Dr. Trinath Rajguru Vs. the State

Dr. Trinath Rajguru vs The State

Disposition Petition allowed Court Orissa Decided Feb 18, 2008

~4 min read

https://sooperkanoon.com/case/526744

For advocates & juniors · 7-day free trial

Brief this judgment before chambers

Stop skimming 50 pages - get an 18-section AI Brief on this case, ask scoped follow-ups, and find related precedents with Semantic Search. Full trial, no card required.

18-section brief - facts, issues, ratio, relief
Ask this case - answers cite the judgment
Semantic search - find precedents by meaning
Research drawer - sections, cites, related cases

Citation: sooperkanoon.com/526744
Court: Orissa High Court
Judge: R.N. Biswal, J.
Decided On: Feb 18, 2008
Subject: Criminal
Disposition: Petition allowed

Case Summary

AI-generated summary - not the official court judgment text.

- MOTOR VEHICLES ACT, 1988 [C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal ...

Key legal issue: Criminal
Outcome / disposition: Petition allowed

Parties & Advocates

Appellant / Petitioner

Dr. Trinath Rajguru

Advocate Mr. P.C. Chhinchani

Respondent

The State

Legal References

Cases Referred: Jacob Mathew v. State of Punjab
Reported In: 2008(1)OLR519

Excerpt

.....extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 1. succinctly stated, the prosecution is that on 16.8.2001, while the informant and his wife ramita kumari sethi were coming from ramguda to their native village, in..........unless there is gross negligence criminal liability under section 304a cannot be attracted, particularly against a doctor. in support of his submission he relied on the decision jacob mathew v. state of punjab : 2005 crilj3710 , where the apex court held that the word 'gross' has not been used in section 304a of i.p.c, yet it is the settled principle that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be called 'gross'. the expression rash or negligent act as occurring in section 304a of i.p.c. has to be read as qualified by the word 'grossly'. on the other hand, mr. swain, learned addl. government advocate submits that the petitioner treated the wife of the informant in his clinic, instead of doing that in any well equipped nurshing home. had the deceased been treated in a sophisticated nurshing home, perhaps she would not have expired. so, it can be said that the petitioner was guilty of gross negligence.3. treating the deceased in his clinic at best be said as negligence on the part of petitioner, but it cannot be said as gross negligence, particularly when it is the specific opinion of associate professor mr. jyotin kumar dash that the death of the deceased was due to premature rupture of membrane causing amniotic fluid embolism, which is the most common cause of obstetrical death during labour. taking the rival submission into consideration, i am of the view that there was no gross negligence on the part of the accused-petitioner so as to prima facie attract the offence under section 304a of i.p.c.in the result, the crlmc is allowed and the order of taking cognizance under section 304a of i.p.c. against the accused-petitioner is hereby quashed.

Full Judgment

ORDER

R.N. Biswal, J.

Even though the case was listed to date for admission, on the request and consent of learned counsel for both the parties, it is taken up for final disposal.

Heard Mr. P.C. Chhinchani, learned counsel for the petitioner and Mr. Swain, learned Addl. Government Advocate representing the State. The petitioner has challenged the legality and propriety of the order dated 25.3.2003 passed by the learned S.D.J.M., Gunupur in G.R. Case No. 291 of 2001, wherein he took cognizance of the offence punishable under Section 304A of I.P.C.

1. Succinctly stated, the prosecution is that on 16.8.2001, while the informant and his wife Ramita Kumari Sethi were coming from Ramguda to their native village, in the district of Kendrapara, on the way at Gunupur, the latter complained pain in her stomach and as such, she was immediately taken to the clinic of the petitioner, a doctor at Gunupur and on examination, it was detected that she was carrying 8/9 months of pregnancy. Petitioner treated her for 4 days in his clinic and on 20.8.2001 while undergoing treatment, she expired. On the next date i.e. 21.8.2008 the informant lodged a written report before the O.I.C. of Gunupur Police Station, on the allegation that due to gross negligence of the petitioner, his wife expired. As the allegation contained in the report, which was treated as F.I.R. revealed a cognizable case, the O.I.C. registered P.S. Case No. 135 of 2001 and took up investigation. In course of investigation, he visited the spot, examined the witnesses and obtained a report from Dr. Jyotin Kumar Das, Associate Professor, F.M. & T., M.K.C.G. Medical College, Berhampur, on 16.3.2002 relating to the cause of death of the deceased. The report shows that the deceased died due to pre-mature rupture of membrane causing amniotic fluid embolism, which is the most common cause of obstetrical death during labour. On the basis of this report and the statement of the witnesses, the I.O. came to the conclusion that no offence was committed by the accused-petitioner and as such submitted final report. But the learned S.D.J.M. after going through the Case Diary, including the report of Dr. Jyotin Kumar Dash, Associate Professor, held that there was prima facie material against the accused-petitioner to be proceeded under Section 304A of I.P.C. and took cognizance thereunder vide order dated 25.3.2003. Being aggrieved by that order, the petitioner has preferred the present CRLMC.

2. Learned counsel appearing for the petitioner submits that in view of the report of Dr. Jyotin Kumar Dash, Associate Professor, the I.O. rightly submitted final report, but taking into consideration, the subsequent conduct of the petitioner, the learned S.D.J.M. illegally took cognizance of the offence under Section 304A of I.P.C. against the petitioner, which warrants interference by this Court. He further submits that a case under the said Section cannot be initiated against a person, because of mere negligence. Unless there is gross negligence criminal liability under Section 304A cannot be attracted, particularly against a Doctor. In support of his submission he relied on the decision Jacob Mathew v. State of Punjab : 2005 CriLJ3710 , where the apex Court held that the word 'gross' has not been used in Section 304A of I.P.C, yet it is the settled principle that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be called 'gross'. The expression rash or negligent act as occurring in Section 304A of I.P.C. has to be read as qualified by the word 'grossly'. On the other hand, Mr. Swain, learned Addl. Government Advocate submits that the petitioner treated the wife of the informant in his clinic, instead of doing that in any well equipped Nurshing Home. Had the deceased been treated in a sophisticated Nurshing Home, perhaps she would not have expired. So, it can be said that the petitioner was guilty of gross negligence.

3. Treating the deceased in his clinic at best be said as negligence on the part of petitioner, but it cannot be said as gross negligence, particularly when it is the specific opinion of associate Professor Mr. Jyotin Kumar Dash that the death of the deceased was due to premature rupture of membrane causing amniotic fluid embolism, which is the most common cause of obstetrical death during labour. Taking the rival submission into consideration, I am of the view that there was no gross negligence on the part of the accused-petitioner so as to prima facie attract the offence under Section 304A of I.P.C.

In the result, the CRLMC is allowed and the order of taking cognizance under Section 304A of I.P.C. against the accused-petitioner is hereby quashed.

Same Court & Year Orissa · 2008 Same Parties Dr. Trinath Rajguru vs The State Same Subject Criminal Same Judge R.N. Biswal, J.

Criminal