Criminal Misc. No.M-4770 of 2007 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Misc. No.M-4770 of 2007
Date of decision : 17.11.2009
Gurdit Singh ....Petitioner
Versus
State of Punjab and another ...Respondents
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CORAM : HON'BLE MR. JUSTICE S. D. ANAND
Present: Mr.T.P.S.Tung, Advocate for the petitioner.
Mr. B.B.S.Teji, Assistant Advocate General, Punjab
Mr. Sumeet Mahajan, Senior Advocate with
Mr. Amit Kochar, Advocate for the complainant.
S. D. ANAND, J.
The petitioner-complainant lodged an FIR (No.445 dated
16.10.2003 under Sections 18 & 19 of the Transplantation of Human
Organs Act, 1994) against the respondent-accused Dr. Baldev Singh
Aulakh. The precise allegation, in the course of the complaint, was that Dr.
Aulakh had removed his one kidney stealthily and further that Dr. Aulakh
treated him with cognizable negligence in the performance of his
professional duty.
The police forwarded the case to the Illaqa Magistrate for
cancellation on a finding that no case had been made out against Dr.
Aulakh etc. On being notified of the cancellation report, the petitioner-
complainant resisted the plea aforementioned and filed a protest petition.
In the light thereof, the learned Magistrate did not accept the cancellation
plea and, treating it to be a private complaint, proceeded in the matter
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and, vide order dated 13.3.2006, ordered the summoning of Dr. Baldev
Singh Aulakh for a trial under Section 279 IPC and under Sections 18 & 19
of the Transplantation of Human Organs Act, 1994.
In revision, the then learned Additional Sessions Judge, Fast
Track Court, Ludhiana reversed the decision and ordered the discharge of
the respondent-accused Dr. Baldev Singh Aulakh.
In revision before this Court, the learned counsel for the
petitioner-complainant raised a plea that the learned Ist Revisional Court
committed grave error of law in proceeding to take into consideration
certain material which was not available on the record and which would
have, in the normal course of things, seen the light of the day only at the
trial which was yet to commence after the respondent-accused had
entered appearance. It was also argued that the learned Ist Revisional
Court did not, at all, deal with the precise grounds noticed by the learned
Magistrate for ordering the summoning of respondent-accused-Dr. Baldev
Singh Aulakh. It was also the vehement contention on behalf of the
petitioner-complainant that all that the learned Ist Revisional Court could
have done was to refer the matter to the learned Trial Court for
reconsideration, particularly in view of the fact that it was the own
observation made by the former that offences under Sections 336/337 IPC
could have been attracted to the facts and circumstances of the case.
It is apparent, from a conjunctive perusal of the order dated
13.3.2006 (Annexure P-2) of the learned Additional Chief Judicial
Magistrate, Ludhiana and that of the learned Additional Sessions Judge,
Fast Track Court, Ludhiana dated 30.9.2006 (Annexure P-1), that the
former had recorded precise reasons which were relied upon to draw
sustenance for the summoning of respondent-accused to face a trial.
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Those foundational facts, which formed the essential premise of the
impugned order of the learned Magistrate, are noticed at page 49 of the
paper-book. Those are reproduced hereunder for facility of reference:-
i) No information or written consent was sought from the
complainant or his relatives or family members before
removing the left kidney of the complainant.
ii) No letter or information was given by Dr. Arun Aggarwal
Prop. of Apex Laboratory to the complainant that he could
get test of the left kidney from other laboratories within one
month, which was mandatory.
iii)No confirmation or investigation made by the police whether
Khaira Nursing Home was registered under the Human
Organ Transplantation Act or not.
iv)If the tests were normal on 13.6.96 and there was no
temperature then why haste or hurry for operation at night
same day. It also falsifies presence of pus in the kidney. If it
was full of PUS, then there must be high temperature.
v) The investigation of the above said case was transferred by
DIG Ludhiana vide its letter no. 132/s dt. 11.12.2003 from
SSP Ludhiana to SP Mohali Sh. Kanwar Vijay Partap Singh,
IPS in spite of that, the SSP Ludhiana continued with the
investigations of the case. The SP Mohali had been sending
reminders to SSP Ludhiana for sending the case file to him
for investigations but instead of sending the file to the
concerned investigation officer. The SSP Ludhiana Sh.
