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2012 DIGILAW 1523 (PAT)

Pramod Kumar Singh v. State of Bihar

2012-11-05

RAKESH KUMAR

body2012
ORDER Heard Sri Siya Ram Shahi, learned counsel for the petitioner and Smt. Soni Srivastava, learned counsel, who has appeared on behalf of complainant / opposite party no. 2. 2. The sole petitioner, while invoking inherent jurisdiction of this court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 15.12.2010 passed by learned Chief Judicial Magistrate, Viashaili at Hajipur, in Complaint Case No. C-118 of 2008/ Tr. No. 187 of 2010. By the said order learned Magistrate has taken cognizance of offence under Sections 337, 338/34 of the Indian Penal Code. 3. Short fact of the case is that the opposite party no. 2 filed a complaint vide Complaint Case No. C-118 of 2008 in the court of Chief Judicial Magistrate, Vaishali at Hajipur, against the petitioner and one Bharat Kumar- compounder of the petitioner, alleging commission of offence under Sections 418 & 420 of the Indian Penal Code by the accused persons, which includes the petitioner. It was alleged by the complainant that his father while moving on a Tempo met with an accident. Subsequently, he was carried to Sadar Hospital, Hajipur, where he was admitted and he started to get treatment. However, in the evening of 9.5.2007, accused no. 2/Bharat Kumar in conspiracy with the petitioner / accused no. 1, with a view to commit fraud and cheat the complainant, tried to persuade the complainant, his father and other family members, that accused no. 1 i.e. petitioner, is an Orthopaedics Specialist and he will get proper treatment under him. It was asserted that the father of the complainant may not get proper treatment in Hospital and he was persuaded that at low cost in the Clinic of petitioner father of the complainant will get cured. Several other assurances were given by the compounder of the petitioner. Thereafter, on the assurance given by the accused no. 2 i.e. compounder of the petitioner, the father of the complainant was carried to APPOLO ORTHOPAEDICS CENTRE, Hajipur, where, on advice of the petitioner, X-Ray was done and fracture was found on the right leg knee of the father of the complainant. Thereafter, the complainant was persuaded to pay Rs. 15,000/- for conducting operation. After deposit of the amount, on 10.5.2007 surgery was done. During operation, the accused no. 2 rendered assistance to the accused no. 1, who is the petitioner. Thereafter, the complainant was persuaded to pay Rs. 15,000/- for conducting operation. After deposit of the amount, on 10.5.2007 surgery was done. During operation, the accused no. 2 rendered assistance to the accused no. 1, who is the petitioner. Thereafter, the petitioner told the complainant that after three months one another operation will be done, whereby, a Plate will be installed for which Rs. 20,000/- was demanded, which was paid by the complainant and second operation was done on 12.8.2007. Even thereafter, no improvement was found, then again, the complainant contacted the petitioner whereafter Rs. 50,000/- was demanded for third operation. Accordingly, with above allegation complaint petition was filed and after conducting enquiry, the learned Magistrate by the impugned order has taken cognizance of offence under Sections 337, 338/34 of the Indian Penal Code against petitioner and his compounder- Bharat Kumar. The learned Magistrate has further taken cognizance of offence under Section 418 of the I.P.C. against accused no. 2 / the compounder of the petitioner. Aggrieved with the order of cognizance, the petitioner has approached this court by filing the present petition. 4. Sri Siya Ram Shahi, learned counsel for the petitioner submits that the learned Magistrate has committed serious error in passing order of cognizance for offence under Sections 337, 338/34 of the Indian Penal Code against the petitioner in view of the fact that there was no report of Specialist to show that operation was done by rash or negligent act of the petitioner. He further submits that petitioner is a qualified Orthopaedics Surgeon and he runs a Nursing Home in the name and style of “APPOLO ORTHOPAEDICS CENTRE” at Hajipur and to the best of his ability he had conducted operation on the injured father of the complainant, and as such, the learned Magistrate, without any report of Expert showing negligent act on the part of the petitioner, was not required to proceed against the petitioner. In support of his argument Sri Shahi has heavily relied on (2009) 3 SCC 1 (Martin F. D’souza Vs. Mohd. Ishfaq). He has specifically referred to paragraph no. 106 of the said judgment. For just decision in the matter, it would be appropriate to quote paragraph no. 106 of D’ SOUZA Case (supra), which is as follows:– “106. In support of his argument Sri Shahi has heavily relied on (2009) 3 SCC 1 (Martin F. D’souza Vs. Mohd. Ishfaq). He has specifically referred to paragraph no. 106 of the said judgment. For just decision in the matter, it would be appropriate to quote paragraph no. 106 of D’ SOUZA Case (supra), which is as follows:– “106. We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer Fora (whether District, State or National) or by the criminal court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or the criminal court should first refer the matter to a competent doctor or committee of doctors, specialised in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the doctor/ hospital concerned. