DALJIT SINGH GUJRAL & ORS.versusJAGJIT SINGH ARORA & ORS.

                      [2014] 4 S.C.R. 59


               DALJIT SINGH GUJRAL & ORS.                            A
                                v.
              JAGJIT SINGH ARORA & ORS.
          (Criminal Appeal Nos. 506-508 of 2014)
                     FEBRUARY 27, 2014
                                                                     B
 [K.S. RADHAKRISHNAN AND VIKRAMAJIT SEN, JJ.]

     JUDGMENTS:

      Application for correction of judgment - Scope of - Petition   c
u/s 482 CrPC for quashing proceedings of a complaint case
relating to medical negligence - Single Judge of High Court
framing issue on the premise that patient died due to wrong
 treatment and medical negligence - Petition dismissed -
 Subsequently, on an application by complainant single Judge         0
issuing orders to correct the words "dead" and "death" in the
judgment as "the brink of death" - Held: It cannot be said that
 single Judge was merely correcting an accidental omission
 or typographical error - By correcting the judgment, the very
foundation and the issue formulated, lost its sanctity - Single      E
Judge cannot correct an issue which has been framed and
answered - First issue framed is with regard to the "wrong
 treatment and consequential death of a patient" and it was that
issue which was answered - Record does not contain any
statement that the wife of complainant is no more - The entire       F
 thought process of single Judge centered round on an
incorrect premise that, due to gross negligence on the part of
 appellants, wife of complainant died - Further single Judge has
expressed the opinion so expressively in the judgment that it
practically forecloses all defences available to parties, who are
 supposed to face trial - Judgment as well as the subsequent         G
 order would stand set aside - High Court directed to hear
petition u/s 482 CrPC afresh- Code of Criminal Procedure,
 1973 - s.482.
                               59
                                                                     H
    60      SUPREME COURT REPORTS             [2014] 4 S.C.R.


A       In a petition filed u/s 482 CrPC seeking to quash the
    proceedings for offences punishable u/ss 420/467/ 468/
    471/326/120-8 IPC and s.15 of the Indian Medical Council
    Act arising out of a complaint of medical negligence, the
    single Judge of the High Court framed the issue on the
B   premise that the patient died due to wrong treatment and
    medical negligence, and dismissed the petition. The
    complainant filed a petition for correction of certain
    omission/typographical errors in the judgment. The
    single Judge passed an order directing the Registry to
c   make the correction, inter alia, that word "died" be read
    as "was brought to brink of death" and words 'dead' and
    'death' be read as "the brink of death"

         Allowing the appeals, the Court

D      HELD: 1.1 It cannot be said that the 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 and the issue framed by the single
E Judge, lost its sanctity. The single Judge cannot correct
  an issue which has been framed and answered. 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. Therefore, the application preferred
F by the respondents cannot be treated as an application
  for correcting accidental omission or typographical error,
  that too without notice to the appellants. This is a case
  of medical negligence. The record does not contain any
  statement that the wife of respondent No. 1 is no more.
G The entire thought process of the single 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. [para 12-13] [68-C-F, G-H]

        1.2 Further the single Judge has opined so
H   expressively in the judgment that it practically forecloses
  DALJIT SINGH GUJRAL & ORS. v. JAGJIT SINGH               61
                ARORA & ORS.
all the defences available to the parties, who are A
supposed to face the trial. The single Judge, though
ultimately indicated that the view is only a prima facie
view, but a reading of the entire judgment, would show
otherwise.The judgment cannot be sustained on any
ground. Consequently, the judgment dated 16.11.2012 as B
well as the subsequent order 11.2.2013 passed in the
application of respondent no. 1, would stand set aside.
The High Court is directed to rehear the petition u/s 482
CrPC afresh. [para 14] [69-A-C]

    CRIMINAL APPELLATE JURISDICTION : Criminal                    C
Appeal Nos. 506-508 of 2014.

    From the Judgment and Order dated 16.11.2012 and
11.02.2013 of the High Court of Punjab and Haryana at
Chandigarh in Crl. Misc. No. M-25733 of 2011 and Crl. Misc. D
No. 7776 of 2013 in Crl . Misc. No. M-25733 of 2011
respectively.

