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Synopsis

The Supreme Court has set aside a Calcutta High Court order that closed a criminal negligence complaint against doctors and a hospital. The case was filed by a man over the treatment of his PhD degree holder son, who succumbed to a hemorrhage following a fall from a staircase. The complaint was dismissed due to the complainant’s absence during the Covid-19 pandemic.

A bench of Justices Dipankar Datta and Manmohan referred to Section 256, CrPC (non-appearance or death of complainant) to clarify that if the date is set for a purpose other than the accused’s appearance, as in this case, an acquittal does not automatically follow due to the complainant’s absence.

"A dismissal of the complaint can be ordered but the provision for acquitting the accused may not be attracted unless it happens to be the date appointed for appearance of the accused and they do appear personally or through an advocate; also, without the magistrate recording a clear acquittal along with the order of dismissal of the complaint, acquittal need not be read into every such order of dismissal of a complaint owing to absence of the complainant," the bench said.

The court found that the high court judge proceeded with a one-track mind and failed to consider the reasons behind the appellant-complainant’s absence before the judicial magistrate.

It pointed out that, first of all, with Covid restrictions in place and in terms of the SoP framed by the high court, the judicial magistrate could not have dismissed the complaint for default on April 16, 2021, without recording satisfaction that either the appellant was deliberately avoiding participation in the proceedings or that his recalcitrance was such that it left the judicial magistrate with no other option but to dismiss the complaint for default.

Secondly, as the proceedings before the judicial magistrate had been stayed by the high court through interim orders passed from time to time, the judicial magistrate lacked the jurisdiction to pass any order on the complaint case until the stay was lifted, the bench noted.

The court also said that the high court judge proceeded on a total misconception of the factual position, holding that the error in understanding the facts was unacceptable.

It pointed out that the high court's observation on the interpretation of Section 256 CrPC, in view of the attending facts and circumstances, was made without proper application of mind.

The appellant's son, a holder of a Doctor of Philosophy degree, died relatively young at the age of 36 years. His unfortunate death was preceded by a traumatic fall from a staircase on July 10, 2014. He had his son immediately admitted to a private hospital in Dum Dum, Kolkata. However, according to the appellant, it was due to the criminal medical negligence of the hospital and the doctors attending to his son that he could not survive the hemorrhage caused by the fall.

He lodged a complaint under Section 200, CrPC before the court of the judicial magistrate, Barrackpore, North 24 Parganas, Kolkata, alleging an offence committed under Section 304-A, Indian Penal Code. The judicial magistrate, upon recording the appellant's statement on oath, issued process under Section 204(1), CrPC against, inter alia, the respondents Ravi Ganesh Bharadwaj and others for the alleged commission of the offence. On September 18, 2018, the Calcutta High Court stayed the proceedings, which were extended from time to time.

Though the Standard Operating Procedure was in operation after the Covid-19 lockdown and despite the stay, the judicial magistrate, having noted the absence of the appellant and his counsel, issued a show-cause notice to the appellant as to why the complaint should not be dismissed and, accordingly, fixed April 16, 2021, for his response. The appellant, a septuagenarian, was infected with Covid-19 and was under medical treatment. As a result, he remained absent, leading to the dismissal of the complaint on the fixed date. On September 9, 2021, the high court disposed of the quashing plea after noting the dismissal of the complaint by the judicial magistrate.

On a revision petition by the appellant, the sessions judge restored the complaint after noting that the respondents were also not present on the fixed date and that the judicial magistrate had not recorded an order of acquittal. The parties were directed to appear before the judicial magistrate on December 23, 2022.

On a fresh plea under Section 482 CrPC, the high court, on July 15, 2024, set aside the revisional order, thereby closing the complaint.

Examining the challenge to the order, the bench said, "There can be and, in fact, exists no doubt that the High Court in passing the impugned order on July 15, 2024, has occasioned a grave failure of justice."

The court said the jurisdictional facts for recording an acquittal under Section 256, CrPC were not satisfied in the present case, firstly, because it was not the appointed day for the appearance of the respondents and, secondly, because they were also not present.

"Owing to the absence of the appellant and owing to his omission to respond to the show-cause, the Judicial Magistrate could, at best, be justified in dismissing the complaint for default, which he did but which he could not have done having regard to the facts of the notification of November 27, 2020 (SoP on functioning of courts in West Bengal due to Covid-19) being in force on April 16, 2021 and operation of the stay order granted by the High Court on September 18, 2018, since extended from time to time," the bench said.

The court held that it was absolutely incorrect on the part of the high court judge to hold that the sessions judge was sitting in appeal over the order of the high court. The sessions judge had duly held the revision petition to be maintainable and had assigned sufficient reason why the complaint should not have been dismissed based on a correct interpretation of Section 256, CrPC, it opined.

The bench also said the high court ought to have realised that the appellant had multiple legal remedies available to challenge the order of April 16, 2021, and that he, in fact, pursued the correct course of action and succeeded in restoring his complaint. Therefore, interference was not warranted, it held.

It set aside the high court's July 15, 2024, order and restored the complaint on the file of the judicial magistrate. It also set aside the high court's September 9, 2021, order, in the exercise of power conferred by Article 142 of the Constitution, and revived it by restoring it on the file of the high court.

The apex court directed the high court to first decide the respondents' plea as early as possible, preferably within six months, and instructed the parties to appear before the roster bench on April 17, 2025. Thereafter, the proceedings may be taken to their logical conclusion in accordance with the law. Depending on the outcome, the complaint case should also be concluded in accordance with the law as early as possible, it ordered.

Case Title: Ranjit Sarkar Vs Ravi Ganesh Bharadwaj And Others