MEERU BHATIA PRASAD Vs. STATE

JUDGEMENT

(1.) This revision petition under Sections 397 read with 401 of the Code of Criminal Procedure, 1973 (for short Criminal Procedure Code.) is directed against the order dated 1 8/10/1997, passed by the Additional Sessions Judge, Delhi framing the charge against petitioner for offences under Sections 313/269Indian Penal Code.

(2.) Prosecution allegations in brief are: on 22/3/1993, Tarsem Kumar lodged a report with the police alleging that on 3/1/1993, after reading the advertisement in Punjab Kesari, he along with his wife, who was then pregnant, contacted M/s.Bharati Lab and Scan Centre at Rajouri Garden, to rule out any foetal abnormality. They were told that the test will be done by ultra modern computerised machines and with modern techniques. They agreed for the test. Rs.3,500.00 was charged from them. After test, .he was told by his wife that 'needle was injected in her abdomen by the petitioner and aminocentesis test was done. They were told that it was a healthy male baby. Dr.Chopra, proprietor of Lab called them, after one month for ultra-sonography but they could not go. However, they could go, only on completion of five months pregnancy; on that day after doing,ultra-sonography, they were told that the test would have to be repeated. They were called on 17/3/1993, on which date, the petitioner instead of doing ultra-sonography repeated the aminocentesis test by injecting needle twice in the abdomen of his wife. On the same day, after about four hours of their return from the clinic, complainant's wife felt intense pain in her abdomen and started bleeding and was having high-temperature. She was admitted in Virmani Maternity and Nursing Home where she was informed that the technique of aminocentesis was faulty and that the needle introduced infection during the procedure. It was declared to be a case of inevitable abortion due to septic aminocentesis. She had to be aborted on 19/3/1993. The Doctor at Virmani Maternity & Nursing Home stated that the embryo was a female sex. Thus it was alleged that the doctors at Bharat Lab & Scan Centre had mislead them; that they were careless and negligent while doing aminocentesis and that due to their negligence wife of the complainant developed sceptic and she had to undergo forced abortion. It was further alleged that Dr.Chopra is not even a qualified doctor. Aminpcentesis test was done second time without their consent and if they had known that the tests were being done by old conventional methods, they would not have consented for the same. On this complaint, above case under Sections 269/313/420 Indian Penal Code was registewed. After investigation, challan was filed. By impugned order, learned trial court held that a prima facie case, under Sections 313/269Indian Penal Code against petitioner and under Sections 313/269/34 and 420 Indian Penal Code against Dr.Vinod Chopra, proprietor of Bharat Lab & Scan Centre, was made out.

(3.) Learned counsel for petitioner while assailing the impugned order firstly argued that aminocentesis test is conducted primarily to study any possible genetic disorder of the foetus; the test is conducted by injecting a small needle into the abdomen and taking a sample of aminotic fluid; as per practice before conducting the test, no objection/consent was taken in writing from the patient as well as her spouse (complainant) informing them about the risk in conducting such test. It is argued that in this case after conducting the test, the patient was asked to report again after four weeks for confirmation on ultra-sonography. Patient did not turn up after four weeks, and she visited the clinic only in the second week of March, 1993, on that date ultra-sonography test was conducted but the result was not clear and they were asked to report after one week. There is no dispute on these facts. He further argued that when it was discovered that she was carrying a female child, on which the couple became angry and started abusing the doctors, for having mislead them earlier; Ultra-sonography test is conducted in routine manner during the pregnancy in order to monitor the growth of the foetus and there was nothing to indicate that she was having any problem. Learned counsel for petitioner then argued that assuming the allegations to be true, for the sake of arguments, no case for framing the charge under Sections 269/313Indian Penal Code is made out, against the petitioner and that the finding of the trial court is based on misreading of the provisions of law. Learned APP for State argued to the contrary.