A.M. Berry vs Ravi Arora And Ors.
1991 Latest Caselaw 541 Del

JUDGMENT

S.C. Jain, J.

(1) Facts giving rise to this petition are that one Shri Ravi Arora, hereinafter referred to as respondent No. 1, filed a criminal complaint in the Court of the Metropolitan Magistrate Delhi under Sections 336/338/ 420/34 Indian Penal Code against Dr. A M. Berry, hereinafter referred to as the petitioner, Dr. Tripta Dutta (respondent No. 2), Dr. (Mrs.) Chander Kanta Bhalla (Respondent No. 3) and Dr. O.P. Sharma (Respondent No. 4) all attached to Sir Ganga Ram Hospital.

(2) The concerned Metropolitan Magistrate took cognizance in the matter and found a prima fade case for rash and negligence Act on the part of Dr. Tripta Gupta, Dr. Chander Kanta Bhalla and Dr. A.M. Berry. He summoned them for the offences punishable under Sections 336 and 338 IPC. According to him, all these three accused persons conducted an operation of parotid abcess on the face of a baby 17 days old in a rash and negligent manner causing damage to the nerves. The incision given was not transverse rather it was oblique. Even the consent of the guardian of the baby was not obtained before conducting the operation.

(3) The order of summoning was challenged by Dr. A.M. Berry by filing a petition. Cr. M. (M) 555/87 in this Court under Section 482 Cr.P.C. but the same was dismissed by M.K.Chawla, J. in liming passing an order as under: "CR.M(M) 555/87. Dismissed."

(4) Thereafter, notice under Section 251 Cr.P.C. was issued by the Metropolitan Magistrate mentioning the allegation against them. Then the petitioner Dr. Berry filed Crl. Revision against the order dated 21 .11.87 passed by the trial Court before the Addl. Sessions Judge, but the same was dismissed as barred by time and the application for consideration of delay was also dismissed.

(5) Aggrieyed, the petitioner Dr. Berry has filed this petition under Section 482 Cr.P.C. for quashing the proceedings on various grounds. His main contention is that he is MBBS. Md (Pediatrician) attached to Sir Ganga Ram Hospital as a consultant (Pediatrician). He is not a paediatric surgeon and that he did not perform any such operation on the face of the child. He drew my attention towards para 6 of the criminal complaint filed by the respondent Ravi Arora wherein it has been admitted by the respondent that the child was operated upon by Dr. Mrs. Tripta Dutta without following the mandatory medical provisions of operating the child only with a special written consent of the parents of the child. According to the petitioner there is no allegation against him for conducting this operation as he is not a surgeon. The question of rashness and negligence in conducting the operation does not arise at all against him, when he has not conducted the said operation. As per his version Smt. Sarika Arora wife of respondent No. 1 Ravi Arora gave birth to a female child. The baby was premature of 7 weeks gestation. On 17th day of the birth of the baby, she developed parotid swelling under both the ears. The baby was under the treatment of the petitioner as well as Dr. Chander Kanta Bhalla who are pediatricians attached to Sir Ganga Ram Hospital. Dr. Bhalla, respondent No. 3 examined the baby and referred the case for consultation with respondent No. 2. Dr. Mrs. Tripta Dutta, paediatric surgeon also attached to Slr Ganga Ram Hospital. Dr. Tripta Dutta kept the baby under observation and later on she drained off the abcess. At the relevant time when the abcess was drained off by Dr. Dutta, the petitioner was not present and was attending to his clinic at Sir Ganga Ram Hospital. Neither the alleged operation was conducted in his presence nor he is a party to it. The order of his summoning under Sections 336 and 338 Indian Penal Code for the alleged act of rashness and negligence in conducting the operation on the baby and serving him with a notice under Section 251 Cr.P.C. are illegal and unjustified and an abuse of the process of law. The criminal proceedings initiated against him are liable to be quashed. The case is still at the notice stage.

