JUDGMENT 1. - This is a petition under Section 482 Criminal Procedure Code directed against the order dated 8th May, 1990 passed by the Addl. Chief Judicial Magistrate No. 3, Jaipur City Jaipur for quashing the criminal proceedings pending against him (sic petitioner) in the said Court in FR No. 27A and FIR No. 78/86 pertaining to Police Station, Moti Doongri for the offence under Section 337 Indian Penal Code. 2. This petition was admitted on 24th May, 1990 and on 5th September, 1990 it was ordered by Court that it was essential to hear the complainant the first informant Shri Rakesh Kumar Gupta and, therefore, the learned counsel should implead him as a party-respondent. Accordingly Shri Rakesh Kumar Gupta was arrayed as non-petitioner No. 2 in this case in terms of this Court's order dated 5.9.1990. 3. In this matter a final report No. 27A was given by the Police Station, Moti Doongri but the Addl. Chief Judicial Magistrate, Jaipur City, Jaipur vide his order dated 8th May, 1990 did not accept the F.R. and took cognizance against the present petitioner Dr. Mukat Behari Sharma, Ashok Raj Mehta and Shri Shyam-sunder under Section 337 I.P.C. It is this order dated 8th May, 1990 which has been challenged by the present petitioner. 4. The facts giving rise to this case as stated by the petitioner are as under : That one Shri Ram Prasad a 70 years old man was treated in the Rehabilitation Research Centre of S.M.S. Hospital Jaipur. He was first examined by Dr. M.K. Mathur on 18th March and was advised for X-Ray of Pelivs including both hips and frog lateral view of left hip. The X-Ray requisition slip was prepared by Dr. M.K. Mathur with which the petitioner and his attendant went to X-Ray Department on the same day. It was just a coincidence that one Shri Noor Mohammad another patient from O.P.D. was also referred at the same time for X-Ray of both the hips. M. Ashok Raj Mehta, Radiographer took the requisite X-Rays of both the patients, namely, Ram Prasad and Noor Mohammad and entered the No. 21415 and 21416 on the X-Ray plate as well as on the X-Ray requisition slip of Ram Prasad. The X-Ray plate bearing No. 21416 pertains to the X-Ray of both the hips in the register maintained by the X- Ray Department. The X-Ray plate bearing No. 21416 pertains to the X-Ray of both the hips in the register maintained by the X- Ray Department. The name of Shri Ram Prasad was entered against serial No. 21415. The X-Ray of Noor Mohammad of both the hips was also entered at serial no. 21416. The X-Ray plate of Shri Noor Mohammad was placed in the X-Ray plate of Ram Prasad and was sent to the X-Ray Officer, namely, Dr. Dinesh Sharma Radiologist. Dr. Dinesh Sharma after examining the X-Ray expressed the opinion that fracture is seen in the neck of right femur (right hip). On the same day the patient Ram Prasad with the X-Ray and the report went to Dr. Mathur who referred the case to Orth: Surgeon. On 20th March, 1986 the patient Ram Prasad was brought to Orth. O.P.D. and was clinically examined by Dr. J.C. Mayanger Reader in Orth. Department. Dr. J.C. Mayanger clinically examined the patient and after going through the X-Ray and its report prepared the admission slip. In the admission slip Dr. J.C. Mayanger expressed his opinion that there is a fracture on the right neck femur (right hip). The patient Ram Prasad was, therefore, admitted in NW-I/Unit I on 21st March 1986, a unit headed by Prof. Upadhyay, Head of the Department of Orth., the other doctors in this unit being Dr. J.C. Mayanger, Reader, Dr. Batlsal, Lecturer and the petitioner Dr. Mukat Behari Sharma who was also a Lecturer, Dr. Satyender Sharma, RHO and Dr. Rajendra Soni. After admission Dr. Satyender Sharma RHO examined the patient and made notes of his examination in the Bed Head Ticket. Dr. Sharma recorded the history of the patient and it was found that the patient was unable to walk and there was stiffness of joints of both the limbs. It was further noted that the patient was non-co-operative and was unable to give history and proper replies except that he used to cry when any of the limbs was moved. On local examination Dr. Satyendra Sharma found that both the lower limbs were lying externally rotated, flexed and abducted. Dr. Sharma further found severe osteoarthritis changes at both the joints and also severe contracture at around thigh and hip. With regard to the movement Dr. On local examination Dr. Satyendra Sharma found that both the lower limbs were lying externally rotated, flexed and abducted. Dr. Sharma further found severe osteoarthritis changes at both the joints and also severe contracture at around thigh and hip. With regard to the movement Dr. Sharma found that the patient was unable to move the limbs and the active and passive movements were painful and restricted in both of his joints. There was tenderness at Scarpos triangle both Muscular westing at thigh and calf muscles. Dr. Sharma advised complete bed rest and prescribed some medicines. On 22nd March, 1986 Dr. Satyender Sharma discussed the case with the petitioner and Dr. Rajender Soni. After careful examination of the patient and his X-Ray report the petitioner and Dr. Rajender Soni advised complete care of patient particularly of back bladder, bowel, skin pulse, temperature and respiration. It was also