HEMIN M SHROFF Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY this application under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), the applicant-original accused has challenged the order dated 13th October 1999 passed by the learned Judicial Magistrate First Class, Deesa, in M. Case No.6 of 1998, whereby he has issued process against the applicant for the offence punishable under sections 304A and 114 of the Indian Penal Code and seeks quashing of the said order as well as the complaint registered as Criminal Inquiry No.34 of 1998, pending in the court of the learned Judicial Magistrate First Class, Deesa qua the present applicant.

(2.) THE respondent No.2-complainant lodged the above referred complaint in the court of the learned Judicial Magistrate First Class, Deesa being Criminal Inquiry No.34 of 1998 alleging commission of the offence under section 304 IPC against the applicant herein and other co-accused. The allegations made by the complainant were to the effect that his mother Gangaben was suffering from severe pain in the stomach. Hence, she was taken for treatment to Dr. Narendrabhai Vyas at Deesa, who after examining her, had informed that she had a tumor in the stomach and that if treatment is continued, she would recover. Thereafter, they had continued to give treatment as per the diagnosis of Dr. Narendrabhai Vyas. However, there was no relief and the pain continued. Hence, they had again gone to Dr. Narendrabhai, however he was not available. They had, therefore, gone to Dr. Heminbhai M. Shroff, that is, the applicant herein at Geeta General Surgical Hospital, wherein he had examined their mother on 20.2.1998 and admitted her in the hospital. As per the say of Dr. Heminbhai Shroff, they had got various reports of Gangaben and the doctor had informed them that Gangaben had an ordinary tumor in the uterus due to which was the cause of the pain and had further informed them that once she is operated, she would be cured. Accordingly, keeping trust in the said doctor, they had continued treatment at his hospital. Thereafter, Dr. Hemin Shroff and a doctor who had come from Ahmedabad had together performed undertaken surgery of the tumor his mother's stomach. However, prior to performing the operation, neither was anything explained to them nor was their consent. Subsequently, they were informed that to pay Rs.10,000.00; and again on 3.3.1998, when their mother was discharged from the hospital, the doctor had asked them to pay Rs.6,000.00 in respect of which receipt had been issued. However, no receipt had been issued in respect of the Rs.10,000.00 which they had paid earlier. The doctor had also not informed them as to why such a huge amount was being taken and had threatened them that if the money is not paid, they would not be permitted to take Gangaben with them Hence, they had no option but to pay the amount.

(3.) SUBSEQUENTLY , after a few days, again their mother stopped passing urine and stool. Hence, they had taken her to Dr. Shroff's hospital at Deesa, where again she was treated, where after she passed urine and stool. When he along with his relatives insisted on asking the doctor as to what exactly was the ailment that Gangaben was suffering from, the applicant herein had informed that she had a malignant tumor and that the same had been removed by performing the operation. He had further said that despite the aforesaid, since she was suffering from pain, he was writing a note which they should take with them to Ahmedabad to the Cancer Hospital, where Gangaben would be required to take fomentation treatment at the said hospital, at the spot where she was operated. That since they wanted to save their mother's life, they had immediately gone to Ahmedabad and had met the person referred to by Dr. Shroff, who had also earlier performed the operation. But upon reading the chit, he suddenly looked worried and informed them that he would come in a little while, however, he did not come back. Thereafter on the next day, they had again gone to him and after taking a note from him, admitted their mother at the Cancer Hospital, where the cancer doctor had told them that the doctor who had performed the operation had committed a wrong as, without understanding and without having the necessary equipment surgery cannot be done. That once again blood, urine etc. reports will be required to be obtained, further investigation will be required to be done and surgery would be required to be done. According to the cancer doctor, the doctor at Deesa had complicated the case. Thereafter, they had continued their mother's treatment at the Cancer Hospital at Ahmedabad. However, on 7.4.1998 their mother Gangaben died because of lack of immediate treatment. It was further the case of the complainant that on account of the obsequial ceremonies which were required to be carried out on account of the death of his mother, he could not immediately lodge the complaint. That, thereafter, they had visited the applicant and asked for the necessary case papers, whereupon he had behaved badly with them and asked them as to why they were taking trouble because their mother was even otherwise going to die because of cancer. After great difficulty, some papers were given to them and they were abused and driven out. Thereafter, they had gone to lodge the complaint with the police, however, the persons of doctor had also followed them hence, they apprehended that the police would not take their complaint. Subsequently, they had lodged the complaint before that court alleging commission of the offence punishable under section 304 of the Indian Penal Code.