ORDER
D.K. Sinha, J.
1. The present petition has been brought about under Section 482 of the Code of Criminal Procedure for quashing of the entire criminal prosecution of Complaint Case No. 61 of 1999 including the Impugned order dated 29-1-2004, passed by the Judicial Magistrate, Ranchi whereby and whereunder cognizance of the offence was taken against the petitioner and another under Section 269 of the Indian Penal Code.
2. The brief fact giving rise to the present case is that the opposite party No.2 had admitted his wife Madhu Rajgarhia in Nagarmal Seva Sadan Hospital, Ranchi which is a private Hospital situated at Lake Road, Ranchi for the operation of her appendicitis. II was conveyed to the opposite party No. 2 on 25-12-1998 that the operation shall be conducted by the petitioner, who prescribed several medicines, injections to be used in the operation and, accordingly, it was purchased and provided. On the same day at about 8 a.m. when the wife of the complainant/opposite party No. 2 was being taken towards the operation theatre she felt uneasy and fell down. However, after an hour she was taken to the operation theatre on the call of the petitioner for her operation and Dr. H.P. Shamayar also went inside the operation theatre to assist in operation. After an hour the petitioner came out and asked the opposite party No. 2 to arrange other surgeon since the pipe was not passing through the throat of his wife and the condition was getting critical. Opposite party No. 2 requested the petitioner to call some other surgeon to assist him but the petitioner did not pay any heed to it and again he went inside the operation theatre and remained there till 2 p.m. Neither the opposite party No. 2 nor the relatives was informed about the condition of the patient. However, on the request made by witnesses to the petitioner, one Dr. Moti Singh was called in and the patient was shifted to ICCU of the Hospital at about 8 p.m. The patient was further attended by Dr. K.K. Sinha of Ranchi. The patient was put in the ICCU and on 27-12-1998 at about 11 a.m. the petitioner informed the opposite party No. 2 that his wife was dead without disclosing the cause of her death. A death certificate was issued by the Hospital authority wherein the cause of death was mentioned as “sudden Cardiac Respiratory Arrest”. The deceased had no other problem except in her appendicitis. She was aged about 35 years and the death was caused due to negligent acts, use of wrong medicines and injections and overdose of Anaesthesia. On account of mental shock upon hearing the news of death, grand father of opposite party No. 2 expired on 10-1-1999 and finally the delay has been explained by opposite party No. 2 in lodging the complaint case before the Chief Judicial Magistrate, Ranchi.
3. Learned Counsel for the petitioner submitted that from the allegations in the complaint petition, statement of the witnesses in course of enquiry under Section 202 of the Code of Criminal Procedure and from the documents produced after procuring it from Nagarmal Seva Sadan in n manner offence under Section 269 is attracted and, therefore, cognizance of the offence taken by the Judicial Magistrate, Ranchi by the order impugned in the aforesaid section of the Indian Penal Code is the abuse of the process of Court. As a matter of fact Section 269 of the Indian Penal Code, hereinafter referred to as code relates to affecting the public health, safety etc. and the opposite party No. 2 filed the complaint case with malafide Intention to harass and humiliate the petitioner.
4. Advancing his argument learned Counsel for the petitioner submitted that Hon’ble Supreme Court by its various Judgments propounded that to prosecute a medical professional for negligence under criminal law, it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional, in his prudent would have done or failed to do. Reliance has been placed upon the decision of the Supreme Court Jacob Mathew v. State of Punjab and Anr. Admittedly, wife of the complainant was not even operated and at the stage of administering Anaesthesia itself, some complications had developed and the patient was shifted to ICCU where she was undergone care and treatment for two days and at last succumbed. She was even examined by Dr. K.K. Sinha and Dr. Moti Singh, i.e, the physician and surgeon respectively of repute.
5. From perusal of the order impugned which is the cognizance order dated 29-1-2004, it is evident that the cognizance of the offence was taken under Section 269 of the Indian Penal Code which is inconsistent with the allegation made in the complaint case and from the statements of the witness adduced in course of enquiry it appears that the Judicial Magistrate lost sight of the provisions of Section 269 in which an offence is made out.
6. Section 269 speaks as under:
Negligent act likely to spread infection of disease dangerous to life – whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment either description for a term which may extend to two years, or with fine, or with both.
8. It has been illustrated in Ratanlal & Dhirajlal’s Law of Crime Volume (2), 25th Edition that if a man is attacked by a contagious and deadly disease and needlessly goes abroad with it in a public way or if a person carries about a child so infected, he does what he may be supposed to know to be likely to spread the infection. And unless some lawful occasion or reason for this conduct can be shown, as that the sick person had been directed to be removed to a hospital and that the removal was performed with due caution, the act will be an offence punishable under this section. It must be shown that the accused had knowledge that the disease was infectious. Where the disease is generally known to be infectious there will be no difficulty. The infection which is likely to be spread must be of a disease dangerous to life.
8. Therefore, this Court finds from the facts of the case and the materials on the record that learned Judicial Magistrate has erroneously taken cognizance of the offence under Section 269 of the Indian Penal Code which is in no manner relevant to the nature of the offence as alleged against the petitioner in the present case. Second point which has been highlighted on behalf of the petitioner is that the cognizance of the offence under Section 269 of the Indian Penal Code is barred by limitation under Section 468(2)(a) of the Code of Criminal Procedure. The punishment prescribed for the offence under Section 269 of the Indian Penal Code is imprisonment of either description for a term which may extend to six months or with fine or with both, but the cognizance was taken on 24-1-2004 for the offence alleged on 27-12-1998 much be yond the limitation period of one year and hence it is not maintainable in the eyes of law. It is nowhere mentioned in the order impugned that the cognizance of the offence was taken by the Judicial Magistrate on being satisfied on the facts but it is no where mentioned that in the circumstances of the case the delay was properly explained or that it was necessary so to do in the interest of justice invoking the provisions of Section 473 of the Code of Criminal Procedure.
9. There appears merit in the petition filed by the petitioner under Section 482 of the Code of Criminal Procedure. The order impugned passed by Ms. Garima Mishra, Judicial Magistrate, 1st Class, Ranchi on 29-1-2004 in complaint case No. 61 of 1999 is set aside with consequential effect. This petition is allowed.