ANAND R NERKAR Vs. RAHIMBI SHAIKH MADAR

JUDGEMENT

(1.) THE petitioner, Dr. Anand R. Nerkar, has filed this criminal writ petition under section 482 of the Code of Criminal Procedure, 1973 read with Article 227 of the Constitution of India, praying for the quashing of criminal proceedings instituted against him by respondent No. 1 Shrimati Rahimbi Shaikh Madar. The petitioner is a Senior Medical Practitioner and is Honorary Surgeon and Head of the Surgical Ward of the Bhagwati Hospital, which is a medical institution, run by the Bombay Municipal Corporation respondent No. 1 has filed a private complaint in the Court of the learned Metropolitan Magistrate, 26th Court, Borivali, Bombay, numbered as Criminal Case No. 168/s of 1988 against the present petitioner and one Dr. Ansari, charging both the doctors with having committed as offence punishable under section 337 read with section 114 of the Indian Penal Code. The Learned Metropolitan Magistrate, after recording the verification statement of the complainant and the statement of Dr. Jugalkishor Agarwal, passed as order dated 6-10-1988 issuing process against both the doctors under section 337 read with section 109 of the Indian Penal Code. It is against this order that the petitioner has moved this Court, the main contention being that the issuance of the process against him was unjustified and that the same is liable to be quashed.

(2.) CERTAIN material facts need to be stated. Admittedly, the complainant, Shrimati Rahimabi Shaikh Madar, had complained of certain abdominal ailments and had gone to the Bhagwati Hospital in the year 1982 for treatment. She has stated in her complaint that on 13-9-1983, she developed sudden abdominal pain pursuant to which she proceeded to the M. W. Desai Municipal General Hospital, Malad from where she was sent to the Bhagwati Hospital for further treatment. Pursuant to the diagnosis that was done, she was advised certain surgical treatment, and admittedly, on 13-10-1983 she was operated upon. It is also not disputed that the present petitioner, who was at that time the Head of the Surgical Ward, had supervised the operation which was, in fact, performed by the 3rd respondent, Dr. Ansari. The learned advocates appearing before me, in the course of their arguments, have produced copies of the case papers, and there is no dispute about the fact that the surgery that was performed related to a gall bladder operation, in medical terminology called "cholecystectomy" and "appendectomy" which in common parlance constitutes removal of the appendix. It is very material to note that the surgery had nothing to do with the patients stomach and the case-papers indicate this fact. The patient was discharged from the hospital on 26-12-1983. She has stated in her complaint that even in the course of the post operative treatment, she was suffering a lot of pain in the region where the operation was performed as a result of which she had to pay repeated visits to the hospital.

(3.) THE complainant has further stated that in the subsequent period right upto November 1986, she had continuous medical problems which, according to the complainant, were an aftermath of the operation that had been performed on her. She has complained about the fact that inspite of the treatment for almost three years, her condition did not improve and that, finally in, November 1986 she had been to the M. W. Desai Municipal General Hospital where she was examined by Dr. Agarwal. She was sent to the Cooper Hospital for an X-ray report and it is further her case that gastroscopy was done at the Cooper Hospital on 9-7-1986. She was admitted on 6-3-1987 and retained in the hospital till 12-3-1987. She states that because of the strike, the decision to perform a surgical operation on her was postponed and that after the strike was over, Dr. Agarwal sent for her and she was admitted at the M. W. Desai Municipal General Hospital, Malad on 16-4-1987. She was operated upon by three doctors, one of whom was Dr. Agarwal, and in the operation, one broad strip of corrugated rubber drain (10 cms. x 6 cms.) was removed from the stomach. It is the case of the complainant that this foreign object was left embedded in her body at the time when the original surgery was done, i. e. , on 13-10-1983 and that she had undergone a tremendous amount of pain, hardship and expenditure of over Rs. 1,00,000/- in the subsequent four years. The complainant had contended before the trial Court that she had not undergone any other surgery except the operation performed on her by the petitioner and Dr. Ansari on 13-10-1983 and that consequently it was her case that the foreign object that was removed from the stomach on 16-4-1987 had been negligently left there at the time when the operation was performed by the two doctors in the year 1983. It is on these facts that the complaint was filed before the learned Metropolitan Magistrate alleging offence under section 337 of the Indian Penal Code against the two doctors.