Asoke Kumar Chaudhuri vs Kunal Saha

'REPORTABLE' IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1163 OF 2016 (Arising out of SLP (Criminal) No. 8024 of 2013)

ASOKE KUMAR CHAUDHURI AND OTHERS ... Appellants

VERSUS

KUNAL SAHA AND ANOTHER ... Respondents

J U D G M E N T

Leave granted.

We have heard the counsel for the parties finally,

with their consent, as the matter was fixed for final

arguments by this Court.

The issue that is involved in the present appeal does

not require stating of the facts in detail. We would,

however, recapitulate those facts which are absolutely

essential for deciding this matter.

Wife of respondent No. 1 was under the medical

treatment of Dr. B. Halder, Dr. Abani Roychowdhury and Dr.

Sukumar Mukherjee (hereinafter referred to as delinquent

doctors). She, however, could not survive. Her

husband-respondent No. 1 was not satisfied with the manner

Signature Not Verified in which medical treatment was given by the aforesaid Digitally signed by NIDHI AHUJA Date: 2017.01.17 17:06:48 IST Reason: doctors, as according to him, their negligence in

performance of their duties as doctors led to the death of

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his wife. He, therefore, lodged a written complaint with

the West Bengal Medical Council against those three doctors

in the year 1999 alleging negligence and maltreatment of his

wife by the said three medical practitioners. On receiving

the complaint, the Medical Council referred the same to the

Penal and Ethical Cases Committee No. 1 (hereinafter

referred to as 'Inquiry Committee') with instructions to

conduct an inquiry into the allegations made in the said

complaint. This Committee comprised five doctors (other

appellants were the members of the West Bengal Medical

Council).

It appears that this Inquiry Committee took opinion of

certain experts in their field and the opinion of the said

experts was in favour of the complainant. Notwithstanding

the same, the Inquiry Committee submitted its report giving

findings that the delinquent doctors were not at fault. On

the basis of that report, they were exonerated by the West

Bengal Medical Council. However, it may be mentioned that

the complainant had also initiated proceedings against the

delinquent doctors before the National Consumer Disputes

Redressal Commission (NCDRC) alleging deficiency in service

against several medical practitioners including the said

three delinquent doctors. Though NCDRC rejected the

complaint, in the appeal filed against the orders of the

NCDRC, this Court held the said delinquent doctors guilty of

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negligence but at the same time, it was found that their

negligence was not of criminal nature but of civil

consequence and, therefore, awarded damages in favour of the

complainant and against the delinquent doctors. This

judgment is reported as 'Molay Kumar Ganguly v. Sukumar

Mukherjee' [2009 (9) SCC 221].

It is clear from the above that insofar as the three

delinquent doctors were concerned, it has been finally held

that they acted with negligence while according medical

treatment to the wife of the complainant.

The complainant, after the aforesaid judgment of this

Court, filed criminal complaint against the members of the

Inquiry Committee of West Bengal Medical Council including

the appellants herein alleging that they have committed

offence under Section 201 read with Section 120B of the

Indian Penal Code(IPC). The complaint is founded on the

allegations that even when there were four reports of four

different medical experts to the effect that delinquent

doctors were guilty of professional misconduct as they had

acted with negligence while giving medical treatment to the

wife of the complainant, these accused persons entered into

conspiracy to save the delinquent doctors. On this basis,

culpability which is attributed to these appellants can be

traced in paragraph 23 of the complaint which reads as

under:

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“23. That on the backdrop of what has been canvassed in the foregoing paragraphs, it is most palpable and glaring that the accused persons had entered into a deep-rooted criminal conspiracy amongst themselves to screen the offenders and in pursuance to that, as overt acts, the accused persons knowing fully well that the offending doctors had committed the offence of medical negligence and thereby caused death of the wife of the petitioner, deliberately concealed and withheld the evidences and/or information relating to the said offenders with the intention to save their skin and thereby committed the offence punishable under Section 201 of the Indian Penal Code read with Section 120B of the said Code.”

The concerned Magistrate took cognizance of the said

complaint and issued process. On receipt of the notice, the

appellants challenged the proceedings arising out of the

said complaint by filing petition under Section 482 of the

Code of Criminal Procedure (Cr.P.C.) in the High Court of

Calcutta being C.R.R. No. 4243 of 2011 submitting that no

case of conspiracy was made out in the complaint and the

'complaint was malicious and untenable' and it could not be

said that any offence by the appellants was committed under

Section 201 read with Section 120B of the IPC. The High

Court, after hearing the parties, dismissed the said

petition vide impugned judgment dated 01.07.2013 and it is

this judgment which is impugned in the present proceedings.

