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2012 DIGILAW 688 (RAJ)

Dr. Anusuya Harsh v. State of Rajasthan

2012-03-20

SANDEEP MEHTA

body2012
JUDGMENT 1. - Heard learned counsel for the parties. 2. The instant misc. petition has been preferred by the petitioner seeking quashing of F.I.R. No. 254/2009 registered against her at P.S. Sojat City, District Pali for the offences under Sections 316 and 338 I.P.C. 3. Succinctly stated the facts necessary for the disposal of the instant misc. petition are that the respondent No. 2 filed a complaint in the Court of ACJM, Sojat on 17.7.2009 alleging inter alia that the petitioner was posted as Junior Specialist in the Government Hospital, Sojat City. It was alleged that the complainant's wife was expecting a child and was under the treatment of the petitioner for the entire pregnancy period of about eight months. It is alleged that the petitioner gave assurance to the complainant's wife that the foetus was healthy. The sonography reports were shown to the petitioner from time to time who assured about well being of the foetus. It is alleged that the expected date of delivery given to the complainant was 12.7.2009. On 30.6.2009, the complainant's wife was again examined by the petitioner and she allegedly informed the petitioner that she was not feeling the movement of the foetus in the womb but the petitioner insisted that the foetus was alive and healthy. On 12.7.2009, again the examination was conducted and the complainant was informed that the child would be delivered by committing a cesarean section on 15.7.2009. On 13.7.2009, the complainant's wife again went to the petitioner and requested the recommendation of a sonography to be done. When sonography was conducted, it was reported that the child had died earlier to the sonography being done. It was further alleged that the petitioner did not provide medical services to the complainant's wife and another doctor delivered the dead foetus. Thus, it was alleged that the petitioner deliberately acted rashly and negligently resulting into the death of foetus and risk being posed to the complainant's wife. This complaint was forwarded to P.S. Sojat City for investigation under Section 156(3) Criminal Procedure Code where F.I.R. No. 254/2009 was registered and investigation commenced. 4. Assailing the impugned F.I.R., learned Sr. Adv. Mr. Mahesh Bora assisted by learned counsel Mr. This complaint was forwarded to P.S. Sojat City for investigation under Section 156(3) Criminal Procedure Code where F.I.R. No. 254/2009 was registered and investigation commenced. 4. Assailing the impugned F.I.R., learned Sr. Adv. Mr. Mahesh Bora assisted by learned counsel Mr. Nishant Bora for the petitioner submitted that in this case there is no material on the record of the case to show that the petitioner gave any such treatment to the complainant's wife which led to the death of child. The report of ultrasound on which reliance has been placed is absolutely vague. It has simply been mentioned in the report that the Intra Uterine death was old. No time of the death of foetus has been mentioned in the sonography report. Thus, he submits that it cannot be concluded that the petitioner's opinion, a few days prior to the sonography conducted regarding foetus in womb being healthy, was wrong. It is further submitted that the medical board constituted during the course of enquiry has clearly opined that there was no negligence by the petitioner in the treatment of the complainant's wife. It is further submitted that there is no allegation that the petitioner was inimical to the complainant or had any oblique motive for not treating the complainant's wife properly. It is further submitted that there is no allegation against the petitioner that the petitioner demanded any illegal gratification or benefits from the complainant. It is thus prayed that ex-facie the F.I.R. and the subsequent proceedings do not disclose any offence whatsoever. 5. Learned PP and the learned counsel for the respondent No. 2 have submitted that the petitioner was under an obligation to provide proper treatment to the complainant's wife. It is further submitted that because of the rash and negligent opinion given by the petitioner, the life of the complainant's wife was put to risk and thus, the impugned F.I.R. does not call for interference of this Court. 6. I have given my thoughtful consideration to the arguments advanced at bar and perused the impugned F.I.R. as well as case diary. 7. From a perusal of the case diary and the F.I.R. impugned, it becomes apparent that there is no material on the record to show as to why the petitioner would not take care of the complainant's wife. I have given my thoughtful consideration to the arguments advanced at bar and perused the impugned F.I.R. as well as case diary. 7. From a perusal of the case diary and the F.I.R. impugned, it becomes apparent that there is no material on the record to show as to why the petitioner would not take care of the complainant's wife. Admittedly, the petitioner was treating the complainant's wife throughout during the period of pregnancy of eight months and all through there is no allegation of negligence against her. The allegation of negligence which has been levelled against the petitioner is based on the report of ultrasound. In the said report, there is no such finding that the foetus has died a long time before the ultrasound was conducted. The Medical Board which was constituted in this case has clearly opined that there was no negligence on the part of the petitioner in the treatment of the complainant's wife. The finding of the Medical Board is quoted herein below: " Jherh cfcrk iRuh lat; vks>k dks izlo iwoZ le; & le; ij MkWa0vuqlw;k g"kZ }kjk leqfpr mipkj fd;k x;k izlo lapkyu nkSjku dfFkr ykijokgh ,oa lksukxzkQh fjiksVZ fnukad 13-7-2009 ftlesa fpfdRld ( izkbZosV ) }kjk 8 ls 24 ?kUVs dh le; lhek esa gksus okys vkbZ0;w0Mh0 dks vksYM vkbZ0;w0Mh0 vaduk djuk ik;k x;kA vksYM vkbZ0;w0Mh0 dh O;k[;k dh xbZ ,oa lksuksyksftLV }kjk 8 ls 24 ?kUVs dh le; lhek ds vkbZ0;w0Mh0 dks vksYM vkbZ0;w0Mh0 ( bUV~k ;wVsjhu MsFk ) vadu djus ls ifjoknh dks Hkze gksuk LokHkkfod ik;k tkdj fpfdRld ij nks"kkjksi.k dj bLrxklk is'k gksuk otwn esa ik;k x;kA " 8. Initially, after investigation of the matter, the police has proposed FR in this case but thereafter it appears that owing to certain other circumstances, the opinion has been changed and now the police is trying to file a charge-sheet against the petitioner. 9. Initially, after investigation of the matter, the police has proposed FR in this case but thereafter it appears that owing to certain other circumstances, the opinion has been changed and now the police is trying to file a charge-sheet against the petitioner. 9. Tested on the touchstone of the principles enunciated by the Hon'ble Apex Court in its decision rendered in the case of Jacob Mathew v. State of Punjab reported in AIR 2005 SC 3180 , this Court is of the opinion that ex facie the allegations made in the F.I.R. impugned and the investigation carried out thus far reveals no material to conclude that the petitioner acted in a rash and negligent manner so as to permit her prosecution for the offences mentioned in the impugned F.I.R. The allegations in the F.I.R. appear to have been made without any bona fides. 10. The upshot of the above discussion is that the present misc. petition deserves to be accepted and is hereby allowed and the proceedings of F.T.R. No. 254/2009 registered at P.S. Sojat City, District Pali and all subsequent proceedings in pursuant thereto are hereby quashed.Stay petition also stands disposed of. *******