advised that "patient should be given built up Therapy. On the same day i.e. 22nd March, 1986 in evening Dr. J.C. Mayanger again examined the patient and discussed the case with Dr. Satyender Sharma. After carefully examining the patient clinically as well as his X-Ray reports Dr. J.C. Mayanger advised for applying skeletal, traction on the right lower limb and also ordered for preparation of the patient for operation. On the same day during the round Dr. Upadhyay, Professor and Head of the Department, examined the patient and also advised for applying skeletal traction on the right lower limb and further advised for operation. Dr. Satyender Sharma thereafter got the patient thoroughly investigated for blood, hemoglobin, ECG, blood sugar, blood urea etc. On 23rd March, 1986 Dr. Sharma applied skeletal traction by placing steinmann's pin and also started antibiotics. From 24th March, 1986 to 27th of March, 1986 there was no change in the condition of the patient although it was reported in the bed-head ticket that most of the time the attendant is not available and the patient uses to pass urine stool on bed itself. On 27th March, 1986 patient was prepared for operation of the right hip. While preparing the patient for operation that very part of the body which was to be operated was thoroughly shaved and was cleaned by anti-septic lotion. On 28th March, 1986, the patient was brought to operation theater. The patient was to be operated by the present petitioner, Dr. While preparing the patient for operation that very part of the body which was to be operated was thoroughly shaved and was cleaned by anti-septic lotion. On 28th March, 1986, the patient was brought to operation theater. The patient was to be operated by the present petitioner, Dr. Mukat Behari Sharma and the petitioner before operating the patient thoroughly examined the entire X-Ray, record report, bed head ticket etc. and thereafter obtained the consent for operation of right side from the attendant, namely, Rakesh Kumar Gupta son of Ram Prasad. Since the patient was brought before the petitioner, traction in the right limb and with the right part thoroughly prepared for operation and since all the available record including the X-Ray report and X-Ray plates showed that there was a fracture in the neck of right femur and further the bed head ticket showed that Dr. Upadhyay, Dr. J.C. Mayanger and Dr. Satyender Sharma had also opined that there was a fracture in the neck of right femur, the petitioner proceeded to operate the patient for the right limb, after the administration of general anesthesia. The hip was opened, hip scapula was exposed and after careful exploration the petitioner Dr. Mukar Behari Sharma did not find any fracture of right neck femur. The petitioner was further exposed upto trochanter but still no fracture was found. The petitioner, therefore, immediately called for Dr. J.C. Mayanger and Dr. Upadhyay to the operation theater and they were informed that there was no fracture in the neck of right femur. The petitioner was advised by Dr. Mayanger to do the Stitching. The stitching was done and the patient was brought to the ward where the petitioner informed the attendant of the petitioner (sic patient) that there was no fracture on the right hip. The petitioner again advised for the X-Ray of the right hip and this time also X-Ray did not disclose any fracture on the right hip. On 29th March, 1986 the petitioner advised for the X- Ray of the left hip after consultation with Dr. Upadhyay and Dr. Mayanger and the X-Ray indicated the fracture on the left neck femur and at this juncture the attendant of the patient raised a hue and cry about the operation. After about two months the patient died on 6th May, 1986 of septicsceimia. Upadhyay and Dr. Mayanger and the X-Ray indicated the fracture on the left neck femur and at this juncture the attendant of the patient raised a hue and cry about the operation. After about two months the patient died on 6th May, 1986 of septicsceimia. It is stated that the cause of death has nothing to do with the operation and was not at all related with the fracture. On 11th May, 1986 Rakesh Kumar Gupta son of the patient sent a complaint to Superintendent, S.M.S. Hospital and a copy of the complaint was also sent to the Police Station, Moti Doongri. The police authorities treated the said complaint as F.I.R. and registered the same as F.I.R. No. 78/86. Meanwhile a committee was also constituted by the Principal, S.M.S. Medical College and this committee examined all the concerned persons and submitted its report on 4th May, 1986. Meanwhile the police made investigation and a challan was prepared on 8th May, 1986 and the charge-sheet was registered at serial No. 76/86. Thereafter the matter was sought to be investigated again and as a result of re- investigation it was found that there was no case of negligence on the part of the Medical doctor and a final report No. 27-A/87 was prepared. Before the final report could be submitted the matter was again examined by the Vigilance Department and ultimately the final report was submitted in the court of Addl. Chief Judicial Magistrate No. 3, Jaipur City, Jaipur. The Addl. Chief Judicial Magistrate No. 3, Jaipur City, Jaipur did not accept the final report and took cognizance against the petitioner, Ashok Raj Mehta and Shyam Sunder for the offence under Section 337 I.P.C. by order dated 8th May, 1990 and further issued bailable warrants. As a result of the cognizance under Section 337 Indian Penal Code, the petitioner filed the present petition under Section 482 Criminal Procedure Code before this Court on 23rd May, 1990. 