Narinder Pal Singh, IPS, recommended the cancellation of
the said case and the challan of the same was produced
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before the Illaqa Magistrate, Ludhiana on 18.2.2004 for
cancellation of the same, which further shows that police
and accused doctors were hand in glove with each other.
vi)The operation was conducted on the complainant on
13.6.1996 but in some of the papers/treatment chars of
Khaira Nursing Home date is showing on 1998 which further
goes to prove that the doctors has fabricated and forged the
abovesaid records in order to save themself and in order to
misguide the police and this court.
vii)That the accused doctors being rich and influential persons
of Ludhiana and being a member of Medical Council of India
were able to approached the higher police officials and
Senior Doctors and with there connivence got constituted a
medical Board in order to get a favourable report in their
favour in which, they succeeded. The board consisted of
doctors which were medicine specialist and General
Surgeon, who are not competent to inquiry to the matter and
to give the report. As in such like cases only a doctor M.Ch.
Urologist was only competent to inquire and file the report
regarding the same All these above said proceedings were
initiated in the absence of the complainant and the
complainant was got given a change of being heard, which
further goes to show that the abovesaid accused persons
have succeeded in getting the above said FIR cancelled due
to their influence and not as per law.”
It was further argued that the learned Additional Sessions
Judge did not, at all, notice most of those points and proceeded to analyse
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the material available on the Ist Revisional Court file to arrive at a finding
that offences under Sections 279 and 420 IPC were not made out. In
obtaining that view, the learned Additional Sessions Judge relied upon the
opinion of some other Doctors. It also held that though the facts of the
case could have attracted the provisions of Section 336/337 IPC, the
launching of the impugned prosecution qua offences aforementioned was
barred by limitation and no cognizance thereof could be taken by the
Court.
It is apparent, from a perusal of the order granted by the
learned Additional Sessions Judge, that he did not, at all, touch the points
indicated by the learned Trial Magistrate at point (ii), (iii), (iv), (v) and (vi).
A Revisional Court is ordained by law to substitute its opinion in place of
the one recorded by the learned Trial Magistrate, with adequate reasoning.
In this case, as already noticed, the reasoning for discarding/ignoring those
untouched items is completely missing.
The learned Additional Sessions Judge did record certain
facts-based reasoning in the course of the impugned order, in support of
the observation that the offences with which the respondent-accused was
charged were not made out and that some offences other than those were
indeed made out but could not be taken cognizance of on account of the
bar of limitation.
The learned First Revisional Court obeviously committed a
jurisdictional error in invalidating the order granted by the learned Trial
Magistrate in toto. It would have been appropriate for the learned Ist
Revisional Court to notice the respective contentions of the parties, to
relate the same to the record and forward the finding in relation thereto to
the learned Trial Magistrate to have a look at the facts and circumstances
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obtaining on the file all over again. The learned Trial Magistrate would
have reappraised the material in the light of the guidance offered by the
learned Additional Sessions Judge.
Learned Trial Magistrate had indeed recorded certain
pertinent facts which persuaded it to uphold the allegations of negligence
etc. In recording of finding of reversal, learned Ist Revisional Court could
not have taken into consideration the material which could not be validly
accessed on record. That material representing defence plea had to find
its way to the record in accordance with law. That record could not be read
into evidence otherwise. Except when the challenge to the validity of an
order is based upon a pure question of law, the validity of an order has to
be compulsively adjudicated upon on the basis of the material presented
before the Court which granted it. An order directing the appearance of a
person to face a trial affects the personal liberty of the individual and an
order in the context must be granted with judicial circumspection. An order
of that category must indicate what weighed with the granting authority in
ordering the summoning of the individual as an accused. At the same
time, the Revisional Court must apply the same principle of
circumspection while considering interference with an order under
challenge.
This observations apply with greater vigour to the present
case because the learned Magistrate had recorded detailed reasoning
which persuaded him to order the summoning of accused on the basis of
the material which could be rebutted by the accused only at the trial which
is yet to be held.
In the light of the foregoing discussion, the petition shall stand
allowed. The impugned order dated 30.9.2006 shall stand set aside. The
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matter is remitted to the learned Sessions Judge, Ludhiana, for forwarding
it to the learned Additional Sessions Judge, Fast Track Court, Ludhiana.
In case, there is no incumbent of that office, the learned Sessions Judge
shall have the liberty to forward it to any other Court of competent
jurisdiction. The learned Court, to which revision petition comes to be
assigned, shall dispose it of within three months from the date it is listed
before it for the first time.
November 17, 2009 (S. D. ANAND) Pka JUDGE