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TMI Blog2012 (7) TMI 1166X X X X Extracts X X X X X X X X Extracts X X X X ..... State Commission and other material on record filed with the complaint; (c)Issue appropriate order or directions to transfer the investigation to some other independent investigating agency; (d) Issue appropriate order or directions to respondent no. 2 to keep the complaint No. 780/10 of the petitioner pending before Disciplinary Committee in abeyance as requested; (e) Pass any other and further order as this Hon'ble Court may deem fit, just and proper in the present facts and circumstances of the case. Briefly stated the facts leading to the filing of the present petition are that the father of the petitioner, who is a practicing lawyer was admitted on 06.3.2009 in Apollo hospital. Unfortunately, he died on 01.4.2009. It is stated by the petitioner that on 16.2.2010, she had obtained an expert opinion by Dr. V.J. Anand, Consultant Surgeon and on the basis of the same, she filed a complaint on 19.3.2010 before the Delhi State Consumer Disputes Redressal Commission. 2. On 14.6.2010, a Board of Doctors of Maulana Azad Medical College was constituted on the directions of the President of State Consumer Forum and it gave an opinion that the death of the deceased was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cases of medical negligence vests only with the government doctors and not with the Board constituted by the Delhi Medical Council. It was urged that it was not proper for the learned MM to have directed the Delhi Medical Council to constitute a Board and give its opinion. It was also contended by the petitioner that the SHO to whom the direction was sent on the basis of an application u/S 156 (3) Cr.P.C. had absolutely no business to have approached the Delhi Medical Council for the purpose of furnishing an opinion. Since such an opinion is already in existence and given by the Medical Board constituted in pursuance to the directions of the State Commission, this exercise is being undertaken to cover up lacunas to save the doctors. 7. The learned counsel appearing for the Delhi Medical Council has contested the claim of the petitioner. He has denied that the Medical Council has any interest in the matter, so as to shield the doctors who may be found prima facie guilty of being negligent in the performance of their duties. On the contrary, it has been contended that the disciplinary committee constituted in terms of Section 21 of the Delhi Medical Council Act (hereinafter re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Magistrate or the opinion of the Board constituted by Maulana Azad Medical College. For this purpose, the petitioner has relied upon a number of judgments. These are Grow-on Exports (India) Ltd. Ors. vs. J.K. Goel Anr., 95 (2002) DLT 333; Prakash Devi Ors. vs. State of Delhi Anr., 2010 (4) JCC 2833; Crl. M.C. No. 2626/2009 dated 5.2.2010; Smt. Nagawwa vs. Veeranna Shivalingappa Konjalgi Ors., (1976) 3 SCC 736; Prabha Mathur Anr. Vs. Pramod Aggarwal Ors., SLP (Criminal) No. 1368/2007 dated 26.9.2008 and V. Kishan Rao vs. Nikhil Super Speciality Hospital Anr., 2010 (4) SCALE 662. 10. Ms. Indu Malhotra, the learned counsel for the applicants/interveners has contested this submission of the petitioner that the applicants/interveners do not have any locus standi. It has been contended by her that in the instant case, the entire effort on the part of the petitioner is to see that a case u/S 304A IPC on account of the alleged medical negligence is registered against the doctors without following due processes of law as has been enunciated by the Apex Court in Jacob Mathew's case. She has stated that there are a number of authorities passed by the Apex Court w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent/accused. It will be more apt to give a right of hearing to the accused in cases of the present nature, where the Supreme Court has put an embargo on registration of a criminal case against the medical practitioners without obtaining an opinion from the Medical Board. 14. In the peculiar facts of the present case, I feel that the applicants/interveners were well within their right to assist the Court in presenting the clearer picture but their participation would have gone unnoticed and an FIR under Section 304A IPC would have been registered against them. This is because of the fact that the petitioner's father had admittedly died in the instant case. The petitioner is an Advocate by profession. She has opened almost all the fronts against the doctors with a view to ensure that a case u/S 304A IPC is registered against them without observing the law laid down by the Apex Court in letter and spirit in Jacob's Mathew's case. 15. Dehorse the judgment cited by the learned senior counsel for the applicants, I feel that this Court has inherent powers to prevent an abuse of the processes of law and also to pass an order in the interest of justice in respect of a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tself. 19. With regard to the constitution of the Medical Board by the Delhi Medical Council, it was contended that the Council has all the powers to constitute a Board for the purpose of obtaining an opinion and in terms of the judgment of the Supreme Court in case titled Jacob Mathew -vs- State of Punjab Anr., 2005 (6) SCALE 130 as to whether a prima facie case for medical negligence is made out against the doctors, who treated the patient and if the Board furnishes an opinion that there was negligence only then, FIR can be registered. 20. It was contended that in paragraphs 51, 52 and 53 of Jacob Mathew's case (supra), the offence under Section 304-A IPC cannot be registered against any doctor unless and until the medical opinion from a Board is constituted. The said paragraphs read as under:- Guidelines - re: prosecuting medical professionals 51. 