A perusal of the judgment of the High Court would

disclose that the High Court has discussed the matter in

detail as to whether prior sanction of the Medical Council

was required in view of the provisions of Section 197 of the

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Cr.P.C., inasmuch as one of the submissions of the

appellants was that no such complaint could be filed without

such a permission in view of the provisions of Section 27 of

the Bengal Medical Act, 1914, which bars suit or other legal

proceedings in respect of any act done in exercise of any

power conferred by the said Act on the State Government or

the Council or any Committee of the Council or the

Registrar. We are not adverting to that discussion as we

would be dealing with the matter on merits.

Insofar as the contention of the appellants herein on

the maintainability of the case filed by the complainant is

concerned, it was argued that even after reading the

petition as a whole, it would be seen that it does not

disclose commission of any offence much less offence under

Section 201 IPC or Section 120B IPC. The High Court has

noted this contention as well as judgments which were

applied by the appellants in support of this contention.

However, when dealing with these contentions on merit, the

High Court has dismissed the petition simply on the ground

that the jurisdiction of the High Court under Section 482

Cr.P.C. to quash a proceeding is required to be sparingly

used. After elaborately quoting from judgments in support

of the aforesaid principle, the High Court has applied the

same to the facts of this case in the following manner:

“17. In the instant case, the complaint of Dr. Saha

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relates to nondisclosure or non-consideration of the four expert reports. This, he alleges, is deliberate suppression to screen the offenders, and causing disappearance of evidence of offence. By the term offender, he implies the doctors against whom he brought the actions before the Council, Court of the Chief Judicial Magistrate, Alipore and the NCDRC. As regards the case brought by Dr. Saha in the Court of the Chief Judicial Magistrate, Alipore, there has been final acquittal of the accused doctors in the Hon'ble Supreme Court. Thus, suppression of such reports could not constitute disappearance of evidence respecting a penal offence or screening the offender, even if the allegations of deliberate suppression are assumed to be correct. Nor can such suppression sustain the charge of screening an offender, the Hon'ble Supreme Court having acquitted the accused doctors.”

After hearing the counsel for parties, we are of the

opinion that the aforesaid approach of the High Court is

unsustainable in law and it has committed grave error in not

dealing with the matter in proper perspective.

We have already stated in brief the allegations which

are made by the complainant in the said complaint in an

attempt to rope in the appellants for offence under Section

201 and Section 120B IPC. We are of the opinion that even

if the allegations in the complaint are taken as true and at

their face value, it would not constitute offence under the

aforesaid provisions.

We first take note of provisions of Section 201 IPC

which reads as under: -

201. Causing disappearance of evidence of offence, or giving false information to screen offender.—Whoever,

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knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any infor-

mation respecting the offence which he knows or believes to be false;

if a capital offence.—shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; if punishable with imprisonment for life.—and if the offence is punishable with 1[imprisonment for life], or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; if punishable with less than ten years’ imprisonment.—and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.”

As is clear from the bare reading of the provisions of

the aforesaid Section, an offence under the said section

would be treated to have been committed when a person,

knowing or having reason to believe that an offence has been

committed, causes any evidence of the commission of that

offence to disappear. What is relevant is that the evidence

which is made to disappear relates to the commission of the

offence. In the present case, the allegations against the

delinquent doctors of their negligence were of a much prior

date. The complainant had sought to make out a case that

the opinions of the four experts which were taken by the

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Committee itself were not reflected in the report that was

submitted and it is this 'evidence' which was made to

disappear by the members of the Inquiry Committee.

Obviously, it is not a kind of evidence that is referred to

under Section 201 IPC. Thus, on a plain reading of this

provision, the allegations contained in the complaint do not

make out any case of committing an offence under Section 201

IPC.

As mentioned above, there is a charge of conspiracy as

well and, for this purpose, provisions of Section 120B IPC

are invoked. It makes the following reading :

120B. Punishment of criminal conspiracy.—(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.

Here again, criminal conspiracy that is referred to

and defined under Section 120A IPC has to be in furtherance

of committing an offence punishable with death, imprisonment

for life or rigorous imprisonment for a term of two years or

upwards etc. The alleged conspiracy even as per the

complaint was not to commit any of the offences as mentioned

above. As per the complainant himself, the so-called

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conspiracy, if at all, was to save the delinquent doctors in

disciplinary proceedings taken against them. This provision

also, therefore, has no application.

Faced with the aforesaid situation, Mr. M. N.

