CRIMINAL MISCELLANIOUS No.23739 OF 2004 ******* In the matter of an application under Section 482 of the Code of Criminal Procedure. ******* DR. SHAILESH KUMAR SINHA------------PETITIONER Versus 1.THE STATE OF BIHAR 2.SATISH KUMAR----------------OPP.PARTY ******* For the Petitioner : M/s Rana Pratap Singh, Rekha Prasad & H.N. Sinha For the Opp.Party : M/s Baxi S.R.P. Sinha & Ashok Kr. Sharma For the State : Mr. Damodar Pd. Tiwary, APP ******* P R E S E N T THE HON'BLE MR. JUSTICE AKHILESH CHANDRA Akhilesh Chandra, J. Heard learned counsel for the petitioner, learned Additional Public Prosecutor for the State and Sri Baxi S.R.P. Sinha for opposite party no.2. 2. This is an application under Section 482 of the Code of Criminal Procedure seeking quashing of order dated 05th January, 2004 passed by Sri Bikrama 2 Ram, Judicial Magistrate, first class, Patna, in Complaint Case no. 1750 C of 2003 taking cognizance against the petitioner and others named accused persons in the complaint under Sections 326, 307, 420, 468, and 471 of the Indian Penal code. 3. The relevant facts of the case in hand is that opposite party no.2, Satish Kumar, a railway employee, was operated by petitioner and his associates on 13th September, 2000 for Chyluria only after all due tests showing presence of his right kidney but opposite party no.2 continues with some complications he was advised for another ultra-sonography to be conducted by Dr. Rajan Chaudhary for which petitioner also recommended by giving personal letter on 27th September, 2000 wherein it has also been mentioned “I would like you to see for any lymph collection around right kidney.” Such ultrasound was conducted on 30th September, 2000 wherein also both kidney of opposite party no.2 were reportedly seen besides 3 cm long elliptical collection seen in right kidney upper fold. The patient was subsequently discharged but his trouble 3 continued so he went for further treatment to a Physician on whose advise, after controlling sugar level again ultra-sonography of whole abdomen of opposite party no.2 was done on 20th July, 2003 at Patna Scan Centre. As per this report right kidney of opposite party no.2 was not visualized. On basis thereof doubt in the mind of the complaint arose regarding taking out of right kidney during one and only one operation of his abdomen conducted by petitioner and his associates. Further, the complainant again on 21st July, 2003 got ultra-sonography of his whole abdomen at Mahabir Cancer Sansthan, Patna. As per report “right kidney is not seen (operated). No significant residual deceased seen. ” Towards end of the report I.V.P. test was suggested to ascertain function of right kidney. Such I.V.P. test was done at same Mahabir Cancer Sansthan, Patna, on 26th July, 2003 and as per report “normal I.V.P. of left kidney, right kidney not visualized?” On the basis of all such materials, medical prescriptions and report etc. opposite party no.2 filed complaint in the Court of Chief Judicial Magistrate, Patna which was 4 transferred under Section 202 of the Code of Criminal Procedure to the court below where complainant was examined on solemn affirmation examination of other witnesses. 4. From the lower court record, which was called earlier, it appears that one of the co-accused (non- petitioner) Dr. Rajan Chaudhary tried to participate during enquiry, filed some documents but his prayer was not accepted vide order dated 13th November, 2003 but by same order, after perusing ultrasound reports and opinion of Dr. Rao of Mahabir Cancer Sansthan, who has reported on ultra-sonography as well as I.V.P. test of the complainant, was called as a witness by the court for some clarifications in his opinion. He, ultimately, appeared on 08th December, 2003, his statement was recorded as witness no.4 and during court questions he confirmed on the basis of ultrasound and I.V.P. that right kidney of the complainant is not available. On the basis of such materials the court below took cognizance giving rise to instant application by the petitioner. 5. Learned counsel for the petitioner by 5 placing reliance upon the decision of the Apex Court in the case of Jacob Mathew V. State of Punjab & Anr.; 2005(6) SCC 1, submitted that only on the basis of report of Radiologist it cannot be said that right kidney of the complainant was removed during operation conducted by the petitioner, that too roughly before three years. Before arriving at such conclusion some more scientific tests and reports of competent doctors are required. Special emphasis was given in paragraph 52 of the decision wherein it has been held “ a private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor.” 6. The learned counsel further placed reliance on the Apex Court decision in a case of Dr. Suresh Gupta V. Govt. of NTC Delhi & Another: 2004(6) SCC 422, and the case of Martin F. D’souza V. Mohd. Ishfaq; (2009) 3 SCC 1. In all the three decisions of the Apex Court almost similar view has 6 been taken and in all the three cases matter in controversy was alleged negligence attributed on the part of the doctors conducting surgery on the patients who lost their lives during or soon after surgery. But, in the instant case matter is different in nature at least to that extent that this is not a case of negligence rather allegation is that surgery was done for other purpose but during the same right kidney of the patient, as alleged, has been removed without taking him into confidence or any requirement to do so. 7. Learned counsel for the complainant opposite party no.2 placed reliance upon decision of the Apex Court in the case of Union of India V. Prakash P. Hinduja; AIR SCW 2003 Vol.4 3258, and decision of this court in a case of Ram Sajjan Sah V. State of Bihar; PLJR 2010(2) 1029, but only to brought to the notice of this court the limits