The impugned order is set aside. The trial shall proceed from the stage it was, when the impugned order was passed, namely, recordal of prosecution evidence, and shall proceed to its logical end was upheld by the High Court Of Delhi through the learned bench led by HON’BLE MS. JUSTICE ASHA MENON in the case of KAMLA Vs NCT OF DELHI & ANR (CRL.M.C.1249/2018) on 06.05.2022.
Brief facts of the case are that on 30th June, 1999, the husband of the petitioner took ill and the petitioner/Kamla accompanied him to the clinic of the respondent No.2/Prem Shanker, where he was given some injection by the respondent No.2. The husband of the petitioner started feeling restless and uncomfortable and collapsed in the gali outside the clinic and died there. An FIR was lodged at Police Station Narela, being FIR No.280/1999 under Section 304A IPC.
Learned counsel for the petitioner, submitted that after the charge had been framed, the respondent No.2 filed an application under Section 468 Cr.P.C. submitting that the case was time barred. Vide order dated 2nd November, 2015, the learned Metropolitan Magistrate dismissed the application as being not maintainable. The accused/respondent No.2 then filed a revision petition before the learned Sessions Court. Vide the impugned order dated 17th May, 2016, the learned ASJ allowed that revision petition and held that the cognizance could not have been taken under the Delhi Bharatiya Chikitsa Parishad Act, 1998 without a complaint from an officer empowered under the Rules framed under the DBCP Act, which was missing in the present case, and further, since cognizance has been taken later than three years from the date of the incident i.e., with a delay of more than 11 years, and there being no specific order of condonation of delay, the accused/respondent No.2 was discharged.
Learned counsel for the respondent No.2, submitted that without an application accompanying the delayed chargesheet, and an explicit order, the learned MM could not have taken cognizance and the revision petition had been rightly allowed by the learned ASJ.
The Court observed “After three months of the framing of the charge, the application for discharge was moved on the grounds of limitation, which was rightly dismissed by the learned MM, whereas, the learned ASJ failed to consider all the material facts and fell into error in accepting the contention of limitation, as belatedly raised, by the respondent No.2, to discharge him. The decision of the learned ASJ has resulted in serious miscarriage of justice.”
The Court held that the impugned order is set aside. The trial shall proceed from the stage it was, when the impugned order was passed, namely, recordal of prosecution evidence, and shall proceed to its logical end.
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Written by- Riya Singh, Legal Intern, Prime Legal
