IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF APRIL 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.2739 OF 2010 C/W CRIMINAL APPEAL NO.895 OF 2011 IN CRIMINAL PETITION NO.2739 OF 2010 BETWEEN:
1. SMT DEEPA PRASHANTH, W/O H.G. PRASHANTH, AGED 30 YEARS, 2. MR. H.G. PRASHANTH, S/O H.N. GOPINATH RAO, AGED 37 YEARS, (REPRESENTING HIS MINOR DAUGHTER KUM. PRAGATHI PRASHANTH).
BOTH ARE R/AT 129, 1ST FLOOR, TEMPLE STREET, ITI LAYOUT, BSK 3RD STAGE, BENGALURU- 560085 ... PETITIONERS (BY SRI: RAMESH CHANDRA, ADVOCATE) AND 1. M/S BRINDAVAN NURSING HOME, REPRESENTED BY ITS PROPRIETOR, DR. PRAKASH, S/O SRI LAKSHMI NARAYANA RAO, AGED 52 YEARS, NO.17, 4TH MAIN ROAD CHAMRAJAPET, BENGALURU-560018.
2. DR. RAJALAKSHMI V RAO, W/O K.V. RAO, AGED 50 YEARS, R/AT NO.118, 6TH MAIN ROAD, 2ND PHASE, 4TH BLOCK, BANASHANKARI 3RD STAGE, BENGALURU-560085.
3. DR. SHANKAR HEGDE, S/O SRI. K.S. HEGDE, AGED 52 YEARS, 460-F, 6TH CROSS, 7TH BLOCK WEST JAYANAGAR, BENGALURU-560082.
(BY SRI: B R DEEPAK, ADVOCATE) ... RESPONDENTS THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO SET-ASIDE THE ORDER PASSED BY THE P.O. FTC- VI, BANGALORE, IN CRL.R.P.NO.509/2008 DT.6/1/2010.
IN CRIMINAL APPEAL NO.895 OF 2011 1. SMT. DEEPA PRASHANTH W/O H G PRASHANTH AGED 31 YEARS 2. MR H G PRASHANTH S/O H N GOPINATH RAO AGED 38 YEARS 3. KUM. PRAGATHI PRASHANTH D/O H.G. PRASHANTH, MINOR REPRESENTED BY FATHER AND NATURAL GUARDIAN H.G.PRASHANTH, S/O H.N. GOPINATH RAO, RESIDING AT # 190, 8TH MAIN, GURURAJA LAYOUT, BEHIND VIDYA PEETHA, BSK III STAGE, BENGALURU-560028.
NOW AT:
R/AT NO 129, 1ST FLOOR, TEMPLE STREET, ITI LAYOUT, BSK 3RD STAGE, BANGALORE 560085 ... APPELLANTS (BY SRI: RAMESH CHANDRA, ADVOCATE) AND 1. DR RAJALAKSHMI V RAO W/O K V RAO AGED ABOUT 50 YEARS R/AT NO 118, 6TH MAIN ROAD, 2ND PHASE, 4TH BLOCK, BANASHANKARI 3RD STAGE, BANGALORE 560085 2. DR SHANKAR HEGDE S/O SRI K.S. HEGDE AGED 52 YEARS 460-F, 6TH CROSS, 7TH BLOCK WEST, JAYANAGAR, BANGALORE 82.
... RESPONDENTS (BY SRI: B R DEEPAK, ADVOCATE) THIS CRIMINAL APPEAL IS FILED U/S. 378(4) CR.P.C PRAYING TO SET ASIDE THE ORDER DT:18.5.11 PASSED BY THE I ADDL.C.M.M., BANGALORE IN C.C.NO.2794/02- ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 418 OF IPC.
THIS CRIMINAL PETITION C/W CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED FOR ORDER/JUDGMENT ON 04.01.2019 AND COMING ON FOR PRONOUNCMENT THIS DAY, JOHN MICHAEL CUNHA. J, PASSED THE FOLLOWING:-
O R D E R/J U D G M E N T A private complaint was filed by Petitioner No.1/appellant No.1 and two others against accused No.1 to 3 (Respondent Nos.1 to 3 herein) alleging commission of offences under sections 415 and 418 of Indian Penal Code. After recording the sworn statement, the trial court took cognizance of the offences under section 322 read with sections 323 and 338 read with section 34 of Indian Penal Code against accused Nos.1, 2 and 3. On their appearance, the accused moved an application under section 245 Cr.P.C. seeking discharge. By order dated 20.09.2008, the said application was dismissed.