(6) The learned Counsel for respondent No. 1 argued that a similar application for quashing the proceedings on a previous occasion was rejected by this Court (Justice M.K.Chawla) on 1.5.1987 and this petition is, therefore, not maintainable. According to him, it is a summons case and as per Section 251 Cr.P.C. when in a summons case the accused appears or is brought before the magistrate, the particulars of the offence of which he is accused shall be stated to him and he shall be asked whether he pleads guilty or has any defense to make, but is should not be necessary to frame a formal charge.

(7) The next submission made by the learned Counsel for the respondent No. 1 is that the petitioner (Dr. Berry) and Dr. Chander Kanta Bhalla who are child specialists looked after the child and treated him. They put the patient on a drug "Furuxone" by 6th day of life, whereas "Furuxone" is contraindicated during the first month of life. According to him the child was operated by Dr. Tripta Dutta when Dr. Berry and Dr. Chander Kanta Bhalla were also present. All the three accused are guilty of their rash and negligent act. According to him, after this surgery it was noticed that the child was not smiling during sleep and when crying the facial expression was different which is normally observed in neonates while crying or smiling.

(8) Regarding the maintainability of the petition, it is an admitted fact that the earlier petition was dismissed in liming on 1.5.1987, even without calling for the record, by passing only one word order "dismissed". At that time notice under Section 251 mentioning the particulars of the offence of which he was accused was not even served upon him. It has been laid down by the Supreme Court in Supdt. & Remembrance West Bengal v. Mohan Singh that Section 561-A Cr.P.C. (now Section 482) preserves inherent power of the High Court to make such orders as it deems fit to prevent abuse of the process of the Court to secure the ends of justice and the High Court must, therefore, exercise its inherent power having regard to the situation prevailing at the particular point of time when its inherent jurisdiction is sought to be invoked. Rejection of earlier application for quashing of criminal proceedings on the ground of absence of prima facie case is no bar for filing another application on the same ground as it does not amount to review or revision of the earlier order.

(9) The case of the petitioner throughout is that no prima fade case is made out against him and the criminal proceedings against him are abuse of the process of the Court. The Metropolitan Magistrate while passing the order for summoning the petitioner and other accused observed as under :- AFTER hearing the learned counsel for the complainant and after perusing the evidence adduced by the complainant I come to the conclusion that there is prima facie case for rash and negligent act on the part of accused No. 1 Dr. Tripta Dutta, accused No. 2 Dr. Chandra Kant Bhalla and accused No. 3 Dr. A.M. Berry only. They are directly responsible for conducting the above referred operation in rash and negligent manner without the consent of the guardian and thus causing injury i.e. facial paralysis on the face of the above said child."

(10) This order of summoning the petitioner to face trial for an offence of rash and negligent act while operating the child is against the record as per se. There is no dispute about the fact that petitioner. Dr. Berry, is a paediatrician and not a surgeon. The child was not operated upon by him as is apparent from para 6 of the complainant wherein it is mentioned that the child was operated upon by Dr. Tripta Dutta without following the mandatory medical provisions of operating the child only with a special written consent of the parents of the child. When Dr. Berry (petitioner) has not conducted the operation as alleged the question of his rashness and negligence while conducting the operation does not arise. The magistrate has not mentioned any other ground in his order while summoning this petitioner and the other accused persons. Hon'ble Supreme Court in its decision in Madhavrao Jiwajirao Scindia and others v. Sambhajirao Chandrojirao Angre and others observed as under: "WHEN a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverter allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court changes of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceedings even though it may be at a preliminary stage."

(11) In view of the law as laid down by the Hon'ble Supreme Court and the allegations against the petitioner Dr. Berry and the absence of prime facie case against him, it is neither expedient nor in the interest of justice to permit the prosecution to continue against him under Sections 336 and 338 Ipc for the alleged rash and negligent act and, therefore, I accept this petition, Cr M. (M) 705/91, and the criminal prosecution against the petitioner Dr. A.M. Berry is quashed. Order accordingly.

(12) Record of the lower Court be sent back immediately.