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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 506-508 OF 2014 [Arising out of SLP (Crl) Nos.2421-2423 of 2013]  

Daljit Singh Gujral & Ors. .. Appellants

Versus

Jagjit Singh Arora & Ors.  .. Respondents

J U D G M E N T

K. S. RADHAKRISHNAN, J.

1. Leave granted.

2. We are of the considered view, after hearing the senior  

counsel appearing for the Appellant and the party-in-person,  

that the judgment is  vitiated by an error apparent on the  

face of the record, which goes to the very root of the matter  

in a case relating to medical negligence.  

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3. The  Appellants  herein  approached  the  High  Court  of  

Punjab  &  Haryana  under  Section  482  of  the  Criminal  

Procedure Code (for short “Cr.P.C.”) for quashing complaint  

Case  No.7506/09/11  dated  9.6.2008  and  the  summoning  

order 26.7.2011 passed by the Court of Judicial Magistrate  

(First Class), Chandigarh.   

4. The  Appellants  herein  are  in  the  management  of  a  

hospital named, INSCOL Multispecialty Hospital, Chandigarh.  

On  1.8.2005,  the  wife  of  Respondent  No.1,  by  name,  

Inderjeet Arora, approached Dr. Jayant Banerjee and, on his  

advice, she was referred to the above-mentioned hospital.  

She was admitted in the ICU by Dr. Jayant Banerjee and was  

attended  by  doctors  of  the  hospital.   Later,  she  was  

discharged from the hospital on 2.8.2005 on the request of  

son  of  Respondent  No.1.  On  a  total  hospital  bill  of  

Rs.1,01,858/- a sum of Rs.30,000/- was paid and, for rest of  

the  amount,  a  cheque  was  issued  by  Respondent  No.1,  

husband  of  the  patient.   On  9.8.2005,  the  cheque  was  

presented by the bankers of the hospital, but the same was

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dishonoured,  which  fact  was  brought  to  the  notice  of  

Respondent No.1 by the hospital authorities.  Thereafter, the  

cheque was presented twice on 12.11.2005 as well  as on  

16.11.2005  but,  on  both  occasions,  the  cheque  was  

dishonoured.   Later, a legal notice under Section 138 of the  

Negotiable Instruments Act, 1881, was issued to Respondent  

No.1  claiming  the  cheque  amount.   According  to  the  

Appellants, this annoyed Respondent No.1 and a complaint  

was  filed  against  the  doctors  of  the  hospital  before  the  

Punjab  Medical  Council.    The  Medical  Board  met  on  

3.10.2006 and, after examining the complaint as well as the  

comments of the doctors, passed an order on the same date  

exonerating  Dr.  Jayant  Banerjee  holding  that  proper  

procedure was followed and there was no gross negligence  

on  the  part  of  the  hospital  authorities  or  the  Doctors.  

Respondent No.1, after a lapse of two years, on 9.6.2008,  

filed  a  complaint  under  Section  156(3)  Cr.P.C.  before  the  

Chief Judicial  Magistrate, UT Chandigarh for  registration of  

FIR  against  the  Appellants  for  the  commission  of  offence  

under  various  sections,  including  Section  15(2)(3)  of  the

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Indian  Medical  Council  Act,  1956.   The  learned  Judicial  

Magistrate,  First  Class,  Chandigarh,  on 13.6.2008 sent the  

complaint  for  registration  as  it  was  under  Section  156(3)  

Cr.P.C.   The said order was challenged by the Appellants by  

filing Crl. Misc. Petition No.17013 of 2008 before the Punjab  

& Haryana High Court.  The High Court vide its order dated  

19.2.2009 quashed the FIR by granting liberty to Respondent  

No.1  to  approach  the  Judicial  Magistrate,  First  Class,  

Chandigarh.   Before  the  Judicial  Magistrate,  First  Class,  

Chandigarh,  Respondent  No.1  submitted  that  he  did  not  

want to  press the complaint  under Section 156(3) Cr.P.C.,  

but  requested  that  the  complaint  be  treated  as  under  

Section 202 Cr.P.C.  The learned Magistrate, entertaining the  

said  request,  passed  the  order  dated  26.7.2011  and  

summoned the Appellants to face the trial for the offences  

punishable  under  Section  420/467/468/471/  326/120-B IPC  

and under Section 15 of the Indian Medical Council Act.   

5. Aggrieved by the summoning order, as already stated,  

the  Appellants  preferred  Crl.  Misc.  No.M-25733  of  2011  

before  the  High  Court  for  quashing  the  complaint  Case

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No.7506/09/11.   The  High  Court  vide  impugned  order,  

dismissed the  Crl.  Misc.  Petition.   Later,  Respondent  No.1  

filed an application being Crl. Misc. No.7776 of 2013 in Crl.  

Misc. No.M-25733 of 2011, requesting the Court to carry out  

the correction of the judgment praying that the word “death”  

or “died” be stated to be read as “brink of death”.   Review  

Petition was allowed by the High Court vide its order dated  

11.2.2013, without notice to the appellants.  Those orders,  

as already indicated, are under challenge in these appeals.   

