Chacko v Subrahmanyan and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 14TH JUNE 2011 / 24TH JYAISHTA 1933 Crl.Rev.Pet.No. 1474 of 2011 ------------------------------------(AGAINST THE ORDER DATED 29/09/2010 IN CMP.606/2010 IN CC.70/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, CHANGANACHERRY) .................... REVN. PETITIONER(S): REVISION PETITIONER ------------------------------- CHACKO,PLAKKATU VEEDU, MAMMOODUKARA,MADAPPALLY VILLAGE,CHANGANACHERY. BY ADV. SRI.LAL GEORGE RESPONDENTS(S): ------------------------- 1. SUBRAHMANYAN,S/O.BHARATHAN, M/S.CURE CENTRE,KACHERIPADI,CHANGANACHERY 686 101. 2. STATE OF KERALA,REP.BY PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, ERNAKULAM. BY ADV. SRI.P.P.JACOB FOR R1 BY PUBLIC PROSECUTOR SMT.REKHA.C.NAYAR. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.R.P.No. 1474 of 2011** **----------------------------------------** Dated this the 14[th] day of June, 2011 ## **ORDER** The de facto complainant is the revision petitioner. His grievance is that though he had preferred CMP No.606 of 2010 under Section 173(8) of Cr.P.C. for further investigation in C.C.No.70 of 2008 on the file of the Judicial First Class Magistrate Court-I, Changanasserry in which the offence involved is under Section 420 I.P.C., the learned Magistrate dismissed the same holding that he has no power to order further investigation upon the application filed by the de facto complainant. 2. The prosecution case is that the accused, who is the first respondent herein, is a Doctor practising in Homeopathy, who got licence issued by the Medical Council. But, according to the prosecution, with a view to obtain wrongful gain and to cheat the de facto complainant, when the de facto complainant was treated for her disease, from 2004 May till August, the accused administered certain ## **Crl.R.PNO.1474 of 2011** ## **:-2-:** medicines on the de facto complainant and as a result of the side effect consequent to wrong administration of medicines, some other diseases were caused to the de facto complainant. With the above allegation, the de facto complainant approached the Changanacherry Police Station and launched a complaint based upon which Crime No.924 of 2004 was registered in the Changanacherry Police Station for the offence punishable under Section 420 of I.P.C. On completing the investigation, the Police laid a charge before the trial court and thereupon, took cognizance for the offence under Section 420 of I.P.C. On appearance of the accused, after hearing both the prosecution as well as the defence, a charge was framed for the offence under Section 420 of I.P.C. which is read over to the accused and explained to him, to which he pleaded not guilty which resulted in the further trial and accordingly, the learned Magistrate issued summons to the de facto complainant/CW1 who is the petitioner herein. ## **Crl.R.PNO.1474 of 2011** ## **:-3-:** 3. Thus, on getting the summons, the revision petitioner herein preferred the above petition before the court below seeking further investigation. It is stated in the petition that the investigating officer omitted to cite some material witnesses and also omitted to produce some vital records (analyst records). From the averments of the de facto complainant in the said petition, the allegation is that the accused is manufacturing medicine without the approval of Medical Council and as a result of medicines given by the accused, the internal organs of the de facto complainant got damaged. Therefore, in the petition, according to the de facto complainant, the accused has committed the offences punishable under Sections 274,276,326,328 and 419 of I.P.C., but according to the petitioner, the Police did not conduct an effective and proper investigation and as a result of which, the serious offences which committed by the accused are not found a place in the report and thus, the charge is confined to Section 420 of I.P.C. only. Repelling the above contention, the learned Magistrate on ## **Crl.R.PNO.1474 of 2011** ## **:-4-:** v. the strength of the decision reported in **Reeta Nag West Bengal and others** (2009 KHC 4942) came to a conclusion that he has no power to order further investigation on the basis of the application filed by the de facto complainant. It is the above order of the learned Magistrate and his findings,challenged in this Crl.R.P. 4. I have heard Sri.Lal George,learned counsel appearing for the revision petitioner as well as Sri.P.P.Jacob, learned counsel appearing for the first respondent. I have also heard Sri.Tek Chand, learned Public Prosecutor. 5. I have gone through the materials produced along with this revision petition and also the authorities cited by both the counsel. 6. The learned counsel for the petitioner vehemently submitted that the petitioner is the person who sustained damage to his internal organs and the crime was registered at his instance. Several materials are also produced along with this revision petition in support of his allegation that a proper investigation has not taken place. According ## **Crl.R.PNO.1474 of 2011** ## **:-5-:** to the learned counsel for the petitioner, the decision relied on by the learned Magistrate is not applicable in the light of the facts and circumstances involved in the present case. In support of his argument,learned counsel for the petitioner very much placed reliance upon the decisions reported in **Hasanbhai Valibhai Qureshi** v. **State of Gujarat and Others** [(2004) 5 SCC 347], **Sindhu Gopalakrishnan** v. **Sebastian Attokkaran** [2011(1) KLT 279], **Sakiri Vasu** v. **State of U.P.** [2008(1) KLT 724 (SC)] and **Randhir Singh Rana** v. **State (Delhi Administration)** [(1997) 1 SCC 361]. 