Delhi High CourtMeenakshi Jain vs State & Anr. on 2 July, 2012Author:V.K.ShaliBench:V.K. Shali*             HIGH COURT OF DELHI AT NEW DELHI

+                   CRL. M.C. No. 2504/2011

                               Date of Decision :    02.07.2012

MEENAKSHI JAIN                               ...... Petitioner
                              Through: Petitioner in person.

                               Versus

STATE & ANR.                                ...... Respondents
                              Through: Mr. Sunil Sharma, APP.


CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J.1.     This is a petition filed by the petitioner underSection 482Cr.P.C. seeking the following reliefs:"(a) Issue appropriate order or direction to
              quash the order dated 28.7.2011 passed by
              the Court below being illegal, arbitrary and
              against all principles of criminal justice
              system showing non-application of mind;(b) Issue appropriate order/directions to
              the respondent no.1 to register an FIR on
              the complaint dated 12.10.2010 of the
              petitioner under the relevant provisions of
              law or in the alternative issue appropriate
              order/directions to the Ld. MM to
              expeditiously decide the application underCrl. M.C. No.2504/2011                                 Page 1 of 37Section 156(3)Cr.P.C. of the petitioner on
              merits in the light of the Medical Opinion
              dated 14.6.2010 of the Board of Doctors of
              Maulana Azad Medical College, duly
              constituted by Dean, MAMC on the
              directions of the Hon'ble State Commission
              and other material on record filed with the
              complaint;(c)Issue appropriate order or directions to
              transfer the investigation to some other
              independent investigating agency;(d) Issue appropriate order or directions to
              respondent no.2 to keep the complaint
              No.780/10 of the petitioner pending before
              Disciplinary Committee in abeyance as
              requested;(e) Pass any other and further order as
              this Hon'ble Court may deem fit, just and
              proper    in  the    present facts    and
              circumstances of the case."2.     Briefly stated the facts leading to the filing of the present

       petition are that the father of the petitioner, who is a

       practicing lawyer was admitted on 06.3.2009 in Apollo

       hospital.         Unfortunately, he died on 01.4.2009.     It is

       stated by the petitioner that on 16.2.2010, she had

       obtained an expert opinion by Dr. V.J. Anand, Consultant

       Surgeon and on the basis of the same, she filed aCrl. M.C. No.2504/2011                                   Page 2 of 37complaint on 19.3.2010 before the Delhi State Consumer

       Disputes Redressal Commission.3.     On 14.6.2010, a Board of Doctors of Maulana Azad

       Medical College was constituted on the directions of the

       President of State Consumer Forum and it gave an

       opinion that the death of the deceased was caused

       because of the medical negligence. On 12.10.2010, the

       petitioner filed a complaint seeking prayer to register an

       FIR underSection 304-AIPC against the Apollo Hospital

       and its doctors for forging and tampering with the record

       and     causing    the    death   of   her   father   by   medical

       negligence.       On 19.10.2010, a complaint of the medical

       negligence and professional misconduct against the said

       hospital and its doctors was made before the Delhi

       Medical Council.         On 6th December, 2010, the present

       petitioner filed an application underSection 156 (3)Cr.P.C. before the learned Magistrate, Saket Courts, New

       Delhi seeking directions to the police for registration of

       an FIR against the doctors of the Apollo hospital forCrl. M.C. No.2504/2011                                       Page 3 of 37causing death by negligence.           On 28th July, 2011, the

       impugned order was passed by the learned Magistrate

       directing the Delhi Medical Council /respondent no.2 to

       expedite          the   hearing   of   the   complaint   bearing

       No.780/2010 and file the Action Taken Report.4.     The petitioner feeling aggrieved by the said order has

       challenged the same before this Court.5.     I have heard the petitioner in person, the learned counsel

       for the Delhi Medical Council as well as Ms. Indu

       Malhtora, learned senior counsel appearing for the

       intervener/applicants.6.     The main contention of the petitioner is that by virtue of

       the impugned order, the learned Magistrate had directed

       the Delhi Medical Council to furnish its opinion which is in

       fact trying to filling up the lacuna and save the doctors

       who have already been held to be prima facie negligent

       by the Medical Board constituted by the Consumer Forum

       in the performance of their duties, as a consequence ofCrl. M.C. No.2504/2011                                      Page 4 of 37which, the death of the father of the petitioner has been