6. We heard Shri P.S. Patwalia, learned senior counsel for  

the  Appellants,  as  well  as  Shri  Jagjit  Singh  Arora,  who  

appeared  in  person.   Shri  Patwalia  submitted  that  the  

judgment  as  well  as  the  order  in  the  review  petition  is  

vitiated by serious error on the face of the record and liable  

to be set aside and the High Court be directed to rehear the  

matter in accordance with law. Respondent No.1, the party-

in-person, on the other hand, submitted, on facts as well as  

on  law,  that  the  judgment  and  the  order  in  the  review  

petition are unassailable and, therefore, the matter could be  

examined by this Court on merits.   

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7. We  have  gone  through  the  main  judgment  and  the  

order  passed in  the review petition in  their  entirety.   The  

learned Single Judge of  the High Court while deciding the  

case formulated two questions , which read as follows :-

“1. Whether the Managing Director and the Director,  being administrators of the Hospital can be made  criminally  liable  and  prosecuted  under  the  provisions of the Indian Penal Code and for having  appointed  unqualified doctor  which resulted into  wrong  treatment  and  consequential  death  of  a  patient and  can  they  claim  immunity  from  prosecution for  the offences in  which they have  been summoned in the present complaint?

(emphasis supplied)

2. Whether the offences of cheating, tampering with  the  documents  and  causing  grievous  hurt  are  made out in conspiracy with each other?

8. On the first point, after going through the facts in detail  

and  after  hearing  the  parties,  the  learned  Single  Judge  

concluded as follows :

“In the present case, Petitioner Nos.1 and 2 being  Managing  Director  and  Director  are  directly

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criminally  liable  and  their  liability  stems  from  failure to use reasonable care in the maintenance  of safe and adequate facilities and equipment i.e.  ventilator  which  was  not  available  at  the  time  when the patient was in need.   Needless to say, it  is the duty of the petitioner No.1 and 2 to select  and  retain  only  competent  physician/doctor  and  medical  supporting staff.   But  in  this  case,  they  had retained petitioner no.3 who is an unqualified  doctor. It is the duty of the petitioner nos.1 and 2  to  oversee  all  persons  who  practice  medicine  within  its  faculty  and  also  owe  duty  to  ensure  quality of health care services.  Here in this case,  there is a glaring failure on the part of petitioner  nos.1  and  2  to  retain  competent  and  qualified  doctors and equipping the facility. In the present  case, the standard of negligence, breach of duty,  causation and damage is no different than in any  other case of forming negligence.  Hence, for that  reason, petitioners are directly liable for the injury  caused  to  the  patient  because  the  doctor  in  question  was  not  having  State  Medical  Council  licence  to  practice  medicine  as  per  the  Medical  Council of India Act, 1961 and Medical Council of  India Rules under which Medical Council  of India  certifies  the  doctors/physicians  and  regulate  competency and professional standards. There is a

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clear failure on the part of petitioner nos.1 and 2  to evaluate the qualification of petitioner no.3 who  has been inefficient to adequately determine his  competency.  Since there has been breach of duty  by  petitioner  nos.1  and  2,  they  are  prima  facie  responsible  for  injury  resulting  from  that  breach/incompetence  as  well  as  in  forging  the  documents.  There is a clear failure to check the  credentials and employment history of petitioner  no.3.”

On  the  second  question,  after  referring  to  the  various  

statements made by Dr. Sudhir Saxena and the evidence of  

complainant (CW9) and also referring to the invoices CW-9/2  

and CW-9/12, the learned Single Judge concluded as follows:

“This prima facie proves forgery and cheating on  the  part  of  the  petitioners.    The  documentary  evidence prima facie  proves  that  Dr.  N.P.  Singh  never  visited the hospital  and the record of  the  hospital  has  been  manipulated  to  save  themselves.   There is a clear conspiracy between  the petitioners and Dr. Jayant Banerjee for fleecing  money.   The principles of law laid down in Jacob  Mathew  (supra)  and  Kusum Sharma  (supra)  are  not applicable in the present case.

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In view of the above discussion, this Court does  not  find  any  illegality  or  perversity  in  the  impugned summoning order.  It is well settled law  that while summoning an accused, the trial Court  is not required to give detailed reasons, only prima  facie application of mind is a necessity.    In the  present case, the learned trial Court has passed a  reasoned order for summoning the petitioners.”   

9. We  notice  that  on  reaching  those  conclusions,  as  

already indicated, the very first issue framed by the learned  

Single  Judge  was  that  the  patient  died  due  to  wrong  

treatment and medical negligence. Learned Single Judge was  

examining prima facie the issue of medical negligence which  

resulted in the death of the patient.  The entire approach of  

the learned Single Judge while entering a finding on the two  

questions framed was that due to medical negligence, the  

patient died.  The said fact is reflected in the whole gamut of  

the judgment.  In one portion of the judgment, the learned  

Single Judge has stated as follows :

“The  condition  of  Mrs.  Arora  extremely  deteriorated and she had to remain hospitalized in

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ICU  of  Fortis  Hospital  for  about  2  months  and  thereafter,  she  was  shifted  to  PGI,  Chandigarh,  where  she  remained  admitted  for  one  month.  Ultimately, she died.”

