1. Petitioners have presented this petition under section 561A Cr.P.C., invoking inherent power of the Court seeking to quash the complaint titled
Om Prakash Baru V/s Dr. Vishwa Mitter Soodan & ors and the proceedings initiated by the Magistrate against the petitioners taking cognizance
of the complaint under section 190Cr.P.C. for commission of the alleged offence under sections 304A/34 RPC by petitioners No.l and 3 to 6 and
offence under section 304A/166 RPC by petitioner No.2, Dr. Vishwa Mitter Soodan.
2. The facts giving rise to the complaint sought to be quashed are that Dr. Ajay Kumar Dogra was blessed with a son named Nikhil Baru on
25.09.1990. The infant had born with a deformation termed as TELEPES EQUINUS VARUS in his feet. Dr. Vishwa Mitter Soodan, petitioner
No.2, is an Orthopaedic Surgeon, whereas , whereas Dr. Sneh Lata Soodan, petitioner No.5, is Gynacologist. They have a Nursing and Maternity
Home, styled as 'Nav Jeevan Nursing and Maternity Home', New Rehari, Jammu. Ajay Soodan and Anjali Soodan, petitioners Nos. 3 and 4, are
son and daughter of the petitioners Nos. 2 and 5, and are not trained in medical/nursing/surgical science. Petitioner No.l, Dr. Prithvi Raj Sharma, is
being periodically engaged by petitioners Nos. 2 and 5, to act as an Anesthetist. The petitioner No. 6, Charan Dass, is a public servant working as
Class IV employee in PHE Department and is not a trained and qualified person to work in Nursing Home, He is also being engaged by petitioners
No.2 and 5 for discharging para medical duties. Complainant, namely Om Parkash Baru, is grandfather of the infant master Nikhil Baru. He
consulted petitioner No.2, Dr. Soodan, in respect of deformity of infant's feet at Nursing Home of the petitioners Nos. 2 and 5. The infant was
initially treated but did not show any encouraging results. The complainant and FIR. Ajay Dogra (father of the infant) were advised by the
petitioner No.2 that master Nikhil Baru, needed minor operation for curing deformity of the feet. Upon such advice of the petitioner No.2, master
Nikhil Baru was operated upon in the Nursing Home on 0601.1991, and the operation conducted by petitioner No.l proved successful with
regard to one foot and accordingly accusedpetitioner No. 2 further advised the complainant for another operation of the child on 27.03.1991.
Assuring the complainant by Dr. Vishwa Mitter Soodan that there is absolutely no risk of any type whatsoever in the operation to be conducted
and acting on such expert's assurance and advice, the complainant and his son took master Nikhil Baru to Nursing Home on 27.03.1991 at 06.30
a.m. as advised. At the scheduled time master Nikhil Baru was taken in operation theatre by the petitioner No.2 without asking for or conducting
any preoperative tests/investigations etc. and while the complainant and his son Dr. Ajay Baru were told to wait outside till the operation was over
in about thirty minutes. However, the operation could not be completed within the assured time but after about one and a half hour, the petitioner
No.4, Dr. Anjali Soodan, came out of the operation theatre and informed the father of the infant, Dr Ajay Dogra that his son was facing a serious
problem on the operation table. Mr. Ajay Dogra rushed inside the operation theatre in order to find out as to what has happened and found that his
son was not provided with intravenous life line and Dr. Prithvi Raj Sharma, petitioner No.l, was struggling to reinsert endo trachael tube which had
come out because of the negligent act of the petitioners for not properly monitoring the vitals of the infant. The petitioners Nos. 3,4, and 6 were
trying unsuccessfully to find the vain to inject some drug, but being bereft of professional skill and there being quacks, vein could not be located.
Dr. Vishwa Mitter Soodan on inquiry told Dr. Ajay Dogra that his son had suffered cardiac arrest. Dr Ajay Dogra was not satisfied with
resuscitative measures and sought permission of Dr. Vishwa Mitter Soodan to get a Paediatric Surgeon but petitioner No. 2 replied that it is of no
use. The complainant, however, brought Dr. H.L.Goswami, Paediatric Surgeon, in the Nursing Home from his house. Dr. Goswami started open
heart message and took several other measures so as to bring life to the child. But because of sufficient loss of time he could not succeed in his
attempt.