Krishnamani, learned senior counsel appearing for the

complainant, submitted that the allegations contained in the

complaint would constitute an offence punishable under

Section 219 IPC. Though no such provision is mentioned in

the complaint, Mr. Krishnamani is right that the allegations

made in the complaint may constitute an offence under the

aforesaid provision and mere non-mentioning of the said

provision in the complaint would not make any difference.

For this reason, we have considered the argument predicated

on this provision as well. We fail to understand as to how

even the provisions of Section 219 IPC applies in the

instant case.

Section 219 IPC reads as follows:

219. Public servant in judicial proceeding corruptly making report, etc., contrary to law.—Whoever, being a public servant, corruptly or maliciously makes or pronounces in any stage of a judicial proceeding, any report, order, verdict, or decision which he knows to be contrary to law, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

The ingredients of the aforesaid section are: (1) the

person charged is a public servant; (2) the said public

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servant corruptly or maliciously makes or pronounces any

report, order, verdict, or decision which he knows to be

contrary to law (3) such act is to be done in any stage of a

judicial proceedings. Without going into the controversy

whether the appellants would be treated as public servant or

not, it is sufficient to state that the departmental

proceedings into the report given by the Committee cannot be

treated as 'judicial proceedings'.

Judicial proceedings are defined in Section 2(i) of

Cr.P.C. to include any proceedings in the course of which

evidence is or may be legally taken on oath.

Section 3 of the Oaths Act, 1969 reads as under:

“3. Power to administer oaths.—(1) The following courts and persons shall have power to administer, by themselves, or subject to the provisions of sub-section (2) of section 6, by an officer empowered by them in this behalf, oaths and affirmations in discharge of the duties imposed or in exercise of the powers conferred upon them by law, namely:—

(a) all courts and persons having by law or consent of parties authority to receive evidence;

(b) the commanding officer of any military, naval, or air force station or ship occupied by the Armed Forces of the Union, provided that the oath or affirmation is administered within the limits of the station.

(2) Without prejudice to the powers conferred by sub-section (1) or by or under any other law for the time being in force, any court, Judge, Magistrate or person may administer oaths and affirmations for the purpose of affidavits, if empowered in this behalf—

(a) by the High Court, in respect of affidavits for the purpose of judicial proceedings, or

(b) by the State Government, in respect of other affidavits.”

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It cannot be said that the departmental proceedings,

which were initiated against the delinquent doctors and in

which five of the appellants constituted Inquiry Committee,

evidence could be or would have been taken on oath.

Thus, even if, for the sake of argument, we presume

that the Members of the Committee had side-tracked and

deliberately ignored the report of the experts helping the

delinquent doctors to go scot-free, it does not make out any

criminal offence said to have been committed by these

appellants under the provisions of IPC. If there was any

other remedy available to the complainant, he could have

availed the said remedy but insofar as the complaint filed

by him for initiating proceedings against the appellants

under Section 201 read with Section 120B IPC is concerned,

it was not clearly maintainable.

The result of the aforesaid discussion is to allow

this appeal and quash the complaint filed by the respondent

against the appellants.

No costs.

....................., J.

[ A.K. SIKRI ]

....................., J.

[ ABHAY MANOHAR SAPRE ] New Delhi;

November 29, 2016.

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ITEM NO.11 COURT NO.9 SECTION IIB

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No. 8024/2013

(Arising out of impugned final judgment and order dated 01/07/2013 in CRR No. 4243/2011 passed by the High Court of Calcutta)

ASOKE KUMAR CHAUDHURI & ORS Petitioner(s)

VERSUS

KUNAL SAHA & ANR. Respondent(s)

(With appln. (s) for permission to file additional documents and office report) (For final disposal)

Date : 29/11/2016 This petition was called on for hearing today.

CORAM : HON'BLE MR. JUSTICE A.K. SIKRI HON'BLE MR. JUSTICE ABHAY MANOHAR SAPRE

For Petitioner(s) Mr. Bikash Ranjan Bhattacharya, Sr. Adv.

Mr. Rauf Rahim, Adv.

Ms. Poulami Das Dey, Adv.

For Respondent(s) Mr. Abhijat P. Medh, Adv.

Mr. M. N. Krishnamani, Sr. Adv.

Mr. T. V. George, Adv.

Mr. S. Roy, Adv.

UPON hearing the counsel the Court made the following O R D E R

Leave granted.

The appeal is allowed in terms of the signed reportable judgment.

Pending application stands disposed of.

(Nidhi Ahuja) (Mala Kumari Sharma) Court Master Court Master

[Signed reportable judgment is placed on the file.]

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