DR SURINDER KAUR Vs. PAL SINGH

JUDGEMENT

(1.) THE petitioner seeks the quashing of the complaint and order of framing charge under Sections 337 and 338 I.P.C. Petitioner is a qualified Gynaecologist. She runs a hospital. Grievane by the respondent -complainant is that the petitioner/accused advised him to perform the operation on the wife of the complainant and removed uterus alongwith tube and ovaries. The grievance is that such surgery has been performed simply to extract money. It is further alleged that while performing the said operation, the petitioner acted either rashly or negligently and thereby caused perforation to urinary bladder; as a result, operation on bladder had to be performed. The initial surgery on the wife of the complainant was performed on 8.6.1995. While she was being attended for post operation treatment, she developed trouble of uncontrolable discharge of the urine. The patient was sent home with cathater attached. It is further alleged that the complainant again took his wife to the petitioner/accused and complained to her regarding the uncontrolable discharge of urine by the patient. The petitioner/accused told that another operation would be required. For that purpose she demanded fees for operation and hospital charges. This second operation was then performed in the month of October, 1995, and the complainant's wife was required to stay in the hospital for about a month. It is further alleged that while discharging the wife of the complainant, he was given the case papers which were found tampered with by over -writing. It is further alleged that in May, 1996 again third operation was done in another hospital because the complianant's wife had developed VVG -Vesico -Vaginal fistula. Briefly stated, the grievance is that the petitioner has thus acted in a rash or negligent manner and committed the offence punishable under Section 337 and 338 of the Indian Penal Code. The complaint also incorporated offence under Section 420,109 I.P.C. However, on considering the material before the trial Court, charges under those sections were not framed. Therefore, the petition is now confined to charges under Sections 337 and 338 I.P.C.

(2.) COUNSEL for the petitioner submitted that the reason given by the trial Court while summoning the petitioner to face trial are neither sufficient nor justified to warrant issuane of summons. According to them, the material before the Court was not sufficient to spell out any negligence or rashness on the part of the petitioner. It was further submitted that the petitioner had no opportunity to clarify to the court certain part of the medical treatment which would clarify that there was absolutely no element of negligence and rashness. Briefly stated, his contention was that opportunity should be afforded to the petitioner/accused also to place her side before the court.

(3.) THE offence under Section 337 I.P.C. is punishable upto six months and under Section 338 I.P.C. to the extent of two years. Therefore, trial Court proceeded by following the provisions of trial of summons case by the Magistrate on a private complaint. It was submitted that before issuance of process and framing the charge; there is no opportunity to the accused to place her side until the matter is taken up for final disposal as per Section 254 Cr.P. C. On this premise, it was submitted that, before taking cognizance under Section 204 Cr.P.C. and ordering the issuance of summons to the petitioner, some opportunity should be made available to the petitioner.