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1995 DIGILAW 132 (MAD)

Dr. Veerabagu v. Devaraj (Minor)

1995-01-31

RENGASAMY

body1995
Judgment :- This Revisions is against the order of the learned Judicial Magistrate No. V, Coimbatore, in Crl.M.P. No. 2721 of 1992 rejecting the petition of the revision petitioner to discharge him exonerating the charge under Section 338, Indian Penal Code 2. The petitioner is a Dentist working in ESI Hospital at Coimbatore. The respondent herein, who is a minor boy, had swelling on the left side of his cheek on account of the decaying of a tooth and as his father was entitled to the treatment in the ESI Hospital, the minor boy as a dependent son, approached the revision petitioner for treatment. The allegation is that the revision petitioners, instead of extracting he decayed tooth on the left side cheek, extracted the healthy tooth on the right side, causing great inconvenience to the minor boy. He filed complaint before the police for necessary action against the petitioner herein but as his complaint to the police was not effective he filed the private complaint before the learned Judicial Magistrate against the revision petitioner for the offence under Section 338, Indian Penal Code. In the meanswhile, the minor boy filed a civil suit against the revision petitioner herein and another Doctor by name Dr. Shakia Farid and ESI Corporation before the III Additional Sub Judge, Coimbatore in OS No. 92 of 1986 and that suit, after trial, was dismissed in toto. On appeal before the leaned I Additional District Judge, the learned Judge found that the second defendant in the suit was responsible for this negligent act in extracting the tooth and therefore decreed the suit against the second defendant Shakia Farid and confirmed the dismissal of the suite against the defendants 1 and 3. As a civil Court has found that the revision petitioner herein was not responsible for the extraction of the healthy tooth, the revision petitioner filed the petition before the learned Judicial Magistrate, Coimbatore, to exonerate him of the charge as he has not committed the offence and discharge him. But the learned Judicial Magistrate, Coimbatore, did not accept the contention of the petitioner and dismissed the petition. Hence, this revision. 3. The treatment of the minor boy in ESI Hospital, Coimbatore, and the extraction of his tooth are not disputed. But the learned Judicial Magistrate, Coimbatore, did not accept the contention of the petitioner and dismissed the petition. Hence, this revision. 3. The treatment of the minor boy in ESI Hospital, Coimbatore, and the extraction of his tooth are not disputed. The only contention raised by the petitioner is that as he has been exonerated by civil Court, holding that he was not responsible for extracting the healthy tooth, but his assistant Shakia Farid was responsible, he cannot be prosecuted before the learned Judicial Magistrate and therefore he has to be discharged. 4. The learned Senior counsel for the petitioner, Mr. N. T. Vanamamalai, submitted that the civil Court's finding is always binding on the criminal Court, and in the matter of extracting the healthy tooth of the complainant minor boy Devaraj, the civil Court, after thoroughly analysing the evidence, has found that this revision petitioner was not responsible for that, and the criminal Court once again cannot go into the question, even though the criminal Court is entitled to try an offender and therefore the petitioner once again cannot be put to trial to find out the fact whether he extracted the healthy tooth of the minor boy, committing the offence under Section 338, Indian Penal Code. The learned Senior counsel relies upon a decision of the Supreme Court in Karam Chand v. Union of India, 1971 AIR(SC) 1244, 1971 (77) CRLJ 1072, 1970 (3) SCC 694 , 1971 UJ 26 ) : 1971 AIR(SC) 1244, 1971 (77) CRLJ 1072, 1970 (3) SCC 694 , 1971 UJ 26 which has been referred to before the learned Magistrate also. That was a case in which certain persons were prosecuted for the transportation of maize from State of Haryana to Howrah in West Bengal, which was an offence under the Essential Commodities Act. On the impression that the restrictions imposed for export of the essential commodities were removed by the Government, the maize, was transported to Howarah. However, the police seized the articles in the Railway Station and forfeited them for the violation of the provisions. The write petition was filed before the Delhi High Court for direction to release the confiscated maize on the ground that the ban on export of the goods was already lifted. However, the police seized the articles in the Railway Station and forfeited them for the violation of the provisions. The write petition was filed before the Delhi High Court for direction to release the confiscated maize on the ground that the ban on export of the goods was already lifted. The Supreme Court held that the High Court had powers to consider the question whether the lifting of the ban by the State Government was true and secondly whether the State Government was competent to lift the ban and consequently decided legality of the confiscation. In that connection, the Supreme Court observed "It is a well settled established principle of law that the decisions of the civil Courts are binding on the criminal Courts. The converse is not true. The High Court, after entertaining the writ petitions and hearing arguments on the merits of the case, should not have dismissed the petition merely because certain consequential proceedings had been taken on the basis that the exports in" question were illegal. For the decision of the