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Gauhati High Court · body

2011 DIGILAW 956 (GAU)

Ruby Jose v. Pradip Chandra Trivedi

2011-12-07

C.R.SARMA

body2011
JUDGMENT C.R. Sarma, J. 1. By this application, filed under Section 482 of the Code of Criminal Procedure (for short, 'Cr PC'), the petitioner, who is the accused in Complaint Case (Criminal) No. 566 of 2003, pending before the learned Sub Divisional Judicial Officer, Kamalpur, Dhalai, has prayed for quashing the said complaint and the proceeding arising out of the same. I have heard Ms P. Dhar, learned counsel appearing for the petitioner and the learned Senior counsel assisted by Mr. B. Banerjee, learned counsel appearing for the respondent. 2. The respondent, as complainant, filed a complaint case, C.R. case No. 566 of 2003, before the SDJM, Kamalpur, Dhalai against the petitioner, alleging commission of offences under Sections 304A and 336 of the Indian Penal Code (for short, 'IPC') in connection with the death of the wife of the complainant. 3. The complainant's case, as necessary for disposal of this matter may, in brief, be stated as follows :- Smt. Sushila Tribedi (hereinafter referred to as the deceased') who was the wife of the complainant, was suffering from irregular menstruation. She was admitted in 'Green-view Nursing Home', Silchar, on 25.4.2001, wherein it was diagnosed that she was suffering from endometrial tumor in her uterus and accordingly she was advised to get the same removed by way of surgery. For better treatment and necessary surgical operation towards the removal of the said tumor, the deceased was taken to the Christian Medical College & Hospital, Vellore (hereinafter referred to as "CMCH") and, on 25.5.2001, she attended the said hospital as an outdoor patient. In the said hospital, many examinations and tests were done and, on 9.8.2011, the petitioner, who attended her, on the basis of ultra sound scan and other tests, opined that she was not suffering from endometrial tumor in respect of her uterus and that the uterus of the deceased was normal. However, the deceased was diagnosed, by the petitioner, to be suffering from hormonal problem and accordingly, medicine was prescribed, Thereafter, the deceased returned to Kamalpur and followed the medical advice, given by the petitioner. As the deceased, even after taking the medicine, as advised by the petitioner, experienced complications, she had made communication with the petitioner informing her about the complications she was suffering from. As the deceased, even after taking the medicine, as advised by the petitioner, experienced complications, she had made communication with the petitioner informing her about the complications she was suffering from. In response to the said communication, the petitioner, by her letter, dated 20.9.2001, informed her not to be worried about the bleeding, which was stated to be not unusual and advised her to follow the advice mentioned in her said letter. Accordingly, on good faith, as advised by the petitioner, she took tablet "Novelon" instead of "Ovral". However, despite taking the said medicine, the condition of the petitioner deteriorated and she experienced intensive bleeding per vagina. Therefore, on 12.11.2001, she got admitted in BSM hospital, Kamalpur, wherefrom, she was referred to IGM hospital, Agartala. In the IGM hospital, Agartala, after various test and examination, the attending doctor diagnosed that she was suffering from endometrial tumor in her uterus. Therefore, on being referred, the deceased, on 10.12.2001, attended Cancer Research Centre Welfare Home and Research Institute, Thakur-pukur, wherein it was confirmed that she was suffering Stage-II malignant endometrial tumor, which was at the terminal stage. She was informed, in the said Cancer Institute, that she ought to have attended the Cancer Institute much earlier and that, due to delay, it was not possible to make any intervention by way of surgery. Subsequently, on 01.9.2003, the deceased died due to her said illness. According to the complainant, the deceased attended the CMCH for removal of her uterine tumor and took the services, rendered by the petitioner, who after various tests and examinations gave a clean chit by categorically stating, in her report, that the deceased was not suffering from any tumor in her uterus, except hormonal disorder, for which medicine was prescribed to her. The further allegation of the complainant is that, even after communication made by the deceased regarding her aggravated complication, the petitioner" by her letter, dated 20.9.2001, changed the tablet and even after taking the said tablet, the condition of the petitioner further deteriorated compelling her to attend BSM hospital, Kamalpur and IGM hospital, Agartala and lastly Cancer Research Institute, Kolkata. According to the complainant, due to the wrong advice, given by the petitioner, the deceased wasted her time and, thus, failed to take opportunity of undergoing surgical operation for removal of the tumor from her uterus, as a result of which she died on 01.09.2003. According to the complainant, due to the wrong advice, given by the petitioner, the deceased wasted her time and, thus, failed to take opportunity of undergoing surgical operation for removal of the tumor from her uterus, as a result of which she died on 01.09.2003. On receipt of the said, complaint, the learned Magistrate examined the complainant and one Medical Officer, produced by the complainant as witness. Considering the complaint, the relevant papers and the statements of the complainant as well as his witness, the learned Magistrate decided to proceed against the petitioner and accordingly took cognizance of the offences under Sections 304A and 336 of IPC and issued summons to the petitioner. On receipt of the said summons, the accused, as petitioner, has come up with this petition for quashing the complaint, filed against her, on the ground that no prima facie case, under Sections 304A/336, IPC, could be made out against her and that the learned Magistrate had no territorial jurisdiction to entertain the complaint against the petitioner. In the said petition, it has also been stated that the trial Court failed to appreciate, at the time of taking cognizance, that the petitioner, being a Doctor, holding a doctorate degree in Medicine and a diploma in Obstetrics and Gynaecology, was a Senior Reader in the Department of Obstetric and Gynaecology in the CMCH, Vellore