       caused.           It was contended by the petitioner that

       admittedly, a medical board was duly constituted by the

       Dean of the Maulana Azad Medical College, in pursuance

       to the directions given by the President             of the State

       Consumer Forum and this Medical Board has already

       given an opinion holding the doctors of the Apollo

       Hospital to be prima facie guilty for medical negligence

       and therefore, that opinion ought to have been sufficient

       for the learned Magistrate to direct the registration of the

       FIR.7.     The second submission of the petitioner is that the Delhi

       Medical Council has no power to furnish the medical

       opinion in cases of negligence.         The power to furnish

       opinion in the cases of medical negligence vests only with

       the    government       doctors   and   not   with    the     Board

       constituted by the Delhi Medical Council.            It was urged

       that it was not proper for the learned MM to have

       directed the Delhi Medical Council to constitute a BoardCrl. M.C. No.2504/2011                                        Page 5 of 37and give its opinion.     It was also contended by the

       petitioner that the SHO to whom the direction was sent

       on the basis of an applicationu/S 156 (3)Cr.P.C. had

       absolutely no business to have approached the Delhi

       Medical Council for the purpose of furnishing an opinion.

       Since such an opinion is already in existence and given

       by the Medical Board constituted in pursuance to the

       directions of the State Commission, this exercise is being

       undertaken to cover up lacunas to save the doctors.8.     The learned counsel appearing for the Delhi Medical

       Council has contested the claim of the petitioner. He has

       denied that the Medical Council has any interest in the

       matter, so as to shield the doctors who may be found

       prima facie guilty of being negligent in the performance

       of their duties.   On the contrary, it has been contended

       that the disciplinary committee constituted in terms ofSection 21of the Delhi Medical Council Act (hereinafter

       referred to as the 'Act') not only has the power to

       proceed departmentally for the Disciplinary action againstCrl. M.C. No.2504/2011                               Page 6 of 37the medical practitioners, who are registered with it but it

       also has the authority to give an opinion as to whether

       the doctors are guilty of negligence or not.             It was

       contended by the learned counsel that it was totally

       wrong on the part of the petitioner to contend that the

       Disciplinary Committee or the Delhi Medical Council was

       acting in pursuance to the request of the SHO. On the

       contrary, it was contended that as a matter of fact, no

       doubt the SHO had approached the Council with the

       orders of the learned Magistrate dated 28.7.2011 for the

       purpose of obtaining an opinion, but it was essentially on

       the basis of the letter dated 14.10.2011 purported to

       have been received from the Joint Secretary, Dept. of

       Home, Govt. of Delhi stating that the Delhi Medical

       Council may constitute a Disciplinary Committee and

       forward an opinion whether the doctors of the Apollo

       Hospital who treated the deceased were negligent or not.

       It   has     been   further   stated   that   the   Disciplinary

       Committee had conducted and concluded the proceedingsCrl. M.C. No.2504/2011                                     Page 7 of 37after giving due notice to the petitioner and the outcome

       of the same has still not been placed before the Council

       for approval. It is only after the approval by the Council

       that it be placed before the Court. It was contended that

       once the Court gives the permission in this regard, the

       matter will be placed before the Council.9.     It was also contended by the learned counsel that the

       petitioner had separately made a complaint directly to

       the Council against the doctors who had treated her

       father and since the letter of the Joint Secretary and that

       the complaint of the petitioner pertained to the same

       subject, both of them were being dealt together.         It is

       stated that notices were issued to the complainant to

       appear before the disciplinary committee constituted in

       terms ofSection 21of the Act and present her case but

       she had been indulging in dilatory tactics and the filing of

       the present petition was only one of the steps in the said

       direction.Crl. M.C. No.2504/2011                                 Page 8 of 3710.    The petitioner had also during the course of hearing,

       raised an objection with regard to the right of hearing

       having been given to the applicants/interveners. It was

       the      contention     of   the    petitioner     that       the

       intervener/applicants have no locus standi to assail the

       order of the learned Magistrate or the opinion of the

       Board constituted by Maulana Azad Medical College. For

       this purpose, the petitioner has relied upon a number of

       judgments. These areGrow-on Exports (India) Ltd. &

       Ors. vs. J.K. Goel & Anr., 95 (2002) DLT 333;Prakash

       Devi & Ors. vs. State of Delhi & Anr., 2010 (4) JCC

       2833; Crl.M.C. No.2626/2009 dated 5.2.2010;Smt.

       Nagawwa vs. Veeranna Shivalingappa Konjalgi &

       Ors., (1976) 3 SCC 736;Prabha Mathur & Anr. Vs.

