S.202 CrPC | Enquiry Court Must Examine All Complaint Witnesses In Cases Exclusively Triable By Sessions Court: Jharkhand High Court

The Jharkhand High Court has emphasized that when a case falls under the exclusive jurisdiction of the court of sessions, it is essential for the Enquiry Court to summon the complainant to examine all the witnesses supporting the allegations in the complaint.

Justice Subhash Chand, presiding over the case, observed, “proviso of this Section 202(a) and Section 202(b) and Section 202 (2) provides that if the case is exclusively triable by the court of sessions, it is incumbent upon the Enquiry Court to call upon the complaint to examine all the complaint witness in support of the allegations made in the complaint.”

“In the case in hand the Enquiry Court has not examined all the witnesses and the most important witness Dr. Ashok Kumar who conducted the second operation and the found the alleged cloth, cotton and the clot of the blood in 1 k.g. out of the stomach of the complainant and summoning the accused- petitioner herein committed the case for trial to the court of sessions,” Justice Chand added.

The above ruling was delivered in a Criminal Revision directed on behalf of a petitioner against an order passed by the Additional Sessions Judge-I Garhwa, pertaining to the rejection of a discharge application filed by the petitioner.

The case stemmed from a medical negligence complaint filed by Savita Devi against Dr. Punam Sinha, Dr. Satish Kumar Sinha, and three others. The accused allegedly conducted unnecessary surgeries, demanded money, and subjected her to further complications.

The Enquiry Court on the basis of the statement of enquiry witness passed the summoning order against the accused for the offence under Sections 308, 338 of I.P.C., and subsequently, the case was committed for trial to the court of sessions.

Subsequently, on behalf of the accused the application for discharge was moved and the same was rejected by the trial court, aggrieved from which the Criminal Revision was preferred on behalf of the petitioner.

In its ruling, the High Court emphasized that it is a settled law that while disposing the discharge application, the court concerned has to go through the allegations made in the F.I.R. or in the complaint and the evidence collected by the I.O. in support of the F.I.R. allegations.

The Court asserted, “If from the allegations made in the F.I.R./in the complaint and the evidence collected by the I.O., there are sufficient ground to proceed with trial the court should decline to allow the discharge application; if the court is of definite opinion that no ingredient of the offence is made out from the evidence collected by the I.O. or even from the allegations made in the F.I.R. itself the discharge application should be allowed.”

“At the same time it is also the settled law as laid down by the Hon'ble Apex Court in catena of case law that while disposing the discharge application or framing the charge, the court has not to appreciate the evidence on record. The appreciation of the evidence or marshalling of the evidence is not permissible. The court cannot conduct the mini trial at the time of framing charge,” the Court added.

Moving ahead, the Court placed reliance on the judgement of the Apex Court in the case of Central Bureau of Investigation vrs. Mukesh Pravinchandra Shroff & Ors (2010) 3 SCC Cr. 315 whereby it was held that the appreciation of evidence, at the stage of discharge is impermissible, what is required to be seen is whether there are sufficient grounds to proceed against the accused.

In the case in hand the petitioner has been summoned for the offence under Sections 308 and 338 of I.P.C. and the Enquiry Court has committed the case to the court of sessions without examining all the witnesses which are shown in the complaint including Dr. Ashok Singh and in lack of documentary evidence.

The Court held that though on behalf of the complainant in the case in hand the Dr. Ashok Kumar was not examined by the Enquiry Court and committed the case to the court of sessions Judge for trial, yet, the Court said, “from the statement of the complainant and the other enquiry witness Vimlesh Kumar, Yugal Kumar, Parmeshwar Ram and Suneshwar Kumar Ravi prima facie there was not sufficient and reliable evidence that the accused who had done operation of the complainant though with the consent of the complainant had left the cloth and the cotton in the stomach which was brought out by Dr. Ashok Kumar in P.G.I. Nehru Hospital Chandigarh and also the clot of flesh in 1 k.g. endangering the life of the complainant.”

The medical negligence on the part of the petitioner, the Court said, was also not supported by the expert evidence.

“From the evidence on record, no alleged offence under Sections 308 and 338 of I.P.C. is made out from the evidence adduced on behalf of the complainant. As such the impugned order passed by the learned court-below needs interference and this Cr. Revision deserves to be allowed,” the Court concluded while allowing the Criminal Revision, and settiing aside the impugned order passed by the court below.

Case Title: Dr. Punam Sinha @ Punam Sinha Versus The State of Jharkhand and Anr

LL Citation: 2024 LiveLaw (Jha) 61

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