2. Accused Nos.1, 2 and 3 carried the matter in revision before the City Fast Track (Sessions) Judge, Bengaluru City (FTC No.VI) in Crl.R.P.No.509/2008 and by order dated 6.1.2010, the revisional court partly allowed the revision petition and consequently, modified the order passed by the learned Magistrate as under:
“The application filed by accused No.1 under section 245 Cr.P.C., is hereby allowed. Accused No.1- M/s.Brindavan Nursing Home, represented by its Proprietor, Dr.A.Prakash is hereby discharged.
Further, the order passed regarding to frame accusation under section 322 r/w 323, I.P.C. against petitioner Nos.2 and 3 is also hereby set aside.
The order of the learned Magistrate regarding to frame accusation under Section 338, r/w S.34, I.P.C. is hereby confirmed against petitioner Nos.2 and 3.
The learned Magistrate is directed to frame accusation under Section 338 r/w. S.34 I.P.C., against the petitioner Nos. 2 and 3 in accordance with law.
Further, petitioner Nos. 2 and 3 are directed to appear before the trial court on 1.3.2010 and proceed with the case.”
3. As against the above order, the complainants preferred a Criminal Petition No.2739/2010 under section 482 of Cr.P.C. before this Court. In the meanwhile, charge was framed against accused Nos.2 and 3 for the offences under section 338 read with section 34 of Indian Penal Code. When the matter was set down for recording evidence on 18.05.2011, though the accused were present, the complainant was absent and hence, by order dated 18.5.2011, the learned Magistrate dismissed the complaint for non-prosecution and acquitted the accused of the above charge. As against the said order, the complainants have preferred Criminal Appeal No.895/2011.
4. Learned counsel has filed a memo stating that he has issued a notice to petitioner No.1 intimating his desire to retire from the case. However, since the matter is lying on board since 2010, the said memo is rejected.
5. I have heard learned counsel for the petitioners/appellants and the learned Counsel for the respondents.
6. The records indicate that criminal process was set in motion by lodging a private complaint under Section 200 Cr.P.C. The material allegations made in the complaint are that, accused No.1 was running a Nursing Home, wherein accused No.2 is working as Obstetrician and Gynecologist. The complainant No.1 delivered a female child in the nursing home of accused No.1 on 5.8.2001. The delivery was attended by accused No.2. The complainant No.1 was informed that she had delivered a baby girl weighing 3.2 kgs and looked healthy. However, accused No.2 informed her that during delivery, while pulling the child, the left arm slightly got strained and it will be all right by 10 to 15 days. It is further alleged that on account of the negligence of accused Nos.1 and 2, the baby suffered permanent disability in her left arm. When complainant Nos.1 and 2 visited accused No.3 (pediatrician), they were informed that the said deformity would be set right within a short period. Since the said deformity has not been cured, the complainants sought action against all the accused persons for the alleged offences punishable under sections 415 and 418 of Indian Penal Code. However, after recording the sworn statement of the first complainant and considering the documents produced by the complainants, the trial court took cognizance of the offences punishable under sections 322, 323, 338 read with section 34 of Indian Penal Code. The application filed by the accused persons seeking discharge also was dismissed by the trial court. However, the revisional court has entertained the revision against the said order of discharge passed under section 245 of Cr.P.C. and has discharged accused No.1 of all the charges and has proceeded with the trial of accused Nos.2 and 3 only for the offences under section 338 read with section 34 of Indian Penal Code.
7. Learned counsel for the petitioners/appellants submits that the learned Sessions Judge had no jurisdiction to entertain the revision petition under section 397 of Cr.P.C. against an interlocutory order passed under section 245 of Cr.P.C. Consequently, the order passed by the revisional court discharging accused No.1 as well as setting aside the charges under sections 322 and 323 are liable to be set aside by this Court.
8. With regard to the dismissal of the appeal for non- prosecution, learned counsel submits that on the said date, complainant No.1 had infact come to the court to give her evidence. But she was late in reaching the court. The order of dismissal came to be passed at the time of calling out the case and hence, on coming to know of the said order, learned counsel for the complainants moved an application seeking to recall the said order, but the learned Magistrate did not entertain the said application. Learned counsel further submits that having regard to the conduct of the complainant who was regularly appearing before the court, the learned Magistrate ought to have showed magnanimity in recalling the said order and affording an opportunity to the complainant to substantiate the allegations, especially when the allegations made against the accused pertain to the medical negligence which has resulted in permanent deformity to the minor child of the petitioners.
