability or whether she was epileptic or not etc., then it could



be said that there was no culpable negligence of the highest

standard in not enquiring about the said aspect. At the same

time, in medical jurisprudence, it is a basic duty cast upon a

doctor to enquire the victim as to whether the victim was

suffering from any such disability or disabilities, prior to

administrating such medicines.

      17. Now the question is whether the negligence in not

enquiring as to whether the victim was suffering from any such

disability or not, is a gross negligence of high standard or not. In

this particular case, it seems that Ampicillin injection was

administrated, may be or may not be after test dose, and the

same is a matter to be proved. Even if it is administrated after

test dose, it seems that she had developed respiratory trouble.

Cases are not unknown even in cases where test dose was

administrated, reactions had arisen even after the stipulated

time. If, as a matter of fact, Ampicillin injection was administrated

after the test dose and after the expiry of the waiting period, it



cannot be said that there was any sort of negligence on the part

of the persons administering Ampicillin injection. The trouble in

this case started after that. It seems that when she developed

utter discomfort and respiratory problem, Diazapam injection

was administrated. At that time, the persons who were behind it,

as medical professionals, had a basic duty to ascertain whether

she had any disability like epilepsy, hyper tension, cardiac

problems etc. In the state of such restlessness, the victim might

not have exercised the caution to reveal her disabilities, even if

such disabilities were there. That does not absolve the doctors

from exercising the basic care in enquiring about any such

disabilities, if at all exist.

      18.     This Court is not expressing any opinion as to the

cause of death of the deceased. The question to be considered

is whether there are basic materials to frame a charge under

Section 304 IPC or not. The learned counsel for the petitioners

has invited the attention of this Court to a catena of decisions.


In P.Vijayan v. State of Kerala[AIR 2010 SC 663] it was held:

             "The    words    "not   sufficient  ground    for

             proceeding against the accused" clearly show

             that Judge is not a mere Post Office to frame

             the charge at the behest of the prosecution, but

             has to exercise his judicial mind to fact of case

             in order to determine whether a case for trial

             has been made out by prosecution. In assessing

             this fact, it is not necessary for the Court to

             enter into the pros and cons of the matter or

             into a weighing and balancing of evidence and

             probabilities which is really the function of the

             Court, after the trial starts. At the stage of S.

             227 the Judge has merely to sift the evidence in

             order to find out whether or not there is

             sufficient ground for proceeding against the

             accused. In other words, the sufficiency of

             ground would take within its fold the nature of

             the evidence recorded by the police or the

             documents produced before the court which ex

             facie   disclose  that    there  are   suspicious

             circumstances against the accused so as to

             frame a charge against him."



      19. It was clearly observed that the duty of the judge at

the stage of Section 227 Cr.P.C. is merely to sift the evidence in

order to find out whether or not there is sufficient ground for

proceeding against the accused and a rowing enquiry is not

expected. In State of Karnataka v. LMuniswamy[AIR 1977 SC

1489] it was held:

             "It is clear from S.227 of the new Code that

             the Sessions Court has the power to discharge

             an accused if after perusing the record and

             hearing the parties he comes to the conclusion,

             for reasons to be recorded that there is no

             sufficient ground for proceeding against the

             accused.   The object of the provision which

             requires the Sessions Judge to record its reasons

             is to enable the superior Court to examine the

             correctness of the reasons for which the

             Sessions Judge has held that there is or is no

             sufficient ground for proceeding against the

             accused. The High Court therefore is entitled

             to go into the reasons given by the Sessions

             Judge in support of his order and to determine

             for itself whether the order is justified by the


             facts and circumstances of the case."

        20. It was also held therein that,

             "For the purpose of determining whether there

             is sufficient ground for proceeding against the

             accused the court possess comparatively wider

             discretion in the exercise of which it can

             determine the question whether the material

             on the record, if unrebutted, is such on the

             basis of which a conviction can be said

             reasonably to be possible".

In cases wherein a possibility of conviction on a proper charge

itself is a ground for reckoning the acts as one having sufficient

ground to proceed.

      21. My attention has been invited to the decision in Sati

Kanta Guha v. State of West Bengal[1977 Crl.L.J. 1644]

wherein the Division Bench of the Calcutta High Court held that

hearing under Section 227 Cr.P.C. is not an empty formality

whereas it is a valuable right conferred on the accused to

challenge that there are no sufficient grounds to proceed.



      22. In Dilawar Babu Kurane v. State of Maharashtra

[AIR 2002 SC 564], it was held that in exercising the powers

under Section 227 Cr.P.C. the Judge while considering the

question of framing charge on a particular offence, has the

undoubted power to sift and weigh the evidence for the limited

purpose of finding out whether or not a prima facie case against

the accused has been made out.

