S D KHETANI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) ORDER :- Both these revision petitions are directed against the order passed by the Additional District and Sessions Judge No. 2, Jodhpur in 24-2-94, allowing the revision application of the complainant by which the learned Addl. Sessions Judge, directed framing of charges against the applicant in each of these revisions.

(2.) Facts giving rise to these petitions, stated briefly are that a First Information Report was lodged before the Superintendent of Police, Jodhpur, by which respondent No. 2, who alleged that he got himself admitted to the Jodhpur Hospital and Research Centre, Shastri Nagar, Jodhpur, for treatment of his ailment of bleeding piles. During the course of his treatment he disclosed that he is a patient of diabetes and, should, accordingly be treated. On 21-4-92, he developed some pain in his back and was, therefore, referred to Dr. Narender Singh Yadav, applicant in Revision Petition No. 111/94, as he was working in the orthopacdic Department of the Hospital. Dr. Yadav, suspecting the pain from some problem of the vertibra, suggested myeolography test to ascertain if the problem pertains to the disc in the vertedbra. The respondent No. 2 consented to such myelography and on completion of that test it was observed by Dr. Yadav that he needs some surgical correction in his disk so as to be relieved of the pain. The trouble, according to the respondent No. 2, started hereafter. He declined to undergo surgery of the disk and insisted that he be operated upon, if necessary, only for the ailment of his bleeding piles and was not willing to undergo any other surgery, including the one for the back pain. Mr. Rahimuddin, the respondent No. 2, thus, alleged in his First Information Report that the petitioners, without his consent, performed the operation of his disc in spite of the fact that he was diabetic in condition and because of that, respondent No. 2 suffered for quite some time. It is alleged in the First Information Report that this amounted to criminal conduct on the part of the petitioners, who, therefore, should be prosecuted.

(3.) Investigations carried out by the police, on the basis of this First Information Report, resulted in police filing a challan in the court of Judicial Magistrate First Class, presided over by the Additional Chief Judicial Magistrate, Jodhpur. The learned Additional Chief Judicial Magistrate, on consideration and scrutiny of the material available on record, came to the conclusion that no prima facie case of any kind is made against the petitioner Dr. S. D. Khetani and framed charge against Dr. Narender Singh Yadav only under Section 338 of the Indian Penal Code. The respondent No. 2, dissatisfied with the action of the Additional Chief Judicial Magistrate, filed a revision application before the Sessions Judge, Jodhpur, complaining of not framing charges under Sections 420 and 326 read with Section 120B of the Indian Penal Code. The matter was ultimately decided by the Additional Sessions Judge No. 2, Jodhpur, who by his order, which is impugned in the present revision petitions, quashed the order dated 3-8-93, accepted the revision of respondent No. 2 Rahimuddin and directed framing of charge against both the doctors under Ss. 326, 326/120B of the Penal Code and against Dr. Narender Singh Yadav under Sections 326 and Section 420 read with Section 120B of the Indian Penal Code. It was registered as Criminal Revision No. 65 of 1993. Revision was filed before the Sessions Court by Dr. Yadav also, challenging the correctness of the order framing charge under Section 338, I.P.C. It was registered as Criminal Revision No. 5 of 1994. The learned Judge dismissed the revision of Dr. Yadav without giving any reasons for the same. The above mentioned two revision applications are directed against this order by both Dr. S. D. Khetani and Dr. Narender Singh Yadav. Since they arise from the same First Information Report, these revision applications are decided by a common order.