IMPORTANT POINT
Sessions Judge is well within his powers to entertain revision petition under Section 397 of Cr.P.C.
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ORDER

John Michael Cunha, J.—A private complaint was filed by Petitioner No.1/appellant No.1 and two others against accused No.1 to 3 (Respondent Nos.1 to 3 herein) alleging commission of offences under sections 415 and 418 of Indian Penal Code. After recording the sworn statement, the trial court took cognizance of the offences under section 322 read with sections 323 and 338 read with section 34 of Indian Penal Code against accused Nos.1, 2 and 3. On their appearance, the accused moved an application under section 245 Cr.P.C. seeking discharge. By order dated 20.09.2008, the said application was dismissed.

2. Accused Nos.1, 2 and 3 carried the matter in revision before the City Fast Track (Sessions) Judge, Bengaluru City (FTC No.VI) in Crl.R.P.No.509/2008 and by order dated 6.1.2010, the revisional court partly allowed the revision petition and consequently, modified the order passed by the learned Magistrate as under:

“The application filed by accused No.1 under section 245 Cr.P.C., is hereby allowed. Accused No.1-M/s.Brindavan Nursing Home, represented by its Proprietor, Dr.A.Prakash is hereby discharged.

Further, the order passed regarding to frame accusation under section 322 r/w 323, I.P.C. against petitioner Nos.2 and 3 is also hereby set aside.

The order of the learned Magistrate regarding to frame accusation under Section 338, r/w S.34, I.P.C. is hereby confirmed against petitioner Nos.2 and 3.

The learned Magistrate is directed to frame accusation under Section 338 r/w. S.34 I.P.C., against the petitioner Nos. 2 and 3 in accordance with law.

Further, petitioner Nos. 2 and 3 are directed to appear before the trial court on 1.3.2010 and proceed with the case.”

3. As against the above order, the complainants preferred a Criminal Petition No.2739/2010 under section 482 of Cr.P.C. before this Court. In the meanwhile, charge was framed against accused Nos.2 and 3 for the offences under section 338 read with section 34 of Indian Penal Code. When the matter was set down for recording evidence on 18.05.2011, though the accused were present, the complainant was absent and hence, by order dated 18.5.2011, the learned Magistrate dismissed the complaint for non-prosecution and acquitted the accused of the above charge. As against the said order, the complainants have preferred Criminal Appeal No.895/2011.

4. Learned counsel has filed a memo stating that he has issued a notice to petitioner No.1 intimating his desire to retire from the case. However, since the matter is lying on board since 2010, the said memo is rejected.

5. I have heard learned counsel for the petitioners/appellants and the learned Counsel for the respondents.

6. The records indicate that criminal process was set in motion by lodging a private complaint under Section 200 Cr.P.C. The material allegations made in the complaint are that, accused No.1 was running a Nursing Home, wherein accused No.2 is working as Obstetrician and Gynecologist. The complainant No.1 delivered a female child in the nursing home of accused No.1 on 5.8.2001. The delivery was attended by accused No.2. The complainant No.1 was informed that she had delivered a baby girl weighing 3.2 kgs and looked healthy. However, accused No.2 informed her that during delivery, while pulling the child, the left arm slightly got strained and it will be all right by 10 to 15 days. It is further alleged that on account of the negligence of accused Nos.1 and 2, the baby suffered permanent disability in her left arm. When complainant Nos.1 and 2 visited accused No.3 (pediatrician), they were informed that the said deformity would be set right within a short period. Since the said deformity has not been cured, the complainants sought action against all the accused persons for the alleged offences punishable under sections 415 and 418 of Indian Penal Code. However, after recording the sworn stat