IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.14508 of 2008 DR.RAMESH CHNADRA SINHA, son of Late Sheo Kumar Sinha, resident of B-182, P.C. Colony, Road No.11, Kankarbagh P.S., district Patna – petitioner. Versus STATE OF BIHAR ----------- For the petitioner : Mr. Ajay Kumar Thakur, Sr. Advocate and Mr. Amir Alam, Advocate. For the State : Mr. Jharkhandi Upadhyay, A.P.P. For the informant : Mr. Sushil Kumar Singh, Advocate. … 2 22.12.2009 Heard the parties. This application has been filed for quashing the order, dated 12.12.2007 passed by the Chief Judicial Magistrate, Patna in Kadam Kuan Ps Case No. 263/2004 by which cognizance for the offences under sections 326 and 338 of the Penal Code has been taken against the petitioner. The prosecution case, in short, is that the informant‟s daughter was under the treatment of the petitioner. It is said that the doctor had operated repeatedly on his daughter for a disease which is known as syndactyly. It is alleged that the child had all five fingers on her right foot. After the operation the informant found that the doctor had chopped of two of the fingers although the doctor had promised that he would be able to operate on the two fingers and separate them. The informant also filed a case before the Consumer Forum, Patna alleging that the petitioner had acted rashly by cutting of the two fingers and as such he was liable to pay Rs.50,000/- as compensation for the deficiency in service. The order of the Forum is on record at Annexure 2. It would appear from the judgment that the complainant‟s daughter Ritu Kumari was two and half years old and 2 she was suffering from the disease in which all fingers of her hand and feet were attached with each other since birth as a result of which she could neither walk or hold anything in her hand. She came to be treated by the petitioner who is a Class „I‟ Surgeon and he performed the operation in four stages. The petitioner could successfully repaired the fingers of left feet and the fingers attached to her right and left palms. At that stage it had been argued that the doctor had been negligent and although five nails of the right feet were intact, he has chopped two of the fingers next to the thumb. The arguments on behalf of the petitioner before the Forum was that the 3rd and 4th toes were represented by only two nails attached to a combined small phalanx. The phalanx were not operated as the operation might have led to loss of blood and gangrene. This operation was performed on the three toes i.e. big, second and fifth toe. The court below on the basis of the X-ray report which were marked as Annexures 3/1 and 5/1 came to the finding that in fact prior to the operation there was no toe on the right feet and that if the doctor had tried to create four toe next to the thumb, there was a fear that the child would develop gangrene or would suffer from heavy loss of blood which may have endangered her life and as such the petition in the Consumer Forum was dismissed. Learned counsel appearing on behalf of the informant submits that the father of the affected child having full confidence and faith in the doctor had approached him for treatment and in fact the 3 doctor was able to successfully treat the little girl by performing three operations successfully. It is submitted that the doctor had promised that he would successfully perform the fourth operation and separate the finger but he failed to do so and without consulting the informant i.e. the father of the child chopped of two fingers of the right feet and as such he is liable to be punished for offences under sections 326 and 338 of the Penal Code. There is no doubt about the fact that a proceeding under the Consumer Forum and a criminal case can subsist together and that the findings in the Forum would be based on different considerations. Learned counsel appearing on behalf of the petitioner relied on the decision in the case of Jacob Mathew vs. State of Punjab, AIR 2005 SC 3180 wherein the Supreme court has discussed the parameter under which cases should be instituted against doctors who had allegedly indulged in negligent acts resulting in loss of life or some other offences under the Penal Code. Quoting from the judgment of Roscoe‟s Law of Evidence it has been said that “where a person, acting as a medical man and whether licensed or unlicensed, is so negligent in his treatment of a patient that death results, it is manslaughter if the negligence was so great as to amount to a crime, and whether or not there was such a degree of negligence is a question in each case for the jury” and the Apex Court has held that there should be certain rule of executive instructions incorporating certain guide lines which need to be framed and issued by the Government of India and/or the State Government in consultation with the Medical 4 Council of India. The court further goes on to say that whether the Investigating Officer before proceeding against the doctor accused of rash or negligent act or omission should obtain an independent or competent medical opinion preferably from a doctor in Government service qualified in the branch of medical practice who can normally be expected to give an impartial and unbiased opinion to the fact collected in the investigation. Reverting to the facts of this case it is admitted that in fact no medical opinion was taken either by the Investigating officer or by the informant before filing of the case or even thereafter. The view in Jacob Mathew‟s case has been upheld recently in the case of Martin F. D‟Souza vs. Md. Ishaq, Supreme Today 2009 (2) 40. Besides the facts aforesaid counsel for the petitioner submits that in fact no offence under section 326 of the Penal Code is made out against the petitioner as section 326 envisages that there should be an act which would voluntarily cause grievous hurt by means of an instrument or shooting, stabbing or cutting or any instrument which is used as a weapon for offence which is likely to cause death or by means of fire or by heated substance, or by means of any poison or any corrosive substance or by means of explosive substance or by means of substance which is deleterious to the human body to inhale or swallow or to receive into blood or by means of any animal which would be punishable for a period of ten years. It is quite obvious that the petitioner could not be punished for the offence under section 326 of the Penal Code or for 5 that matter section 338 of the Penal Code for the simple reason that the petitioner could not have been charged for voluntarily causing hurt to the informant‟s child. In the facts of this case it is also apparent that the petitioner successfully performed three operations and there was no reason why he all of a sudden would act in a manner which was rash or could be termed to be negligent and treat the little girl by creating only three fingers on her right leg. In the light of the discussions made above, I quash the impugned order taking cognizance against the petitioner. In the result, this application is allowed. haque (Sheema Ali Khan, J.)