       Pramod            Aggarwal   &     Ors.,     SLP    (Criminal)

       No.1368/2007 dated 26.9.2008 andV. Kishan Rao vs.

       Nikhil Super Speciality Hospital & Anr., 2010 (4)

       SCALE 662.Crl. M.C. No.2504/2011                                    Page 9 of 3711.    Ms.Indu       Malhotra,   the   learned   counsel     for     the

       applicants/interveners has contested this submission of

       the petitioner that the applicants/interveners do not have

       any locus standi. It has been contended by her that in

       the instant case, the entire effort on the part of the

       petitioner is to see that a caseu/S 304-AIPC on account

       of the alleged medical negligence is registered against

       the doctors without following due processes of law as has

       been enunciated by the Apex Court in Jacob Mathew's

       case.      She has stated that there are a number of

       authorities passed by the Apex Court where principles of

       natural justice have been given effect to, for the purpose

       of giving right of hearing to the aggrieved party. In this

       regard, the learned counsel has referred to the following

       judgments:(i) Uma Nath Pandey & Ors. Vs. State of U.P. and
       Anr.(2009) 12 SCC 40;(ii) P.Sundarrajan & Ors. Vs. R.Vidhya Sekar
            (2004) 13 SCC 472;(iii) Prashant Goel Vs. State and Anr. 134(2006)Crl. M.C. No.2504/2011                                     Page 10 of 37DLT 221;(iv) TNG Kumar Vs. State of Kerala and Ors.(2011) 2 SCC 772;(v) Gangadhar Janardan Mhatre Vs. State of
            Maharashtra & Ors.(2004) 7 SCC 768;12.    I have gone through the said authorities. I am cognizant

       of the fact that merely because the right of hearing has

       been given in these reported judgments does not ipso

       facto mean that the right of hearing has to be given to

       the applicants/interveners in the present case also on the

       basis of the said judgments. The Apex Court in number

       of authorities has laid down that the law which islaid

       down bythe Apex Court should not be treated as

       theorems and should not be applied blindly without co-

       relating the facts of the reported judgment with the facts

       of the case in hand.The authorities which have been

       cited by the learned senior counsel are the cases where

       the powers of revision were being exercised by the Court

       and the right of hearing was involved except in the caseCrl. M.C. No.2504/2011                                Page 11 of 37of Delhi High Court judgment inPrakash Devi's case

       where the Court has come to a finding that before a

       delay in filing the complaintu/S 138of the Negotiable

       Instruments Act is condoned, the prospective accused or

       the respondent against whom the complaint is filed will

       have a right of hearing.13.    I have gone through these authorities.    Dehorse these

       authorities, I am of the view that the law with regard to

       the right of hearing to the applicants/interveners can be

       crystallized, so far as the present case is concerned in

       the following manner.14.    So far as the legal position is concerned, no doubt the

       accused/respondent or the prospective accused has no

       right of participation in the proceedings at the pre-

       summoning stage or till the time he is summoned, he

       has no locus standi to assail the order passed by the

       learned Magistrate.But the situation in my view changes,

       in case the complainant himself goes to the High Court

       u/S 482Cr.P.C. assailing the order of the learnedCrl. M.C. No.2504/2011                               Page 12 of 37Magistrate seeking to obtain an adverse order against

       the respondent/accused.    It will be more apt to give a

       right of hearing to the accused in cases of the present

       nature, where the Supreme Court has put an embargo

       on registration of a criminal case against the medical

       practitioners without obtaining an opinion from the

       Medical Board.15.    In the peculiar facts of the present case, I feel that the

       applicants/interveners were well within their right to

       assist the Court in presenting the clearer picture but

       their participation would have gone unnoticed and an FIR

       underSection 304AIPC would have been registered

       against them.     This is because of the fact that the

       petitioner's father had admittedly died in the instant

       case. The petitioner is an Advocate by profession. She

       has opened almost all the fronts against the doctors with

       a view to ensure that a caseu/S 304AIPC is registered

       against them without observing the lawlaid down bythe

       Apex Court in letter and spirit in Jacob's Mathew's case.Crl. M.C. No.2504/2011                                Page 13 of 3716.    Dehorse the judgment cited by the learned senior