and that a screening test for cancer (pap smear) as well as ultra sound scan of the pelvic, to determine uterine tumor, were done and those tests were found to be negative for any tumor of the uterus. According to the petitioner, the said findings and the above mentioned tests were found to be co-relative and, on the basis of the said tests/examinations, she opined that the deceased was suffering from dysfunctional uterine bleeding and accordingly she was advised to take cyclical hormonal treatment for a few months. It has also been stated, in the said petition, that the deceased was never under the constant care or supervision of either the petitioner or in CMCH, Vellore, and that on the basis of the letter, dated 24.8.2001, received from the deceased, the petitioner, by her letter, dated 20.9.2001, advised her to take tablet "Novelon" instead of "Ovral". It has also been stated, in the said petition, that the deceased was never under the constant care or supervision of either the petitioner or in CMCH, Vellore, and that on the basis of the letter, dated 24.8.2001, received from the deceased, the petitioner, by her letter, dated 20.9.2001, advised her to take tablet "Novelon" instead of "Ovral". It has also been stated that, after the said advice, the deceased never attended the CMCH and that the endometrial tumor in her uterus was diagnosed in the middle of November, 2001 i.e. after a gap of about seven months from attending the CMCH. In the said petition, filed under Section 482, Cr PC, the petitioner has also stated that the deceased, except attending the CMCH, Vellore, that too for two days, was never under direct contact with the petitioner during the said long period i.e. till her death. It is also stated that the complaint is silent regarding the cause of the death of the deceased and that there is nothing on record to show that there was any rash or negligence, on the part of the petitioner, leading to the death of the deceased. 4. Ms. P. Dhar, learned counsel appearing for the petitioner has submitted that the petitioner had prescribed the medicine, ruling out existence of any rumor, in the uterus of the deceased, on the basis of tests including clinical analysis, ultra sound, screening test for cancer (pap smear) etc and that the medical advice, made by the petitioner, to take tablet "Novelon" or "Ovral", was not the direct and proximate result of death of the deceased. The learned counsel further submitted that, as the petitioner had prescribed medicine after examining the deceased and on the basis of the report of clinical tests including sonography, there was no gross negligence or recklessness on the part of the petitioner. It is also submitted that as the deceased died on 1.9.2003 i.e. after about two years from attending the petitioner at the CMCH, the medical service, rendered by the petitioner, was not the direct cause of her death and as such no prima facie case could be made out under Sections 304A and 336, IPC to show that the deceased died due to rash and negligent act of the petitioner or that the petitioner had done anything rashly or negligently as to endanger the life of the deceased. The learned counsel, referring to the statements, made in the complaint petition, has submitted, that the complainant, in his complaint, clearly stated that the deceased was subjected to many tests/examinations including ultra sound scan at the CMCH, Vellore, wherein it was opined that the uterus of the complainant's wife was normal and that no adrenal mass was found. The learned counsel further pointed out that the complainant, in his complaint, also stated that it was diagnosed that the deceased was suffering from, hormonal problem. Therefore, it is submitted that the petitioner, after due examination, prescribed the tablet "Ovral" and for this, on being communicated again with the petitioner, the latter, by her letter, dated 20.9.2001, had advised her to take tablet "Novelon" instead of "Ovral". Referring to the statement, made by the complainant, the learned counsel has submitted that, it has been clearly revealed that the said medicine was prescribed towards the treatment of hormonal problem, which disease was detected on the basis of tests and examinations done in respect of the deceased in the CMCH. Therefore, it is submitted that the complainant failed to make out a case that the petitioner, while describing the said medicine, and ruling out the existence of any tumor in uterus of the deceased, acted with gross negligence or recklessness requiring prosecution for the offences under Sections 304A/336, IPC. In view of the above, the learned counsel has submitted that the learned Magistrate 'committed illegality by taking cognizance of the offences under Sections 304A/336, IPC and that the continuance of the proceeding would cause grave illegality. Therefore, it is submitted that, to prevent the abuse of process and miscarriage of justice, the proceeding is liable to be set aside and quashed. In support of her contention, the learned counsel has relied on the following decisions :- (i) Ambalal D. Bhatt v. State of Gujarat, AIR 1972 SC 1150 ; (ii) Ranjit Nath v. State of Assam, 1997 (III) GLT 126; (iii) Kurban Hussain Mohamedalli Ran-gawalla v. State of Maharashtra, AIR 1965 SC 1616 ; (iv) Dr. Suresh Gupta v. Govt. In support of her contention, the learned counsel has relied on the following decisions :- (i) Ambalal D. Bhatt v. State of Gujarat, AIR 1972 SC 1150 ; (ii) Ranjit Nath v. State of Assam, 1997 (III) GLT 126; (iii) Kurban Hussain Mohamedalli Ran-gawalla v. State of Maharashtra, AIR 1965 SC 1616 ; (iv) Dr. Suresh Gupta v. Govt. of NCT of Delhi and another, (2004) 6 SCC 422 ; (v) Jacob Mathew v. State of Punjab and another, (2005) 6 SCC 1 ; (vi) Kusum Sharma and others v. Batra Hospital and Medical Research centre and others, 2010 AIR SCW 1315; (vii) Shakson Belthissor v. State of Kerala & another, 2010 AIR SCW 2494; (viii) S. Khusboo v. Kanniammal & another, 2010 AIR SCW 2770; (ix) Som Mittal v. Government of Karnataka, 2008 AIR SCW 1640; (x) Dinesh Dutt Joshi v. State of Rajas-than and another, (2001) 8 SCC 570 . 