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A reference can be made to the Larger Bench, only if the issue, though not live, is of national importance and in order to avoid prospective litigation: Bombay High Court.

The Bombay high court passed a judgement on 21st of January in the year 2021, where it passed a judgment against the referral made by the learned Single Judge of the court and termed it unwarranted. This was seen in the case of Dr. Parthsarthi S/O Mukund Shukla Vs The Maharashtra Medical Council, Through Its Registrar, Mumbai And Another (Writ Petition No. 999/2018) and the case was presided over by The Honourable Mr. Justice V.M. Deshpande, The Honourable Ms. Justice Pushpa V. Ganediwala and The Honourable Mr. Justice Anil S. Kilor.

FACTS OF THE CASE:

As per the learned Single Judge of the Bombay high court, there is a conflict of views in two cases, Saroj Iyer and another v. Maharashtra Medical (Council) of Indian Medicine, Bombay and another and the case (Dr.) Megha Mahendra Topale v. Navi Mumbai Municipal Corporation and others. The Bombay high court was asked to answer the following questions through a full bench:

(i) Whether there could be a reference by the Court when the cause is not live or not in existence or, in other words, whether the Larger Bench can answer the issue for academic purpose?

 (ii) What is the exact difference of opinion in between two Honourable Benches of this Court as referred in the reference?

In looking at the facts of the case, the Petitioner is a Doctor having educational qualification of MBBS, DCH, MD (Pediatric). Mr. Mohanlal Chutlani, father-in-law of a respondent in the writ petition, filed a report at Police Station stating therein his daughter-in-law gave birth to a premature baby, which was earlier treated at Government Hospital but as baby’s condition was not improving, the baby was admitted to hospital of one Dr. Anup Kothari. However, since health of the baby was further deteriorated, the baby was admitted in the hospital of the petitioner and it was kept in incubator in the ICU of the petitioner’s hospital. It was alleged in the report, when the first informant went to see the child, he found that the baby in incubator was not his grandson and the baby was changed. On the report lodged by Mohanlal, a crime was registered for an offence punishable under Sections 363, 417 of the Indian Penal Code. The investigating officer, after completing the investigation, filed report under Section 173 of the Code of Criminal Procedure for an offence punishable under Section 363, 417, 419, 420, 467, 468, 469, 470, 304A, 120B, 201 read with Section 34 of the Indian Penal Code. The petitioner filed discharge application. The same was rejected. Against that, the petitioner filed Criminal Application and the same is admitted and is pending for its final hearing in the Court.

JUDGEMENT:

There is no conflict of views between the judgments in Saroj Iyer and another v. Maharashtra Medical (Council) of Indian Medicine, Bombay and another and (Dr.) Megha Mahendra Topale v. Navi Mumbai Municipal Corporation and others. The court said the dictum of Division Benches in Saroj Iyer’s case and (Dr.) Megha Topale’s Case operates in different fields. The court then says the judgments rendered cannot be interpreted in vacuum separate from their facts and contexts. The court also says Reference should be made to the Larger Bench after framing a question germane to the controversy and when the cause is live and in existence, a reference can be made to the Larger Bench, only if the issue, though not live, is of national importance and in order to avoid prospective litigation.

Therefore, the court came to the conclusion the reference made by the learned Single Judge was unwarranted.

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JUDGEMENT REVIEWED BY TANAV ZACHARIAH.

Click here to View the Judgement.

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