- (1.) THIS revision petition is directed against the order dated June 15, 1990, passed by the Chief Judicial Magistrate, Pali, by which the learned Magistrate accepted the Final Report.
(2.) RAMESH Purohit, on September 1,1986, filed a complaint in the Court of the Chief Judicial Magistrate Pali, against Dr. Sajjan Raj and Dr. S. B. Purohit, Surgeon under Section 304-A I. P. C. Complainant's two years' old son was admitted in the Bangar Hospital, Pali, who was to be operated-upon by Dr. S. B. Purohit, as the infant child had a deformity on his lip. On June 5, 1986, the child was brought in the operation theatre for operation. At that time, the complainant and his father and other relatives were, also, present there. The accused Dr. Sajjan Raj Daga, who was the Junior Specialist in Anaesthesia in Bangar Hospital, Pali, administered anaesthesia to the child and after giving anaesthesia, came out of the operation theater and started talking with a lady, who was standing there. On the request the informant and his father requested the accused Dr. Sajjan Raj Daga to remain present near the infant child but the accused did not pay heed to their request and the child breathed his last on account of the negligence of the Dr. Sajjan Raj Daga as he had given over dose of anaesthesia to the child and did not care to remain present near the child. It was further mentioned in the complaint that the complainant reported the matter to the Chief Medical and Health Officer, Pali, and the State Government, but no action was taken against the accused and therefore, this complaint has been filed as no action was taken against the accused either by the State Government or by the Chief Medical and Health Officer. This complaint was sent by the learned Magistrate under Section 1 6 (3) Cr. P. C. to the Station House Officer, Police Station, Pali, for further investigation and the police, after necessary investigation, presented the Final Report in the matter. The investigation conducted by the police showed that the accused Dr. Sajjan Raj Daga was negligent in discharging his dutties, but according to the police, the sanction for prosecution was necessary and, therefore, the Final Report was submitted. The learned Magistrate, by his order dated June 15, 1990, accepted the Final Report submitted by the police. The learned Magistrate, also, on the same day, passed an order that as the counsel for the complainant does not press the protest petition, therefore, the pretest petition, at this stage, is dismissed. Heard learned counsel for the petitioner, the learned counsel for the accused and the learned Public Prosecutor. It is contended by the learned counsel for the petitioner that the order passed by the learned lower Court, accepting the Final Report, is not a speaking order and, therefore, it should be quashed and set-aside. It was argued by the learned counsel for the petitioner that no opportunity of hearing was given to the petitioner before accepting the Final Report. It has further been argued that there is no protest petition filed by the accused on record and the petitioner never authorised Advocate Shri Himmat Singh not to press the protest petition and, therefore, if Shri Himmat Singh, Advocate, made any statement for not pressing the protest petition, that was wholly without any authority and the order passed by the learned lower Court, thus, deserves to be quashed and set-aside. The learned counsel for the accused, as well as the learned Public Prosecutor, on the other hand, have supported the order passed by the learned lower Court. It has further been argued that the offence under Section 304-A I. PC. is punishable with imprisonment of either description for a term which may extend to two years or with fine or with both as per Section 468 (2) (c)/cr. P. C, the limitation prescribed for taking the cognizance 'in such matter is of three years and as the incident in the present case took place on June 5, 1986, now the Court of the Judicial Magistrate has no jurisdiction to take cognizance and, therefore, it is prayed that the revision petition, filed by the petitioner, may kindly be dismissed. I have considered the rival submissions made by the learned counsel for the parties. Now so far as the question: whether the petitioner was given an opportunity of hearing while accepting the Final Report or not, is concerned, this fact is not borne out from the order itself. The order merely shows the presence of the Assistant Public Prosecutor. But on the same day, another order was passed by the learned Magistrate, in which the learned Magistrate has shown the presence of Shri Himmat Singh, Advocate, counsel for the complainant, and in that order it has been mentioned that the protest petition was not pressed by the counsel for the complainant hence it cannot be said that the complainant was not heard before allowing the Final Report. When the complainant's counsel was present and he did not press the protest petition, therefore, two separate orders were passed- The question; whether the complainant authorised Shri Himmat Singh, Advocate, for not pressing the protest petition, it is pertinent to note that order is not challenged by the complainant before this Court and is not under consideration. It is true that there is no protest petition on the record of the case. But as that matter is not for consideration before this Court, therefore, it is not necessary to consider that aspect of the matter But so far as the order passed by the learned Magistrate, accepting the Final Report, is concerned, it is not a speaking order. It has been laid down by this Court in Bhanwar Lal vs. the State of Rajasthan (1) that while dismissing the complaint, the Magistrate has to briefly record the reasons for doing so. No reasons have been given by the learned Magistrate while accepting the Final Report. Giving reasons for accepting the final report is a 'must' so that it may show that the learned Magistrate, while accepting the Final Report, has applied his mind. It was obligatory on the part of the learned Magistrate to record his reasons, when he accepted the Final Report. The reasons are necessary to be given so that it may enable the superior Court while examining the legality or correctness of the order passed by the trial Court, to determine whether the order passed by the learned lower Court is justified and proper in the facts and circumstances of the case. From the bare reading of the order passed by the learned lower Court, it appears that the learned Magistrate has not properly looked into the papers submitted by the investigating agency. In the Final Report, submitted by the prosecution, the prima facie case against the accused was found, but the Final Report was submitted only ion the ground that the sanction, required under the law, was not accorded by the State Government. Whether the sanction was at all necessary or not ant whether the act of the accused was in the discharge or purported discharge of his official duties, have not been considered. As the order passed by the learned lower Court is not a speaking order, I, therefore, set aside the order dated June 15,1990, passed by the learned Civil Judge-cum-Chief Judicial Magistrate, Pali, accepting the Final Report and remand the case to him for considering the matter afresh and to pass appropriate reasoned order.
(3.) IN the result, the revision petition filed by the petitioner is, therefore, allowed. as above. .;