3. It is stated in the complaint that petitioners Nos. 2 and 5 have no qualified and competent para medical staff needed at the time of operation and
their act was rash and negligent in undertaking operation without having ensured to keep all emergency measures in the operation theatre. It is
alleged that petitioner No.l, Dr. Prithvi Raj Sharma, did not get any pre operative tests conducted before administering anesthesia to the
complainant's grand son little caring for the sufferings with which infant was suffering at the time when he was taken in the nursing home and thus
acted rashly and negligently. It is also alleged that he is guilty of culpable negligence for not monitoring the vitals of the patient as a result of which
he could not locate the endo trachael tube which had come to resulting in impairment of the respiration. The petitioners Nos. 1, 2 and 5 do not
have the requisite equipments and instruments available in their operation theatre wherefrom proper diagnosis and vitals of the patient could be
ascertained and maintained. To put the child on operation theatre without observing all the pre operative tests and proper equipments and
instruments available in the operation theatre to save the life of the child, itself shows their rash and negligent act in conducting operation as a result
of which one precious human life has been lost. It is also alleged that in order to destroy the evidence the petitioners did not inform the police about
the death of the child and got the post mortem examination conducted with a view to escaping themselves from punishment under law. The
petitioners have not maintained any record for monitoring all the vitals of the patient as there is no such system or equipment available in the
operation theatre.
4. The petitioner No.2 is a public servant and on 27.03.1991, he was a member of J&K Medical Education Gazetted Service. Being a
Government servant, it was obligatory upon him not to undertake private practice in terms of SRO 42 dated 23.01.1987 on the day when he was
required to attend emergency cases in Hospital. Clause (VII) of the said SRO provides punishment for violation of any rule by any member or by
any Govt. Doctor under section 15 of the J&K Public Men and Public Servant (Declaration of Assets and other provisions) Act 1983 read with
rule 30 of the J&K Civil Services (Classification, Control and Appeal) Rules 1956. The Petitioner No.2 in violation of these rules fixed the date
and conducted the operation on 27.03.1991. Although it was fully known to him that 27.03.1991 is the day of admission in the unit in the Govt.
Medical Hospital and on that day he was under obligation to attend the emergency cases in the hospital. Violation of such mandatory provisions of
law has exposed the petitioner to incur the liability of commission of offence under section 166 R.P.C. by willful and intentional disobedience of the
provisions of SRO 42.
5. On presentation of the complaint before the learned Chief Judicial Magistrate, Jammu, under section 304A and 166 R.P.C., on 29.04.1991, it
was forwarded to the learned Munsiff Judicial Magistrate 1st class, Jammu for disposal under law. On 30.04.1991, the Magistrate passed an
order stating therein that after going through the contents of the complaint it is revealed that serious allegations against the accused petitioners are
levelled and he deemed it necessary to get the matter investigated through police agency and the complaint was sent to the Sr.S.P. Jammu of
reinvestigation in terms of Sec. 156 of the CrPC with a direction to collect evidence and act as Investigating Officer in the case and furnish proper
report/chargesheet against the accused persons within one month. The S.P. registered case under section 304A and 166 RPC with police station
Pacca Danga, Jammu on 1.5.1991 for conducting investigation because of multifarious law and order situation/duties, the SP, under intimation to
the learned Magistrate, entrusted the investigation to Mr. Prithvi Raj Sharma, SDPO (Dy.SP).
The investigating officer, during the course of investigation, recorded the statements of Prosecution witnesses and seized the deceased child's
record maintained at the nursing home. The seized record was sent to Dr. Rakesh Saraf, M.S. Consultant Surgeon, SMGS Hospital Jammu for
securing his opinion regarding preoperative tests and precautions adopted by the Doctors during and after conducting the operation of Master
Nikhil Baru. Dr. Saraf opined in his report that preoperative tests were not taken to ensure safe operation of Master Nikhil Baru by the operating
staff and Doctors while conducting operation at the nursing home.
7. It was also found during investigation that on 27.03.1991 Dr. Vishwa Mittar Soodan was on duty in the OPD of SMGS Hospital Jammu on the
day he conducted operation.
