Full Judgment Text
' 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
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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
in which medical treatment was given by the aforesaid
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
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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
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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
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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.
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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
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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
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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.
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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.
JUDGMENT
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;
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(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
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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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