Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.7108 of 2011 ====================================================== Dr. Pramod Kumar Singh, Son of Nand Kishore Singh, at the resident of 1/B Rajendra Nagar, Police Station- Kadam Kuan, District- Patna. .... .... Petitioner Versus 1. The State Of Bihar 2. Chandan Kumar, son of Kishori Prasad Singh, resident of Village- Araji Sahbajpur, P.S- Hajipur Sadar, District - Vaishali. .... .... Opposite Parties ====================================================== Appearance : For the Petitioner: Mr. Siya Ram Shahi, Advocate For the Complainant/Opposite Party No. 2: Mrs. Soni Srivastava, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR C.A.V. ORDER 4 5-11-2012 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. 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 [STATUTE] . 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 Patna High Court Cr.Misc. No.7108 of 2011 (4) dt. 5-11-2012 2/ 8 petitioner and one Bharat Kumar- compounder of the petitioner, alleging commission of offence under [STATUTE] 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 Patna High Court Cr.Misc. No.7108 of 2011 (4) dt. 5-11-2012 3/ 8 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 [STATUTE] against petitioner and his compounder- Bharat Kumar. The learned Magistrate has further taken cognizance of offence under [STATUTE] . 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. Sri Siya Ram Shahi, learned counsel for the petitioner submits that the learned Magistrate has committed serious error Patna High Court Cr.Misc. No.7108 of 2011 (4) dt. 5-11-2012 4/ 8 in passing order of cognizance for offence under [STATUTE] 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 Versus 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 sho

Applicable IPC Section: 338

Statute Text:
Section 338 of the Indian Penal Code. Causing grievous hurt by an act which endangers human life, etc. Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.