       counsel for the applicants, I feel that this Court has

       inherent powers to prevent an abuse of the processes of

       law and also to pass an order in the interest of justice in

       respect of a case pending before the Court. The Court is

       well within its right to give a right of hearing to the

       applicants/interveners in the light of peculiar facts of the

       case. If the right of hearing would not have been given

       to    the      interveners/applicants,       it   may     have     done

       incalculable damage inasmuch as, the FIR might have

       got registered against them without following                        the

       dictates       of   Jacob   Mathew's    case.      Accordingly,     this

       contention of the petitioner challenging the locus standi

       of the applicants/interveners to assist the Court is

       disallowed as the question of locus standi would have

       arisen if the applicants/interveners would have come to

       the Court. It is not the applicants/interveners who have

       come      to      the   Court   but   they   are    the   prospective

       respondents in the complaint before the trial court.Crl. M.C. No.2504/2011                                            Page 14 of 3717.    For these reasons, I feel that this contention of the

       petitioner has no merit.18.    So far as the submissions of Ms. Indu Malhotra, learned

       senior counsel with regard to the merits of the case are

       concerned, it has been contended by her that the

       petitioner had no doubt obtained an opinion from a

       medical board in terms of the directions of the President

       of the State Consumer Forum but that opinion was

       obtained by her at the back of the intervener/applicants

       and the opinion of the said board could not be relied

       upon for the purpose of registering a criminal case of

       medical negligence against the intervener/applicants.19.    It was contended by the learned senior counsel that the

       petitioner is guilty of concealing material facts, inasmuch

       as the said opinion which was given by the Medical Board

       of Maulana Azad Medical College was assailed by the

       intervener/applicants before the same forum which had

       given the direction to constitute the Board. In any case,

       it was contended that this fact ought to have beenCrl. M.C. No.2504/2011                                Page 15 of 37disclosed by the petitioner that the intervener/applicants

       have already filed an application before the State

       Consumer Forum challenging the opinion of the Medical

       Board of Maulana Azad Medical College in which she had

       accepted the notice and, therefore, this became a

       material fact which ought to have been revealed by her

       in this petition. It was urged that the very fact that the

       petitioner has comeu/S 482Cr.P.C., she was expected

       to come to Court with clean hands and since she has not

       done so, therefore, the petition deserves to be dismissed

       on this short ground itself.20.    With regard to the constitution of the Medical Board by

       the Delhi Medical Council, it was contended that the

       Council has all the powers to constitute a Board for the

       purpose of obtaining an opinion and in terms of the

       judgment of the Supreme Court in case titled Jacob

       Mathew -vs- State of Punjab & Anr., 2005 (6) SCALE

       130 as to whether a prima facie case for medical

       negligence is made out against the doctors, who treatedCrl. M.C. No.2504/2011                               Page 16 of 37the patient and if the Board furnishes an opinion that

       there was negligence only then, FIR can be registered.21.    It was contended that in paragraphs 51, 52 and 53 of

       Jacob Mathew's case (supra), the offence underSection

       304-AIPC cannot be registered against any doctor unless

       and until the medical opinion from a Board is constituted.

       The said paragraphs read as under:-"Guidelines - re: prosecuting medical
              professionals51. As we have noticed hereinabove that
              the cases of doctors (surgeons and
              physicians) being subjected to criminal
              prosecution     are   on    an     increase.
              Sometimes such prosecutions are filed by
              private complainants and sometimes by
              police on an FIR being lodged and
              cognizance taken. The investigating officer
              and the private complainants cannot
              always be supposed to have knowledge of
              medical science so as to determine whether
              the act of the accused medical professional
              amounts to rash or negligent act within the
              domain of criminal law underSection 304Aof IPC. The criminal process once initiated
              subjects the medical professional to serious
              embarrassment         and        sometimes
              harassment. He has to seek bail to escape
              arrest, which may or may not be granted to
              him. At the end he may be exonerated byCrl. M.C. No.2504/2011                                 Page 17 of 37acquittal or discharge but the loss which he
              has suffered in his reputation cannot be
              compensated by any standards.52. We may not be understood as holding
              that doctors can never be prosecuted for
              an offence of which rashness or negligence
              is an essential ingredient. All that we are
              doing is to emphasize the need for care
              and caution in the interest of society; for,
              the service which the medical profession
              renders to human beings is probably the
              noblest of all, and hence there is a need for
              protecting doctors from frivolous or unjust
              prosecutions. Many a complainant prefers
              recourse to criminal process as a tool for
              pressurizing the medical professional for
              extracting     uncalled   for    or    unjust
              compensation. Such malicious proceedings
              have to be guarded against.53.    Statutory    Rules    or   Executive
              Instructions      incorporating      certain
              guidelines need to be framed and issued by
              the Government of India and/or the State
              Governments in consultation with the
              Medical Council of India. So long as it is
              not done, we propose to lay down certain
              guidelines for the future which should
              govern the prosecution of doctors for
              offences of which criminal rashness or
              criminal negligence is an ingredient.      A
              private complaint may not be entertained
              unless the complainant has produced prima
              facie evidence before the Court in the form
              of a credible opinion given by another
              competent doctor to support the charge of
              rashness or negligence on the part of theCrl. M.C. No.2504/2011                                  Page 18 of 37accused doctor.     The investigating officer
              should, before proceeding against the
              doctor accused of rash or negligence act or
              omission, obtain an independent and
              competent medical opinion preferably from
              a doctor in government service qualified in
              that branch of medical practice who can
              normally be expected to give an impartial
              and unbiased opinion applying Bolam's test
              to the facts collected in the investigation.A    doctor    accused   of   rashness     or
              negligence, may not be arrested in a
              routine manner (simply because a charge
              has been leveled against him). Unless his
              arrest is necessary for furthering the
              investigation or for collecting evidence or
              unless the investigation officer feels
              satisfied that the doctor proceeded against
              would not make himself available to face
              the prosecution unless arrested, the arrest
              may be withheld."22.    It has been submitted by Ms. Malhtora, the learned

