Judgment 1. This is an application under Section 482 of the Code of Criminal Procedure, 1973 (in short the Code). It is directed against the entire proceeding arising out of complaint case No. 115(C) of 2001 pending before Shri V. Sharan, Judicial Magistrate, 1st Class, Danapur. The petitioner has further prayed for quashing of the order dated 5.3.2001 by which cognizance of the offence was taken against him by the learned Addl. Chief Judicial Magistrate, Danapur in the said case. His further prayer is for quashing of the order dated 8.6.2001 passed in the said complaint case by Shri V. Sharan, Judicial Magistrate, 1st Class, Danapur according to which upon an enquiry under Section 202 of the Code he found sufficient materials against the petitioner and other accused persons for issuance of the processes for the offences under Sections 326 and 338 of the Indian Penal Code. 2. From the prosecution case it appears that one Shashi Bhushan had filed the aforesaid complaint case before the Additlonal Chief Judicial Magistrate, Danapur alleging therein that his son Bishwajeet aged about nine months had developed some eye trouble due to coming in contact with needle. The complainant (opposite party No. 2) took his son to Dr. N.K. Singh, Medical Officer, Sadar Hospital, Danapur on 27.6.2000. He was assured by Dr. N.K. Singh that his son would be cured by medicines which he prescribed. The treatment continued but finally on 1.7.2000 Dr. N.K. Singh send the patient to another Doctor. Opposite party No. 2 took his son to Dr. Amar Verma of N.M.C.H. at his clinic. Bishwajeet was treated by Dr. Verma but finally after eight days he referred the patient to the present petitioner. 3. Opposite party No. 2 took his son to the present petitioner who after examining Bishwajeet prescribed some medicines. However, he opined that there was little chance of saving the eye of Bishwajeet and referred back the patient to Dr. Amar Verma for blood transfusion. 4. After blood transfusion again Dr. Amar Verma referred back the patient to the petitioner, Dr. Ram Jaipal Singh and Dr. Arjun Prasad Singh. Bishwajeet was brought to the petitioner who again sent him to Dr. Ram Jaipal Singh. The opposite party No.2 then contacted Dr. Arjun Prasad Singh who also opined that there was little chance of saving the eye of Bishwajeet. Amar Verma referred back the patient to the petitioner, Dr. Ram Jaipal Singh and Dr. Arjun Prasad Singh. Bishwajeet was brought to the petitioner who again sent him to Dr. Ram Jaipal Singh. The opposite party No.2 then contacted Dr. Arjun Prasad Singh who also opined that there was little chance of saving the eye of Bishwajeet. When again opposite party No. 2 came to the petitioner he told him that the affected eye of Bishwajeet had to be taken out or else his other eye will also be affected. 5. Opposite party No. 2 again approached Dr. Amar Verma who also confirmed what the petitioner had told about Bishwajeet. Dr. Amar Verma cautioned the petitioner not to delay the matter any further but to contact Dr. Ram Jaipal Singh for the removal of the eye of Bishwajeet. When opposite party No. 2 contacted Dr. Ram Jaipal Singh he referred the patient to Dr. Ashok Mishra for getting C.T. Scan of the eye. Opposite party No. 2 again met Dr. Ram Jaipal Singh alongwith C.T. Scan report on which he opined that the left eye had became useless and had developed cancer and, therefore, it was necessary to take out left eye. Finding no alternative opposite party No. 2 got the left eye of Bishwajeet removed by Dr. Ram Jaipal Singh. He, however, got the extracted eye chemically examined by Dr. Dilip Kumar who gave his report on 22.7.2000 to the effect that there was no malignancy. To cross check this report opposite party No. 2 took the eye-ball of his son to Dr. U.K.Jha who also reported that there was no tumour in the eye ball. He further told that there was no necessity to take out the eye of Bishwajeet. 6. The petitioner has contended that on the basis of those facts opposite party No. 2 had consulted as many as six doctors named above. After hearing the learned counsel for the complainant learned Additional Chief Judicial Magistrate, Danapur took cognizance of the offence under Section 192(1) of the Code and transferred the case to Shri V. Sharan, Judicial Magistrate, Ist Class for enquiry under Section 202 of the Code. Learned Magistrate, however, without holding proper enquiry in the matter by his order dated 8.6.2001, found that no case was made out against Dr. Learned Magistrate, however, without holding proper enquiry in the matter by his order dated 8.6.2001, found that no case was made out against Dr. N.K.Singh of Danapur Sadar Hospital (who had treated the Bishwajeet from 27.6.2000 to 1.7.2000) but issued processes against remaining accused including the present petitioner under Sections 326 and 338 of the Indian Penal Code. 7. The petitioner has contended that he is innocent and has not committed any offence. He has been falsely implicated in this case. Even on the basis of the allegations made in the complaint petition no case against the petitioner is made out. For the first time on 7.7.2000 the petitioner had examined Bishwajeet who was referred to him by Dr. Amar Verma. He was prescribed eye ointment for three days and thereafter the petitioner advised for some blood test. When again on 10.7.2000 the petitioner had examined Bishwajeet he found white vaseularised mass in front of retina. So in order to confirm the diagnosis he advised for C.T. Scan of arbit of the patient as will appear from his prescription dated 7.7.2000 (Annexure 2). 8. However, opposite party No. 2 got his son Bishwajeet examined by other doctors and did not follow the advice given by the petitioner as will appear from C.T. Scan report dated 14.7.2000 (Annexure 3) from which it would appear that the patient was referred for C.T. Scan examination not by the present petitioner but by the Dr. Ram Jaipal Singh. Ever since 10.7.2000 the day on which the petitioner had examined Bishwajeet, opposite party No. 2 never met him rather he opted to consult other doctors and persue other line of treatment. All that the petitioner did was merely check-up the patient and to prescribe some ointment and test. As such he can not be held responsible for the loss of the eye of Bishwajeet. 