5. Controverting the said argument, advanced by the learned counsel for the petitioner, the learned Senior counsel, appearing for the respondent-complainant, referring to the complaint petition, the statement of the complainant and his witness, made under Section 200, Cr PC, has submitted that the Greenview Nursing Home, Silchar, Assam, initially diagnosed that the deceased was suffering from endometrial tumor in her uterus and on being advised for removal of the said tumor, the deceased attended the CMCH, wherein she was under the treatment of the petitioner. The learned Senior counsel submitted that the petitioner gave a clean-chit to the complainant indicating that she was not having any tumor in her uterus, except having some hormonal disorder and accordingly, medicine was given to her. The learned counsel further submitted that even after taking the medicine, prescribed by the petitioner, the complication of the deceased continued and on being approached by the deceased, the petitioner, by her letter, dated 20.9.2001, changed the tablet, prescribed earlier. But, on 12.11.2001, the IGM hospital, Agartala again diagnosed that she was suffering from endometrial tumor in her uterus, which became malignant, reaching stage-II, for which no surgical operation was possible. According to the learned Senior counsel, due to the wrong advice given and wrong diagnosis made by the petitioner, the complainant failed to undergo surgical operation, despite advised by the doctor of Greenview Nursing home, Silchar and ultimately she died on 01.09.2003. According to the learned Senior counsel, due to the wrong advice given and wrong diagnosis made by the petitioner, the complainant failed to undergo surgical operation, despite advised by the doctor of Greenview Nursing home, Silchar and ultimately she died on 01.09.2003. In view of the above, the learned senior counsel has submitted that the complainant has made out a prima facie case against the petitioner, as such there is no sufficient cause for interference by this Court. In support of his contention, the learned Senior counsel has referred to the following decisions:- (i) State of Haryana and others v. Bhajan Lal and others, 1992 Supp (1) SCC 335; (ii) Santosh De v. Archina Guha, 1994 (2) SCC 420 ; (iii) Abdul Rehman Antulay and others v. R.S. Nayak and another, (1992) 1 SCC 225 ; (iv) Fakhruddin Ahmad v. State of Uttaranchal and another, (2008) 17 SCC 157 ; (v) Pankaj Kumar v. State of Maharashtra and others, (2008) 16 SCC 117; (vi) Malwa Cotton and Spinning Mills Limited v. Virsa Singh Sidhu and others, (2008) 17 SCC 147 ; (vii) State of M.P. v. Awadh Kishore Gupta and others, (2004) 1 SCC 691 ; (viii) State of A.P. v. Golconda Linga Swamy, (2004) 6 SCC 522 ; (ix) Pratibha v. Rameshwari Devi and others, (2007) 12 SCC 369 ; (x) Alpic Finance Ltd. v. P. Sadasivarr, (2001) 3 SCC 513 ; (xi) State of M.P. v. Suresh Kaushal and another, (2003) 11 SCC 126; (xii) State of U.P. v. Raj Bahadur Singh, (1998) 8 SCC 686 ; (xiii) Mohammed Aynuddin alias Miam v. State of Andhra Pradesh (2000) 7 SCC 72 . 6. Having heard the learned counsel for both the parties, I have carefully gone through the complaint lodged by the complainant against the petitioner, and the statements recorded under Section 200, Cr PC Section304A, IPC, which reads as follows, provides the penal provision in respect of death of a person, caused by doing any' rash or negligent act: 304-A. Causing death by negligence.- Whoever causes death of any person by doing any rash or negligent act not amounting to culpable homicide/shall be punished with imprisonment of either description for a term which may extend to two years/or with fine/or with both. Section 336, IPC provides the penal provision in respect of committing any act so rashly or negligently as to endanger human life or the personal safety of others. 336. Act endangering life or personal safety of others.-Whoever does any act so rashly or negligently as to endanger human life or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to three months/or with fine which may extend to two hundred and fifty rupees/or with both. In order to initiate a proceeding under Section 304A, IPC, it must be established, prima facie, that the accused caused the death of any person, that such death was caused by the accused doing any rash or negligent act and that the death did not amount to culpable homicide. Similarly, for the offence under Section 336, IPC, it has to be, prima facie, established that some act was done and that such act was rash or negligent endangering human life or personal safety of others. 7. There is no dispute about the death of the deceased. Now, the question is, whether the complaint petition reveals a prima facie case to show that the death of the deceased was caused due to rash or negligent act, on the part of the petitioner. The complainant, in his complaint petition, has stated that the Greenview Nursing Home, Silchar, during the period from 25.4.2001 to 28.4.2001, diagnosed that the deceased was having endometrial tumor in her uterus and, for the purpose of removing the uterus, the deceased attended the CMCH, Vellore, wherein various examinations and tests, including ultra sound scan, were done in respect of the deceased and, on 9.8.2001, the petitioner, by issuing a report, opined that the deceased was not suffering from endometrial tumor in her uterus, but she was having hormonal problem, for which medicine was prescribed. In the complaint, it has further been alleged that, despite taking the medicine, prescribed by the petitioner, the complication of the deceased continued and, on being communicated by letter dated 20.9.2001, the petitioner, by letter, dated 20.9.2001, advised her not to be worried about the bleeding, which was not unusual and accordingly asked her to follow the advice already given to her, suggesting her to take tablet "Novelon" instead of "Ovral". As revealed from the said complaint petition, despite taking the said medicine, the complication of the deceased continued and subsequently, on 12.11.2001, the IGM hospital, Agartala diagnosed that she was suffering from endometrial tumor in her uterus and the Cancer Research Centre & Welfare Home, Thakurpukur, Kolkata, confirmed the malignancy and indicated that the same had attained the stage-II, i.e. the stage at which it was not possible to remove the uterus. As stated in the complaint, the deceased died on 01.09.2003. A careful perusal of the complaint, reveals that the petitioner, before ruling out the existence of any tumor in the uterus of the deceased and prescribing her medicine for hormonal problem, conducted various tests and as the complication with regard to the bleeding continued, on being communicated by the deceased, the petitioner advised her to take tablet "Novelon" instead of "Ovral". Supporting