5. It has been argued by Shri A.K. Bhandari on behalf of the petitioner Dr. Mukat Behari Sharma that so far as Dr. Mukat Behari Sharma the present petitioner is concerned, no negligence whatsoever can be attributed against him and Shri Bhandari has made a reference to the documents (Annexures 2 and 3) i.e. the letter sent by the Principal S.M.S. Medical College to the Controller and Head of the Orth. Mukat Behari Sharma that so far as Dr. Mukat Behari Sharma the present petitioner is concerned, no negligence whatsoever can be attributed against him and Shri Bhandari has made a reference to the documents (Annexures 2 and 3) i.e. the letter sent by the Principal S.M.S. Medical College to the Controller and Head of the Orth. and the reply to that given by Professor and Head of Orth. Department that the petitioner Dr. Mukat Behari Sharma was not at all in a position to clinically find out as to in which limb the patient had the fracture and in view of the X-ray reports he had no reason to find out that the patient had the fracture in the left limb instead of right limb. Shri Bhandari has submitted that the Professor and Head of the Department Dr. Upadhyay has categorically opined in document (Annexure-3) that petitioner Dr. Mukat Behari Sharma could not ignore the X-ray report and could not come to a finding on the basis of the clinical examination as to in which limb the patient had in fact sustained the fracture. It has been further argued by Shri Bhandari that if at all there has been any negligence it has been at the level of the radiographers in the matter of exchange of the X-rays of the two patients i.e. Ram Prasad Gupta and Noor Mohammad and so far as the present petitioner Dr. Mukat Behari Sharma is concerned he was a surgeon and if the X-ray reports showed that the fracture was in the right limb and the patient had been prepared for the operation of the right limb, by no stretch of imagination he could be held guilty if he proceeded with the operation of the right limb and it could hardly be expected from the surgeon to clinically find out the fracture in the left limb instead of the right limb, and, therefore, the Addl. Chief Judicial Magistrate had no material to take cognizance of the offence against the present petitioner under Section 337 I.P.C. Mr. Shyam Arya, P.P. who appeared on behalf of the respondents was not in a position to support the order of cognizance taken by the Addl. Chief Judicial Magistrate had no material to take cognizance of the offence against the present petitioner under Section 337 I.P.C. Mr. Shyam Arya, P.P. who appeared on behalf of the respondents was not in a position to support the order of cognizance taken by the Addl. Chief Judicial Magistrate No. 3, Jaipur City, Jaipur and he could not bring any such material to the notice of the Court on the basis of which it could be said that there was any evidence in the investigation on the basis of which the offence under Section 337 could be conceived against the present petitioner. 6. I have gone through the record of this case and having heard both the sides, I am satisfied that the present petitioner Dr. Mukat Behari Sharma is not at all guilty of any negligence in relying upon the X-ray reports and there was no material to take cognizance against Dr. Mukat Behari Sharma for an offence under Section 337 I.P.C. and he being the Orth. Surgeon, if proceeded to operate the right limb of the patient as per the X-ray report he did not commit any offence and there is no basis whatsoever for taking cognizance for an offence under Section 337 I.P.C. against him. It has become transparently clear that these criminal proceedings if allowed to continue against the petitioner, would amount to abuse of the process of the Court and would prolong the agony and suffering of the present petitioner for no fault on his part and as such on the merits of this case the impugned order taking cognizance against the present petitioner cannot be sustained in the eye of law and the proceedings cannot be allowed to continue against the petitioner. 7. Besides this Shri Bhandari has submitted that under Section 337 I.P.C. for causing hurt by act of injuring life or personal safety of others the punishment prescribed is imprisonment of either description for a term which may extend to six months or with fine which may extend to Rs. 500/- or with both and according to Section 468 Criminal Procedure Code there is a bar to take cognizance in such cases after the lapse of the period of limitation and the period of limitation prescribed under Section 468(b) in cases where the offence is punishable with imprisonment for a term not exceeding one year, is one year. 500/- or with both and according to Section 468 Criminal Procedure Code there is a bar to take cognizance in such cases after the lapse of the period of limitation and the period of limitation prescribed under Section 468(b) in cases where the offence is punishable with imprisonment for a term not exceeding one year, is one year. Shri Bhandari has submitted that the period of one year had expired in year 1987 itself as the offence, if any, had been committed in the year 1986 and, therefore, the taking of the cognizance after the expiry of the period of one year prescribed under Section 468(2)(b) was completely barred. Shri Bhandari in support of his contention has placed reliance on the case of K.C. Ghoshal and others v. The State, 1979 Crl. L.R.