       senior counsel that it was because of the judgment of

       Jacob Mathew (supra) by the Apex Court, that the

       learned Magistrate had referred the matter to Delhi

       Medical Council for an expert opinion of the Board as to

       whether there was medical negligence or not, before any

       adverse action is taken against the doctors treating theCrl. M.C. No.2504/2011                                  Page 19 of 37patient.      It is further stated that the opinion of the

       doctors of Maulana Azad Medical College could not be

       treated as a substitute for this opinion of the Board

       constituted by the Delhi Medical Council before the

       registration of the FIR.23.    I have carefully considered the submissions made by the

       learned counsel for the parties and gone through the

       entire record.Prayer for Registration of an FIR24.    In clause 'b' of the prayer clause, the petitioner has

       sought appropriate order or direction to the respondent

       no.1 to register an FIR on the basis of the complaint

       dated 12.10.2010 of the petitioner against the relevant

       provisions of law or alternatively issue a direction to the

       learned MM to expeditiously decide the application of the

       petitioneru/S 156 (3)Cr.P.C. on merits in the light of the

       medical opinion       dated   14.6.2010 of the Board ofCrl. M.C. No.2504/2011                                 Page 20 of 37doctors of Maulana Azad Medical College duly constituted

       by the Dean of Maulana Azad Medical College. The third

       prayer of the petitioner is for transfer of investigation to

       some other independent investigating board.25.    It has been settled by now authoritatively by number of

       judgments that if a person is feeling aggrieved on

       account of non registration of an FIR in respect of an

       cognizable offence in terms ofSection 154 (1)Cr.P.C.

       then the appropriate course of remedy open to him is to

       approach the SP or DCP of the concerned area underSection 154 (3)Cr.P.C. If the FIR is still not registered

       inspite of this, then the alternate remedy which is open

       to the petitioner or any party is to file an appropriate

       complaintu/S 200Cr.P.C. which may be inquired into by

       the learned Magistrateu/S 200and202Cr.P.C. and

       thereafter, pass an appropriate order eitheru/S 203Cr.P.C. dismissing the complaint underSection 204Cr.P.C. issuing the process to the accused persons. It hasCrl. M.C. No.2504/2011                                 Page 21 of 37been repeatedly laid down that if a person is feeling

       aggrieved on account of non registration of an FIRu/S

       154Cr.P.C. in respect of a cognizable offence, then it is

       not open to him to approach the High Court by way of a

       writ petition for getting the said FIR registered. Reliance

       in this regard is placed on the case titledSakiri Vasu Vs.

       State of UP; 2008 (2) SCC 409 as well asAleque

       Padamsee & Ors. Vs. UOI; 2007 (6) SCC 171.26.    Therefore, this prayer made by the petitioner that a

       direction be given to the respondent no.1 namely to the

       State     to register an FIR on the basis of a complaint

       dated 12.10.2010, against the accused doctors is not

       maintainable in law. A direction cannot be issued to the

       Magistrate for deciding expeditiously the application of

       the petitioneru/S 156 (3)Cr.P.C. because the petitioner

       has not placed any document on record to show that the

       learned Magistrate has been lax in dealing with the

       application. On the contrary, the learned Magistrate has,

       on the very threshold, directed the SHO to obtain aCrl. M.C. No.2504/2011                                Page 22 of 37medical opinion from the Delhi Medical Council regarding

