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1986 Supreme(MP) 257
High Court Of Madhya Pradesh
K. L. SHRIVASTAVA
R.P.DHANDA - Appellant
Versus
BHURELAL - Respondents
CRIMINAL REVISION 101 Of 1983
Decided On : 10/20/1986
A.R.TIWARI, S.C.BAGADIYA, SURJIT SINGH
Headnote:(1) Criminal Trial-prosecution must succeed on the strength of its own case.
It is well settled that the prosecution must succeed on the strength of its own case and cannot rely on the weakness or falsity of the defence version. The falsity of defence version is no guarantee of the truth of the prosecution case. [ Para 12
(2) Criminal P. C., 1973-Ss. 203 & 204-process when be issued fur calling the accused.
A persusal of section 203 of the Code shows that the Magistrate has to dismiss the complaint if from the material on record he is of opinion that there is no sufficient ground for proceeding. Section 204 ibid provides that if in the opinion of the Magistrate taking cognizance of an offence there is sufficient ground fur proceeding he shall order issue of process as therein provided. [ Para 14
(3) Penal Code, 1860-Ss. 88 & 338-how much care is needed in operation of cataract.
When an operation of cataract is performed by a duly qualified doctor in the recognized Indian method of treatment with the consent of patient and in good faith for his benefit but the operation is unsuccessful and the patient loses sight, it is not permissible to hold that the accused is guilty under this section. From the mere fact that the operation has been unsuccessful, it cannot be held that there was rashness or negligence so as to give rise to criminal liability. [Para 17
(4) Penal Code, 1860-S. 420 - reputed surgeon operating on cataract not case of deception - patient cannot complain of cheating for fees paid for operation. [ Para 19
( 1 ) THIS revision petition is directed against the order dated 13-4-1983 passed by the 3rd Addition Sessions Judge, Indore, in Criminal Revision No. 298 of 1982 whereby setting aside the trial Magistrate's order dismissing the complaint under S. 203 of the Code of Criminal Procedure 1973 (for short 'the Code') a direction has been issued to register a case under Ss. 338 and 420, IPC against the petitioner.
( 2 ) CIRCUMSTANCES giving rise to the petition are these. The non-applicant No. 1 Bhurelal suffered from trouble, in his right eye. The petitioner operated upon him in the T. Choithram Hospital, Indore for cataract. After a few months of the said operation, the non-applicant No. 1 suffered from retinal detachment of the same eye and was again operated upon in the said hospital on 22-4-81.
( 3 ) THE non-applicant Bhurelal not being satisfied with the operations in which according to him the petitioner was involved, served him with a lawyer's notice dated 23-2-82. In para 6 thereof, it has been stated as under :-"my client's vision of the eye stands completely vitiated. The eye sight is totally lost. It is said to be permanently damaged. The fault in the operations is the proximate cause for such occurrence. The negligence is writ large. How is that the small trouble labelled as 'cataract' could not be cured by operation and soon enough caused 'retinal detachment' which on second operation usurped the sight in its entirety? The left eye too is partially damaged as a consequence and is now being diagnosed as 'myopic'. The loss is seemingly irreparable. And this should occasion at the hands of a medical practitioner of your standing and repute is certainly an issue causing grave concern. The grievous hurt to the eye is caused by the operation. The operation is obviously a rash and negligent act endangering human limb and eye and thus its safety so ruthlessly. "paras 9 and 10 read as under : -" (9) My client thus demands from you the following amount as compensation :-
1.
Rs. 20,000. 00
towards expenses incurred so far.
2.
Rs. 20,000. 00
towards special damages.
3.
Rs. 60,000. 00
towards general damages.
Total
Rs. 1,00,000. 00
(one Lakh only)
(10) My client also desires you to express sorrow as atonement in order to obviate initiation of criminal proceedings against you. "
( 4 ) IN his reply dated 6-4-82 the petitioner took the stand that in respect of the retinal detachment he was not the operating surgeon. It may however, be pointed out that in the bill issued by the hospital to the non-applicant No. 1 it has been mentioned that Rs. 450/- were paid to the petitioner as operating surgeon for the operation.
( 5 ) IN due course, the non-applicant filed a criminal complaint in question against the petitioner with the result already stated.
( 6 ) LEARNED counsel for the petitioner contends that his client's case comes within the coverage of S. 88 of the Indian Penal Code. According to him, though the petitioner has contended that he was not the operating surgeon, this stand taken by him does not come in the way of his claiming protection under the provision aforesaid.
( 7 ) THE contention of the learned Counsel for the non-applicant No. 1 is that there was sufficient ground for proceeding against the petitioner and the dismissal of the complaint under S. 203 of the Code by the learned Magistrate was clearly erroneous and was rightly interfered with in revision. In this connection he has invited my attention to the decision in Smt. Nagawwa's case AIR 1976 SC 1947. According to the learned Counsel the false stand taken by the petitioner as to the person operating for retinal detachment is a circumstance which cannot be lightly brushed aside.
( 8 ) THE contention of the learned Counsel for the petitioner further is that the non-applicant Bhurelal did not seek information from the petitioner as to the name of the doctor who had performed the operation in respect of the retinal detachment. He also did not take ca