(4) Rajasthan p. 546 , wherein it has been held that if the delay is not satisfactorily explained to the period of limitation, cognizance taken by the Magistrate amounts to abuse to the process of the Court. In this case, the impugned-order is wholly oblivious of the consideration of the question of limitation and the Addl. Chief Judicial Magistrate No. 3, Jaipur City, Jaipur while passing the order taking cognizance did not even address itself to the question of limitation and has completely ignored the provisions of Section 468 Criminal Procedure Code and, therefore, it is apparent that the day on which the cognizance was taken, it was barred by the provisions of Section 468 Cr.P.C. It is informed that the Addl. Chief Judicial Magistrate did not even address himself to the question of limitation, he was not at all alive to the provisions of Section 468 Cr.P.C. Shri Bhandari has also referred to and placed for my perusal certified copy of an order dated 12th March, 1987 passed in Banwari and others v. Sheoji Ram and another, S.B. Cr. Misc. Petition No. 646/1986 . In this case also the cognizance was taken after the expiry of period of limitation under Section 468(2)(b) Criminal Procedure Code and the Misc. Petition was allowed and the order taking cognizance was set aside and quashed. Misc. Petition No. 646/1986 . In this case also the cognizance was taken after the expiry of period of limitation under Section 468(2)(b) Criminal Procedure Code and the Misc. Petition was allowed and the order taking cognizance was set aside and quashed. It was also observed by the Court in this order that the presiding officer should be conveyed the displeasure of the Court about the manner in which he had dealt with the case and a copy of the same should be kept in his personal file for which the Registrar is directed to do the needful. In this view of the matter, I hold that the Addl. Chief Judicial Magistrate No. 3, Jaipur City, Jaipur could not have taken cognizance of the offence against the petitioner on 8th May, 1990 with regard to the offence with offence had been committed in the year 1986 and, therefore, the impugned-order taking cognizance of the offence under Section 337 I.P.C. against the petitioner was barred by the provisions of Section 468 Cr.P.C. I have gone through the impugned-order dated 8th May, 1990 and since I find that the order has been passed without considering the question of period of limitation under Section 468 Criminal Procedure Code although the order itself shows that the offence related to the year 1986 and the Addl. Chief Judicial Magistrate had passed the order in the year 1990, it has to be agreed on all hands that the impugned-order is wholly oblivious of the provisions of Section 468 Criminal Procedure Code and, therefore, a copy of this order may also be sent to the concerned presiding office so that he may be careful in future while dealing with such matters. 8. 8. Before parting with this case, I may observe that it is really a dismal fact in which the radiographers have acted with gross negligence and while the impugned-order dated 8th May, 1990 is being quashed with regard to the petitioner who along has come to challenge this order taking cognizance of the offence against him which is being quashed and set-aside as against the petitioner, whatever may be the fate of these proceedings against the rest of the accused persons on the basis of the order by which the cognizance has been taken, a departmental action is certainly warranted against the erring radiographers who had exchanged the X-rays of Ram Prasad with that of another patient Noor Mohammad and it will be for the concerned department to take suitable departmental action against the erring radiographers. Although Shri Rakesh Kumar Gupta son of Shri Ram Prasad Gupta was arrayed as a non-petitioner in this case by the order of the Court and the appearance had also been filed on his behalf but when the case was taken up Shri S.S. Naruka appeared and submitted that in this case Mrs. Shanti Gupta is appearing on behalf of non- petitioner No. 2 but no one has appeared to espouse the cause of non-petitioner No. 2 who was the complainant in this case and on the basis of the submissions which have been made before me, I am more than convinced that the impugned-order dated 8th May, 1990 taking cognizance against the petitioner cannot be sustained in the eye of law for the reasons already stated here in above and the same is hereby quashed and set-aside as against the petitioner and the proceedings pending against the petitioner in criminal case are also quashed and set-aside. This petition under Section 482 Criminal Procedure Code is allowed as indicated above with regard to the petitioner Dr. Mukat Behan Sharma. The record be sent back immediately.Petition allowed. *******