9. In the light of the contentions urged by the petitioners/appellants, the points that arise for consideration are:-
I. Whether the learned Sessions Judge has committed an error in entertaining the revision petition under section 397 Cr.P.C., against an interlocutory order passed under section 245 of Cr.P.C.?
II. Whether the order passed by the learned I Addl. Chief Metropolitan Magistrate, Bengaluru dismissing C.C.No.2794/2002 for non-prosecution is sustainable under law and facts of this case?
III. Whether the impugned orders suffer from any error of law and fact warranting interference under Section 482 Cr.P.C.?
10. Point No.I:
(a) The question as to whether an order passed under section 145 of Cr.P.C., is amenable for revisional jurisdiction is answered by the Hon’ble Supreme Court of India in GIRISH KUMAR SUNEJA vs. CBI reported in (2018) 1 SCC (Cri) 202 wherein after considering the divergent views held by the Hon’ble Supreme Court as well as by the various High Courts, has laid down that an order for framing charge if reversed has the effect of discharging the accused person resulting in a final order, the same is amenable for revision under section 397 of Cr.P.C.
(b) In the instant case, the application moved by the accused/respondents seeking discharge under section 245 Cr.P.C., has been partly allowed by the learned Fast Track (Sessions) Judge discharging accused No.1 of all the charges under section 322 read with 323 of Indian Penal Code and 338 read with 34 of Indian Penal Code. Accused Nos.2 and 3 were also discharged of the offence under sections 322 read with 323 of Indian Penal Code. The order passed by the learned Magistrate therefore is having the effect of a final order. Hence the learned Sessions Judge was well within his powers to entertain the revision petition under section 397 of Cr.P.C. As a result, the first contention urged by the petitioners is rejected.
11. Point No.II:
Coming to the question of dismissal of C.C.No.2794/2002 for non-prosecution is concerned, in BANI SINGH & OTHERS vs. STATE OF U.P., 1996 SCC (Cri) 848, the Hon’ble Supreme Court has held that the dismissal of the appeal for default without going into merits is illegal. The said decision is followed in K.S.PANDURANGA vs. STATE OF KARNATAKA, (2013) 3 SCC 721. In view of this position of law, the order passed by the learned I Addl. Chief Metropolitan Magistrate, Bengaluru dismissing the complaint for non-prosecution cannot be sustained.
12. Point No.III:
Coming to the merits of the application filed by the applicants seeking their discharge, learned Magistrate has dismissed the said application on the ground that the material on record if un-rebutted was sufficient to make out the offences alleged against accused Nos. 1 to 3 warranting their conviction. Learned Sessions Judge however on revision has held that having regard to the material on record, there are no sufficient grounds at all to proceed against the revision petitioner No.1/accused No.1 under section 338 of Indian Penal Code. Hence, accused No.1 was discharged of the said offence. However, insofar as the offences under sections 322 read with 323 of Indian Penal Code are concerned, the revisional court was of the opinion that the material on record did not disclose the intention on the part of the accused persons to cause any injury voluntarily to the child of the complainant. Hence, there was no ground to proceed against the petitioners for the offences punishable under sections 322 read with 323 of Indian Penal Code.
13. Insofar as this finding is concerned, I do not have any reason to differ with the view taken by the revisional Court. A perusal of the records reveals that on receiving the private complaint, the trial court recorded the statements of the complainant (PW.1) and two witnesses examined on her behalf namely Dr.Arathi Prasad-PW-2 and Sri.Prashanth H.G.-PW.3.
14. PW.2 Dr.Arathi Prasad was the Consultant in Ramakrishna Nursing Home, Jayanagar. According to this witness, in the month of December 2001, petitioners had brought their baby child Pragathi for examination and on examination, she found that muscles in the left upper arm were not properly working and due to which movement of the left upper arm was incomplete. She further deposed that the problem which the child was suffering could have been caused due to mishandling of the child at the time of delivery by the Doctor or the person who attended the pregnant lady. According to her, such kind of problem would crop up in cases of forceps delivery.
