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2007 DAILYLAW 2401 (DEL)

SUNIL TANWAR, SAHIB SINGH TANWAR v. STATE

2007-09-25

V B Gupta

body2007
V. B. GUPTA, J. ( 1 ) THE present petition has been filed under Section 482/483 of Crpc read with Article 227 of the Constitution of India by the petitioners against the order dated 25th August, 2007, passed by the Court of Addl. Sessions Judge whereby order dated 17th May, 2007 passed by the Court of Metropolitan magistrate, dismissing the application of the petitioner, filed under Section 156 (3) of CPC in the complaint case was upheld and the present petition seeks quashing of both the impugned orders as mentioned above. ( 2 ) THE brief facts for the disposal of the present petition are that ms. Poonam Rana, sister of present petitioner, met with an accident and was admitted in GTB hospital, Delhi. Later on, at the insistence of one dr. M. L. Parnami, she was shifted to Parnami Orthopedic Hospital, Azad Pur, Delhi where she was operated by Dr. Parnami and later on, it is alleged that she died due to negligence of the Doctor in that Hospital. ( 3 ) THE present petitioner filed a complaint under various provisions of indian Penal Code against Dr. M. L. Parnami and others, alongwith that an application under Section 156 (3) Crpc was also filed. ( 4 ) VIDE order dated 17th May, 2007, passed by the Magistrate, he declined the prayer made in application under Section 156 (3) Crpc. ( 5 ) THE present petitioner filed a revision before the Court of Sessions and that revision petition was also dismissed vide impugned order dated 25th august, 2007. ( 4 ) VIDE order dated 17th May, 2007, passed by the Magistrate, he declined the prayer made in application under Section 156 (3) Crpc. ( 5 ) THE present petitioner filed a revision before the Court of Sessions and that revision petition was also dismissed vide impugned order dated 25th august, 2007. ( 6 ) IT has been contended by learned counsel for the petitioner that the approach of learned Magistrate in declining to proceed under Section 156 (3) Crpc in not directing the Police to register the case is not correct and this Court under its inherent jurisdiction to prevent the miscarriage of justice should quash the impugned orders passed by the courts below and direct for investigation to be conducted in the case in accordance with law and in support of his contentions, learned counsel for the petitioner has cited large number of decisions of the Apex court as well as this Court contending that the present case is a fit case in which powers vested in this court under Section 482 Crpc should be exercised and Police be directed to register the FIR in this case and investigate the same in accordance with law. ( 7 ) THE relevant portion of the impugned order, passed by the learned magistrate read as under:- "in the present case, the complainant himself has stated that his sister was taken to Parnami Hospital at the instance of Dr. M. L. Parnami who conducted the operation in the night and left the hospital and his sister died in the morning. The postmortem report is not on record and is yet to be awaited as it has been referred to the concerned FSL. The applicant has not shown the medical record of the deceased and it is stated by him that the same was not prepared by parnami Hospital. Action taken report of the IO also perused in this regard. In the light of these facts and circumstances, the I am of the opinion that the complainant witnesses needs to be examined. Hence prayer, so made in application under Section 156 (3) Crpc declined and the matter was adjourned for complainant evidence. " ( 8 ) SECTION 156 of the Crpc read as under:- "156. In the light of these facts and circumstances, the I am of the opinion that the complainant witnesses needs to be examined. Hence prayer, so made in application under Section 156 (3) Crpc declined and the matter was adjourned for complainant evidence. " ( 8 ) SECTION 156 of the Crpc read as under:- "156. Police officer's power to investigate cognizable cases.-- (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned. " ( 9 ) ACCORDING to clause (3) of this Section, a Magistrate 'may' order such an investigation as mentioned in this Section. So it is clear that it is the prerogative of the Magistrate either to sent the matter for Police investigation or to retain the same for his own inquiry under Chapter XV or crpc. The word used in Section 156 (3) Crpc is 'may'. As such it is not obligatory upon the Magistrate to send each and every complaint to the Police for investigation. It has to be seen as to whether the Magistrate has exercised his discretion in a reasonable manner while declining to refer the matter for police investigation or not. ( 10 ) THERE is no dispute about the principle of law laid down in the various judgments cited by the learned counsel for the petitioner which have been placed on record. But all these judgments are not applicable to the facts of the present case. ( 11 ) THIS Court in M/s Skipper Beverages Pvt. Ltd. vs. State 2001 IV ad (Delhi) held that-- "it is true that Section 156 (3) of the code empowers to Magistrate to direct the police to register a case and intimate investigations but this power has to be exercised judiciously on proper grounds and not in a mechanical manner. ( 11 ) THIS Court in M/s Skipper Beverages Pvt. Ltd. vs. State 2001 IV ad (Delhi) held that-- "it is true that Section 156 (3) of the code empowers to Magistrate to direct the police to register a case and intimate investigations but this power has to be exercised judiciously on proper grounds and not in a mechanical manner. In those cases where the allegations are not very serious and the complainant himself is in possession of evidence to prove his allegations there should be no need to pass orders under Section 156 (3) of the Code. This discretion ought to be exercised after proper application of mind and only in those cases where the magistrate is of the view that the nature of the allegations is such that the complainant himself may not be in a position to collect and produce evidence before the Court and interest of justice demand that the police should step in the help the complainant. " ( 12 ) SO as per this decision, it is the prerogative of the Magistrate to either sent the matter for Police investigation or to retain the same in inquiry under Chapter XV of the Crpc. ( 13 ) HERE the case of the petitioner is that his sister died due to negligence on the part of Dr. M. L. Parnami and others. However, the postmortem report is not on record and is still awaited as the same has been referred to the concerned FSL and the petitioner has not shown the medical record of the deceased stating that the same has not been prepared by Parnami Hospital. The police has also filed the status report and as per the status report, the matter has been taken up with the Ministry of Home, GNCT of Delhi for allotting some hospitals for histopathological examination of exhibits returned by CFSL, calcutta and still the allotment of hospital is pending and also the cause of death on postmortem report is pending. ( 14 ) SINCE the result of postmortem report has not been received till date nor the cause of death is clear, so under these circumstances, the Magistrate was perfectly right in declining the prayer made in application under Section 156 (3) Crpc as in the absence of postmortem report, it is premature for magistrate to refer the case to the Police for investigation. ( 15 ) NEVERTHELESS the Magistrate has kept the complaint alive and it is for the petitioner to prove his case and he can lead evidence in this regard and as such no prejudice has been caused to the present petitioner by the impugned orders and there is no illegality or infirmity in the impugned orders passed by the courts below. Since the petitioner's evidence is yet to be recorded by the trial court, he can take all the averments before the trial court and can also produce and prove the relevant records in accordance with law. ( 16 ) WITH these observations, it is held that the present petition is not maintainable and the same is hereby dismissed.