NAGENDRANATH ROY Vs. BIJOY KUMAR DASBURMA

JUDGEMENT

(1.) Petitioner calls in question correctness of order passed by learned Sub-Divisional Judicial Magistrate. Sadar, Cuttack (in short the 'SDJM') dismissing a complaint filed by him alleging that opp. parties herein committed mischief resulting in death of a calf and therefore, were liable to punished in terms of Section 429 of the Indian Penal Code, 1860 (in short the 'IPC').

(2.) Petitioner's complaint indicated following background:- A calf belonging to him suffered from ailment on 12-4-1986. As the ailment aggravated, opp. party No. 1 who is a Veterinary Doctor was called for rendering medical cheek up. Opp. party No. 1, after checking prescribed certain medicines and injections. The daughter of the complainant-petitioner objected to administration of prescribed injenction, since she felt that was risky to be administered, and requested the Doctor to prescribe some other medicine to be orally administered. He prescribed some pills which were given to the calf. On 14-4-1986 the calf suffered from another attack of fits. After examination of its stool, the next day the Doctor prescribed certain injections. This time injections were administered notwithstanding protest. A few minutes after such administration, the calf died. Case of complainant was that both the Doctor and Stockman, opp. party No. 2 who administered injection were negligent in their duties. They did not care to check up attendant risk in administering the injections. With reference to certain text books of Veterinary medicines, it was urged that requisite care and caution expected to be taken, were not taken and therefore, opp. parties were guilty of offence under Section 419, IPC. One Deputy Director of Veterinary Services was examined, amongst other witnesses, to further the case of complainant. On consideration of evidence, learned SDJM refused to take cognizance, with a conclusion that no offence was made out. He accordingly, dismissed the complaint under Section 203 of the Criminal Procedure Code, 1973 (in short the 'Code').

(3.) Learned counsel for peritioner, submits that the very fact that opp. parties did not take due care and caution as a consequence of which the calf died indicated a prima facie case and therefore, refusal to take cognizance was not in accordance with law. Learned counsel for opp. parties however, submits that the ingredients requisite for attracting culpability under Section 429, IPC did not exist and therefore, order of learned SDJM is proper.