Back
1998 Supreme(Raj) 194
High Court Of Rajasthan
Judgename : V.G.PALSHIKAR
S.D.KHETANI - Appellant
Versus
STATE OF RAJASTHAN - Respondent
CRI. M. R. P. 91 Of 1994
Decided On : 02/27/1998
Anand Purohit, D.S.RATHOD, K.N.JOSHI, M.D.PUROHIT, PRADIP SHAH
The court held that the performance of surgery on a patient without their consent, even if it is done with due care and caution, does not constitute an offence under Sections 338, 326, or 420 of the IPC.
Headnote:
CRIMINAL LAW - SURGERY - CONSENT - MEDICAL NEGLIGENCE - SECTIONS 338, 326, 420, 120B OF THE INDIAN PENAL CODE - INTERPRETATION AND APPLICATION - COURT'S ANALYSIS AND CONCLUSION - NO PRIMA FACIE CASE ESTABLISHED - REVISION APPLICATIONS ALLOWED - CHARGES QUASHED.
Fact of the Case:
The complainant, Rahimuddin, alleged that the petitioners, Dr. S. D. Khetani and Dr. Narender Singh Yadav, performed surgery on his spinal cord without his consent while he was admitted to Jodhpur Hospital for treatment of bleeding piles. The police investigated the complaint and filed a challan, but the Additional Chief Judicial Magistrate framed charges against Dr. Yadav only under Section 338 of the Indian Penal Code (IPC) for causing grievous hurt by act endangering life or personal safety of others. Rahimuddin filed a revision application before the Additional Sessions Judge, who allowed the revision and directed framing of charges against both doctors under Sections 326 (voluntarily causing grievous hurt by dangerous weapons or means), 326/120b (criminal conspiracy to commit voluntarily causing grievous hurt), and 420 (cheating) read with Section 120b of the IPC.
Finding of the Court:
The court found that the First Information Report (FIR) and the investigation papers did not disclose any prima facie case against the petitioners. The court held that the operation on the complainant's spinal cord was not performed rashly or negligently, and that there was no evidence that the doctors did not take care of the complainant's diabetic condition while conducting the surgery. The court also held that the complainant had voluntarily consented to the myelography test, which revealed the ailment on the disk, and that he had not suffered from any pain or injury as a result of the surgery.
Issues: 1. Whether the petitioners caused grievous hurt to the complainant by performing surgery on his spinal cord without his consent, as alleged under Section 338 of the IPC? 2. Whether the petitioners voluntarily caused grievous hurt to the complainant by using dangerous weapons or means, as alleged under Section 326 of the IPC? 3. Whether the petitioners cheated the complainant by fraudulently inducing him to consent to the surgery, as alleged under Section 420 of the IPC?
Ratio Decidendi: 1. Section 338 of the IPC requires that the grievous hurt be caused by an act that is rash or negligent and endangers human life or personal safety. In this case, there was no evidence that the surgery was performed rashly or negligently, or that it endangered the complainant's life or personal safety. 2. Section 326 of the IPC requires that the grievous hurt be caused voluntarily. In this case, the complainant had voluntarily consented to the myelography test, which revealed the ailment on the disk. Therefore, the surgery cannot be said to have been performed voluntarily. 3. Section 420 of the IPC requires that the cheating be done by fraudulently or dishonestly inducing the person to deliver any property or to consent to the retention of any property. In this case, there was no evidence that the petitioners fraudulently or dishonestly induced the complainant to consent to the surgery.
Final Decision: The court allowed the revision applications and quashed the impugned order of the Additional Sessions Judge, as well as the order of the Additional Chief Judicial Magistrate framing charges against Dr. Yadav under Section 338 of the IPC.
( 1 ) ORDER :- Both these revision petitions are directed against the order passed by the Additional District and Sessions Judge No. 2, Jodhpur in 24-2-94, allowing the revision application of the complainant by which the learned Addl. Sessions Judge, directed framing of charges against the applicant in each of these revisions.
( 2 ) FACTS giving rise to these petitions, stated briefly are that a First Information Report was lodged before the Superintendent of Police, Jodhpur, by which respondent No. 2, who alleged that he got himself admitted to the Jodhpur Hospital and Research Centre, Shastri Nagar, Jodhpur, for treatment of his ailment of bleeding piles. During the course of his treatment he disclosed that he is a patient of diabetes and, should, accordingly be treated. On 21-4-92, he developed some pain in his back and was, therefore, referred to Dr. Narender Singh Yadav, applicant in Revision Petition No. 111/94, as he was working in the orthopacdic Department of the Hospital. Dr. Yadav, suspecting the pain from some problem of the vertibra, suggested myeolography test to ascertain if the problem pertains to the disc in the vertedbra. The respondent No. 2 consented to such myelography and on completion of that test it was observed by Dr. Yadav that he needs some surgical correction in his disk so as to be relieved of the pain. The trouble, according to the respondent No. 2, started hereafter. He declined to undergo surgery of the disk and insisted that he be operated upon, if necessary, only for the ailment of his bleeding piles and was not willing to undergo any other surgery, including the one for the back pain. Mr. Rahimuddin, the respondent No. 2, thus, alleged in his First Information Report that the petitioners, without his consent, performed the operation of his disc in spite of the fact that he was diabetic in condition and because of that, respondent No. 2 suffered for quite some time. It is alleged in the First Information Report that this amounted to criminal conduct on the part of the petitioners, who, therefore, should be prosecuted.
( 3 ) INVESTIGATIONS carried out by the police, on the basis of this First Information Report, resulted in police filing a challan in the court of Judicial Magistrate First Class, presided over by the Additional Chief Judicial Magistrate, Jodhpur. The learned Additional Chief Judicial Magistrate, on consideration and scrutiny of the material available on record, came to the conclusion that no prima facie case of any kind is made against the petitioner Dr. S. D. Khetani and framed charge against Dr. Narender Singh Yadav only under Section 338 of the Indian Penal Code. The respondent No. 2, dissatisfied with the action of the Additional Chief Judicial Magistrate, filed a revision application before the Sessions Judge, Jodhpur, complaining of not framing charges under Sections 420 and 326 read with Section 120b of the Indian Penal Code. The matter was ultimately decided by the Additional Sessions Judge No. 2, Jodhpur, who by his order, which is impugned in the present revision petitions, quashed the order dated 3-8-93, accepted the revision of respondent No. 2 Rahimuddin and directed framing of charge against both the doctors under Ss. 326, 326/120b of the Penal Code and against Dr. Narender Singh Yadav under Sections 326 and Section 420 read with Section 120b of the Indian Penal Code. It was registered as Criminal Revision No. 65 of 1993. Revision was filed before the Sessions Court by Dr. Yadav also, challenging the correctness of the order framing charge under Section 338, I. P. C. It was registered as Criminal Revision No. 5 of 1994. The learned Judge dismissed the revision of Dr. Yadav without giving any reasons for the same. The above mentioned two revision applications are directed against this order by both Dr. S. D. Khetani and Dr. Narender Singh Yadav. Since they arise from the same First Information Report, these revision applications are decided by a common or
