@JUDGMENTTAG-ORDER
Rakesh Kumar, J.@mdashHeard Shri Surendra Kishore Thakur, learned counsel for the petitioners, Shri Jharkhandi Upadhyay, learned
Additional Public Prosecutor and learned counsel appearing on behalf of the complainant/opposite party No. 2. Three petitioners, while invoking
inherent jurisdiction of this Court u/s 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 3.10.2007 passed by
Chief Judicial Magistrate, Vaishali in Complaint Case No. C-1/578 of 2006. By the said order, the learned Magistrate has taken cognizance of
offence under Sections 304(A) and 465 of the Indian Penal Code and directed for summoning the accused persons including the aforesaid
petitioners.
2. Learned counsel for the petitioners, at the very outset, has argued that in the complaint petition, it was alleged that two doctor i.e. Smt. Kamni
Choudhary, who was made accused No. 1 and Dr. Ravi Prakash (accused No. 2) had conducted operation of wife of elder brother of the
complainant and after few months, the patient died. It was alleged in the complaint petition that the doctor, knowing the fact that the deceased was
a cancer patient, conducted operation and this was the reason for death at subsequent stage. Allegation of negligence was made against two
doctors. In the complaint, one Mamta Devi was also made accused on the ground that she being a nurse employed in the Nursing Home of
accused Nos. 1 and 2 had persuaded the complainant for admitting patient in the said Nursing Home. Second part of the allegation is that while
complainant filed a case before the District Consumer Forum, Vaishali claiming compensation on the ground that accused Nos. 1 and 2 had
operated without obtaining any pathological report, the accused doctors (accused Nos. 1 and 2) appeared before the Consumer Forum and took
stand that he had conducted operation after obtaining all the reports including pathological report, which was indicative of the fact that at the time
of operation, the deceased patient was having no complain in respect of cancer and the report prepared by the present petitioners were brought on
record before the Consumer Court. The petitioners also supported the stand of accused Nos. 1 and 2 before the Consumer Court and on the plea
of fabricating and preparing pathological report, the petitioners were made accused in the present complaint. It is not in dispute that present
complaint was filed during the pendency of the case before the Consumer Court.
3. Learned counsel for the petitioners submits that two doctors, against whom there was allegation of commission of offence u/s 304(A) as well as
for the offence u/s 465 of the Indian Penal Code, approached this Court vide Cr. Misc. No. 52434 of 2007 Reported in 2010 (4) PLJR 672 for
quashing of the order of cognizance, which is under challenge i.e. order dated 3.10.2007 in Complaint Case No. C-1/578 of 2006 and a Bench of
this Court, by its order dated 2.4.2010 after considering all the facts, has allowed the petition and quashed the order of cognizance. He submits
that the complainant, after the Cr. Misc. No. 52434 of 2007 was allowed, approached the Apex Court challenging the order of this Court and the
Hon''ble Apex Court approved the order of this Court, whereby cognizance order was set aside vide SLP No. 7703 of 2010. It was submitted
that once the order of cognizance, which is impugned in the present petition, has been quashed, particularly in respect of the accused persons
against whom mere was serious allegation than the petitioners, no point could be served in allowing the prosecution of the petitioners on the
strength of said order of cognizance and has prayed for setting aside the same.
4. Learned counsel appearing on behalf of opposite party No. 2 has vehemently opposed the prayer of the petitioners. It was submitted that the
petitioners, with a motive to favour main accused, had prepared a forged pathological report and as such the case of petitioners is distinguishable
from the case of other accused persons.
5. After hearing learned counsel for the parties and considering the materials available on record, the court is of the opinion that since the order of
cognizance i.e. order dated 3.10.2007 and process issued against two main accused persons has already been set aside and approved by the
Apex Court, there is no reason to deny the same relief to the petitioners. The main accused, as per the complaint petition, have already been
exonerated and as such petitioners cannot be denied relief sought for in the present petition.
6. Accordingly, in terms of order dated 2.4.2010 passed in Cr. Misc. No. 52434 of 2007 Reported in 2010 (4) PLJR 672 in respect of Dr.
Kamani Chaudhary and Dr. Ravi Prakash, issuance of process against the petitioners on the basis of order of cognizance dated 3.10.2007 is
hereby set aside and entire proceeding so far as petitioners are conceme is also set aside. The petition stands allowed.