7. On the other hand, stoutly opposing the contentions raised by counsel for the petitioner, Sri.P.P.Jacob, learned counsel appearing for the first respondent/accused emphatically submitted that the impugned order of the learned Magistrate is perfectly valid, legal and correct and no interference is warranted. Learned counsel pointed out that Crime No.924 of 2004 was registered in the Changanacherry Police Station on 13.10.2004 and thereafter, on completion of the ## **Crl.R.PNO.1474 of 2011** ## **:-6-:** investigation, the Police had preferred a report under Section 173(2) of the Cr.P.C. as early as on 12.1.2008 and based upon such report, cognizance was taken by the learned Magistrate. Consequently, C.C.No.70 of 2008 is instituted in the said case and therefore, in view v. of the decision reported in **Reeta Nag State of West Bengal** [(2009) 9 SCC 129], the Magistrate has no jurisdiction to entertain a petition filed by the de facto complainant,especially when the investigating agency has not chosen to file such a petition. It is the further submission of the learned counsel that none of the materials produced by the petitioner before this Court is sufficient to hold that the first respondent/accused had administered any medicine as alleged by the petitioner at the time when he had undergone under the first respondent. Learned counsel pointed out that the first respondent/accused has got license issued by the Medical Council as a practitioner in Homeopathy, but the allegation against the accused is that he had administered Ayurvedic medicine on the revision ## **Crl.R.PNO.1474 of 2011** ## **:-7-:** petitioner,which is false. It is also the submission of the learned counsel that the medicine allegedly sent for chemical examination is not a medicine administered on the revision petitioner/accused. In support of his contention, the learned counsel relied upon the following decisions **Sakiri Vasu** v. **State of U.P.** [2008(1) KLT 724 (SC)] and **Randhir Singh Rana** v. **State (Delhi Administration)** [(1997) 1 SCC 361]. 8. Sri.Tek Chand, learned Public Prosecutor submitted that as the matter is coming up for admission, he is not having materials or instructions from the investigating agency so as to clarify the position of the prosecution agency regarding the factual controversy. According to the learned Public Prosecutor, the legal position declared by this Court as per the decision reported in **Sindhu Gopalakrishnan** v. **Sebastian Attokkaran** [2011(1) KLT 279] is relevant in view of the dispute involved in the present case. 9. On a consideration of the arguments advanced by the counsel ## **Crl.R.PNO.1474 of 2011** ## **:-8-:** for the parties and on perusal of the order impugned, I am of the view that the matter requires reconsideration by the learned Magistrate after a detailed hearing of the parties concerned. The allegation of the revision petitioner is that while he was under the treatment of the accused, the accused administered medicine viz., Venga Bhasma containing high percentage of led as a result of which the internal organs of the petitioner were adversely affected. Learned counsel for the first respondent submitted that the first respondent/accused is a Doctor who is practising Homeopathy and he had no occasion to administer Ayurvedic Medicine. It is also the submission of the learned counsel that the materials made available by the revision petitioner are not sufficient to hold that the revision petitioner had administered the Ayurvedic medicine. 10. It is true that Crime No. 924 of 2004 was registered on the basis of the complaint of the revision petitioner and on filing the report by the Police, the Magistrate had already taken cognizance for ## **Crl.R.PNO.1474 of 2011** ## **:-9-:** the offence incorporated in the report. But, there is no discussion in the order impugned regarding the factual matrix and its merit. The legal position is also not considered properly. Therefore, according to me, without entering into the merits of the contentions raised by counsel for the contesting parties and regarding the observations and findings made by the learned Magistrate in the impugned order, this Criminal Revision Petition can be disposed of remitting the matter back for fresh consideration of the learned Magistrate after hearing both the revision petitioner as well as the accused and also the prosecution agency. In the result, this Criminal Revision Petition is disposed of setting aside the order dated 29.9.2010 in CMP No.606/2010 in C.C.No.70/2008 of the Judicial First Class Magistrate Court-I, Changanacherry and the matter is remitted back to the same court for fresh consideration and also for passing fresh orders after hearing both the revision petitioner as well as the first respondent/accused and the ## **Crl.R.PNO.1474 of 2011** ## **:-10-:** prosecution. I am sure that in the light of the order passed by this Court, the trial will not be commenced before the disposal of CMP No.606 of 2010. It is made clear that the impugned order is set aside only for the purpose of enabling the learned Magistrate to pass fresh and appropriate orders assigning reasons both on factual and legal question. The learned Magistrate is directed to consider CMP No.606/2010 and dispose of the same in the light of the above direction, at any rate within three months from the date of receipt of a copy of this order which will be produced by the revision petitioner. The Criminal Revision Petition is disposed of as above. ## **V.K.MOHANAN, Judge** MBS/ ## **Crl.R.PNO.1474 of 2011** **:-11-:** **V.K.MOHANAN, J** . O.P.No. **JUDGMENT** Dated:.. ## **Crl.R.PNO.1474 of 2011** **:-12-:**