DHANSUKH B. SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE petitioner, a Doctor has approached this Court under Section 482 of the Code of Criminal Procedure, 1973 (for short, -œthe Code -) for quashing the process issued against him for the offence punishable under Section 304A of Indian Penal Code, 1860, after admitting the complaint in Criminal Case No. 4245 of 1994. The complaint was filed by the son of the deceased, broadly on the basis that his mother aged 50 died during the operation carried out by the petitioner and that the reason of death being negligence of the petitioner, he was required to be dealt with in accordance with law.

(2.) RELYING upon the judgment of this Court in Dr. (Mrs.) Sudhaben v. Vanrajbhai R. Jaiswal & Anr.1, it was submitted by learned Counsel Mr. A.D. Shah, appearing for the petitioner, that the process was ordered to be issued without proper application of mind insofar as crucial and material evidence regarding negligence in the course of performance of the operation would consist of medical evidence of the expert, evidence of the persons who attended the operation or post -mortem report and the medical case papers. While none of them were before the Court, there was absence of sufficient grounds for issuing the process. He submitted that even if the Court were to find some substance in the allegations, it was required to hold an enquiry under the provisions of Section 202 of the Code and after conducting such enquiry and recording such evidence as may be necessary, appropriate order could be passed and if, there is sufficient ground to proceed, the process could be issued. Learned Counsel Mr. Shah also pointed out that the complaint filed by the respondent herein before the Consumer Dispute Redressal Commission for compensation was rejected with costs on 26.2.1996 which clearly indicated that the complainant did not have sufficient evidence to substantiate the allegations of negligence.

(3.) IT clearly appears from the perusal of the complaint that the main evidence for the complainant to prove his allegations against the petitioner would be medical evidence in the form of medical papers, experts opinion and the medical history of the deceased. The process appears to have been issued without such material being made available to the Court, and, as held in the aforesaid judgment of this Court, direct issuance of process without an enquiry under Section 202 of the Code may be, under the circumstances, premature and unjustified.