( 1 ) THIS petition is filed under Section 482 Criminal Procedure Code questioning the order passed by the JMFC. , Kundapura, taking cognizance of the offence under Sections 337 and 338 of the Indian Penal Code in C. C. No. 3025/1996. Heard the learned Counsel for the petitioner and the learned SPP for the respondent. ( 2 ) THE learned Counsel for the petitioner has vehemently argued that if the entire case of the petitioner is taken into consideration no offence is made out as against these petitioners who are qualified Doctors and no negligence can be attributed to these petitioners. It is also submitted that act of these petitioners are well protected under law. Therefore the cognizance taken by the learned Magistrate is abuse of the process of the Court and calls for interference. ( 3 ) HOWEVER, the learned State Public Prosecutor contended that all these grounds can be urged by the petitioners before the learned Magistrate and it is too early for this Court to interfere with the order passed by the learned Magistrate in taking cognizance of the offence. While reconsidering the arguments he also submitted that the case requires to be tried by the learned Magistrate to find out as to whether these petitioners acted in good faith. In reply, the learned Counsel for the petitioners submitted that they very object of the Section 482 is to avoid abuse of process of Court and if these petitioners are made to stand a trial, it will lead to unnecessary delay and also causes inconvenience to them. In view of these arguments the question that arises for consideration is as whether it is a fit case to quash the order under Section 482 Criminal Procedure Code. Before considering these arguments it is now necessary to refer to the brief facts of the case which are as follows :-On 23-9-1996 the respondent filed a complaint in the Court below alleging that the first petitioner is running a hospital being the owner and the respondent was treated by the petitioners in the hospital. The petitioner Nos. 2 and 3 while treating the respondent used catheter to drain out the urine repeatedly for 3 days. On account of repeated catheterization, false passage of urethra was done by the accused persons. The petitioner Nos. 2 and 3 while treating the respondent used catheter to drain out the urine repeatedly for 3 days. On account of repeated catheterization, false passage of urethra was done by the accused persons. According to the respondent, the Doctors should have been aware of a false passage and trauma at the time of insertion of catheter to urethra is dangerous. The catheter was used so negligently without reasonable care and false passage was done. When they failed to control the bleeding from urethra and also leakage of urine, three days later referred him to Manipal Hospital. The claim made is that suprapubic cystostomy is the proper method to drainout the urine without trauma. Insertion of catheter to urethra is the crude and old method of treatment. On these grounds the respondent claimed that these petitioners have committed offence punishable under Section 337 and 338 of Indian Penal Code. ( 4 ) THE learned Magistrate after recording the sworn statement taking cognizance and directed to issue process to these petitioners. The said order is questioned in this petition. ( 5 ) FROM the above narration of facts, it is clear that all these three petitioners are qualified Doctors and as far as experience is concerned, is not disputed by the respondent. It is also an admitted fact that the respondent was admitted to the hospital in connection with some problem with his passing urine and also use of catheter to drive out the urine is one of the method of treatments. It is also not in dispute that he was treated using catheter for three days and thereafter he was referred to Manipal hospital, obviously as that hospital was fully equipped. With these backgrounds, it is now necessary to consider some of the decisions referred to by the learned Counsel for the petitioner. ( 6 ) OUR High Court in a decision reported in 1989 Acc CJ 393 the Court has taken into consideration faith and reasonable care and held that what has to be seen in a case is whether proper, fair and reasonable treatement was given by the accused and his colleagues to the deceased. If proper, reasonable and fair treatement is given and then if the death was ensued that cannot be attributed to any imaginary rashness or negligence on the part of the accused. If proper, reasonable and fair treatement is given and then if the death was ensued that cannot be attributed to any imaginary rashness or negligence on the part of the accused. ( 7 ) IN this case also as stated earlier the method adopted by the petitioner herein is one of the methods used for removing the urine but the respondent claims it is a old and crude method. Under the circumstance it cannot be said that there was any negligence or rashness on the part of the petitioners. The arguments of the learned State