the contentions made in the said complaint, the complainant, in his statement under Section 200, Cr PC, stated that they had shown all the reports issued by the Greenview Nursing Home, Silchar, Assam regarding existence of tumor in the uterus of the deceased and that, at the CMCH, Vellore, also the deceased had undergone several examinations, including blood test, pap smear test and ultra sound scan and after conducting all such examinations, the attending doctor i.e. the petitioner had told that her uterus was normal and that no malignancy was found. According to the complainant the said attending doctor had disclosed that his wife i.e. the deceased was suffering from hormonal problem, for which she was advised to take tablet "Ovral". He further stated that, after their return from Vellore and despite taking "Ovral" tablet, the condition of his wife continued to deteriorate, day by day, and as such his wife had written to the petitioner soliciting her advice and further course of action, but the petitioner, in response to the said letter, advised her to continue with the earlier medicine i.e. tablet Ovral and also advised that she may take "Novalon" as substitute. The complainant further stated that, as the condition of the deceased did not improve, she was investigated upon at IGM hospital, Agartala, and, on 12.11.2001, it was detected that the deceased was suffering from adenocarcinoma cervix and she being moved to Kolkata, it was found that she was suffering from cancer of her uterus and that there was no scope to undertake any operation. According to the complainant, though radio therapy and cameo therapy were prescribed, the deceased, due to cancer of her uterus, died on 01-09.2003. He stated that his wife would have survived, had she been properly treated at the CMCH, Vellore, and that, due to the assurance, given by the petitioner, the complainant did not take his wife to any other doctor or hospital. According to the complainant, his wife died to due to sheer negligence and irresponsible treatment at the hand of the petitioner. Supporting the statement made by the complainant, Dr. Narayan Pal, a Medical Officer attached to 85-M hospital, Kamalpur stated, that, on 24.4.2001, he examined the deceased with the history of bleeding per vagina and anaemia. He also stated that, on the basis of diagnosis, it was found that she was suffering from fivroid uterus and that perusing the medical report, issued by the petitioner and produced by the complainant, found no mention about any diagnosis report. He further stated that, as per the report aforesaid, the patient was advised to take cyclical hormone. According to this witness, the report of the CMCH, Vellore, in respect of pap smear test for malignant cell was negative and the ultra sound scan also indicated that the uterus was normal without any adrenal mass. According to the said Medical Officer, the petitioner did not mention the name of the disease (diagnosis) in her report, dated 9.8.2001. He further stated that, as per pathological report, issued from Silchar, the patient was asked to repeat the endometrial biopsy to rule out adenocarcinoma. The Medical Officer further stated that the petitioner by her letter, dated 20.9.2001, advised the deceased to continue with the tablet "Ovral" even if there was breakthrough bleeding or to take "Novelon" instead of "Ovral". He stated that both "Ovral" and "Novelon" are cyclical hormone. The Medical Officer further stated that, it is not permissible to prescribe any cyclical hormone to any patient, suffering from undiagnosed bleeding per vagina. He stated that both "Ovral" and "Novelon" are cyclical hormone. The Medical Officer further stated that, it is not permissible to prescribe any cyclical hormone to any patient, suffering from undiagnosed bleeding per vagina. From the above, it is clearly found that the petitioner was a medical practitioner and she having sufficient skill, arrived at her findings on the basis of medical examination and tests. From the statement of the witness No. 2, who is a medical practitioner, it is found that cyclical hormone can't be prescribed without diagnosis. 8. In view of the above facts and circumstances, it is required to be examined, if interference with the said criminal proceeding, in exercise of jurisdiction under Section 482, Cr. P.C., is permissible. 9. In the case of Som Mittal (supra), the Hon'ble Supreme Court, while discussing the scope of inherent powers under Section 482, Cr PC, observed that quashing of a complaint or criminal proceeding under Section 482, Cr PC depends on the facts and circumstances of the case and that the exercise of inherent power, under Section 482, Cr PC, is not the rule but an exception. Exception is applied only when it is brought to the notice that there is grave miscarriage of justice and the exception is to be applied to prevent grave miscarriage of justice. Exception is applied only when it is brought to the notice that there is grave miscarriage of justice and the exception is to be applied to prevent grave miscarriage of justice. While discussing the scope, and ambit of powers under Section 482, Cr PC, the Supreme Court, amongst others, referred to the case of State of Haryana v. Bhajan Lal, reported in 1992 Supp (1) SCC 335, wherein the Court prescribed the following categories of cases by way of illustration, wherein powers under Section 482, Cr PC, could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice :- (i) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused; (ii) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence/justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code; (iii) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused; (iv) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (v) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; (vi) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act; providing efficacious redress for the grievance of the aggrieved party; (vii) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." From the above, it is clear that a criminal proceeding cannot be allowed to continue if the uncontroverted allegations, made in the FIR or complaint and the evidence collected in support of the same do not disclose commission of any offence or does not make out a case against the accused. In other words, in order to initiate a criminal proceeding, the allegations made in the FIR or the complaint and the evidence collected in support of the complaint, must disclose commission of an offence. 