GOPINATHA PILLAI T M Vs. STATE OF KERALA

JUDGEMENT

(1.) This Crl. M.C. is filed against C.C. No. 389 of 1999 on the file of the Judicial First Class Magistrate Court-II, Kanjirappally.

(2.) Petitioner, who is working as Civil Surgeon at the Taluk Headquarters Hospital, Kanjirapally has filed this Crl. M.C. to quash all proceedings initiated against him in C.C. No. 389 of 1999 on the file of the Judicial First Class Magistrate Court-II, Kanjirappally. C.C. No. 389 of 1999 has been initiated on a private complaint filed by the second respondent, Girijakumari. The allegation against the petitioner is that on 12-10-1998 her minor daughter was admitted to the Taluk Headquarters Hospital, Kanjirappally due to severe stomachache. Petitioner examined the girl and decided to remove the appendix and accordingly, she was subjected to surgey "appendectomy" on 17-10-1998. It is also alleged in the complaint that due to the negligence of the Doctor the right ovary of the complainant's daughter was lost and the loss of right overy was never informed to her or her daughter. It is also alleged that when her condition became serious, she was taken to the Medical College Hospital. Then only she realised that her daughter's right overy has been lost because of the negligence of the accused. Annexure-A1 is the complaint. Petitioner was accused for offences under Sections 336 and 338, IPC. According to the petitioner, the complaint does not disclose a prima facie case. He would contend that the daughter of the complainant came with acute stomachache and on investigation it was diagnosed that the patient had acute appendicitis and after obtaining consent appendectomy was done on 16-10-1999. During the course of surgery, it was found that there developed a cyst in the right ovary. Therefore, he brought the service of the gynaecologist, who had diagnosed that the right ovary of the patient had been covered by a cystic mass. The same was informed to the complainant. After getting her consent in her own handwriting, surgey of removal of right ovary was done. The surgery for removal of ovary was done by the gynaecologist of the hospital. As the ovarian cyst was huge in size (8 x 6 cm) and the right ovary could not be separately palpable, if the cyst was not removed, it would lead to extremely serious consequences. Annexure A2 is the case sheet kept in the hospital. This would go to show that the entire ovary was degenerated. After surgery, she was referred to the Medical College Hospital, Kottayam, as the Taluk Headquarters Hospital did not have the facility blood transfusion. The histopathological report is Annexure-A3. Annexure A-3 goes to show that both the organs appendix and ovary were diseased organs requiring removal. The complainant has alleged that the surgery was done rashly and dangerously and hence her daughter had to suffer the loss of ovary. The above allegations are denied by the petitioner. He has stated that the above proceedings initiated against him are mala fide. Annexure A4 is the consent given by the complaint for removal of the cyst and also for removal of the ovary. The factum of consent was suppressed by the complainant when she gave the complaint Annexure-A1. Therefore, it is submitted, that the complaint is liable to be quashed, as it does not make out a prima facie case of negligence on the part of the petitioner.

(3.) Where a criminal proceeding has been instituted by a complainant, the complaint can be quashed where the allegation made thereon on its face constituted an offence or where the allegations made are so absurd and inherently impossible that on the basis thereof no prudent person can reach a just conclusion that there is sufficient ground for proceeding against the accused. The Supreme Court in State of Haryana v. Bhajanlal, AIR 1992 SC 604 : (1992 Cri LJ 527) held, that (paras 31 and 32) -