       medical negligence by constituting a Board which is a

       sine qua non for registration of an offence and which

       direction has got repeated on number of occasions yet

       the petitioner did not feel aggrieved, but suddenly he has

       woken up to challenge the order dated 28.7.2011, when

       the learned Magistrate has reiterated the earlier order to

       expedite the report of the Board regarding medical

       negligence.27.    In my view, whatever orders have been placed on record

       show that the Magistrate is acting with great deal of

       expedition to dispose of the applications from time to

       time.28.    If the relief, as prayed by the petitioner under clause (b)

       regarding registration of an FIR, cannot be granted to

       her, obviously there is no question of transfer of

       investigation from one agency to the other agency.

       Accordingly,      prayer   (c)   also   cannot   be   granted.Crl. M.C. No.2504/2011                                   Page 23 of 37Therefore,        both   the   prayers   'b'   and   'c'   are   not

       maintainable in the present petition apart from this, both

       these prayers            are beyond the scope of the main

       complaint which has been filed by the petitioner before

       the learned MM who has seized of the matter.


Professional complaint against the offending doctor before the
Delhi Medical Council29.    In Prayer (d) a direction is sought by the petitioner

       against the respondent no.2/Delhi Medical Council to

       keep his complaint bearing no. 780/2010 pending before

       the Disciplinary Committee.         This prayer also cannot be

       entertained. The reason for this is that the petitioner has

       challenged the order dated 28.7.2011 which does not

       deal with this aspect of the matter nor the deferring or

       keeping of the complaint in abeyance is the main issue

       involved or the relief claimed before the Magistrate. If a

       subject matter has not been encompassed before the

       learned Magistrate, I fail to understand as to how it can

       be made the basis of the challenge before the HighCrl. M.C. No.2504/2011                                        Page 24 of 37Court.     Further, a perusal of the record shows that the

       petitioner seems to be confused and somehow or the

       other, wants to keep the Damocles sword hanging on the

       head of the doctors.     This is evident from the fact that

       firstly, she goes to the Consumer Forum on account of

       alleged medical negligence and obtains an ex parte order

       for constitution of a Medical Board. Thereafter, she files a

       criminal complaintu/S 200Cr.P.C. for prosecution of the

       doctors for having committed the offenceu/S 304AIPC.

       Later on, she files an application u/S          156(3)     for

       registration of an FIR.    But curiously, when the Action

       Taken Report was called by the learned Magistrate, it is

       not disclosed that she has already obtained a report of

       the so called medical board. Simultaneously, she makes

       a complaint to the Medical Council and when she is asked

       to appear and assist the Disciplinary Committee, she

       writes that the proceedings be kept in abeyance /

       waiting.      The orders of the criminal Court would take

       considerable time so she starts crying hoarse, that theCrl. M.C. No.2504/2011                                 Page 25 of 37policeman is approaching the Council for constitution of a

       Board while as, the fact of the matter is that the Joint

       Secretary, Govt. of Delhi requested the Council to

       constitute the Board vide letter dated 14.10.2011 so that

       prima facie, it could be established that the death was

       because of medical negligence.       Simultaneously, when

       the Court wants to expedite the constitution of the Board

       for     giving medical opinion, she rushes to this Court for

       stopping the same. She does not disclose in the petition

       that the Consumer Forum has already issued the notice

       to her for setting aside the order or challenging the

       opinion of the so called Board.     Therefore, all the facts

       clearly show that the petitioner has lost all objectivity

       only because the victim in the instant case happened to

       be her father. She has started witch hunting with a view

       to teach the doctors a lesson which the Apex Court

       wanted to prevent by its judgment in Jacob Mathew's

       case.Crl. M.C. No.2504/2011                                  Page 26 of 37Medical negligence and registration of an FIR under Section
304-A IPC30.    This leaves us with only prayer (a) which is drafted as