under which inherent jurisdiction under Section 482 of the Code of Criminal Procedure may be exercised. Further, it is submitted that complainant had undergone single surgery of his abdomen that too conducted in the year 2000 by the 7 petitioner and his associates who for the purposes of such surgery got all required tests were conducted including ultra-sonography of whole abdomen as per advice of the petitioner, right kidney of the complainant was in existence without any otherwise mark but just within fifteen days of the operation when the complications could not be brought under control the patient was advised by petitioner for another ultra- sonography of whole abdomen for that the petitioner also sent personal letter to Dr. Chaudhary wherein he has, without any other wise basis, suggested to see for “any lymph collection around right kidney”. This alone in the specific words of learned counsel for opposite party no.2 “Chor Ki Darhi Mein Tinka”, (straw in the beard of thief) and the doctor recommended for such tests / reports existence of right kidney besides 3 cm long elliptical collection seen in right kidney upper portion in his report dated 30th September, 2009 on the basis of which it is submitted by learned counsel that this report was prepared just to save skin of the petitioner specially on the basis of subsequent ultra- 8 sonograhy of whole abdomen followed by I.V.P test clearly indicated non-existence of right kidney of the patient. 8. In this sequence my attention was drawn towards an uncalled for report dated 4th November, 2003 issued by Dr. R.R. Rao of Mahabir Cancer Sansthan filed with this quashing application at page 37 (Annexure-2) which reads as such: “I have examined Mr. Satish Kumar aged 40 years and have done his ultrasound examination of kidney, ureter and bladder on 21/07/2003 at Mahabir Cancer Sansthan (US No. 17136). In that report I have written that right kidney is not seen (Operated). Right kidney is not seen does not mean right kidney has been removed by the Surgeon during operation. The word “operated” means there is presence of an operation mark over skin surface. Non-visualization of kidney during ultrasound examination may be due to many reasons and the cause of non-visualization can be ascertained by advanced tests if so required.” And it is submitted by learned counsel for opposite party that somehow or the other Dr. Rao was forced to prepare the above report which was neither 9 issued to the complainant nor it was filed by him with the complaint petition before the court below. In the above report it has been tried to explain the word “operated” mentioned in his report of ultra-sonography presence of an operation mark over skin surface and further towards end it has been stated that cause of non- visualisation can be ascertained by advance test if so required and as per learned counsel for opposite party no.2 on the advise of Dr. Rao himself after ultra- sonography of whole abdomen of opposite party no.2, I.V.P test was conducted. That also confirms non- existence of right kidney. 9. It is contended that all requirements to bring law into motion has been fulfilled. The Court below has rightly taken cognizance after taking all pre- cautions and enquiry even the Radiologist reporting missing of right kidney. So impugned order needs no interference. 10. At this stage, it would not be out of place to mention that on the basis of Radiology Review Manual learned counsel for the petitioner submitted 10 that there are several other tests to confirm the existence of kidney or if it is non-existent, causes behind it. But, the complainant opposite party no.2 has not done so in absence thereof again in view of decisions of he Apex Court in the case of Union of India V. Prakash P. Hinduja and Ram Sajjan Sah V. State of Bihar (Supra) the proceedings before the court below deserves to be quashed. 11. Learned counsel for opposite party submitted that most of the required tests have already been conducted at All India Institute of Medical Sciences, New Delhi confirms the earlier opinion and since such tests were conducted subsequent to filing of the case and order taking cognizance they could not be produced and if permitted may be produced before this Court by way of counter affidavit and if any other test at all is required to prove the assertions complainant- opposite party no.2 is ready to undergo and do every thing and file all such documents immediately before the court below. 12. At this stage, it would not be proper to 11 further delay this proceeding. On the basis of materials filed and shown till today it cannot be said that right kidney of opposite party no.2, which was available a bit before he went for surgery done by the petitioner and his associates is now, prima facie, not available and as stated earlier it is not the case of either of the side that opposite party no.2 had ever gone for another surgery. Thus, I find no reason to interfere with the impugned order taking cognizance and further proceeding before the Court below in Complaint Case no. 1750 C of 2003. 13. However, it is further made clear that any observations made above in any way shall not affect the independent appreciation of evidence by the Courts below, who is further directed to proceed expeditiously with the case on receipt of the record. The opposite party no.2 must produce before the court below prior to hearing on the point of charge all such subsequent reports as submitted to have after going through the test at All India Institute of Medical Sciences, New Delhi. 14. In the result, at this stage finding no merit, this application is hereby dismissed Office is 12 directed to at once transmit the lower court records with a copy of this order to the court below. (Akhilesh Chandra, J.) Patna High Court, The 07th September, 2010. AAhmad/