Later, the learned Single Judge also opined as follows :-

“The  hospital  authorities  had  employed  unqualified  doctors  in  ICU  which  resulted  into  death  of  Mrs.  Arora  in  spite  of  best  efforts  for  shifting to other hospital, like Fortis and PGI.  Initial  wrong treatment in the INSCOL Hospital where the  unqualified  doctors  were  employed resulted  into  death  of  respondent  no.1’s  wife  which  certainly  amounts to an offence under the provisions of the  Indian Penal Code.”

10. We, therefore, notice that the entire reasoning of the  

learned Single Judge was centered round the fact that  he  

was dealing with  a  medical  negligence case in  which the  

patient died.   In fact, the very question framed by the Court  

itself refers to the death of the patient.   The learned Single  

Judge,  as  already  indicated,  finally  dismissed  the  petition  

filed by the Appellants on 16.11.2012.

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11. The  Respondents  herein  then  preferred  Crl.  Misc.  

Application  No.7776  of  2013  praying  for  correcting  some  

omission/typographical error in the judgment.   The learned  

Single Judge entertained that application and expressed the  

view  that  no  notice  need  be  sent  to  the  non-

applicants/appellants  since  the  application  is  only  for  the  

correction of accidental omission/typographical errors crept  

in the judgment dated 16.11.2012.  The learned Single Judge  

opined that the Court has the inherent power to correct the  

typographical/clerical mistake brought to the notice of the  

Court.   The  learned  Single  Judge,  therefore,  passed  the  

following order on 11.2.2013 :

“Registry is directed to make following corrections  and put up a note at the end of the judgment in  the shape of corrigendum so that the same may  be read as part of the judgment dated 16.11.2012:

“1. The  word  “died”  at  page  No.3  be  read  as  “was brought to brink of death.”

2. The word “death”  be  read as  “condition to  brink of death” at page nos.3, 7 and 16 and  where the word “dead” or “death” appears in

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the judgment,  it  should be as “the brink of  death”.

3. “Grewal” be read as “Gujral” at page no.5.

4. “rectified” be read as “ratified” at page no.6.

5. “Medical  Council”  be  read  as  “Chandigarh  Police” at page No.10.

6. “Section 14(2)” be read as “Section 15(2a)”  at page no.11.

7. “and mind of” be read as “behind” at page  no.12 and 22.

8. “nervous centre” be read as “nerve centre”  at page no.13.

9. “Faculty” be read as “Facility” on Page No.19,

10. “Dr.  N.P.  Singh”  be  read  as  “Dr.  Sudhir  Saxena” at page 24.”

12. We  do  not  agree  that  the  learned  Single  Judge  was  

merely  correcting  an  accidental  omission  or  typographical  

error.  By correcting the judgment, the very foundation and  

the issue formulated, broken down and fell  on the ground

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and the issue framed by the learned Single Judge, lost its  

sanctity.   The learned Single Judge cannot correct an issue  

which has been framed and answered.  As already indicated,  

the first issue framed is with regard to the “wrong treatment  

and consequential death of a patient” and it was that issue  

which was answered, then we fail to see how the application  

preferred by the Respondents for review can be treated as  

an  application  for  correcting  accidental  omission  or  

typographical error, that too without notice to the appellants  

herein.   

13.  We are dealing with the case of medical  negligence  

and  we  wonder  whether  this  case  borders  on  judicial  

negligence or the negligence of the parties to point out that  

the  issue  was  wrongly  framed.  Pleadings  of  the  parties  

nowhere  state  that  the  patient  is  dead.   Learned  Single  

Judge, it is seen, has framed two issues, after perusing the  

records  and  after  hearing  the  arguments  of  the  learned  

counsel  for  the parties.   When we peruse the records,  as  

already stated, we do not find any statement that the wife of  

Respondent No. 1 is no more.  The entire thought process of

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the Judge centered round on an incorrect premise that, due  

to the gross negligence on the part of the appellants, the  

wife of Respondent No. 1 died.

14. We may also further  indicate that  the learned Single  

Judge  has  expressed  the  opinion  so  expressively  in  the  

judgment  which  practically  forecloses  all  the  defences  

available to the parties, who are supposed to face the trial.  

The learned Single Judge, though ultimately indicated that  

the view is  only a  prima facie view,  but  a reading of  the  

entire judgment, it would show otherwise.  Judgment cannot  

be sustained on any ground.   Consequently, the judgment  

dated 16.11.2012 as well as the subsequent order 11.2.2013  

passed in the review petition, would stand set aside.   The  

High  Court  is  directed  to  rehear  Crl.  Misc.  Petition  No.M-

25733 of 2011 afresh.   

15. The Appeals are, accordingly, allowed.

……………………………..J.             (K. S. Radhakrishnan)

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……………………………..J.             (Vikramajit Sen)

New Delhi, February 27, 2014.