SUCHITA CHAUDHARY Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS is an application under Section 482 of the Code of Criminal Procedure for quashing the order dated 16.7.2004 passed by Sri S.K. Sinha, Judicial Magistrate, 1st Class, Vaishali by which he has ordered to issue summons against the petitioner to face trial under Sections 326 and 338 of the Indian Penal Code in Complaint Case No. 58/2004.

(2.) HEARD both the sides.

(3.) AT the out set it may be pointed out that though cognizance has been taken in this case under Sections 326 and 338 I.P.C., no offence under Section 326 I.P.C. can be said to be made out on the basis of the allegation. To constitute an offence under Section 326, the act complained of must be done voluntarily. But the petitioner is a practising professional and there is no allegation that she had any enmity with O.P.No. 2. Therefore, it is absurd to think that the petitioner would voluntarily cause grievous hurt to the wife of O.P.No. 2 by removing Ovaries. The case of O.P.No. 2 is that in order to extract money the petitioner did like that. It has been observed by the Supreme Court in the came of Jacob Methew v. State of Punjab and Anr. , that "No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career." In this case also it cannot be conceded that in order to extract money, by keeping her reputation at stake, the petitioner would voluntarily cause hurt to the complainant's wife by removing her Ovaries. Page 1236