10. In the case of S. Khusboo (supra) the Supreme Court, referring to the case of Bhajan Lal (supra), observed that when criminal law machinery is set in motion, the superior Courts should not mechanically use their inherent power or writ jurisdiction to intervene with the process of investigation and trial, but judicial review can be exercised to prevent a miscarriage of justice and grave error that might have been committed by the subordinate Courts. Upholding Courts' competence to quash criminal proceedings, pending before the subordinate Courts, the Supreme Court observed that this power must be exercised sparingly and with circumspection. From the above stated principles, it appears that, while entertaining a petition, under Section 482, Cr PC, for quashing the criminal proceeding, Court is required to consider whether the allegations made against the accused, support a prima facie case for offence mentioned in the complaint and whether the complaint is made in a bona fide manner. From the above stated principles, it appears that, while entertaining a petition, under Section 482, Cr PC, for quashing the criminal proceeding, Court is required to consider whether the allegations made against the accused, support a prima facie case for offence mentioned in the complaint and whether the complaint is made in a bona fide manner. Therefore, if the allegations, made in the complaint or the First Information Report, at their face value, do not disclose prima facie case and if the complaint is found to be mala fide or filed with ulterior motive for wreaking vengeance on the accused, the Court, in exercise of jurisdiction under Section 482, Cr PC, can quash the proceeding to prevent miscarriage of justice and abuse of process of Court. 11. In the case of Shakson Belthissor (supra), the Supreme Court observed that the power for quashing First Information Report and charge-sheet under Section 482, Cr PC is to be exercised to prevent abuse of process of law and such power can be exercised only when the complaint filed by the complainant or charge-sheet filed by the police do not disclose any offence or when the complaint is found to be frivolous or vexatious or oppressive. 12. In the case of Alpic Finance Ltd. (supra) the Supreme Court observed that existence of civil remedy can be no bar for criminal action if the complaint discloses commission of any offence. 13. In the case of Bhajan Lal (supra), the Supreme Court, while discussing the scope of exercising powers, under Section 482, Cr PC, to quash an FIR or complaint, laid down the cases, as quoted above, where such powers can be exercised. 14. In the case of Mohammad Aynuddin alias Miyam (supra), the Supreme Court, while deciding a case under Section 304A, IPC, observed that a rash act is primarily an overhasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution and that culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. 15. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. 15. In the case of Suresh Kaushal (supra), the High Court in revision quashed the criminal proceeding on the ground that the Courts at Jabbalpur had no jurisdiction. The Supreme Court, while interfering with the said judgment and order passed by the High Court, observed that the High Court instead of quashing the proceeding should have transferred the criminal proceeding to the Court of jurisdiction. From the above decision, rendered by the Supreme Court, it is clear that no criminal proceeding should be quashed only on the ground that the trial Court lacks the jurisdiction. In such a situation, the appropriate course, to be adopted, is to transfer the case to the appropriate Court of jurisdiction. 16. In the case of Abdul Rehman Antulay (supra), the Supreme Court dealt with Article 21 of the Constitution of India regarding right to speedy trial and observed that the accused person has a right to speedy trial. In this case, the petitioners preferred the writ petitions under Article 32 of the Constitution of India for quashing the pending criminal proceedings against them on the ground of delay in the trial. The Supreme Court, while directing speedy disposal of the criminal case, refused to quash the proceeding at that stage and observed : It is, thus, clear that even apart from Article 21 Courts in this country have been cognizant of undue delays in criminal matters and wherever there was inordinate delay or where the proceedings were pending for too long and any further proceedings were deemed to be oppressive and unwarranted, they were put an end to by making appropriate orders. 17. In the case of Awadh Kishore Gupta (supra), the Supreme Court, referring to the guidelines prescribed in the case of Bhajan Lal (supra), observed that the power under Section 482, Cr PC should be exercised sparingly and that too in the rarest of rare cases. The Supreme Court also observed that, in the case where investigation is not complete, it is not permissible for the High Court to look into the materials, the acceptability of which is essentially a matter for trial. The Supreme Court also observed that, in the case where investigation is not complete, it is not permissible for the High Court to look into the materials, the acceptability of which is essentially a matter for trial. The Supreme Court further observed that while exercising jurisdiction under Section 482, Cr PC, it is not permissible for the Court to act as if it is a trial Court and that except evaluating the materials and documents on record, Court cannot appreciate the evidence. It has also been observed that Court should not act on annexures under Section 482 of the Code, which cannot be termed as evidence without being tested and proved. 18. In the case of Malwa Cotton and Spinning Mills Limited (supra), the Supreme Court observed that when factual disputes are involved, requiring trial, the complaint or the FIR should not be quashed, by exercising the power under Section 482, Cr PC. 19. In the case of Fakhruddin Ahmad (supra), the Supreme Court observed that, though the powers possessed by the High Court under Section 482, Cr PC are very wide, such powers should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of justice. It has also been observed that the inherent powers of High Court are to be exercised very carefully and with great caution so that a legitimate prosecution is not stifled. The Supreme Court also observed that, nevertheless, where the High Court is convinced that the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused or where the allegations made in the FIR or the complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused, the powers of the High Court under the said provision should be exercised. 