GANGADHAR BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) In this application made under S. 482 of the Code of Criminal Procedure,

(2.) Opposite party No. 2 presented a written report before the Officer-in-charge of Mangalabag Police Station, Cuttack on 23-12-1996 alleging that her husband Satyanarayan Mouyan was admitted into Kailash S.N.T. Clinic for Tonsiloctomy operation on that day at 8 a.m. and the operation was done by petitioner No. 1. Petitioner No. 2 being the anaesthetist attached to the said clinic administered general anaesthesia to the patient. At about 10 a.m. petitioner No. 1 and his associates came out from the operation Theatre. When opposite party No. 2 asked them about her husband, she was told by them that operation was in progress and there would be no difficulty. One hour thereafter, petitioner No. 1 told her that he was sorry that the operation on her husband could not be successful. She accordingly with her family members went to the Operation Theatre and found her husband lying dead in pool of blood. She alleged that her husband was quite hale and hearty before he was operated upon and because of negligence of the petitioners in performing the operation, he died. The aforesaid report was registered as FIR No. 300 dated 23-12-1996 under S. 304-A, IPC. On the basis of the said FIR, C.R. Case No. 2228 of 1996 was registered on the file of the S.D.J.M. Sadar, Cuttack. Police took up investigation. On 29-8-1997 while investigation was in progress, opposite party No. 2 filed a complaint against the petitioners in the Court of the S.D.J.M. under Ss. 304-I and 304 Part II, IPC on the self same allegations. The complaint was registered as ICC No. 171 of 1997. On 28-10-1998 the learned S.D.J.M. passed orders in the complaint case directing its closure on the ground that since in respect of the self-same occurrance police investigation was being done, there was no necessity to proceed with it. Opposite party No. 2 being felt aggrieved by the closure of the complaint case moved the learned Sessions Judge, Cuttack in Criminal Revision No. 118 of 1998. By order dated 8-3-1999, the learned Sessions Judge set aside the order dated 28-10-1998 of the learned S.D.J.M. in the complaint case and directed him to consider as to whether he would prefer to await submission of final form in G.R. Case No. 2228 of 1996 and if he considered that it was not desirable to await submission of final form, he may proceed with the complaint case in accordance with law. In view of the said order, learned S.D.J.M. passed order on 19-8-1999 in G.R. Case No. 2228 of 1996 directing restoration of the complaint case to file. He further directed the G.R. case to be put up on 28-6-1999 awaiting final form. On that day itself (19-3-1999) police filed final form under S. 173, Cr. P.C. stating that the case is a mistake of fact under S. 304-A, IPC. The learned Magistrate also on that day directed issue of notice to the informnt-opposite party No. 2 on the final form. On 4-4-1999 the case record was put up before the learned Magistrate along with a protest petition filed by opposite party No. 2. On 24-6-1999 the learned Magistrate heard on the protest petition filed by opposite party No. 2 and pronounced the impugned order on 17-7-1999. It would be appropriate to quote the relevant portion of the order :

(3.) Counsel for the petitioners has raised three points in support of the application which have been reiterated in his note of submission dated 18-2-2000. They are as follows :