      23. In Mahadev Prasad Kaushik v. State of Uttar

Pradesh[(2008) 14 SCC 479], it was held:

            "There is thus distinction between Section 304

            and Section 304-A. Section 304-A carves out

            cases where death is caused by doing a rash or

            negligent act which does not amount to culpable

            homicide not amounting to murder within the

            meaning of Section 299 or culpable homicide

            amounting to murder under Section 300 IPC. In

            other words, Section 304-A excludes all the

            ingredients of Section 299 as also of Section 300.

            Where intention or knowledge is the "motivating

            force" of the act complained of, Section 304-A

            will have to make room for the graver and more


            serious   charge   of  culpable   homicide    not

            amounting to murder or amounting to murder as

            the facts disclose. The section has application to

            those cases where there is neither intention to

            cause death nor knowledge that the act in all

            probability will cause death."

      24. My attention has been invited to a series of decisions

by the learned counsel for the petitioners to point out that

normally it cannot be expected from a doctor that he would be

negligent in carrying out a surgical operation or in prescribing

medicines. It is common sense that normally a doctor will not do

like that as it would be an end of his career. At the same time,

in a case wherein there is culpable negligence on the part of the

medical practitioner in prescribing medicine without taking care

of its adverse impact in a patient labouring under some disorder,

and if it causes death, can it not be said that it will fall under the

definition of culpable homicide within the meaning of Section

299 I.P.C? If the prosecution is able to prove that such a death

was caused with the knowledge that it would endanger the life of


that person, definitely it will attract culpable homicide within the

meaning of Section 299 IPC. Even if it is shown that such

knowledge was there and culpable homicide was caused,

definitely it would fall within the category under Section 304 Part

II IPC. In such cases wherein doctors are involved, can they be

left scot free with their white cot even when there is culpable

negligence. It is a fact, that has to be established by the

prosecution in trial as to whether there was culpable negligence

or not. That question cannot be decided merely on the basis of

documents produced by the prosecution at the time of hearing

under Section 227 of the Cr.P.C. alone. The evidence in this

case will not be mere documentary evidence alone. The oral

evidence has also to be considered. There is a disability on the

part of the court in relying on oral evidence at the stage of

hearing under Section 227 Cr.P.C.The court may, for the limited

purpose, go through even the statements recorded under

Section 161 Cr.P.C. At the same time, it is not at all safe on the



part of a court dealing with a serious matter to have a

threadbare examination of the matters contained in the

statements recorded under Section 161 Cr.P.C. produced by the

prosecution. There may be embellishments or exaggerations in

such statements. The court should not be carried away by going

through the said statement by making a threadbare examination.

      25. For the limited purpose of satisfying whether there are

sufficient grounds to proceed, what is expected is to consider

whether there is a prima facie case or not. On considering the

entire aspects relating to the matter in this particular case, I am

unable to say that this is a case wherein there are no sufficient

materials to proceed with. I do not find any illegality, irregularity

or impropriety in the impugned order passed by the court below.

It seems that the court below has rightly complied with the

directions passed by this Court in the order passed in the earlier

Criminal Revision. I cannot find fault with the court below in not

making a detailed discussion in the matter. If such a detailed



discussion is made, definitely, it will tend to reflect during the

trial. What was expected from the court below was only to enter

a finding as to whether there was a prima facie case or not. The

court below has come to the conclusion that there is a prima

facie case and all the other matters raised by the learned

counsel for the accused were only questions that could be

decided during trial. It seems that the court below has not

transgressed illegally to any other area, apart from confining to

the scope of consideration under Section 227 Cr.P.C.

      26. The learned counsel for the defacto complainant has

argued that the defacto complainant is aged above 80 and she

wants to see the disposal of the case during her life time. It is

also pointed out that she is a cancer patient. Let a decision be

given, whether it be an acquittal or conviction; let the trial

continue. The defacto complainant has got a specific case that

the petitioners are eager in postponing a final decision in the

matter and the present proceedings are a reflection of it. It has




also been pointed out that the petitioners have preferred a

transfer petition also before this Court for getting the matter

transferred to some other court. As the said matter is not before

me, I am not making any opinion on it. Whatever it is, it seems

that there is a conscious attempt to postpone a final decision in

the matter. I do not find any merit in the present Criminal

Revision Petition, and the same is only to be dismissed, and I do

so.

      In the result, this Crl.R.P. is dismissed.




                              Sd/- B.KEMAL PASHA, JUDGE


    


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