Ramesh Sinha, J. - (1.) HEARD Sri Tarun Kumar Srivastava, learned counsel for the applicant, learned A.G.A. for the State and perused the record. Notice was issued to opposite party No. 3 in pursuance of this Court order dated 10.5.1999. The Chief Judicial Magistrate, Bijnor submitted its report dated 8.6.1999 stating therein that the notice of the aforesaid application under Section 482 Cr.P.C. has been served and received by opposite party No. 3 through the concerned police station. The report of C.J.M. is on record. Inspite of service of notice on opposite party No. 3 he has not appeared in person or through his counsel; thus notice to him is sufficient. Brief facts of the case is that a F.I.R. was lodged by opposite party No. 3 against the applicant as case Crime No. 492 of 1996 under Section 304 -A I.P.C. P.S. Kotwali District Bijnor alleging that his daughter namely Roosi received a fracture in her hand when she had gone at the house of one Harpal of village Ghazipur for which she was given medical treatment by the accused applicant. The applicant tied plaster in the hand of the girl and handed over to her mother who is wife of opposite party No. 3, thereafter the girl expired in the evening. After investigation final report was submitted by the police. Against which opposite party No. 3 filed a protest petition on which the learned Magistrate passed order on 18.2.1998 summoning the applicant to face trial under Section 304 -A I.P.C. Thereafter being aggrieved by the said summoning order the applicant has preferred a revision which was dismissed by the lower Revisional Court on 26.11.1998 hence the present application under Section 482 Cr.P.C. has been filed challenging the order of lower Revisional Court as well as the order passed by the Chief Judicial Magistrate.
(2.) IT has been contended by the learned counsel for the applicant that the applicant is a doctor. He is M.S. in Orthopedics and doing practice since 1985. It has been submitted that the F.I.R. of the incident was lodged after 21 days of the incident by opposite party No. 3 alleging false allegations against the applicant that he has been negligent in giving treatment to the victim who subsequently died. It is admitted case of the prosecution that no post mortem of the deceased was conducted as is also evident from the protest application filed by opposite party No. 3. The learned Magistrate while passing the summoning order has held that no doubt that post mortem of the deceased was not conducted but prima facie cognizable offence is made out against opposite party for which he was summoned for facing trial under Section 304 -A I.P.C. Learned counsel for the applicant has contended that when the cause of death of deceased could not ascertained then the trial of the applicant under Section 304 -A I.P.C. is wholly unwarranted hence the proceedings against the applicant should be quashed. He further submits that as opposite party No. 3 is a practicing lawyer in the district Court Bijnor for harassing the applicant and for ulterior motive has initiated the present proceedings against him. He urged the lower Revisional Court without their being legal evidence on record has illegally rejected the revision of the applicant and confirmed the summoning order.
(3.) LEARNED A.G.A. on the other hand has tried to justify the orders passed by the Courts below but he could not dispute the fact that the post mortem of the deceased was not conducted and cause of death could not be known. The learned A.G.A. could not point out any material to show which may warrant the trial of the applicant. Having considered the submissions I am of the opinion that it is an admitted case of the prosecution that the post mortem of deceased was not conducted and due to which the cause of death could not be ascertained hence the liability of the applicant for being negligent in conducting the medical treatment of the victim cannot be established to make out an offence under Section 304 -A I.P.C. Hence from the material on record it is apparent that the present case falls in one of the category mentioned in the case of State of Haryana v. Bhajan Lal, : AIR 1992 SC 604. The Apex Court held that where the allegations made in F.I.R. or the complaint even if taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. The Court can quash the proceedings in exercise of its inherent power under Section 482 Cr.P.C. In another case in Suresh Gupta (Dr) v. Government of NCT of Delhi, : 2004 (6) SCC 422. The Apex Court justified the powers of High Court to quash the proceedings under Section 482 Cr.P.C. where from the perusal of complaint under Section 304 -A I.P.C. no offence is made out. In the above facts and circumstances of the case the petition under Section 482 Cr.P.C. is allowed and the impugned orders dated 26.11.1998 passed by the Revisional Court in Criminal Revision No. 145 of 1998 and dated 18.2.1998 passed by the Chief Judicial Magistrate, Bijnor are hereby quashed as well as the further proceedings pending before the C.J.M. Bijnor is also quashed.;