SHAILESH KUMAR SINHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard learned counsel for the petitioner, learned Additional Public Prosecutor for the State and Sri Baxi S.R.P. Sinha for opposite party no.2.

(2.) This is an application under Section 482 of the Code of Criminal Procedure seeking quashing of order dated 05th January, 2004 passed by Sri Bikrama Ram, Judicial Magistrate, first class, Patna, in Complaint Case no. 1750 C of 2003 taking cognizance against the petitioner and others named accused persons in the complaint under Sections 326, 307, 420, 468, and 471 of the Indian Penal code.

(3.) The relevant facts of the case in hand is that opposite party no.2, Satish Kumar, a railway employee, was operated by petitioner and his associates on 13th September, 2000 for Chyluria only after all due tests showing presence of his right kidney but opposite party no.2 continues with some complications he was advised for another ultra-sonography to be conducted by Dr. Rajan Chaudhary for which petitioner also recommended by giving personal letter on 27th September, 2000 wherein it has also been mentioned I would like you to see for any lymph collection around right kidney. Such ultrasound was conducted on 30th September, 2000 wherein also both kidney of opposite party no.2 were reportedly seen besides 3 cm long elliptical collection seen in right kidney upper fold. The patient was subsequently discharged but his trouble continued so he went for further treatment to a Physician on whose advise, after controlling sugar level again ultra-sonography of whole abdomen of opposite party no.2 was done on 20th July, 2003 at Patna Scan Centre. As per this report right kidney of opposite party no.2 was not visualized. On basis thereof doubt in the mind of the complaint arose regarding taking out of right kidney during one and only one operation of his abdomen conducted by petitioner and his associates. Further, the complainant again on 21st July, 2003 got ultra-sonography of his whole abdomen at Mahabir Cancer Sansthan, Patna. As per report right kidney is not seen (operated). No significant residual deceased seen. Towards end of the report I.V.P. test was suggested to ascertain function of right kidney. Such I.V.P. test was done at same Mahabir Cancer Sansthan, Patna, on 26th July, 2003 and as per report normal I.V.P. of left kidney, right kidney not visualized? On the basis of all such materials, medical prescriptions and report etc. opposite party no.2 filed complaint in the Court of Chief Judicial Magistrate, Patna which was transferred under Section 202 of the Code of Criminal Procedure to the court below where complainant was examined on solemn affirmation examination of other witnesses.