8. After having collected all the evidence, the petitioners accused were found allegedly involved in the commission of offences under sections 304A
and 166 RPC respectively, and a case was prepared for filing final report before the court. All the accused petitioners sought anticipatory bails
from the court of learned Sessions Judge, Jammu. The case file for challenging the petitioners in the court of law was sent by the Investigating
Officer to the SSP Jammu and the later onward sent the case file to the Prosecution Branch for opinion. The DIG Jammu Range directed the SSP
to get the constituted a Medical Board for securing opinion in the case. The SSP Jammu vide his letter No.563438/DPO dated 21.12.1991
approached the Principal, Govt. Medical College, Jammu for constitution of Board of Doctors seeking opinion on the basis of seized documents
and record in respect of deceased Nikhil Baru. The Board of Doctors was constituted comprising of Dr. K. K.L.Kapoor, Chairman,; Dr. Mrs.
P.Sharma, Member & Dr. S.D. Thakur, member who thoroughly examined the seized record and furnished opinion regarding the conduct of the
Doctors while operating upon the child. It is seen from the record that on the basis of record seized by the prosecution, the Board issued
questionnaire to the petitioners, perhaps with a view to fabricate evidence. While tendering their opinion, the Board took into consideration the
questionnaire and reply thereto and opined that:
However, there is no mention of the amount and concentration of the Drugs given. It is also not possible in the absence of any postmortem report.
6. There is no mention about ECG Heart Rate, and blood pressure in the case record made available. However, in the replies to the questionnaire
the Doctors have stated that they monitored the Radial pulse, Cornell reflex and Heart rate and ventilation through the precordial stethoscope, as
per the practice during anesthesia. In the absence of detailed documentation of the steps of anesthetics and operative procedure the committee
interviewed the concerned Surgeon and Anesthetists and recorded their written statements regarding questions asked in the enquiry. On the basis
of these recorded statements and cross questioning of the Operating Surgeon and anesthetists and the records provided by the investigating
authorities, the Board is of the opinion that there are a few lacunae as for as the maintenance of record is concerned, but the Board has not come
across any evidence which could prove negligence on their part in the management of unfortunate emergency.
On the basis of this report of the Board, on 09.07.91, the prosecution prepared another report and the case was closed as being not proved.
9. The Magistrate examined the report submitted by the prosecution. The complainant approached the learned Magistrate along with Advocate
and expressed that investigation has not been conducted in proper manner and the procedure as required by law. The investigation has been
prejudicial to his interest and conducted in a most perfunctory manner without adhering to the procedure and taking into consideration the attending
circumstances of the case. The Magistrate after examination of the file and the case diaries took cognizance under section 190 Cr.P.C. and
proceeded to record the statement of the complainant and Dr. Ajay Dogra, son of the complainant. Considering the statements of the prosecution
witnesses and the record collected by the prosecution witnesses an the record collected by the prosecution during investigation, the Magistrate
found himself satisfied, prima facie, with regard to the alleged involvement of the petitioners accuses Nos. l,3,to 6 for commission of offence under
sections 304A/ 34 R.P.C. and of petitioner accused No.2 for commission of offence under sec. 304A/166 RPC and recorded an order to that
effect on 03.08.1992.
10. I have heard the learned counsel for the parties and examined the record.
11. The petitioners have challenged this order dt. 03.08.1992 passed by the Judicial Magistrate 1st Class (Munsiff) Jammu and seek to quash the
complaint and the FIR No. 169/1991 on the following grounds; i) that no offence, much less offences u/ ss. 304A/ 166 R.P.C., are made out
against the petitioners, as the police has filed the final report as the case being not proved, ii) that the Board of Doctors of different disciplines have
opined after written statement from Dr. H.L.Goswami and also having issued questionnaire to the accused petitioners 2 and 5, no case for
negligence on the part of the operating Doctors was made out while performing surgery on the deceased child. The cognizance taken by the
Magistrate is unwarranted;
iii) that the Magistrate has exceeded his jurisdiction in issuing the process and taking cognizance on the basis of complaint filed by the complainant.
