BARUN SARKAR Vs. STATE OF U P

JUDGEMENT

(1.) This criminal misc. application under Section 482, Code of Criminal Procedure has been moved for quashing the entire proceedings of complaint case No. 387/03 including the cognizance order dated 6.11.2003 passed by the Judicial Magistrate-1, Agra, under Section 304-A, IPC in Case No. 387/03 Vimal Kumar v. Dr. Barun Sarkar and Ors. and also for quashing the order dated 30.11.2004 rejecting the preliminary objections filed by the Applicants before the Judicial Magistrate, Agra.

(2.) It appears from the record that Applicant No. 1, Dr. Barun Sarkar is a surgeon and former Associate Professor in Obsterics and Gynaecology, S.N. Medical College, Agra while Applicant No. 2, Dr. B. Lahiri is a pathologist and was formerly the Head of the Department of Pathology, S.N. Medical College, Agra.

(3.) An application under Section 156(3), Code of Criminal Procedure was moved by Shri Vimal Kumar, O.P. No. 2 against the Applicants and one Dr. R.D. Sharma in the Court of the Chief Judicial Magistrate, Agra. It was alleged in the application that the wife of the complainant named Sunita was having burning in her stomach for which she was under the treatment of Dr. Sudha Mittal and Dr. Pramod Mittal. The complainant was advised by these doctors to consult Dr. Barun Sarkar (Applicant No. 1). On 12.3.1998 Dr. Barun Sarkar was consulted by the complainant at his nursing home, Delhi Gate, Hariparwat, Agra. Dr. Sarkar examined Smt. Sunita and got FNAC and other tests done. After perusal of the tests reports and ultrasound Dr. Sarkar told that the wife of the complainant was having cancer in the ovary. He also said that there was a turner in the ovary. He advised the complainant to get the operation done of his wife as soon as possible in order to save her life. He also said that after operation she would be completely well. The complainant asked Dr. Sarkar to get other tests done and to provide treatment without operation at which Dr. Sarkar told that the operation was must otherwise she would not be saved. On the advise of Dr. Sarkar the complainant gave his consent for the operation. On 14.3.1998 the patient Smt. Sunita was admitted in Sarkar Nursing Home where Dr. Barun Sarkar performed the operation on 15.3.1998 and removed the tumor and the complete uterus of the patient. The uterus was removed without the consent of the complainant or the patient. Utreus was not having cancer. After the operation Dr. Barun Sarkar sent the sample of ovarian tumor for biopsy test at the pathology of Applicant No. 2, Dr. B. Lahri. Dr. Lahri gave his report on 21.3.1998 in which the presence of cancer was found negative. The complainant raised suspicion upon the report as Dr. Lahiri had reported cancer in ovarian tumor before the operation. On asking by the complainant Dr. Sarkar again got the biopsy done at the pathology of Dr. Lahiri and the complainant himself got the test done at Sir Ganga Ram Hospital, New Delhi. In both the examinations cancer was found present. On 25.3.1998 Smt. Sunita was discharged from the Sarkar Nursing Home and was referred to Dr. R.D. Sharma, Agra for Chemotherapy. The complainant had to pay Rs. 35,000/- for the treatment at Sarkar Nursing Home. On 25.3.1998 Dr. R.D. Sharma was consulted by the complainant and got a test done regarding ovarian cancer. After 21 days five chemotherapy treatment were given by Dr. R.D. Sharma and after every chemotherapy pathology tests and ultrasound were got done. Inspite of the treatment of Dr. Sharma no improvement was shown in the condition of the patient and therefore, Dr. Sharma referred her to Rajiv Gandhi Cancer Hospital, Delhi. On 4.7.1998 Smt. Sunita was shown to Dr. Kataria at Rajiv Gandhi Cancer, Hospital, Delhi. After seeing the prescription of Dr. Sarkar, the reports and treatment done at Agra Dr. Kataria said to the complainant that the patient was wrongly treated and operated upon without knowing as to from where the cancer had started.