20. 20. In the case of Pankaj Kumar (supra), the Supreme Court referring to various decisions, including the decision in Bhajan Lal (supra), observed that though the powers possessed by the High Courts, under the provisions prescribed by Section 482, Cr PC or Article 227 of the Constitution of India are very wide, those powers should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the Courts exist. The Supreme Court further observed- The inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. The powers have be exercised sparingly, with circumspection and in the rarest of rare cases, where the Court is convinced, on the basis of material on record, that allowing the proceedings to continue would be an abuse of the process of the Court or that the ends of justice require that the proceedings ought to be quashed. 21. In the case of Pratibha (supra), the Supreme Court observed that the Court is entitled to exercise its inherent jurisdiction for quashing a criminal proceeding or an FIR when the allegations do not disclose commission of any offence and, that it depends upon the facts and circumstances of a particular case. In the said case also, the Supreme Court has referred to the decision rendered in Bhajan Lal (supra) wherein the categories of the cases in respect of which the inherent powers under Section 482, Cr PC can be exercised, have been prescribed by way of illustrations. 22. With regard to the medical negligence and prosecution of medical practitioners for any rash and negligent act in rendering service to the patients, the Supreme Court, in the case of Jacob Mathew (supra), observed that, indiscriminate prosecution of medical professionals for criminal negligence is counter-productive and does no service or good to society. The Supreme Court, summing up its conclusion at paragraph-48, observed as below:- 48. We sum up our conclusions as under : (1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do 'the definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal cedited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: "duty", "breach" and "resulting damage". (2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of 'professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extra-ordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used. (3) A professional may be held liable for negligence on one of the two 'findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in. that branch which he practices. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in. that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. (4) The test for determining medical negligence as laid down in Bolam case, WLR at p. 586 holds good in its applicability in India. (5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution. (6) The word "gross" has not been used in Section 304A, IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be "gross". The expression "rash or negligent act" as occurring in Section 304A, IPC has to be read as qualified by the word "grossly". (7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent. (8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law, specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. (8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law, specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence. 23. In the case of Kusum Sharma (supra) also, the Supreme Court referred to the landmark judgment in Jacob Mathew (supra) and observed as under : According to Halsbury's Laws of England 4th Edn., Vol. 26 pages 17-18, the definition of negligence is as under :- Negligence: Duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person whether he is a registered medical practitioner or not who is consulted by a patient owes him certain duties, namely, a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give, and a duty of care in his administration of that treatment A breach of any of these duties will support an action for 'negligence by the patient. 24. In the case of Dinesh Dutt Joshi (supra), the Supreme Court, while discussing the object and the powers under Section 482, Cr PC, observed that the power has to be exercised in extra-ordinary cases to prevent abuse of process of any Court or otherwise to seek ends of justice. The Supreme Court further observed : 8. It is settled position in law that the inherent power of the High Court under Section 482 of the Criminal Procedure Code for quashing criminal proceedings can be invoked only in cases where on the face of the complaint or the papers accompanying the same no offence is made out for proceeding with the trial. In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence is made out the High Court will be justified in quashing the proceedings. 25. In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence is made out the High Court will be justified in quashing the proceedings. 25. Between civil and criminal liability of a doctor causing death of his patient the Court has a difficult task of weighing the degree of carelessness and negligence alleged on the part of the doctor. For conviction of a doctor for alleged criminal offence, the standard should be proof of recklessness and deliberate wrongdoing i.e. a higher degree of morally blameworthy conduct. 26. To convict therefore, a doctor; the prosecution has to come out with a case of high degree of negligence on the part of the doctor. Mere lack of proper care, precaution and attention or inadvertence might create civil liability but not a criminal one. The Courts have, therefore, always insisted in the case of alleged criminal offence against the doctor causing death of his patient during treatment that the act complained against the doctor must show negligence or rashness of such a higher degree as to indicate a mental state which can be described as totally apathetic towards the patient Such gross negligence alone is punishable. 