9. The petitioner has further contended that as a matter of fact no case under Sections 326 and 338 of the Indian Penal Code was made out against him. Though similar allegation was made also against Dr. N.K. Singh who was the first doctor to examine the patient but the learned Magistrate for the reasons best known to him held that no case against him was made out. Though the allegations against the present petitioner are also identical but he has been proceeded against him for no fault of his own. N.K. Singh who was the first doctor to examine the patient but the learned Magistrate for the reasons best known to him held that no case against him was made out. Though the allegations against the present petitioner are also identical but he has been proceeded against him for no fault of his own. 10. In the course of the enquiry under Section 202 of the Code two witnesses, namely, Malti Devi and Ajay Kumar Yadav were examined but they have not been able to make out any case against the present petitioner. The dispute, if any, between the parties is of civil nature for which opposite party No. 2 has already filed a case before the District Consumer Forum Bearing Case No. 638 of 2000. Even though opposite party No. 2 had received the report dated 2.8.2000 from Dr. U.K. Jha to the effect that there was no necessity to take out eye of Bishwajeet he waited for more than six months before filing the complaint petition (complaint case No. 115-C/2001) on 23.2.2001. In the meantime he was trying to extract money from the petitioner and others. The petitioner has, accordingly, filed this application for quashing the entire criminal proceedings of complaint case No. 115-C/2001 as also for quashing the two orders dated 5.3.2001 passed by the learned Addl. Chief Judicial Magistrate, Danapur and the order dated 8.6.2001 passed Shri V. Sharan, Judicial Magistrate 1st Class, Danapur. 11. On behalf of the petitioner it has been submitted that he has acted in a bona fide manner and had taken all necessary precautions in the matter. He has contended that for the first time he had occasion to examine Bishwajeet on 7.7.2000 as referred to him by Dr. Amar Verma. He had advised atropine eye ointment in both eyes for three days. He also advised some blood test which he thought necessary. The patient was re-examined by him on 10.7.2000. In the meantime due to eye having come intact with a needle he found white vaseularised mass in front of retina. He, accordingly, advised for C.T. Scan of orbit which was necessary for finding out the extent of damages. Ever since 10.7.2000 when he has advised for the aforesaid test he had no occasion to examine the patient nor opposite party No. 2 ever contacted him. He, accordingly, advised for C.T. Scan of orbit which was necessary for finding out the extent of damages. Ever since 10.7.2000 when he has advised for the aforesaid test he had no occasion to examine the patient nor opposite party No. 2 ever contacted him. On the other hand he did not follow his advice and got the patient examined by other doctors as will appear from the report of C.T. Scan disclosing that the patient was referred for this examined by Dr. Ram Jaipal Singh and not by the present petitioner. Under these circumstances the petitioner has contended that through-out his conduct was bona fide and provisionally shown and no case absolutely against him is made out even if the entire allegations of opposite party No. 2 is accepted as correct. In this connection my attention has been drawn to the evidence of witness No. 2, Malti Devi, the mother of Bishwajeet examined under Section 202 of the Code. In her evidence she has stated that eye of Bishwajeet was injured by a needle. She got the patient examined by Dr. N.K. Singh of Danapur. Thereafter she got him examined by Dr. Amar Verma. Finding no improvement she got him examined by the present petitioner. After this she got her son examined by Dr. Arjun Prasad Singh who advised her for removal of the eye. The other witness examined under Section 202 of the Code is witness No. 1 Ajay Kumar Yadav. He has also not made any specific allegation against the present petitioner but has simply stated that Bishwajeet was also examined by him. It was subsequently on the advice of Dr. Arjun Prasad Singh that the eye was removed. 12. From the aforesaid it would appear that even in the enquiry under Section 202 of the Code no particular offence against the petitioner could be made out even if the entire allegations made against him are accepted as correct. Other important thing to be noted in this connection that from the impugned order dated 8.6.2001 the learned Magistrate on the basis of same set of evidence or allegation found no case was made out against Dr. N.K. Singh of Sadar Hospital, Danapur who was the first doctor who treated Bishwajeet for 4-5 days. Other important thing to be noted in this connection that from the impugned order dated 8.6.2001 the learned Magistrate on the basis of same set of evidence or allegation found no case was made out against Dr. N.K. Singh of Sadar Hospital, Danapur who was the first doctor who treated Bishwajeet for 4-5 days. Under this circumstance on behalf of the petitioner it has been contended that how action against him could be taken when on identical allegation Dr. N.K. Singh has been let off. 13. Further my attention has been drawn to the order sheet dated 5.3.2000/ 26.3.2000 according to which the learned Addl.Chief Judicial Magistrate of Danapur had taken cognizance of the offence under Section 192(1) of the Code and transferred the case for enquiry under Section 202 of the Code to the Court of Shri V. Sharan, Judicial