H .C.MISHRA,J. - (1.) This writ application has been filed for issuance of an appropriate writ, order or direction quashing the entire criminal proceeding against the petitioner in Complaint Case No. 807 of 2001, then pending in the Court of Shri A.K. Tiwari, learned Judicial Magistrate, 1 st Class, Ranchi, including the order dated 7.9.2004 passed therein, whereby, the application filed by the petitioner under Section 258 of the Cr.P.C. was rejected by the Court below.
(2.) THE petitioner is a dentist by profession, against whom, the complaint petition was filed by the respondent No. 2 Basanti Devi @ Budhi Devi, alleging therein that 011 18th March 1998, the complainant respondent NO.2 contacted the petitioner as she was feeling serious pain in her upper left side tooth and the petitioner advised her that) the tooth was required to be taken out, which she agreed. It is alleged in the complaint petition that the petitioner gave her an injection in her upper left side gum and also prescribed some medicines and asked her to come after few days. It is alleged that after few hours the face of the complainant started swelling and she started feeling pain in her head, whereupon, she again visited the petitioner and was assured by him that nothing had happened to her and everything would be normal. However, the pain in the head and face of the complainant increased with the swelling, whereupon she went to HEC Hospital on the next day and she was told that the injection given by the petitioner had reacted. It is alleged that thereafter the complainant started loosing her vision in both eyes and also started developing severe pain in her head. Ultimately, the petitioner visited Shankar Netralaya, Chennai, in the month of November 1998 where the treatment continued till the year 2000 and thereafter, there was slight improvement in her right eye but her left eye became completely blind. That the complainant again visited the accused petitioner on 8th July, 2000, whereupon she was asked to bring all her papers of treatment including the prescription given by him. The complainant brought her papers of treatment on the next day which was taken by the petitioner and she was asked to visit again after a week, during which, the petitioner assured her to go through the papers and to consult other doctors also. After a week, when the complainant met the petitioner, the petitioner told her that there was nothing that could be done for her eyes and her papers were returned back, but the prescription which was given by the petitioner, had been retained by him. Alleging that the complainant lost her sight due to rash and negligent act of the petitioner, the complaint petition was filed in the Court of the learned Chief Judicial Magistrate, Ranchi, which was registered as Complaint Case No. 807 of 2001.
(3.) IT appears that the statement of the complainant was recorded on solemn affirmation and upon enquiry, the prima facie case was found against the petitioner for the offence under Section 338 of the I.P.C., by order dated 7.9.2002. It further appears that the petitioner had challenged the said order in this Court in Cr.M.P. No. 916 of 2003, which was disposed of by this Court by order dated 29th April, 2004, without recording the points taken by the petitioner and given him the liberty to raise the points of limitation and also other points by filing a petition under Section 258 of the Cr.P.C. which was directed to be adjudicated upon as a preliminary issue. The petitioner accordingly, filed a petition under Section 258 of the Cr.P.C., which was rejected by order dated 7.9.2004 passed in the said Complaint Case No. 807 of 2001, holding inter alia that the same was not maintainable in a complaint case. The petitioner has thereafter filed this application under Article,3 226 of the Constitution of India, for quashing the entire criminal proceeding against him.;