25. In the case of Ambalal D. Bhatt (supra), the Supreme Court observed that in order to hold a person guilty under Section 304A, IPC, it must be determined as to whether the act, alleged to be committed by the accused person, is the direct result of rash and negligent act and if that act is the proximate and efficient cause of death without the intervention of another negligence. The Supreme Court in the said case referred to the observation made by Sir Lawrence lenkins in Emperor v. Omkar Rampratap, (1902) 4 Bom LR 679, wherein it was observed that the act causing the death "must be the cause causans; it is not enough that it may have been the causa sine qua non." 26. In the case of Ranjit Nath (supra), this Court observed that, in order to sustain conviction under Section304A, IPC and to impose criminal liability for the said offence, it is necessary that the death should have been the direct result of rash and negligent act of the accused and that act must be the proximate and efficient cause without intervention of another's negligence. 27. In the case of Dr. 27. In the case of Dr. Suresh Gupta (supra), the Supreme Court, while deciding a case regarding liability of doctors for death due to medical negligence observed- 12. It is on these medical papers produced by the prosecution, we have to decide whether the High Court was right in holding that criminal liability prima facie has arisen against the surgeon and he must face the trial. The legal position is almost firmly established that where a patient dies due to the negligent medical treatment of the doctor, the doctor can be made liable in civil law for paying compensation and damages in tort and at the same time, if the degree of negligence is so gross and his act was so reckless as to endanger the life of the patient, he would also be made criminally liable for offence under Section 304A, IPC. 23. For every mishap or death during medical treatment, the medical man cannot be proceeded against for punishment Criminal prosecution of doctors without adequate medical opinion pointing to their guilt would be doing great disservice to the community at large because if the Courts were to impose criminal liability on hospitals and doctors for everything that goes wrong, the doctors would be more worried about their own safety than giving all best treatment to their patients. This would lead to shaking the mutual confidence between the doctor and the patient. Every mishap or misfortune in the hospital of clinic of a doctor is not a gross act of negligence to try him for an offence of culpable negligence. 25. Between civil and criminal liability of a doctor causing death of his patient the Court has a difficult task of weighing the degree of carelessness and negligence alleged on the part of the doctor. For conviction of a doctor for alleged criminal offence, the standard should be proof of recklessness and deliberate wrongdoing i.e. a higher degree of morally blameworthy conduct. 26. To convict therefore, a doctor, the prosecution has to come out with a case of high degree of negligence on the part of the doctor. Mere lack of proper care, precaution and attention or inadvertence might create civil liability but not a criminal one. 26. To convict therefore, a doctor, the prosecution has to come out with a case of high degree of negligence on the part of the doctor. Mere lack of proper care, precaution and attention or inadvertence might create civil liability but not a criminal one. The Courts have, therefore, always insisted in the case of alleged criminal offence against the doctor causing death of his patient during treatment that the act complained against the doctor must show negligence or rashness of such a higher degree as to indicate a mental state which can be described as totally apathetic towards the patient. Such gross negligence alone is punishable. 28. In the above referred case, a young man with no history of heart ailment was the patient. The operation to be performed for his nasal deformity was not so complicated or serious. He was not accompanied even by his own wife during the operation. From the medical opinions produced by the prosecution, the cause of death is stated to be "not introducing a cuffed endotracheal tube of proper size as to prevent aspiration of blood from the wound in the respiratory passage. The Supreme Court, in deciding the matter against the complainant, observed that the act attributed to the doctor, even if accepted to be true, could be described as negligent act as there was lack of due care and precaution and for this act of negligence he might be liable in tort but his carelessness or want of due attention and skill could not be described to be so reckless or grossly negligent as to make him criminally liable. 29. In the back drop of above mentioned interpretation in respect of the relevant statutory provision and the principles of law laid down by the Court in a series of decisions, we are required to examine if the alleged acts on the part of the petitioner, was sufficient to prosecute her for criminal liability. The allegations made against the present petitioner in the complaint as well as in the statement, made under Section 202, Cr PC, are that the deceased appeared before the petitioner for removal of her tumor in the uterus and the petitioner, after performing various examinations and tests, opined that she was not suffering from endometrial tumor and it was diagnosed that she was suffering from, harmonal problem, for which, tablet "Novelon/Ovral", which are cyclical hormone, were prescribed. There is no dispute regarding the skill and qualification of the petitioner with regard to the concerned branch of Medical Science. As revealed from the complaint petition as well as the statement of the complainant (under Section 200, Cr PC) the petitioner, before ruling out the existence of any tumor in the uterus of the deceased and diagnosing her to be suffering from hormonal problem, conducted various tests and examinations including blood test, pap smear and ultra sound scan and came to the said conclusion on the basis of the medical tests. From the above, it is clearly found that the petitioner, before forming opinion and prescribing tablet "Ovra/Novelon", took all necessary care and precaution by conducting various tests. There is nothing on record to show that the petitioner failed to conduct any required test before ruling out the existence of tumor and prescribing tablet "Ovral". Hence, the complaint and the statements aforesaid do not reveal any materials to show that the petitioner did something, which a prudent and reasonable physician of the concerned branch of Medical Science would not have done. It is clearly found that the petitioner conducted all necessary tests before arriving at her said findings and prescribing "Ovral" tablet oral for hormonal problem. 