The offence under sections 304A is only said to have been committed when there has been criminal negligence on the part of the accused
petitioners and to substantiate the order passed by the learned Magistrate, there is not even an iota of evidence to show or prove negligence on
that part of the petitioners; & iv) that there is no violation of SRO 42 of 1987. The operation was performed at 6.30 a.m. whereas the duty of the
petitioner No.2 for admission of patient was to commence from 10 a.m. On the day of operation, the operation was not performed during the duty
hours of admission period in the hospital.
12. The learned Magistrate, after having examined the final report, found the record, collected by the prosecution, as not satisfied and proceeded
to take cognizance of the offence and to record statements of the complainant and witnesses. The Magistrate can exercise such power and he
rightly exercised it. The Hon'ble Supreme Court has justified such an action of the Magistrate taking cognizance, in case titled H.S.Bains Vs. State
(Union Territory of Chandigarh) reported in AIR 1980 S.C., page 1883; The relevant extract is as under :
A Magistrate, who on receipt of a complaint, orders an investigation under section 156 (3) and receives a police report under section 173
(1) may, thereafter do one of three things;
(1) he may decide that there is no sufficient ground for proceeding further and drop action;
(2) he may take cognizance of the offence under section 190 (1) (b) on the basis of the police report and issue process; this he may do without
being bound in any manner by the conclusion arrived at by police in their report;
(3) he may take cognizance of the offence under sec. 190 (1) (a) on the basis of the original complaint and his witnesses under section 200. If he
adopts the third alternative, he may hold or direct an inquiry under sec. 202, if he thinks fit. Thereafter he may dismiss the complaint or issue
process, as the case may be. AIR 1968 SC 117 and AIR 1977 SC 2401, Distinguished; AIR (1980) 2 Punj & Har 41 affirmed.
13. Perusal of the record of the prosecution, collected by the Investigating Officer, during investigation, reveals sufficient evidence for alleged
involvement of the petitioners for criminal negligence for having not taken care of to have provided sufficient equipments and instruments in the
operation theatre to save the life of the patient. The record further reveals the petitioners Nos.2 and 5 have not maintained and provided
equipments and instruments in their nursing home which are necessarily required to save the life of a patient, if any untoward development takes
place in the operation theatre. It is another thing that earnest efforts of a Doctor may not yield any results but to make the efforts successful, the
theatre must be adequately equipped. The nursing home must have been provided and equipped with all necessary infrastructure and facilities. The
child patient was taken to the operation theatre as per prosecution evidence without observing any preoperative tests and investigation before
administering anesthesia while the child was suffering from chest infection. No medical practitioner is expected to operate any patient unless he
observes all the preoperative tests and gets the investigation conducted and is satisfied that all the things to save the life of the patient in any
eventuality have been maintained in the theatre. There is no preoperative tests; monitoring of vitals of the patient and the Doctor, while the child
was on operation table, could not locate that endo tracheal tube which had come out, causing impairment of respiration which could have been
observed by monitoring the vitals of the patient This could not be achieved and visualized because the requisite equipments and instruments were
not available in the operation theatre wherefrom monitoring the vitals of the patient could be ascertained. Such conduct of the Doctors and the Staff
attending the patient, engaged in the o) oration theatre, amounts to rash and negligent act on their part in conducting operation. Unless prerequisite
operative tests and investigations are conducted and proper care for monitoring the vitals of the patient is taken, there is every possibility of loss of
life of the patient. But all these things were ignored before taking the patient in the operation theatre. There is no justification on the part of the
petitioner that they have taken proper care of the child on the operation table.
14. It is interesting to note as to how the DIG has intervened and directed the S.P. to constitute Board of Doctors seeking medical opinion and at
whose instructions DIG has reacted is not known. The callous attitude of the prosecution is apparent that after the I.O. has prepared the case for
challaning the petitioners accused in the court of law, the case is referred to the Medical Board, at the instance of the DIG. Again, it is unfortunate
while the Medical Board has been specifically directed by the S.P. to tender opinion on the basis of the record seized by the prosecution, the
Board have exceeded its jurisdiction and adopted novel method of recording statements of Doctors and issued questionnaire to the petitioners.