Public Prosecutor that the accused is at liberty to urge all these points before the Magistrate by filing an application under Section 258 also considered in this circumstances and it is held that it would be shear waste of public time and energy. What can be done at the earliest stage need not be postponed by saying that the same point can be urged before the Magistrate and accordingly the said plea was rejected. Similarly in this case also this argument of the learned SPP is liable to be rejected for the reasons stated above. ( 8 ) THE learned Counsel for the petitioner further placed reliance on a decision reported in 1987 Cri LJ 1316 wherein Madhya Pradesh High Court has held that operation of a cataract by a qualified Doctor with patients consent and the operation resulting in loss of sight, it is held that Doctor is not guilty under Section 338 by reason of Section 88 nor is he guilty. It is further held that Doctor is not guilty under Section 420. Similarly in Dr. Ajit Kaur v. State of Punjab, 1986 ACC 696 Punjab and Haryana High Court has dealt with a case under Section 304-A Indian Penal Code. In that case the allegation was that the petitioner therein induced delivery and used forceps as a result of which the child became sick and died after seven days. Therefore the complaint was lodged against the Doctor. In that case the allegation was that the petitioner therein induced delivery and used forceps as a result of which the child became sick and died after seven days. Therefore the complaint was lodged against the Doctor. While dealing with that case the High Court has held that action of the Medical Practitioner was not even proximately the cause of death of the child; in assessing penal responsibility a very high degree of negligence can be found, which amounts to recklessness or utter indifference to consequence and not merely negligence of tort; it is difficult to pin the Doctor with penal responsibility so that the Act might amount to a crime; criminal proceedings quashed. It is always open to the High Court to interfere where the facts are preposterous and the High Court feels satisfied that on the admitted facts there is no case against the accused and when the High Court is clearly of the opinion that further prolongation of the proceedings would amount to harassment, it is in the interest of justice that the High Court should interfere, on the basis of that High Court has quashed the proceedings. ( 9 ) IN Dr. Vedh Khuller v. State, 1998 ACC CJ 328 jammu and Kashmir High Court held that nothing has been shown that Doctor did not take sufficient care while performing preliminaries to the operation; in order to perform an operation surgical interference was necessary and if it has caused cardiac arrest, it cannot be attributed, in any manner to the negligence of the Doctor; mere carelessness is not sufficient for conviction under this Section; this section requires a mens rea or guilty mind and the rashness or negligence must be such as can fairly be described criminal. On the basis of it the order was set aside and the proceedings pending against the petitioner was quashed. ( 10 ) IN this case also, it is clear from the allegations contained in the complaint itself that the Doctors have treated the patient with the method normally adopted to drain out the urine from the bladder by using catheter. The only grievance of the respondent is that it is a old and crude method and that the petitioners ought to have used the suprapubic cystostomy which is the proper method used to drive out the urine. The only grievance of the respondent is that it is a old and crude method and that the petitioners ought to have used the suprapubic cystostomy which is the proper method used to drive out the urine. Under that circumstances it cannot be said that these petitioners were negligent in treating the respondent. Therefore as rightly pointed out by the learned Counsel for the petitioner even by taking the entire complaint it is clear that no offence is made out as against the petitioners. The duties which a Doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz. , a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judgment in the light of the particular circumstances of each case is what the law requires. ( 11 ) THE doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency. Therefore viewed from any angle the respondent has not made out any case as against the petitioners. In that circumstances, I have no hesitation to hold that it is fit case to interfere under Section 482, Cr. P. C. to quash the impugned order lest it would be a abusive process of Court. ( 12 ) IN the result therefore, I pass the following order : @@ 1. The petition is allowed. 2. The entire proceedings pending in C. C. No. 3025/1996 pending against these petitioners in the Court of Addl. Munsiff and J. M. F. C. Kundapura is set aside. 3. The complaint stands dismissed and these petitioners are discharged. @@ Petition allowed. --- *** --- .