Magistrate, Ist Class. A perusal of Section 192(1) of the Code will clearly to show that no cognizance can be taken by the Magistrate under this Section. As a matter of fact the cognizance has to be taken under Section 190 of the Code and not under Section 192(1) of the Code. It is only after taking of the cognizance that the cognizance taking Magistrate may make over the case for enquiry or trial to any competent Magistrate subordinate to him in accordance with the provisions of Section 192(1) of the Code. It was for the transferee Magistrate to decide whether to hold enquiry under Sectidn 202 of the Code or not. From this order, however, it appears that after taking cognizance of the offence the learned Addl. Chief Judicial Magistrate had asked the transferee Magistrate to hold enquiry under Section 202 of the Code for the issuance of the process against the accused persons. From Section 192(1) of the Code, however, it would appear that it will be within the discretion of the transferee Magistrate to issue summons immediately against the accused on the case being transferred to him under Section 192(1) of the Code or to held further enquiry in the matter under Section 202 of the Code before the issue of the process against the accused. Both these directions, therefore, appeared to be not in accordance with law. 14. Both these directions, therefore, appeared to be not in accordance with law. 14. Learned counsel appearing on behalf of the petitioner has submitted that from the fact of this case it would appear that absolutely no case against the petitioner is made out. In this connection he has contended that opposite party No. 2 had consulted as many as six doctors and had not abided with the advice given by the present petitioner. Under this circumstance he has pointed out even if the entire allegations made against him are accepted as correct absolutely no case much less a case under Section 326 and 338 of the Indian Penal Code is made out against him. He has further contended that even after the report submitted by Dr. J.K. Jha opposite party No. 2 waited for more than six months before filing the complaint petition and in the meantime he was trying to fleece money from the petitioner on one pretext or the other. When the petitioner refused to oblige him, out of vendetta he has filed the present case only to harass him and to cause the loss of his reputation. He has submitted that no body should be allowed to use the process of law to wreck vengeance and to settle personal score with any body and the law Courts should not act to satisfy the personal vendetta of any litigant. In this connection he has drawn my attention to the case of Punjab National Bank and others V/s. Surendra Prasad Sinha, AIR 1992 SC 1815 . In the said case it was held that judicial process should not be an instrument of oppression or needless harassment. The Court should be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of private complainant as vendetta to harass the persons needlessly. 15. Relying on this decision it has been submitted that the law does not permit a private litigant to misuse the judicial process as an instrument of oppression and harassment. Also it was point out that the Courts should not allow itself to be used as an arena to settle the personal vendetta against two persons. 16. 15. Relying on this decision it has been submitted that the law does not permit a private litigant to misuse the judicial process as an instrument of oppression and harassment. Also it was point out that the Courts should not allow itself to be used as an arena to settle the personal vendetta against two persons. 16. Learned counsel for the petitioner has further drawn my attention to the case of S.N. Palanitkar and others V/s. State of Bihar and another, AIR 2001 SC 2960 , in which it has clearly been held that the exercise of inherent power is available to the High Court to give effect to any order under the Cr PC or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It has been further held in this decision that in appropriate cases : "to prevent judicial process from being an instrument of oppression or harassment in the hands of frustrated or vindictive litigants, exercise of inherent power is not only desirable but necessary also, so that the judicial forum of Court may not be allowed to be utilized for any oblique motive. When a person approaches the High Court under Section 482, Cr PC to quash the very issue of process, the High Court on the facts and circumstances of a case has to exercise the powers with circumspection to really serve the purpose and object for which they are conferred." 17. From the record it appears that notice of filing of this case was properly serviced on opposite party No. 2 but he has not appeared in this case. The service of notice was deemed to be valid as will appear from the order dated 18.8.2003. As such no body could be heard on behalf of opposite party No. 2. 18. From the aforesaid it would appear that this is a fit case for quashing of the cognizance taken against the present petitioner by the order of the learned Addl. Chief Judicial Magistrate, Danapur on 5.3.2001. Also the impugned order dated 8.6.2001 passed by Shri V. Sharan, Judicial Magistrate, Ist Class for issue of the process against the present petitioner as also the entire criminal proceeding against him arising out of complaint case No. 115-C of 2001 are also required to be quashed. 19. Chief Judicial Magistrate, Danapur on 5.3.2001. Also the impugned order dated 8.6.2001 passed by Shri V. Sharan, Judicial Magistrate, Ist Class for issue of the process against the present petitioner as also the entire criminal proceeding against him arising out of complaint case No. 115-C of 2001 are also required to be quashed. 19. For the reasons stated above, this application is allowed and the impugned order as also the entire criminal proceeding against the present petitioner so far as they relate to him will stand quashed.