RENU JAIN Vs. SAVITRI DEVI AND ANR

JUDGEMENT

(1.) Heard learned Counsel for the parties and perused the record.

(2.) The present application under Section 482 Cr.P.C. has been filed for quashing the proceeding of Case No. 818 of 1995 pending in the court of IInd Class Judicial Magistrate, Jhansi. On 20.5.1988, notice was issued and further proceeding was stayed. Counter affidavit on behalf of the opposite party No. 1 has already been filed.

(3.) Learned Counsel for the applicant submitted that the applicant being qualified Surgeon, conducted operation, by surgery of sterilisation of opposite party No. 1. The complaint was filed by opposite party No. 1 with the allegation that the applicant was consulted and the complainant opposite party No. 1 was operated upon for ligation. Further allegation was that the applicant assured the complainant and her husband that the latest techniques were available in her Nursing Home and she was Specialist of Surgery of sterilisation. The complainant was admitted who was operated upon and certificate was issued on 18.2.1988. There was decline in the health of the complainant and ultimately it was found that she was pregnant. After the statement of the complainant under Section 200 Cr.P.C. and the statement of witnesses under Section 202 Cr.P.C. the applicant was summoned under Sections 337, 420, 467, 471 I.P.C. taking cognizance on the complaint. The applicant was aggrieved by cognizance and proceeding pending before the Judicial Magistrate - IInd, Jhansi, hence the present application under Section 482 Cr.P.C. was filed. He further contended that even as per the allegation it is clear that the opposite party No. 1 was operated upon in the month of February, 1988 and after six years she became pregnant. Hence it is clear that though the applicant was leading a normal life along with her husband, however, she did not conceive for about six years. It might be a case of failure of the operation but since there was no material to show that there was any negligence on part of the doctor, in conducting the surgery for which the applicant was qualified, she cannot be blamed. No offence is made out against the applicant under the aforesaid sections because neither there was any ingredient of cheating nor there was any mens rea of cheating or giving any false assurance. He further submitted that it is well established as per expert opinion which was considered by the Apex Court that quite often pregnancy took place even after surgery of sterilisation. Extracts from the text books were placed by counsel for the applicant. Counter affidavit was filed on behalf of opposite party No. 1 and it was reiterated on her behalf that there was assurance by the applicant that there was latest techniques in her Nursing Home and she was well qualified in operation of sterilisation. Even then she became pregnant due to carelessness of the applicant, hence it is clear that the complainant was cheated deliberately to earn the black money from her. Counsel for applicant submitted that the applicant is a qualified doctor who passed P.G. Degree. She is also reputed and successful gynaecologist.