Petitioner is a medical practitioner having a degree of MBBS and Master of Surgery (MS).According to him, he is specialized in Minimal Access Surgery and vide certificate dated 14.11.2014 the Association of Minimal Access Surgeons of India (FMAS) has certified that he has been qualified in the art and science of minimal access surgery.As per the allegation in the FIR, on 07.03.2018 complainant Shambhu Dayal Agrawal, R/o D/120, Awas Nagar, Dewas came to M.Y Hospital, Indore for treatment of his daughter viz. Ku.Divya Agrawal, aged 21 years as she was suffering from pain-2- MCRC No.38710/2019 in her abdomen.They met the present petitioner who is posted in the surgery department of the M.Y Hospital, Indore.After preliminary examination of Ku Divya, petitioner advised for a minor operation and told that the operation theater of MY Hospital is contaminated and supporting staff is no competent hence it would be better to take admission in Medi Care Hospital, Old Palasia Indore for which the expenses would be Rs.30,000/- for operation.The petitioner further assured that he is performing such type of operations regularly.On his advice, the complainant has admitted his daughter in Medi Care hospital and after pathological test on 30.05.2018 performed the operation.After two days of the operation, the health condition of Ku.Divya has started deteriorating.The complainant met the petitioner and requested him to examine his daughter further.He again called him in his clinic on 04.06.2018 and again he demanded Rs.70,000/- for another operation and when he objected Ku.Divya has been forcibly discharged from the hospital by the petitioner.On 06.06.2018 the complainant admitted his daughter in Choitram Hospital and came to know that the petitioner has committed negligence in the operation by putting two clips at a wrong place in her liver.Hence, another P.T.B.T operation was conducted in Choitram Hospital for which he spent further Rs.1,00,000/-.The complainant has further alleged that although the petitioner is a surgeon of breast cancer, however, to extract money from him he has negligently performed the surgery of gall bladder of his daughter and left her to die and still she could not recover.According to the petitioner, Ku.Divya informed him regarding her stomach ache because of which she was unable to eat properly for a long time.He examined her medically and also gone through the previous reports and after clinical diagnosis, he found that she is suffering from chronic cholecystitis with cholelithiasis commonly known as swelling infection in gall bladder because of stone.He explained them regarding the disease, about the treatment i.e. laparoscopy cholecystectomy operation and also advised for some tests to be conducted before such operation.The complainant has agreed for operation and signed the consent letter for operation.On 30.05.2018 she was admitted in Medi Care Hospital and on 31.05.2018 near about 7 hrs.she was shifted to operation theater and operation was started.During operation swelling in gall bladder was seen and small contracted thickened gall bladder was stuck with callous triangle in the stomach.It was also found by him that calloos triangle was completely frozen and artery of the liver was not normal.He performed cholecystectomy very cautiously and carefully and applied abdominal drain on sub haptic region.As there was no bleeding and Billary leakage, the port side was closed and at around 8.30 hrs.she was shifted to the recovery room in stable condition.On 01.06.2018 petitioner again visited the hospital and examined the patient and found her in stable condition and the abdominal drain output was minimal.She did not make any complaint of stomach ache or fever to him.However, on 02.06.2018 she started vomiting during the night and after receiving information he immediately rushed to the hospital without any delay and advised for some tests and sonography.(Passed on 21.01.2020 ) Petitioner has filed the present petition under section 482 of the Cr.P.C seeking quashment of an FIR registered against him at Crime No.277/2019 in Police Station Palasia, Indore for the offence punishable under sections 336, 337, 338, 308 & 384 of the IPC.Facts of the case in short which led to the registration of FIR against the petitioner are as under:Based on the complaint made by the complainant, the Police investigated the matter and recorded the statement of Ku.Divya and other witnesses and after completing the investigation Challan has been filed on 19.06.2019 against the petitioner for the offence punishable under sections 336,After examining the report it was found that she had an injury on bile-duct.Looking to the serious condition of the patient he requested Dr.Vinit Gautam, G.I. Surgeon to visit the hospital for-4- MCRC No.38710/2019 an examination of the patient.Vinit Gautam visited the hospital and informed that there is a bile-duct injury which is the common and post-operative complication of laparoscopy cholecystectomy and is curable.He suggested for percutaneous transhepatic billary drainage (P.T.B.D) and since the facility of P.T.B.D was not available in Medi Care Hospital, therefore, the petitioner referred and she was shifted to Choitram hospital on the same day.Thereafter he is not aware of the condition of the patient and on 04.09.2018 the complainant filed a complaint against him before the Chief Medical Officer, who constituted a panel of doctors to enquire about the allegations.The said panel of doctors submitted a report (Annexure P/5) in which she was not found guilty.Later on 19.06.2019 in the police station, Palasia Indore complainant filed the FIR against him.Shri Z.A.Khan, learned Senior Advocate appearing for the petitioner submitted that petitioner is a qualified surgeon having a degree of MS from Devi Ahilya Vishwavidyalaya, Indore in general surgery.He has also passed fellowship in the minimal access surgery examination held at Banaras Hindu University, Varansasi on 10th August, 2014 and has been awarded the certificate in the 9 th International Congress of AMASI held on 14.11.2014 in Dubai.Looking to the clinical diagnosis of the patient the petitioner has rightly operated with due care and precaution.As of today, he has performed more-5- MCRC No.38710/2019 than 300 surgeries of similar nature.There was no irresponsible or wrongful act on the part of the petitioner while treating the patient.The complainant himself decided to admit his daughter in Medi Care Hospital.He has not produced any material before the Police to show that he contacted the petitioner in MY Hospital for the operation.A panel of doctors has examined the patient and submitted the report in favour of the petitioner.The patient suffered the type-4 bile-duct injury after the operation which is very common in such operations.NCT of Delhi and others, 1998 (8) SCC 557 as below -4............................................offence punishable under Section 308 IPC postulates doing of an act with such intention or knowledge and under such circumstances that if one by that act caused death, he would be guilty of culpable homicide not amounting to murder.An attempt of that nature may actually result in hurt or may not.It is the attempt to commit culpable homicide which is punishable under Section 308 IPC whereas punishment for simple hurts can be meted out under Sections 323 and 324 and for grievous hurts under Sections 325 and 326 IPC.Because of the foregoing discussion, no case is made out for quashing of the entire FIR filed against the petitioner at this stage except charge under section 308 of IPC.Hence, FIR registered under

Cited provisions: Section 308 in The Indian Penal Code; Section 336 in The Indian Penal Code; Section 338 in The Indian Penal Code; Section 337 in The Indian Penal Code; Section 384 in The Indian Penal Code; Section 325 in The Indian Penal Code; Section 326 in The Indian Penal Code; Section 323 in The Indian Penal Code; Section 482 in The Indian Penal Code; Section 324 in The Indian Penal Code