    P.S. Patwalia, Ashok K. Mahajan for the Appellants.

    Jagjit Singh Arora (Respondent-In-Person).                    E

    The Judgment of the Court was delivered by

    K.S. RADHAKRISHNAN, J. 1. Leave granted.

     2. We are of the considered view, after hearing the senior   F
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.
                                                                  G
    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        H
    62        SUPREME COURT REPORTS                [2014] 4 S.C.R.


A   (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, lnderjeet
B    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.
C    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 dishonoured, which fact was brought to the notice
     of Respondent No.1 by the hospital authorities. Thereafter, the
D   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,
E   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.
F   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
G   for registration of FIR against the Appellants for the commission
    of offence under various sections, including Section 15(2)(3)
    of the 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)
H   Cr.P.C. The said order was challenged by the Appellants by
  DALJIT SINGH GUJRAL & ORS. v. JAGJIT SINGH                   63
    ARORA & ORS. [K.S. RADHAKRISHNAN, J.]

filing Crl. Misc. Petition No.17013 of 2008 before the Punjab        A
& 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           B
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       c
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 No.7506/09/           D
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        E
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          F
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        G
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.                                                              H
    64         SUPREME COURT REPORTS                (2014] 4 S.C.R.


A       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,
B
               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
c              patient and can they claim immunity from
               prosecution for the offences in which they have
               been summoned in the present complaint?

                                                (emphasis supplied)
D
          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
E   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 criminally
F        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
G        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,
H
  DALJIT SINGH GUJRAL & ORS. v. JAGJIT SINGH                   65
    ARORA & ORS. [K.S. RADHAKRISHNAN, J.]
    there is a glaring failure on the part of petitioner nos.1 and   A
    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    B
    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         c
    and professional standards. There is a 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          D
    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               E
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 F
    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. G
    The principles of law laid down in Jacob Mathew (supra)
    and Kusum Sharma (supra) are not applicable in the
    present case.

    In view of the above discussion, this Court does not find
    any illegality or perversity in the impugned summoning           H
    66        SUPREME COURT REPORTS                   [2014] 4 S.C.R.


A        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."
B
       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
C 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
D stated as follows :

         "The condition of Mrs. Arora extremely deteriorated and
         she had to remain hospitalized in ICU of Fortis Hospital
         for about 2 months and thereafter, she was shifted to PGI,
E
         Ultimately, she died."
                                        .
         Chandigarh, where she remained admitted for one month.


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

         "The hospital authorities had employed unqualified doctors
F        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
G        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
H died. In fact, the very question framed by the Court itself refers
  DALJIT SINGH GUJRAL & ORS. v. JAGJIT SINGH                   67
    ARORA & ORS. [K.S. RADHAKRISHNAN, J.]
to the death of the patient. The learned Single Judge, as            A
already indicated, finally dismissed the petition filed by the
Appellants on 16.11.2012.

     11. The Respondents herein then preferred Crl. Misc.
Application No. 7776 of 2013 praying for correcting some
                                                                     B
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       C
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      D
    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               E
           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 the judgment, it
            should be as "the brink of death".                       F

      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"         G
            at page No.10.

     6.     "Section 14(2)" be read as "Section 15(2a)" at
            page no.11.
                                                                     H
    68         SUPREME COURT REPORTS             [2014] 4 S.C.R.


A        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.
B        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
C -merely correcting an accidental omission or typographical error.
   By correcting the judgment, the very foundation and the issue
   formulated, broken down arid fell on the ground and the issue
   framed by the learned Single Judge, lost its sanctity. The
   learned Single Judge cannot correct an issue which has been
D 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 b~ the
   Respondents for review can be treated as an application for
E 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
F 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.
G \/Vhen 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 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.
H
  DALJIT SINGH GUJRAL & ORS. v. JAGJIT SINGH                   69
    ARORA & ORS. [K.S. RADHAKRISHNAN, J.]
     14. We may also further indicate that the learned Single        A
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   B
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.                            c
       15. The Appeals are, accordingly, allowed.

R.P.                                           Appeals allowed.