- (1.)PETITIONERS have presented this petition under section 561 -A Cr.P.C., invoking inherent power of the court seeking to quash the complaint titled Om Parkash Baru V/s Dr. Vishwa Mitter Soodan & Ors and the proceedings initiated by the Magistrate against the petitioners taking cognizance of the complaint under section Cr.P.C., for commission of the alleged offence under section 304 -A/34 RPC by petitioners No.1 and, 3 to 6 and offence under sections 304 -A/166 RPC by petitioner No,2 Dr. Vishwa Mitter Soodan.
(2.)THE facts giving rise to the complaint sought to be quashed are that Dr. Ajay Kumar Dogra was blessed with a son named Nikhil Baru on 25.09.1990. The infant had born with a deformation termed as TELEPES EGUINUS VARUS in his feet. Dr. Vishwa Mitter Soodan, petitioner No.2 is an Orthopaedic Surgeon whereas Dr. Sneh lata Soodan, petitioner No.5 is Gynaeologist. They have a Nursing and Maternity home, styled as Nav Jeevan Nursing and Maternity Home1, New Rehari, Jammu. Ajay Soodan and Anajali Soodan, petitioners Nos 3 and 4 are son and daughter of the petitioners Nos 2 and 5, and are not trained in medical /nurising/surgical science. Petitioner No.1 Dr. Prithvi Raj Sharma is being periodically engaged by petitioners Nos 2 and 5 to act as an Anaesthesist. The petitioner No.6, Charan Dass is a public servant working as Class IV employee in PHE Department and is not a trained and qualified person to work in Nursing Home. He is also being engaged by petitioners Nos. 2 and 5 for discharging para medical duties. Complainant, namely Om Parkash Baru is grand father of the infant master Nikhil Baru. He consulted petitioner No.2, Dr. Soodan, in respect of deformity of infants feet at Nursing Home of the petitionersNos 2 and 5. The infant was initially treated but did not show any encourag -ing results. The complainant and Dr. Ajay Dogra (father of the infant) were advised by the petitioner No.2 that master Nikhil Baru needed minor operation for curing deformity of the feet. Upon such advice of the petitioner No.2, master Nikhil Baru was operated upon in the Nursing Home on 06.01.1991, and the operation conducted by petitioenr No. 1 proved successful with regard to one foot and accordingly accused -petitioner No.2 further advised the complainant for another operation of the child on 27.03.1991. Assuring the complainant by Dr. Vishwa Miter Soodan that there is absolutely no risk of any type whatsoever in the operation to be conducted and acting on such experts assurance and advice, the complainant and his .son took master Nikhil Baru to Nursing Home on 27.03.1991 at 6.30 a.m. as advised. At the scheduled time master Nikhil Baru was taken in operation theatre by the petitioner No.2 without asking for or conducting any pre -operative tests/investigations etc. and while the complainant and his son Dr. Ajay Baru were told to wait outside till the operation was over in about thirty minutes. However, the operation could not be completed within the assured time but after about one and a half hour, the petitioner No.4 Dr. Anjali Soodan came out of the operation theatre and informed the father of the infant, Dr. Ajay Dogra that his son was facing a serious problem on the operation table. Mr. Ajay Dogra rushed inside the operation theatre in order to find out as to what was happened and found that his son was not provided with intra -venous life line and Dr. Prithvi Raj Sharma, petitioner No. 1 was struggling to re -insert endo trachael tube which had come out because of the negligent act of the petitioners for not properly monitering the vitals of the infant. The petitioners Nos 3,4 and 6 were trying unsuccessfully to find the vain to inject some drug, but being bereft of professional skill and there being quacks, vein could not be located. Dr. Vishwa Mitter Soodan on inquiry told Dr. Ajay Dogra was not satisfied with resuscitative measures and sought permission of Dr. Vishwa Mitter Soodan to get a Paediatric Surgeon but petitioner No.2 replied that it is of no use. The complainant, however, brought Dr. H.L. Goswami, Paediatric Surgeon, in the Nursing Home from his house. Dr. Goswami started open -heart and took several other measures so as to being life to the child. But, because of sufficient loss of time he could not succeed in his attempt.
(3.)IT is stated in the complaint that petitioners Nos. 2 and 5 have not qualified and competent para medical staff needed at the time of operation and their act was rash and negligent in undertaking operation without having ensured to keep all emergency measures in the operation theatre. It is alleged that petitioner No.1 Dr. Prithvi Raj Sharma did not get any pre -operative tests conducted before administering anaesthesia to the complainants grand son little caring for the sufferings with which infant was suffering at the time when he was taken in the nursing home and thus acted rashly and negligently. It is also alleged that he is guilty of culpable negligence for not monitoring the vitals of the patient as a result of which he could not locate the endo trachael tube which had come out resulting in impairment of the respiration. The petitioners Nos. 1, 2 and 5 do not have the requisite equipments and instruments available in their operation theatre wherefrom proper diagnosis and vitals of the patient could be ascertained and maintaned. To put the child on operation theatre without observing all the pre operative tests and proper equipments and instruments available in the operation, theatre to save the life of the child, itself shows their rash and negligent act in conducting operation as a result of which one precious human life has lost. It is also alleged that in, order to destroy the evidence, the petitioners did not inform the police about the death of the child and got the post mortem examination conducted with a view to escaping themselves from punishment under law. The petitioners have not maintained any record for monitoring all the vitals of the patient as there is no such system or equipment available in the operation theatre.
The petitioner No.2 is a public servant and on 27.03.1991, he was a member of J&K Medical Education Gazetted Service. Being a Government servant, it was obligatory upon him not to undertake private practice in terms of SRO 42 dated 23.01.1987 on the day when he was required to attend emergency cases in Hospital Clause (VII) of the said SRO provides punishment for violation of any rule by any member or by any Govt. Doctor under section 15.of the J&K Public Men and Public. servant Declaration of Assets and other provisions Act 1983 read with rule 30 of the J&K Civil Services (Classification, Control and Appeal) Rules 1956. The petitioner No.2 in violation of these rules fixed the date and conducted the operation on 27.03.1991. Although it was fully known to him that 27.03,1991 is the day of admission in his unit in the Govt. Medical College Hospital and on that day he was under obligation to attend the emergency cases in the hospital. Violation of such mandatory provisions of law has exposed the petitioner to incur the liability of commission of offence under section 166R.P.C. by wilful and intentional disobedience of the provisions of SRO 42.