controversy between the parties to the writ petitions, neither the presence of the State of West Bengal nor the authorities, who took penal, action, was necessary. "The learned Senior counsel Mr. N. T. Vanamamalai referred to a recent decision of this Court in Baggiam Doraiswamy v. State of Tamil Nadu 1994 (2) Mad LW (Crl 687) wherein it is held that the decision of the criminal Court is not binding on the civil Courts. Now, we are concerned only with the question whether the findings of the Civil Court is binding upon the criminal Court. As read above, the Supreme Court has observed that the Civil Court's decisions are binding on the criminal Courts, but not the converse, therefore, the civil Court's findings will have bearing upon the proceedings before the criminal Court. Now, we are concerned only with the question whether the findings of the Civil Court is binding upon the criminal Court. As read above, the Supreme Court has observed that the Civil Court's decisions are binding on the criminal Courts, but not the converse, therefore, the civil Court's findings will have bearing upon the proceedings before the criminal Court. While considering the effect of the order passed by the authorities under the Income-tax Act, the Supreme Court in Jeyappan v. Perumal, (84) 1985 (1) SCR 536 , 1984 AIR(SC) 1693, 1984 (S) SCC 437, 1984 (2) Crimes 436, 1984 CAR 341, 1984 CrLR(SC) 380, 1984 (149) ITR 696, 1984 (2) CRIMES 436, 1984 (42) CTR 180, 1984 CRLR 380, 1984 (2) TLR 1197, 1984 TaxLR 1197, 1984 SSCC 437, 1984 (19) Taxman 1 , 1984 (42) CTR(SC) 180) has observed as follows" In the criminal case, all he ingredients in question have to establish in order to secure the conviction of the accused. The criminal Court no doubt, has to give "due regard to the result of any proceedings under the Act having a bearing on the question in issue and in an appropriate case, it may drop the proceedings in the light of an order passed under the Act." In view of the decision of the Supreme Court, the criminal Court is bound to give weight and due regard to the findings of the Civil Court. 5. In the present case, the victim minor boy had already initiated a civil suit against this revision petitioner and two others namely the revision petitioner's assistant by name Dr. Shakia Farid and ESI Corporation for compensation of Rs. 20, 000/- for the wrong extraction of his healthy tooth. As defendants 1 and 2 of that suit were employed under the ESI Corporation and the second defendant to that suit was assisting the revision petitioner, that suit was filed against all the three. Though the learned III Additional Sub Judge, Coimbatore, dismissed the suit, the appellate Court, after thoroughly considering the evidence placed by the complainant herein, has found that the fault was only on the part of the second defendant of that suit, who remained expert. The complainant to this proceedings had examined as may as 7 witnesses and the complaint, his brother and mother were also examined in that suit. The complainant to this proceedings had examined as may as 7 witnesses and the complaint, his brother and mother were also examined in that suit. The learned Additional I District Judge has gone through the entire evidence and has found that the 1st defendant in that case, who is the revision petitioner herein, was not responsible for the wrong extraction of the healthy tooth of the minor boy, but his assistant, the 2nd defendant to that suit, was responsible. The learned Judge referred to the exchange of notices also between the parties. Anyhow, having deeply considred the evidence on both sides, the Civil Court has recorded the finding that this revision petitioner had not extracted the tooth and it was the fault of another doctor. Therefore, I also feel that once again the very same question cannot be gone into, by the criminal Court though it is the prerogative of the criminal Court to try an offender who is alleged to have committed the offences. What is to be considered in this proceedings by the criminal Court, namely, the criminal act of the accused, has been considered by the competent Civil Court in respect of the very same allegations, when compensation was claimed from the wrong doer. When the facts relating to the extraction of the tooth of the minor boy, who is the complaint herein, has been already through considered by the learned Additional District Judge for the claim of compensation and the revision petitioner herein has been exonerated of the charge of extracting the wrong and healthy tooth, the very same petitioner cannot be once again put on trial for the offence under Section 338, Indian Penal Code. Therefore, the lower Court was not right in dismissing the petition of the accused to discharge him, on the basis of the findings of the Civil Court. The learned Magistrate has referred to the decision in K. M. Mathew v. State of Kerala (1992 Mad LW (Crl 14) wherein it is held that the criminal Court is empowered to release the accused even after the issue of the process in the summons case. Therefore, the revision petitioner herein is entitled to seek his release. 6. The learned Magistrate has referred to the decision in K. M. Mathew v. State of Kerala (1992 Mad LW (Crl 14) wherein it is held that the criminal Court is empowered to release the accused even after the issue of the process in the summons case. Therefore, the revision petitioner herein is entitled to seek his release. 6. In the result, in view of the findings of the learned I Additional District Judge, Coimbatore, the revision petitioner cannot be tried as he has been exonerated of the charge, hence, the revision is allowed, discharging the accused.