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 police on an FIR being lodged and cognizance taken. The investigating officer and the private com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrested in a routine manner (simply because a charge has been leveled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld. 21. It has been submitted by Ms. Malhtora, the learned senior counsel that it was because of the judgment of Jacob Mathew (supra) by the Apex Court, that the learned Magistrate had referred the matter to Delhi Medical Council for an expert opinion of the Board as to whether there was medical negligence or not, before any adverse action is taken against the doctors treating the patient. It is further stated that the opinion of the doctors of Maulana Azad Medical College could not be treated as a substitute for this opinion of the Board constituted by the Delhi Medical Council before the registration of the FIR. 22. I have carefully considered the submissions made by the learned counsel for the parties and gone through the entire record. Prayer for Registration of an FIR 23. In clause 'b' of the prayer cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , on the very threshold, directed the SHO to obtain a medical opinion from the Delhi Medical Council regarding medical negligence by constituting a Board which is a sine qua non for registration of an offence and which direction has got repeated on number of occasions yet the petitioner did not feel aggrieved, but suddenly he has woken up to challenge the order dated 28.7.2011, when the learned Magistrate has reiterated the earlier order to expedite the report of the Board regarding medical negligence. 26. In my view, whatever orders have been placed on record show that the Magistrate is acting with great deal of expedition to dispose of the applications from time to time. 27. If the relief, as prayed by the petitioner under clause (b) regarding registration of an FIR, cannot be granted to her, obviously there is no question of transfer of investigation from one agency to the other agency. Accordingly, prayer (c) also cannot be granted. Therefore, both the prayers 'b' and 'c' are not maintainable in the present petition apart from this, both these prayers are beyond the scope of the main complaint which has been filed by the petitioner before the learned MM wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tting aside the order or challenging the opinion of the so called Board. Therefore, all the facts clearly show that the petitioner has lost all objectivity only because the victim in the instant case happened to be her father. She has started witch hunting with a view to teach the doctors a lesson which the Apex Court wanted to prevent by its judgment in Jacob Mathew's case. Medical negligence and registration of an FIR under Section 304A IPC 29. This leaves us with only prayer (a) which is drafted as under :- (a) issue appropriate order or direction to quash the order dated 28.7.2011 passed by the court below being illegal, arbitrary and against all the principles of criminal justice system essentially non-application of mind. 31. The order dated 28.7.2011 reads as under:- Fresh Vakalatnama filed on behalf of the DMC. Same is taken on record. Written submissions filed by the complainant stating therein that Complaint No. 780/10 is pending before the Disciplinary Committee of DMC and that proceedings before it are equal to a trial even before the registration of FIR and as such SHO concerned is creating evidence in favour of the accused. A letter dated 12.07.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Action Taken Report was called for from the police. It was pursuant to this Action Taken Report that the IO intimated the Court that the matter has been referred to Delhi Medical Council for giving an opinion with regard to the medical negligence. Since the furnishing of a medical opinion report by the Delhi Medical Council was being delayed and in the meantime, the IO of the case seemed to have done some mischief by approaching a private doctor for the purpose of obtaining a medical opinion that the learned Magistrate had sent for the SHO of the police station where the incident had taken place and also directed the constitution of a medical Board. This effective order was passed on 03.06.11. It is this order which was sought to be reviewed by the petitioner by filing an application seeking recall of this order and having failed to do so, it culminated into the order dated 28.07.11. As has been observed hereinabove by this Court that even if the order dated 28.07.11 is set aside even then the order regarding obtaining of a medical opinion from the Board, duly constituted by Delhi Medical Council, still remains on record. 34. The main grievance of the petitioner is not that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erably from a doctor in a Government service qualified in that field of medical practice who should normally be expected to give an impartial and unbiased opinion. If this standard was to be observed by the Court before registration of an FIR against the applicant/intervener, it was necessary that a fresh opinion from the Board duly constituted by the Delhi Medical Board has to be obtained and once the petitioner has put the criminal justice machinery into motion and she has not produced any prima facie evidence with regard to the medical negligence, it was not open to her to have retraced her steps belatedly and then urge before the said trial Magistrate or before this Court that the order passed by the learned Magistrate directing for constitution of a Board of Delhi Medical Council to furnish a medical opinion be recalled because there is already an opinion furnished by the doctors of Maulana Azad Medical College. 36. This is on account of two reasons; firstly, that the opinion furnished by the Board constituted by the doctor of Maulana Azad Medical College was constituted by a Consumer Forum and not by a Criminal Court. Moreover, the report furnished by the said Board is alr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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