A.K. GUPTA Vs. RAJ SHARMA

JUDGEMENT

(1.) THE petitioners Dr. A.K. Gupta and Dr. (Ms) Poonam Bhargawa, have been summoned by the learned Judicial Magistrate Ist Class, Chandigarh, to face trial for the offences under Sections 337/338 of the Indian Penal Code, vide order dated 1.10.1996, on a complaint filed against them under Sections 319/337 of the Indian Penal Code, by the respondent Smt. Raj Sharma, on the allegation that she was operated by them in Dewan Chand Gupta Memorial Hospital, Sector 4, Panchkula (Haryana), on 7.2.1992 and was discharged on 11.2.1992. On 17.2.1992 the complainant complained of pain and the accused prescribed her certain medicines and directed her to visit the Hospital after five days. She was again examined on 22.2.1992, 2.3.1992 and 14.3.1992. Thereafter, she was advised to resume the normal work but the pain continued to persist and ultra/sound was got done on 10.11.1992. From ultra sound it was revealed by the Expert that there was Cyctic Moss measuring 65 mm x 47 mm in the right ovary-A. The respondent Smt. Raj Sharma was advised operation by the petitioner No. 1 Dr. A.K. Gupta but when she told the doctor that the operation had already been conducted upon her, then he struck off the words "with Bilateral Oophorectomy" from the photostat copy of the medical record. Thereafter, the complainant got herself examined from the General Hospital and afterwards she was again operated upon for removal of Ovaries, which could have been done by the petitioners at the time she was firstly operated upon on 7.2.1992. The petitioners are seeking the quashing of the complaint annexure P-1 and the order dated 1.10.1996 contained in annexure P-2, on which they have been summoned by the trial court to face the trial, as indicated above.

(2.) ACCORDING to the petitioners, the learned Judicial Magistrate, Chandigarh, was not competent to exercise the jurisdiction in the matter for the fact that the alleged offence committed by the petitioners was at Panchkula and not at Chandigarh. According to the learned counsel for the petitioners every offence ordinarily is to be enquired into and tried by a Court within whose jurisdiction it was committed. In this regard, it is relevant to refer to Section 177 of the Code of Criminal Procedure, which in verbatim, is described as under :-

(3.) IN all the circumstances and the facts of the case, it is found that the alleged offence has been committed in Panchkula and thus the complainant could file a complaint before a competent court of law at Panchkula and it was the court at Panchkula, which could inquire into the matter and try the accused, for the alleged offence was committed in its jurisdiction. In no manner it is proved from the record on the file or from the evidence adduced by the complainant that the said offence was partly committed in Panchkula and partly at Chandigarh and that the offence was a continuing one and therefore the courts at Chandigarh had also the jurisdiction to try the case. Also it is not found from the evidence of the complainant or from the assertions made in the complaint, that the crime consisted of several acts done in different local areas, of Panchkula and Chandigarh. Since, no offence was committed by the petitioners at Chandigarh, therefore, the trial court (Judicial Magistrate) at Chandigarh had no jurisdiction to take cognizance in the matter against the accused-petitioners. The learned Judicial Magistrate, at Chandigarh, has fallen in legal error in having assumed the jurisdiction in the matter and he has not cared to thoroughly examine the complaint and the preliminary evidence in the right perspective so as to find out as to whether he had the jurisdiction to try the case or not. The learned Magistrate, in a routine manner has assumed the jurisdiction in the matter and summoned the accused petitioners, when he was debarred to take cognizance of the matter within the purview of Section 177 of the Code of Criminal Procedure for the offence committed was at Panchkula and it were the courts at Panchkula who had the jurisdiction to take cognizance and try the matter. Besides, the learned Magistrate could not take the trial of the case because the offence was committed once and it did not consist of parts that partly the offence was committed within the jurisdiction of courts at Chandigarh and partly within the jurisdiction of courts at Panchkula, or the acts done by the petitioners were several in nature and therefore the trial Magistrate was competent to assume the jurisdiction in the matter. In both the ways the Magistrate was without jurisdiction to take cognizance in the matter and summon the accused.