WILLIAM RIBERIO Vs. STATE

JUDGEMENT

(1.) DR . William Riberio "here -in -after referred to as the accused stood charged for an offence U/S 304 -A RPC by the court of City Judge (Judicial Magistrate) Jammu, for having killed the deceased Nimi Devi, upon whom an operation of abortion was conducted by him at Datta Clinic Moti Bazar, Jammu, on 166.1985 at about 10 A.M. and that the death of the deceased took place due to the rash and negligent act of the accused.

(2.) AGGRIEVED of the said prosecution to have been launched against him by the State, the accused came up for quashing of such proceedings before this Court on the ground that, on the perusal of the challan no offence was made out against the accused, and he could not be charged for such an offence. The pendency of the proceedings is a clear abuse of the process of the Court, for the trial court has wrongly framed the charge Under Section 304 -A RPC against the accused inspite of the fact that there was absolutely no evidence available on the record, on the basis of which, the accused could in any manner whatsoever be connected with the commission of the crime. It was imperative upon the prosecution, for framing of charge by the trial court, to prove Under Section 304 -A RPC that culpable as well as criminal negligence on the part of the accused was established from the record on the file. That the accused holds a Bachelor of Medicine and Bachelor of Surgery, and has been working as a Surgeon Specialist in the S.M.G.S. Hospital for a pretty long time. The accused/petitioner had also passed the Examination of Obstetrics and Gynecology, and in absence of a Gynecologist at the S.M.G.S. Hospital, Jammu, he has been performing the duties of a Gynecologist as well. He is a registered medical practitioner. That the prosecution during the trial of the case has examined Dr. Sat Dev. who has made a categorical statement before the trial court that there was absolutely no negligence on the part of the accused. That the learned trial Court has not considered the effect of Section 7 of the J&K Medical Termination of Pregnancy Act, 1974, which lays down, as under: -

(3.) IN view of the above submissions, it was prayed that the petitioner including the FIR, challan and the charge framed against the petitioner pending in the Court of City Judge (Judicial Magistrate) Jammu may kindly be quashed. Heard Mr. Bakshi on behalf of the petitioner/accused and Mr. Gandhi on behalf of the respondent/State; also bestowed my thoughtful a moderation over the record on the file. The learned counsel for the petitioner vehemently argued that there was not an iota of evidence available on the record of the trial court file to show that there was involvement of the accused with the commission of the crime, and that he had been negligent in any manner whatsoever, as a result of which the deceased died, while being operated upon by the accused as a Surgeon Specialist in his clinic.