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew case1, otherwise the policemen will themselves have to face legal action.” 5. On the aforesaid grounds he has prayed for quashing of order of cognizance under Sections 337, 338/34 of the Indian Penal Code so far as petitioner is concerned. 6. Smt. Soni Srivastava, learned counsel appearing on behalf of complainant / opposite party no. 2 has vehemently opposed the prayer of the petitioner. It was submitted that it was a case of fraud and cheating by the petitioner conspiring with his compounder, who has been arrayed as accused no. 2, namely, Bharat Kumar. According to learned counsel for the complainant while the father of the complainant after accident was carried to Hospital and being treated at Sadar Hospital, Hajipur, the compounder of the petitioner arrived there and gave false assurance of proper treatment at low cost, where after, on his persuasion, the father of the complainant was carried to the private Nursing Home of the petitioner, where, by committing fraud and cheating, the accused persons i.e. petitioner in connivance with his compounder obtained total Rs. 35,000/- and twice operation was done on the right leg knee of the father of the complainant, even then, he was advised for third surgery and demand of Rs. 50,000/- was made for third surgery. According to learned counsel for the complainant it was out and out a case of cheating and fraud, and as such, complaint petition was filed on allegation of commission of offence under Sections 418 & 420 of the Indian Penal Code against the petitioner and his compounder – Bharat Kumar. However, after enquiry, the learned Magistrate has taken cognizance of offence under Sections 337, 338/34 of the Indian Penal Code against the petitioner and his compounder, but incorrectly, while taking cognizance of offence under Section 418 of the I.P.C. against the compounder, the learned Magistrate exonerated the petitioner from the charge under Section 418 of the Indian Penal Code. She submits that in the complaint petition itself it has been categorically stated that subsequently, one Dr. Sunil Kumar had examined the patient and said that due to incorrect installation of Plate all problem has occurred. She submits that on the basis of opinion of the second doctor i.e. Dr. Sunil Kumar, it was found that it was also a case of rash and negligent act of the petitioner. However, Smt. Srivastava was not in a position to bring to the notice of this court any law contrary to the observation of the Supreme Court as quoted in paragraph no. 106 in D’SOUZA Case (supra). 7. Besides hearing the parties, I have also perused the materials available on record. It is true that in the complaint petition the complainant has asserted that one another doctor, namely Dr. Sunil Kumar, had examined the injury of father of the complainant and he had opined that operation was incorrectly done, but fact remains that, on record before the court below there was no Expert opinion, and as such, for the offence under Sections 337, 338/34 of the Indian Penal Code in view of law laid down by the Apex Court in D’SOUZA Case (supra), the learned Magistrate was not required to proceed against the petitioner, and as such, the order of cognizance so far offence under Sections 337, 338/34 of the Indian Penal Code so far as petitioner is concerned, is liable to be set aside and is hereby set aside. 8. 8. Keeping in view the fact that besides allegation of commission of offence under Sections 337, 338/34 of the Indian Penal Code, there were other materials in the complaint petition showing commission of offences, the court is of the opinion that while setting aside the impugned order, the matter is required to be remitted back to the learned Magistrate to examine the matter and pass appropriate order in accordance with allegation levelled in the complaint petition after conducting further enquiry. The learned court below is required to examine the materials and pass appropriate order in accordance with law within a period of two months from the date of receipt / production of a copy of this order. 9. With above observation and direction, the petition stands disposed of.