The opinion of the Board is tainted by that fabricated evidence. Even then the Board has recorded that they could not find any material to justify as
to whether pre operative tests were conducted, or drugs were given, or all efforts were made, and also there is no proper record. It is astonishing
that how the Board has behaved, perhaps for the reason that their brother Doctors conduct is under investigation. It was not expected from the
Board and nobody authorised the Board to record the statements and create the substituted evidence as a defence for the petitioners with regard
to the formalities observed in the operation theatre. The conduct of the Board is highly deplorable.
15. There is sufficient evidence on record collected by the prosecution suggesting that the petitioners have not only not equipped the operation
theatre with necessary equipments and instruments to save the life of a patient but also they have acted rashly and negligently while performing
operation.
16. The contention of the learned counsel for the petitioner is that two medical opinions on the record have created doubt with regard to the rash
and negligent act on the part of the petitioners and the medical opinion is in favour of the petitioners. The evidence on the basis of which the
Magistrate has taken cognizance when weighed gives rise to grave suspicion against the petitioners. It is settled principle of law that where there is
grave suspicion against the accused which has not been properly explained to the satisfaction of the Court, the Court is justified in framing the
charge. Here in this case the opinion of Medical Board prima facie is not based on their record collected by the prosecution, but the Board has
further fabricated the evidence which the trial court has to weigh and deal with legally at the final stage. Such opinion of the Board at this stage also
causer grave suspicion against the petitioners for the reason that the Medical Board has recorded that there are a few lacunae so far as
maintenance of record by the petitioners is concerned with regard to the vitals of the patient. This preposition of law has been settled by the
Hon'ble Supreme Court in a case titled Union of India Vs. Prafulla Kumar Samal and another, reported in AIR 1979 S.C. page 366, holding that,
...The Judge, while considering the question of framing the charges under section 227 of the Code, has the undoubted power to sift and weigh the
evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. Where the materials
placed before the Court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in
framing a charge and proceeding with the trial.
The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal
application. By and large, however, if two views are equally possible and the judge is satisfied that the evidence produced before him, while giving
rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
In exercising his jurisdiction under section 227, the Judge, which, under the present Code, is a senior and experienced court, cannot act merely as
a PostOffice or a mouth piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the
documents produced before the Court, any basic infirmities appearing in the case and so on. This, however, does not mean that the Judge should
make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial...
17. It is settled principle of law that if the allegations made in the FIR are taken at their face value and accepted in entirety do constitute an offence,
the criminal proceedings instituted on the basis of such FIR need not be quashed. Further where there is a grave suspicion about the involvement of
the accused, the Court is justified in framing the charge and proceeding with the trial.
18. The complaint has not been proved as frivolous or malafide and on consideration of the allegation it appears that the ingredients of the offences
are made out. This court, in such circumstances, should not interfere with the proceedings. The Hon'ble Supreme Court in AIR 1990 SC, page
594 in a case titled Mrs. Dhanalaskhmi Vs. Prasanna Kumar and others has held, ""Section 482 empowers the High Court to exercise its inherent
powers to prevent abuse of the process of the Court. In proceedings instituted on complaint exercise of the inherent power to quash the
proceedings is called for 6nly in cases where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations
set out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate, it is open to the High. Court to quash the
same in exercise of the inherent powers under S. 482. It is not, however, necessary that there should be a meticulous analysis of the case, before
the trial to find out whether the case would end in conviction or not. The complaint has to be read as a whole. If it appears on a consideration of
the allegations, in the light of the statement on oath of the complainant that ingredients of the offence/offences are disclosed, and there is no material
to show that the complaint is malafide, frivolous or vexatious, in that event there would be no justification for interference by the High Court....
19. Lastly, so far as violation of SRO 42 is concerned, the petitioners have not denied that the operation was performed on the day which day was
also the 'admission day' of patients in the Hospital where the petitioners Nos.l and 2 are serving as Government Doctors. The argument of the
learned counsel for the petitioners that 'day' means duty hours in the Hospital. The commission of offence shall only be if the operation in the
Private Nursing Home is performed during such 'duty hours' has no substance.
20. For the foregoing reasons and the law referred above in the course of the order, the petition has no merit which is accordingly dismissed. The
order dated 03.08.1992 passed by the Munsiff Judicial Magistrate 1st Class Jammu is upheld. The file of the trial court be sent back to the learned
trial Magistrate for proceeding with the trial. The parties are directed to appear before the trial court on 09081997.