15. PW.3 – Prashanth H.G. is the husband of complainant No.1. Through this witness, complainant No.1 has marked the medical records relating to the delivery of the child as per Ex.P1 to P14. These documents were produced in support of the accusations that during delivery, the Doctor who attended on complainant No.1 was negligent and due to her negligence, the left arm of the child of the petitioners was deformed. Delivery notes at Ex.P3 clearly indicate that forceps was used for pulling out the baby’s head. According to the complainant, on account of carelessness and negligence of the accused persons, the baby suffered an injury which is in medical terminology known as “Erb’s Palsy”, and Erb’s Palsy is almost always preventable birth defect. If only the accused had exercised requisite care during the delivery, the injury sustained by the child could have been prevented. In the wake of these accusations which are sought to be substantiated through the evidence of Doctor-PW.2 as well as supporting medical documents which were prepared contemporaneous with the delivery of the child, in my view, it was not proper on the part of the learned Sessions Judge to hold that the material on record was not sufficient to make out the offences under section 338 of Indian Penal Code. In my opinion, the above material is sufficient to make out the offence under section 338 of Indian Penal Code.
16. Section 338 of Indian Penal Code reads as under:
“338. Causing grievous hurt by act endangering life or personal safety of others.- 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.”
17. “Hurt” is defined under section 319 of Indian Penal Code and “Grievous hurt” is defined under Section 320 of Indian Penal Code. As per section 319, Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt. In view of section 320, the following kinds of hurt only are designated as “grievous”.
First: Emasculation.
Secondly: Permanent privation of the sight of either eye.
Thirdly: permanent privation of the hearing of either ear. Fourthly: Privation of any member or joint.
Fifthly: Destruction or permanent impairing of the powers of any member or joint.
Sixthly: Permanent disfiguration of the head or face. Seventhly: Fracture or dislocation of a bone or tooth.
Eighthly: Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
18. In the instant case, specific accusations made in the complaint are that on account of rash and negligent act of the accused, the child has suffered privation of her shoulder joint. Of course, I am in agreement with the findings of the revisional court that the material on record indicates that the said injury was not caused by the accused persons with an intention to cause the injury as required under section 322 of Indian Penal Code. Therefore, the charge under sections 322 and 323 of Indian Penal Code cannot stand against the petitioners. However, there being clear material insofar as commission of the offence punishable under section 338 of Indian Penal Code, in my view, the impugned order passed by the revisional court discharging accused No.1 for the above offence cannot be sustained. As per the scheme of the Code, offence under section 338 is made punishable because of the inherent danger of the act irrespective of knowledge or intention to produce the results. Criminal culpability for the offence under section 338 is determined with reference to rash and negligence in performing the act on the touchstone of the act of a prudent man. Irrespective of the result of the act, prosecution under section 338 can be maintained if hurt is found to have been caused due to rashness or negligence. The alleged negligence is attributable only to accused Nos.1 and 2. Going by the case of the prosecution, accused No.3 was not involved in the delivery of the child. She came into picture only after the delivery of the child when the complainants visited her seeking her opinion with regard to the alleged disability suffered by the child at the time of delivery. There are no allegations of negligence by accused No.3. As such the prosecution of accused No.3 in the facts and circumstances of the case, in my view, is wholly illegal and cannot be sustained. Consequently, accused No.3 is liable to be discharged of all the offences alleged against her.
In the light of the above discussion, Criminal Appeal No.895/2011 is allowed. The order dated 18.05.2011 passed by the I Addl. Chief Metropolitan Magistrate, Bengaluru, dismissing the complaint in C.C.No.2794/2002 is quashed. Consequently, C.C.No.2794/2002 is restored to file.
Criminal Petition No.2739/2010 is allowed-in-part. The order dated 06.01.2010 passed by the City Fast Track Court (Sessions) Judge, Bengaluru in Criminal Revision Petition No.509/2008 and the order dated 29.10.2008 passed by the learned I Addl. Chief Metropolitan Magistrate, Bengaluru under section 245 Cr.P.C. is modified. Accused No.3 is discharged of the offences punishable under sections 322, 323 and 338 read with 34 of Indian Penal Code. Accused Nos.1 and 2 are discharged of the offences punishable under sections 322 and 323 of Indian Penal Code. The application filed by accused Nos.1 and 2 for their discharge for offences punishable under sections 338 read with 34 of Indian Penal Code is dismissed. Consequently, accused Nos.1 and 2 shall face trial for the offences punishable under sections 338 read with 34 of Indian Penal Code.
Sd/- JUDGE Bss