       under :-(a) issue appropriate order or direction to quash the

       order dated 28.7.2011 passed by the court below being

       illegal, arbitrary and against all the principles of criminal

       justice system essentially non-application of mind.31.    The order dated 28.7.2011 reads as under :-"Fresh Vakalatnama filed on behalf of the
              DMC. Same is taken on record.Written     submissions    filed    by   the
              complainant stating therein that Complaint
              No.780/10      is   pending     before   the
              Disciplinary Committee of DMC and that
              proceedings before it are equal to a trial
              even before the registration of FIR and as
              such SHO concerned is creating evidence in
              favour of the accused.        A letter dated
              12.07.2011 is annexed alongwith the same,
              as per which the complainant had
              requested the DMC to keep her complaint
              abeyance.Crl. M.C. No.2504/2011                                  Page 27 of 37Further    minutes    of    meeting    dated
              15.7.2011 filed, according to which
              Disciplinary    Committee       has     beenconstituted by the DMC consisting of seven
              members out of which three are expert
              members.      It is stated that the said
              Committee/Medical      Board     had    been
              constituted for filing the opinion as
              requested by the SHO. It is also informed
              that complainant did not appear on last
              date and therefore, dated i.e. 5.8.2011 has
              been fixed for hearing of the parties.In view of the above, DMC is further
              directed to expedite the proceedings and
              file opinion at the earliest. List for filing of
              status report/ATR on 19.08.2011."32.    A perusal of the aforesaid order would show that the

       petitioner is feeling aggrieved by virtue of the last portion

       of the order.       By the said portion of the order, the

       learned Magistrate had directed the Delhi Medical Council

       to expedite the proceedings and file its opinion at the

       earliest.     As a matter of fact, even if this part of the

       impugned order is set aside, it would not bring any relief

       to the petitioner because of the fact that this order

       reiterates the earlier order passed by the Court directingCrl. M.C. No.2504/2011                                     Page 28 of 37the constitution of a medical Board by the Delhi Medical

       Council and file its medical opinion, which is sine qua non

       for registration of the FIR. The petitioner along with his

       complaint under Section 200 had also filed an application

       u/S 156(3)Cr.P.C. seeking registration of an FIR.

       Neither prima facie medical opinion was attached nor was

       this the case of the petitioner. She has a medical opinion

       of Maulana Azad Medical College in her favour which

       must be made the basis of registration of FIR. It is only

       belatedly that wisdom dawned on her, therefore, it was

       necessary for the learned Magistrate to have obtained a

       medical opinion as the petitioner had failed to produce

       any prima facie evidence showing medical negligence on

       the part of the doctors concerned.33.    It may be pertinent here to refer to the few orders which

       were passed by the learned Magistrate which culminated

       into the passing of the impugned order.Crl. M.C. No.2504/2011                                Page 29 of 3734.    The complaint came up for the first time before the

       learned Magistrate on 06.12.10 when the Presiding

       Officer did not hold the Court and the matter was

       adjourned to the next date i.e. 07.12.10 on which date

       the Action Taken Report was called for from the police.

       It was pursuant to this Action Taken Report that the IO

       intimated the Court that the matter has been referred to

       Delhi Medical Council for giving an opinion with regard to

       the medical negligence. Since the furnishing of a medical

       opinion report by the Delhi Medical Council was being

       delayed and in the meantime, the IO of the case seemed

       to have done some mischief by approaching a private

       doctor for the purpose of obtaining a medical opinion that

       the learned Magistrate had sent for the SHO of the police

       station where the incident had taken place and also

       directed the constitution of a medical Board.          This

       effective order was passed on 03.06.11. It is this order

       which was sought to be reviewed by the petitioner by

       filing an application seeking recall of this order andCrl. M.C. No.2504/2011                               Page 30 of 37having failed to do so, it culminated into the order dated

       28.07.11. As has been observed hereinabove by this

       Court that even if the order dated 28.07.11 is set aside

       even then the order regarding obtaining of a medical

       opinion from the Board, duly constituted by Delhi Medical

       Council, still remains on record.35.    The main grievance of the petitioner is not that the Court

       is trying to obtain the medical opinion from the Delhi

       Medical Council but the contention of the petitioner is

       that the State Consumer Forum had constituted a

       Medical Board headed by three Doctors of Maulana Azad

       Medical College which had prima facie found it to be a

       case of medical negligence and therefore, that should

       have been the ground for registration of an FIR. I must

       say that this was only an improvement and a belated

       wisdom which had dawned upon the petitioner.        This is

       on account of the fact that when the petitioner filed the

       complaint and also an application u/S 156 (3) C.r.P.C for

       direction to the police to register an FIR, it was not herCrl. M.C. No.2504/2011                               Page 31 of 37case that the medical opinion has already been furnished

       by a competent Board duly constituted by an appropriate

       authority which should form the basis of the registration

       of an FIR. More so, when the very medical opinion

       furnished by the said Board was not challenged by the

       applicants/interveners before the said Forum in which

       notice was issued to the petitioner, it will not be safe to

       rely on the said opinion and the Court cannot today set

       aside the order passed by the learned           Magistrate

       directing the Delhi Medical Council to constitute a Board

       and furnish an opinion with regard to the medical

       negligence of the doctors.36.    In Jacob Mathew's case, the Supreme Court has already

