V. S. Dave, J. - (1.) This application has been filed under Sec. 482 Cr. P.C. against the notice issued by the learned Munsif and Judicial Magistrate, Kekri on 6-5-89 wherein he has stated that an application had been filed against the petitioner to the effect that he had not handed over the X-ray plates No. 22752-53 dated 7-10-86 to police and, therefore, he should appear and show cause as to why cognizance may not be taken against him under Sec. 176 IPC.
(2.) Ex-facie, the notice issued by the learned Magistrate is without jurisdiction. There is no provision, express or implied, to issue a show cause notice like the one given by the Magistrate on a complaint which is filed before him. He has to deal with it under the provisions of Chapter XV of the Code of Criminal Procedure (for short 'the Code'). It is obligatory upon the Magistrate to have gone through the provisions of Sec. 176 IPC also before issuing a notice as to whether the case falls within the purview of the said Section or not.
(3.) The Complaint filed by the SHO, Police Station, Sarwas is to the effect that Devi, injured, was X-rayed at Jawahar Lal Nehru Hospital and the X-ray was taken by Ashwini Kumar Bhargava. Report of this X-ray had been sent to the police vide letter dated 7-10 86, but he wanted to obtain the X-ray plates on which Dr. Bhargava informed the SHO that he can obtain it from the Medical Jurist as it is sent to him. Medical Jurist Shri M.R. Goyal, when was asked to hand over the plates, replied that then same shall be placed in the Court when it is require to be tendered in evidence and he has forwarded already the report. According to the SHO who filed the complaint, this section of the Doctor of not handing over the plates, amounts to an offence punishable under Sec. 176 IPC. Along with the complaint he has filed the letter which he has written to the Medico Legal Jurist wherein he has written that X-ray plates be sent per bearers so that the challan may be filed in the court. On this application there is an endorsement by some Doctor regarding which no investigation appears to have been made by the Investigating Officer who has written that "Referred to the Medico Legal Jurist, Associated Group of Hospitals, Ajmer since X-ray plates remained with the Department of Radiology and as per practice the Radiologist takes the X ray films to the court of law whenever he goes for evidence. Submitted for further instructions into the matter". Thereafter, the matter has been placed before the head of the Radiology Department, who has mentioned these MLC films are taken by the concerned Radiologist in the court at the time of evidence as these are also required for treatment purposes by the concerned treating Doctor. This instruction has been given by the professor and Head of the Department. Information to this effect was sent to the SHO without further investigating into the matter and obtaining instructions from higher authorities straight away filed the aforesaid complaint and the learned Magistrate mechanically issued a notice to show cause to Dr. M.R. Goyal, Associate, Professor in Radiology, who has sent reply to the notice by post which forms the part of the record.;