IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF MAY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE CRIMINAL PETITION No.2678 OF 2017 BETWEEN:
Dr. Prabhakar, S/o. Srikanth V. Gudisagar, Aged about 40 years, Consultant ENT Surgeon, Vinayaka ENT Hospital, Railway Station Road, Sagar, Shivamogga – 577 401. ... Petitioner (By Sri. Bharath Kumar V., Advocate) AND:
Sri. K. Sigbathulla, S/o. Abdul Rehman, Aged about 50 years, C/o. Alfaz Cushion Works, N.H.206, Sagar, Shivamogga – 577 401. ... Respondent (By Sri. Nataraj C.D., Advocate for Sri. Pruthvi Wodeyar, Advocate) This Criminal Petition is filed under Section 482 of Cr.P.C. praying to quash the entire proceedings in matter bearing PCR No.39/2016 currently renumbered as matter bearing C.C.No.5/2017 pending on the file of the Prl. Civil Judge & JMFC, Sagara wherein the petitioner herein is arraigned as accused for the alleged offences under Sections 284 and 326 of IPC.
This Petition coming on for Admission, this day, the Court made the following:-
ORDER The petition is admitted for hearing. With consent of the parties, same is heard finally.
2. In this petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as ‘Cr.P.C.’ for brevity), petitioner inter alia seeks quashment of proceedings in C.C.No.5/2017 pending before the Principal Civil Judge and JMFC, Sagara by which, cognizance has been taken in respect of offences under Sections 284 and 326 of the Indian Penal Code (hereinafter referred to as ‘IPC’ for brevity).
3. The facts giving rise to filing of this petition briefly stated are that on 6.3.2013 respondent consulted the petitioner who is a medical practitioner. The respondent is the chronic tobacco chewer and had difficulty in opening his mouth. The petitioner administered treatment to the respondent for the period from 6.3.2013 to 19.3.2013. However, on 19.3.2013, on account of treatment being administered to the respondent, due to side effects of medicine, the respondent developed puss formation in the back jaw. Thereafter, the respondent approximately after a period of 3 years i.e., on 5.3.2016 filed a complaint for the offences under Sections 284 and 326 of the IPC against the petitioner. Being aggrieved by the order of taking cognizance passed by the Magistrate, the petitioner has preferred Criminal Revision Petition No.10004/2017.
4. The revision preferred by the petitioner was partly allowed by the V Additional District and Sessions Judge, Shivamogga by order dated 25.2.2017 and order taking cognizance of the offence under Section 326 was set aside. Being aggrieved, petitioner has filed this petition.
5. Learned counsel for the petitioner submitted that the impugned order dated 23.12.2016 passed by the learned Magistrate taking cognizance for an offence under Section 284 of the IPC is in violation of the law laid down by the Supreme Court in the case of Martin F D’Souza Vs. Mohd Ishfaq AIR 2009 SC 2049 inasmuch as cognizance of a complaint against the medical practitioner could not have been taken without obtaining an opinion from an Expert. It is further submitted that the offence under Section 284 of IPC is punishable with an imprisonment for a period of six months and under Section 468 of Cr.P.C., limitation for taking cognizance is one year. Admittedly, in the instant case, the complaint under Section 200 of Cr.P.C. has been filed beyond the period of one year i.e., on 5.3.2016. Therefore, the same is barred by limitation. It is also argued that continuation of proceedings against the petitioner amounts to abuse of process of law. On the other hand, learned counsel for the respondent has supported the order passed by the learned Magistrate.
6. I have considered the submissions made by the learned counsel for the parties and have perused the records. The Supreme Court in the case of Martin F D’Souza supra has held that in case of medical negligence, the cognizance of an offence against a medical practitioner should be taken and an opinion of an Expert Doctor/Committee of Doctors should be obtained and thereafter, notice should be issued. Admittedly, the impugned order in the instant case dated 23.12.2016 has been passed in violation of the law laid down by the Supreme Court. Besides that, the complaint filed by the respondent is barred by limitation as the same has been filed beyond the period of one year i.e., on 5.3.2016. The continuance of proceeding against the petitioner in the fact situation of the case amounts to abuse of process of law, which is not permissible in law. In view of the preceding analysis, the impugned order dated 23.12.2016 taking cognizance of offence under Section 284 of IPC against the petitioner is hereby quashed.
In the result, petition is allowed.
Sd/- JUDGE bkp