       observed that once the criminal process is initiated, this

       subjects the medical profession and the professionals to

       serious           embarrassment   and   sometimes      even

       harassment. The accused apprehending arrest may have

       to seek bail which may or may not be granted to him and

       therefore, this becomes imperative that the greatestCrl. M.C. No.2504/2011                                Page 32 of 37possible care is taken that no doctor is put to peril of

       being     arrested   or   facing   a   criminal   case   without

       observing the procedure which has been laid down by the

       said judgment which precisely the Court was trying to do

       in the instant case. The Apex Court, in the said case, has

       also observed that a private complaint may not be

       entertained unless the complainant has produced prima

       facie evidence before the Court in the form of a credible

       opinion given by another competent doctor to support

       the rash or negligence act on the part of the accused

       doctor. It was also observed that the IO should, before

       proceeding against the doctor, accused of rash or

       negligent act or omission obtain an independent medical

       opinion, preferably from a doctor in a Government

       service qualified in that field of medical practice who

       should normally be expected to give an impartial and

       unbiased opinion. If this standard was to be observed by

       the Court before registration of an FIR against the

       applicant/intervener, it was necessary that a               freshCrl. M.C. No.2504/2011                                     Page 33 of 37opinion from the Board duly constituted by the Delhi

       Medical Board has to be obtained and once the petitioner

       has put the criminal justice machinery into motion and

       she has not produced any prima facie evidence with

       regard to the medical negligence, it was not open to her

       to have retraced her steps belatedly and then urge

       before the said trial Magistrate or before this Court that

       the order passed by the learned Magistrate directing for

       constitution of a Board of Delhi Medical Council to furnish

       a medical opinion be recalled because there is already an

       opinion furnished by the doctors of Maulana Azad Medical

       College.37.    This is on account of two reasons; firstly, that the opinion

       furnished by the Board constituted by the doctor of

       Maulana Azad Medical College was constituted by a

       Consumer Forum and not by a Criminal Court. Moreover,

       the report furnished by the said Board is already under

       challenge by the applicants/interveners inasmuch as,

       their application has been allowed and the notice issuedCrl. M.C. No.2504/2011                                 Page 34 of 37to the petitioner stands accepted.           Therefore, that

       opinion is of not much relevance for the present and the

       medical opinion which will be furnished by the Board

       constituted by the Delhi Medical Council would only be

       prima facie relevant before the learned Magistrate to

       decide further course of action. Therefore, I feel that so

       far as this part of the impugned order is concerned, there

       is nothing wrong or illegal or perverse in the order of the

       learned Magistrate.38.    I have also been handed over a sealed envelope during

       the course of the present proceedings by the counsel

       appearing for the Delhi Medical Council wherein, an

       opinion has been furnished by the Board in which

       admittedly        there   are   doctors   belonging   to     the

       Government hospitals as well as the doctors from some

       specialty who are highly reputed. The said opinion of the

       Board has to be approved by the Delhi Medical Council

       before it is given effect to or handed over to the Court. I

       feel, since the said opinion has to be approved by theCrl. M.C. No.2504/2011                                   Page 35 of 37Council, it must be permitted to complete the said

       processes and once the said opinion is approved by the

       Council, it can be submitted to the learned Magistrate

       where the petitioner, if aggrieved will have appropriate

       remedies available to him.39.    The     Delhi     Medical    Council   is   permitted    to   act    in

       accordance with their statute and get the report of the

       medical Board approved and thereafter, place the same

       before     the     learned    Magistrate    for   such    action     in

       accordance with law, as may be deemed fit.40.    Having regard to the aforesaid discussion and in view of

       the totality of circumstances, I am of the view that the

       present petition of the petitioner assailing the impugned

       order     dated     28.7.2011     is   without    any    merit      and

       accordingly, the same is dismissed. The stay granted on

       05.8.2011 is vacated.41.    It is further clarified that expression of opinion made

       hereinbefore may not be treated as an expression on the

       merits of the case by the learned Magistrate and withoutCrl. M.C. No.2504/2011                                          Page 36 of 37being influenced by any observation, the Court must act

       in accordance with law.42.    With the above observations, the petition is dismissed.V.K. SHALI, J.JULY 02, 2012
RN/'AA'Crl. M.C. No.2504/2011                               Page 37 of 37