Prakashsing Udamsing Lohaniwal vs State Of Gujarat
2023 Latest Caselaw 2296 Guj

      R/CR.MA/1260/2014                               ORDER DATED: 16/03/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 1260 of 2014

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                      PRAKASHSING UDAMSING LOHANIWAL
                                   Versus
                         STATE OF GUJARAT & 1 other(s)
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Appearance:
MR PRAVIN GONDALIYA(1974) for the Applicant(s) No. 1
HCLS COMMITTEE(4998) for the Respondent(s) No. 2
MS. BHAVNA D ACHARYA(6406) for the Respondent(s) No. 2
MR LB DABHI APP for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                               Date : 16/03/2023

                                ORAL ORDER

1. By this application under Section 482 of the Code of Criminal Procedure, the applicant - original accused seeks to invoke inherent powers of this Court, praying for quashment of the FIR being I. 01 of 2014 registered with Dev Bhumi Dwarka Police Station, for the offence punishable under Section 337 of the Indian Penal Code.

2. Facts and circumstances giving rise to present application are that, FIR is filed against the practicing Doctor under Section 337 of the Indian Penal Code, inter-alia alleging that, while process of delivery of the complainant, the applicant caused injury to the unborn child. The complainant being mother of the child, alleges that, on 23.11.2013, she was admitted in the private hospital of the applicant at Dwarka as she was about to deliver a child. It is further alleged that, despite strenuous attempt on the part of the doctor, she could

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not deliver the child and referred to higher center for further treatment. She then, admitted in the hospital of Dr. Pindaria at Khambhalia, where, she delivered a baby boy. Dr. Pindaria, after the delivery of the child informed the complainant mother that, child having suffered injuries on eye liner of one eye and treatment suturing was done. In such circumstances, dissatisfied with the act of the doctor and considering his negligence, the FIR came to be lodged for the aforesaid offences.

3. Mr. Pravin Gondaliya, learned advocate for the applicant submitted that, the action on the part of the doctor would not constitute an offence causing hurt by act endangering life or personal safety of the child. He had performed the procedure in good faith for the benefit of the complainant and followed the necessary precautions while undertaking the procedure for delivery of the child. Thus, therefore, he would urge that, the allegations made in the FIR, even if they are accepted as it is, do not prima-facie constitute any offence or make out a case against the accused. Relying on the celebrated judgment on the subject, (Jacob Mathew Vs. State of Punjab (2005) SC Law Suit 1045), he contended that, in the present case, before registration of offence against the applicant doctor, the IO failed to obtain medical opinion from the Board which is precondition and mandatory.

4. In the aforesaid contentions, learned counsel for the applicant submitted that, when there is no any gross negligence alleged against the applicant herein, the negligence cannot be attributed to the applicant merely on the facts that the child in womb suffered minor

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injury when the doctor was performing his duties in good faith. Thus, therefore, he submitted that, the questioned FIR is being lodged with ulterior motive and with a view to harass the applicant and therefore, the proceedings may be quashed and set aside.

5. On the other hand, learned counsel Ms. Bhavna Acharya and Additional Public Prosecutor Mr. L.B. Dabhi, have vehemently opposed the prayer of quashing, contending that the applicant, while undertaking the process of delivery of the complainant, did not take proper care of the unborn child and considering the injuries sustained by the child, the same itself demonstrate the rashness and negligent act on the part of the applicant. Thus, on bare reading of the FIR, prima-facie case is made out against the applicant for causing injury by act of negligent.

6. Having regard to the facts and circumstances to the present case, the issue arise for consideration, whether, the averments in the complaint disclosed the ingredients necessary to constitute an offence under Section 337 of the Indian Penal Code?

7. Before adverting to the issue raised by the respective parties, let us examine the statutory penal provision.

Section 337 is pertaining to causing hurt by act endangering life or personal safety of others. A bare reading of the section, explained that, whoever causes hurt, to any person by doing any act so rashly or negligently as to endanger human life or the personal life of other, shall be punished with imprisonment of 6 months or

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with fine or with both.

8. Reverting back to the facts of the case, the applicant is qualified doctor having private clinic at Dwarka. In emergency, the complainant went to the clinic of the applicant, as there is urgent need to perform either surgery or an act of giving birth to the child. On bare reading of the contents of the FIR, it appears that, the applicant doctor tried his level best for normal delivery, but it could not happened and then, he opted the delivery by forceps and in that process, child in the womb sustained minor injuries over his eyes. This court is of the considered view that, the doctor has performed his job in good faith for the benefit of the complainant and had undertaken the process according to recognized method of delivery. In such circumstances, it cannot be said that, the act of the applicant was done rashly and negligently and the act was such that, it could endanger the life of the child. It needs to be noted that, after registration of the FIR, the investigating agency failed to obtain expert opinion from the panel doctor of the Government Hospital, as directed by the Apex Court in case of Jacob Mathew (supra). It is apt to and rely on the decision of Dr. Suresh Gupta Vs Government of NCT of Delhi, (2004) 6 SCC 422, wherein, it was held that, the degree of negligence should be gross or reckless. A mere a lack necessary care, attention or skill was considered insufficient to hold criminally liable for negligence. The Apex Court further held that, mere an inadvertence or want of certain degree of care might create civil liability but will not be sufficient to attract criminal liability.

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9. In light of the settled position of law and considering the peculiar facts and circumstances of the present case, I am convinced that the allegations made in the FIR even if they are taken at their face value and accepted in their entirety do not prima-facie constitute an offence under Section 337 of the Indian Penal Code. Thus, to prevent the abuse of process of law and for the ends of justice, the FIR being I. CR. No. 01 of 2014 registered with Dev Bhumi Dwarka Police Station for the offence under Section 337 and consequential proceedings therefrom are hereby quashed.

10. In the result, petition is allowed. Rule is made absolute to aforesaid extent. Direct service permitted.

(ILESH J. VORA,J) P.S. JOSHI