The New Nation - Internet Edition

Appellate Division

(Criminal)

PRESENT

Md. Ruhul Amin C J

M. M. Ruhul Amin J

Md. Joynul Abedin J

Md. Hassan Ameen J

Dr. Hafizur Rahman and another

……….Petitioners.

-Vs-

The State and another

tt. Respondents.

Judgment 21st March 2007

The Penal Code, Sections 315 and 316-The Code of Criminal Procedure, Section 561A

It is alleged that due to negligence on the part of the accused-petitioners, she gave birth to a dead child and thereby the accused-petitioners committed an offence under Sections 315 and 316 of the Penal Code (2)

An accused may invoke the jurisdiction of the High Court Division under Section 561A of the Code of Criminal Procedure, if he can make out a case of quorum non judice of the trial Court or that the facts alleged do not constitute any criminal offence. The High Court Division may exercise inherent power to quash a proceeding or even conviction on conclusion of trial if the Court concerned got no jurisdiction to hold the said trial or the fact alleged against the accused does not constitute any criminal offence. A criminal proceeding cannot be quashed on the basis of defence materials which are still not part of the record of the High Court Division. As to whether the accused-petitioners were negligent of their duties or they acted beyond their duty and their action had ultimately taken away the life of a child in the womb of the informant opposite party No.2 is still to be tried after examination of the witnesses and in view of the facts and circumstances of the case, we are of the opinion that entertainment of the prayer seeking quashing of the proceeding at the stage will be stifling the proceeding since the informant opposite-party No.2 had no opportunity to prove her case by adducing evidence : and as such we are of the opinion that there is no substance in this petition and find no other alternative but to dismiss the same ………(6)

Khondker Mahbubuddin Ahmed, Senior / Advocate, represented by· Md. Zahirul

Islam, Advocate-on-Record. ………For the Petitioners.

Respondents Not represented.

JUDGMENT

Md. Hassan Ameen J: This criminal petition for leave to appeal has been filed against the judgment and order dated 17-1-2004 passed by a Division Bench of the High Court Division in Criminal Miscellaneaus Case No.7242 of 2001 discharging the Rule. The case was filed seeking quashing of the proceedings of G.R. Case Na.382 of 2000 of the Court of Metropolitan Magistrate, Dhaka.

2. Facts, in short, are that one Nasreen Sultana as informant lodged an FIR an 15-2-2000 with Dhanmondi Police Station, alleging, inter alia, that she conceived in the middle .of last year and she had been under treatment of Dr. Hafizur Rahman, owner of Mother and Child Care Centre and as per his (Dr. Hafiz) advice all necessary medical check-up was done. The further case .of the informant was that an 25-1-2000 when she quick with child she went to the aforesaid clinic where she found accused-petitioner No.2, Dr. Ruhi Morshed on duty along with one nurse. The accused-petitioner No.2, Dr. Ruhi Morshed got her to the labour unit of the clinic where she told Dr. Ruhi Morshed far taking steps far delivery by operation as was told by the accused-petitioner No.1. Dr. Hafizur Rahman. The accused petitioner No. 2 instead of taking any step far operation tried far normal delivery. The further case of the informant was that on the fallowing day i.e. an 26-1-2000 accused-petitioner No.1, Dr. Hafizur Rahman entered into the labour room and rebuked the accused-petitioner Na.2, Dr. Ruhi Morshed and took her to operation at 8.15 a. m. The accused-petitioner No. l, Dr. Hafizur Rahman made operation for the purpose of delivery, who later an told her that she gave birth to a dead female child. It is alleged that due to negligence on the part of the accused petitioners, she gave birth to a dead child and thereby the accused-petitioners committed an offence under Sections 315 and 316 .of the Penal Code.

3. Police on completion of investigation submitted final report, which was accepted by the learned Magistrate on 25-02-2001 discharging the accused-petitioners from the case. Against which, the opposite-party No.2, the informant filed a naraji petition, which was allowed with direction, for holding judicial inquiry, the learned Magistrate, who carried out judicial inquiry, submitted a report holding that there is prima facie case against the accused-petitioners under sections 315 and 316 of the Penal Code and on the basis of judicial inquiry report cognisance was taken against the accused-petitioners under sections 315 and 316 of the Penal Code on 10-07-2001 whereupon the accused-petitioners moved the High Court Division and obtained Rule in which further proceeding of the case was stayed.

4. Mr. Khondker Mahbubuddin Ahmed, the learned Senior Counsel, appearing' for the petitioners, submits that there is no Ingredients of the offence under Sections 315 and 316 of the Penal Code and the proceeding being an abuse of process of law and as such, the case is liable to be quashed. He further submits that the allegations if taken to be true then the accused-petitioners at best can be prosecuted for their negligence and not for the office alleged to have committed under Sections 315 and 316 of the Penal Code and as such the proceeding should be quashed as continuation of the same would cause unnecessary harassment. He incidentally submits that if at all there is criminal negligence, that can at best be vest upon accused-petitioner No.2, Dr. Ruhi Morshed and not upon the accused-petitioner No.1 Dr. Hafizur Rahman on whose part there was no negligence who at the earliest opportunity after his anivai in the clinic operated the informant opposite-party though the operation was not successful and accordingly he contends that the proceeding being not in conformity with the provision of Sections 315 and 316 of the Penal Code should have been quashed.

5. It is not disputed that the informant opposite-party was under the treatment of Dr. Hafizur Rahman in his Mother and Child Care Centre. It further appears that there is no allegation to the fact that the informant opposite-party ever did not comply with the advice/direction of Dr. Hafizur Rahman.

It also appears that the informant opposite-party No.2 went to the aforesaid Mother and Child Care Centre out of labour complain and the accused petitioner No.2, Dr. Ruhi Morshed on duty along with a nurse took her to labour unit of the clinic where she told Dr. Ruhi Morshed for taking steps for delivery by operation as was told by the accused-petitioner No.1, Dr. Hafizur Rahman but the accused-petitioner No.2, Dr. Ruhi Morshed did not take any step for operation instead of she tried for normal delivery inasmuch as on the following day on 26-1-2000 the accused-petitioner Dr. Hafizur Rahman entered into the labour room and rebuked the accused petitioner Dr. Ruhi Morshed, who took her for operation after 8.15 hours, the accused-petitioner No.1, Dr. Hafizur Rahman made operation for the purpose of delivery, who told her that she gave birth a 'dead female child. It is specific allegation of the informant that due to negligence on the part of the accused-petitioners, she gave birth to a dead child. It appears from the record that the charge has not yet been framed.

6. An accused may invoke the jurisdiction of the High Court Division under Section 561 A of the Code of Criminal Procedure, if, he can make out a case of quorum non judice of the trial Court or that the facts alleged do not constitute any criminal offence.

The High Court Division may exercise inherent power to quash a proceeding or even conviction on conclusion of trial if the Court concerned got no jurisdiction to hold the said trial or the fact alleged against the accused does not constitute any criminal offence. A criminal proceeding cannot be quashed on the basis of defence materials which are still not part of the record of the High Court Division.

As to whether the accused-petitioners were negligent of their duties or they acted beyond their duty and their action had ultimately taken away the life of child in the womb of the informant opposite-party No.2 is still to be tried after examination of the witnesses and in view of the facts and circumstances of the case, we are of the opinion that entertainment of the prayer seeking quashing of the proceeding at the stage will be stifling the proceeding since the informant opposite; party No.2 had no opportunity to prove her case by adducing evidence and as such we are of the opinion that there is no sub-stance in this petition and find no other alterative but to dismiss the same.

7. In the result, the petition is dismissed.