R.C.DEEPAK,J. - (1.) HEARD Sri G.S. Chaturvedi, learned senior Counsel assisted by Sri R.C. Upadhyay, learned Counsel for the petitioners, Sri V.P. Srivastava and Sri Rajendra Kumar, learned Counsel for the respondent No. 2, learned A.G.A. for the State and perused the record including the cases cited by the parties as under: The cases referred by the learned Counsel for the petitioners: (1) 2005(3) JIC 320 (SC) : 2005 SCC (Cri.) 1369, Jacob Mathews v. State of Punjab and Anr. (2) AIR 1960 SC 866 (V 47 C 147), R.P. Kapur v. State of Punjab. (3) AIR 1960 SC 871 (V 47 C 148), The Chairman of the Bankura Municipality v. Lalji Raja and Sons. (4) (2003) 7 SCC (VII) 254, Ramesh Chandra Sinha and Ors. v. State of Bihar and Ors. (5) [2005(2) JIC 188 (SC) : 2005 (25) AIC 379 (SC)], M/s. Zandu Pharmaceuticals Works Ltd. and Ors. v. M.D. Sharaful Haque and Ors. (6) [2005 (25) AIC 385 (SC)], Subramani and Ors. v. M. Chandralekha. The cases relied upon by the learned Counsel for the respondent No. 2: (1) 2005 SCC (Cri.) 735, Ramesh and Ors. v. State of Tamil Nadu. (2) 1999(2) JIC 483 (SC) : (1999) 4 SCC 690, Arun Vyas and Anr. v. Anita Vyas. (3) (1999) 4 SCC 697, N.S. Giri v. Corporation of City of Manglore and Ors. (4) (2002) 3 SCC 156, Davinder Pal Sehgal and Anr. v. Pratap Steel Rolling Mills Pvt. Ltd. and Ors. (5) 1984 SCC (Cri.) 590 : (1984) 4 SCC 222, Bhagirath Manoria and Ors. v. State of M.P. and Raja Bahadur Singh v. Provident Fund Inspector and Ors.
(2.) THE subject -matter of the writ petition is a disabled boy aged about 10 years named Rishabh. He was born on 10 -4 -1995 as a normal child. The disability visited him at a later stage of life due to medical negligence of the medico. Some lime particles fell into his left eye at an age of 1 -1/2 years. The child was taken to Dr. Mukesh Khare. He advised immediate operation and on 24 -7 -1996 the operation was carried out by him in Ojha Nursing Home, Tagore Town, Allahabad. After the operation and the lapse of convalescence period in the private ward of this nursing home, he was discharged. The advice given by Dr. Mukesh Khare at the time of discharge that after 8 -9 months in order to keep the eye intact for grafting, another operation is to be undertaken. The treatment continued as per his advice regularly. The ultrasound examination upon him was carried. He was found perfect, but Dr. Alok Khare, Anesthetist -petitioner No. 2 observed that the child was anemic and slightly underweight, but the second operation was undertaken in the same nursing home by Dr. Mukesh Khare on 27 -2 -1997. The misfortune for the boy began from here. During the course of operation the condition of the boy became grave. Another Dr. Mohan Ji was sent for by the nursing home to attend the child. The condition of the child became stable due to his treatment and gradually improved in the course of time, but the child was unable to perform properly. Several doctors of the Institution of fame including Dr. Navneet Kumar, an eminent Neurologist of Kanpur, Dr. S.P.S. Chauhan, Senior Neurosurgeon, Medical College, Allahabad, Dr. N.C. Dwivedi, Senior Neurologist, Allahabad, Dr. D. Ghosh, P.G.I., Chandigarh as well as the concerned doctors of the A.I.I.M.S. were consulted. Dr. D. Ghosh diagnosed the patient and opined that there was serious negligence by the attending doctor and the anesthetist. The oxygen was not supplied in time causing 'Hypoxic Ischemic Encephalopathy'. C.T. Scan was also performed upon him. Oadema in brain (brain was swollen) was detected. The opinion of Dr. Chauhan is that there was 'Defuse injury to the Brain' which occurred during the course of surgery. It is also pertinent to point out here that initially the left eye suffered injury and was operated upon by Dr. Khare. Subsequent operation was to be done for grafting a cornea in future. Meaning thereby, the second operation was taken up to secure the eye to receive in grafting a new cornea at a later stage when the child attain the age for that, but instead of performing the operation, as was earlier advised on the left eye for securing it reception of a fresh cornea, his right eye was operated upon without obtaining sanction of his parents. How and why this happened remained wholly unanswered by the petitioners.
(3.) TWO submissions were raised before me by the learned Counsel for the petitioners: (A) that the prosecution is barred by time; (B) that there is no evidence of negligence. No medical officer has been examined by the complainant. Summoning order, therefore, suffers for lack of any cognizable evidence. ;