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'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 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 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 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 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. 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 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 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.

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.

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; (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 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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