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Trial courts should hold inquiry before summoning accused if evidence is hazy: HC
The HC bench of justice Jasjit Singh Bedi quashed a 2019 summoning order passed by a Hoshiarpur court against a doctor in a case of alleged medical negligence
The Punjab and Haryana high court has asserted that before summoning someone as an accused, the trial courts should hold a preliminary inquiry.
The high court bench of justice Jasjit Singh Bedi quashed a 2019 summoning order passed by a Hoshiarpur court against a doctor in a case of alleged medical negligence.
Section 202 of Code of Criminal Procedure (CrPC) empowers magistrates to take cognizance of a complaint and they can either inquire themselves or ask police to decide whether there is sufficient evidence for proceedings and can summon the accused under Section 204 of the CrPC.
The trial court had invoked these provisions. However, the high court observed that in cases where the allegations and the preliminary evidence lead in support of those allegations are hazy, the court should hold a preliminary inquiry in the manner that it deems fit before proceeding to summon the accused. That is the purpose and purport of Section 202 CrPC, the bench asserted.
In the case in hand, the complaint was against Dr DL Budwal by one Gurpreet Kaur of Hoshiarpur. She had taken her son to the doctor for an eye injury. As per the complaint, the doctor assured her that there was nothing to worry about. Later, she got her son examined at a different hospital, where she was told that her son’s eye had got permanently damaged.
She then filed a complaint in September 2016 before the magistrate for criminal negligence and among other provisions, Section 304-A (causing death by negligence) of the Indian Penal Code was also invoked. Based on the evidence given, in September 2019, the doctor was summoned to face trial.
The high court found that no death has taken place and, therefore, the question of summoning of the doctor under Section 304-A IPC did not arise.
“The magistrate has passed the summoning order mechanically just by adverting to the evidence lead without any application of mind as to how an offence under Section 304-A IPC was made out in the absence of death,” the bench recorded, adding that once it had come to light before magistrate that a police complaint was also filed, the magistrate could have also called for the police report regarding the action taken on the said complaint.
It also came to fore that as per Supreme Court, criminal negligence complaints against doctors can be initiated after a report supporting the same from a competent doctor or committee of doctors from a government institution, which was not there in the case in hand.
During the proceedings, it also came to light that a consumer complaint was filed in this case, but the panel found that there was no negligence or deficiency of service. “Had this fact been disclosed in the complaint, the impugned summoning order might not have been passed,” the bench said, quashing the complaint and summoning orders.