30. In view of above stated principles of law laid down by the Courts and in the light of the attending circumstances, it does not appear that the petitioner did not take proper care and precaution while prescribing tablet "Ovral" for hormonal problem and also in ruling out the existence of any tumor. Hence, there is no material to show that there was any gross and culpable negligence, on the part of the petitioner. 31. Admittedly, as the deceased did not get any relief of her complication regarding bleeding, she had made communication with the petitioner by writing a letter thereby informing the latter about her complication and the petitioner had advised her to take tablet "Novelon" instead of "Ovral". This time, the deceased did not personally appear before the petitioner. She had sought advice by writing a letter and, the petitioner also, advised the deceased to take tablet "Novelon" instead of "Ovral", which was a cyclical hormone. Fact remains that the petitioner had earlier diagnosed the deceased to be suffering from hormonal problem and ruled out the existence of any tumor. She had sought advice by writing a letter and, the petitioner also, advised the deceased to take tablet "Novelon" instead of "Ovral", which was a cyclical hormone. Fact remains that the petitioner had earlier diagnosed the deceased to be suffering from hormonal problem and ruled out the existence of any tumor. Therefore, the said advice, made by her letter 20.9.2001, does not appear to be a rash and negligent act sufficient to invite criminal liability. 32. On 10.12.2001, the IGM hospital, Agartala detected that the deceased was suffering from cancer and accordingly she was moved to cancer hospital, Kolkata. Subsequently, she died, on 01.09.2003, i.e. after about two years of taking the medical advice from the petitioner. There is nothing on record to find that the use of "Novelon" or "Ovral" tablet was the cause of her death. Undisputedly, the petitioner ruled out the existence of tumor i.e. malignancy sometime in May, 2001, on the basis of various tests and examinations and diagnosed that the deceased was suffering from hormonal problem. As indicated earlier, the petitioner arrived at the said findings on the basis of certain tests and examinations. It is not the case that the tests and examinations, done by the petitioner are not the approved test or that she failed to subject the petitioner to some other required tests and examinations, before arriving at such findings. Therefore, the said findings, arrived at by the petitioner with regard to the disease of the deceased, does not appear to be a case of no judgment. Rather, the complaint petition as well as the statements made under Section 200, Cr PC, reveal that the petitioner being a competent medical professional, having proper medical degree and professional skill, took necessary care and precaution by conducting the required tests, before forming the opinion that the deceased was not suffering from any malignancy except suffering from hormonal problem. 33, In view of above, the act done by the petitioner, in respect of the treatment of the deceased, can't be termed to be an act done rashly and negligently. Therefore, the conduct of the petitioner does not fall below that of the standards of a reasonable competent professional in her field. Applying the principles laid down in the case of Jacob Mathew (supra), the petitioner cannot be prosecuted for committing rash and negligent act in respect of treatment of the deceased. Therefore, the conduct of the petitioner does not fall below that of the standards of a reasonable competent professional in her field. Applying the principles laid down in the case of Jacob Mathew (supra), the petitioner cannot be prosecuted for committing rash and negligent act in respect of treatment of the deceased. The averments made in the complaint as well as in the statement made under Section 200, Cr PC do not establish, prima facie, that the petitioner acted rashly and negligently. There is nothing to show that she had done something or failed to do something which, in the present case, no medical professional in his/her ordinary senses and prudence would have done or failed to do. In view of the said tests done by the petitioner, even if she had failed to detect any tumor in the uterus or wrongly prescribed the tablets, it was an error in judgment and not a case of no judgment or gross negligence. Furthermore, as the deceased died after about two years of getting the advice to take tablet "Ovra/Novalon", her death does not appear to be direct cause of the advice/prescription made by the petitioner. There is nothing on record to show that the deceased died only due to any negligent act done by the petitioner. 34. In the light of the above discussion, considering the entire aspect of the matter and keeping in mind the above stated principles of law, I have no hesitation in holding that the complaint petition as well as the statement recorded under Section 200, Cr PC do not reveal a prima facie case to show that the petitioner, being a medical practitioner, while rendering medical advice to the deceased acted rashly or negligently so as to endanger the life of the deceased or that the death of the deceased was caused due to any act done by the petitioner rashly or negligently. 35. In view of the above, in my considered opinion, further proceeding against the petitioner, for the offences under Section 304A and 336, IPC would amount to misuse of the process of law causing unnecessary harassment to the petitioner, thus, resulting miscarriage of justice. Therefore, in order to prevent miscarriage of justice and unnecessary harassment to the petitioner, I find sufficient merit in this petition requiring interference with the proceeding, pending before the trial Court. Therefore, in order to prevent miscarriage of justice and unnecessary harassment to the petitioner, I find sufficient merit in this petition requiring interference with the proceeding, pending before the trial Court. Accordingly, the petition is allowed and the proceeding in Complaint Case (Criminal) No. 566 of 2003, pending before the Sub-Divisional Judicial Magistrate, Kamalpur, Dhalai, is quashed. Consequently, the order, dated 17.2.2000, by which the learned trial Judge took cognizance of the offence under Sections 304A and 336, IPC is set aside. Return the lower Court records. Petition allowed.