PRAKASHSING UDAMSING LOHANIWAL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By this application under Sec. 482 of the Code of Criminal Procedure, the applicant - original accused seeks to invoke inherent powers of this Court, praying for quashment of the FIR being I. 01 of 2014 registered with Dev Bhumi Dwarka Police Station, for the offence punishable under Sec. 337 of the Indian Penal Code.

(2.) Facts and circumstances giving rise to present application are that, FIR is filed against the practicing Doctor under Sec. 337 of the Indian Penal Code, inter-alia alleging that, while process of delivery of the complainant, the applicant caused injury to the unborn child. The complainant being mother of the child, alleges that, on 23/11/2013, she was admitted in the private hospital of the applicant at Dwarka as she was about to deliver a child. It is further alleged that, despite strenuous attempt on the part of the doctor, she could not deliver the child and referred to higher center for further treatment. She then, admitted in the hospital of Dr. Pindaria at Khambhalia, where, she delivered a baby boy. Dr. Pindaria, after the delivery of the child informed the complainant mother that, child having suffered injuries on eye liner of one eye and treatment suturing was done. In such circumstances, dissatisfied with the act of the doctor and considering his negligence, the FIR came to be lodged for the aforesaid offences.

(3.) Mr. Pravin Gondaliya, learned advocate for the applicant submitted that, the action on the part of the doctor would not constitute an offence causing hurt by act endangering life or personal safety of the child. He had performed the procedure in good faith for the benefit of the complainant and followed the necessary precautions while undertaking the procedure for delivery of the child. Thus, therefore, he would urge that, the allegations made in the FIR, even if they are accepted as it is, do not prima-facie constitute any offence or make out a case against the accused. Relying on the celebrated judgment on the subject, (Jacob Mathew Vs. State of Punjab (2005) SC Law Suit 1045), he contended that, in the present case, before registration of offence against the applicant doctor, the IO failed to obtain medical opinion from the Board which is precondition and mandatory.