ORDER
V.G. Palshikar, J.
1. 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 order.
4. Arguing the revision petitions, it is contended on behalf of the petitioners that the learned Additional Sessions Judge acted without jurisdiction. In entertaining the revision applications as no such application is maintainable at the instance of complainant in a case commenced on a police report. It is undisputed in the present case that the police had filed a challan after the First Information Report filed by Rahimuddin, respondent No. 2 was investigated into by the police. Reliance is placed on a decision of this Court reported in 1987 Raj LW 482. It is thus, held that even on merits, no case whatever, much less prima facie is made out by the averments in the First Information Report or the Investigation papers collected by the police thereafter and hence, the learned Additional Sessions Judge erred in law in directing framing of charges when no prima facie case of any kind was raised by the facts as disclosed by the investigating papers.
5. Reliance was then placed on a judgment of the Supreme Court of India AIR 1986 SC 2045 : (1986 Cri LJ 1922), wherein the Supreme Court has very elaborately stated the law on the point of discharge of the accused, or conversely, framing of charges against the accused. The Supreme Court has, after considering the provisions of Section 227, Section 239 and 245 of the Cr.P.C, laid down that in spite of the difference in the language of the three sections the legal position is that if the trial Court is satisfied that a prima facie case is made out, charge has to be framed. Conversely, unless there is a subjective satisfaction of the trial Court, on appreciation of the investigating report that there is a prima facie case, no charge can be framed. In the light of this decision, therefore, the learned Counsel for the petititioners desired inspection of the facts on record to ascertain whether there could be a prima facie case on the basis of which charge can be framed or directed to be framed.
6. Opposing the revision application, it was contended on behalf of the complainant that prima facie case has been found to be existing by the learned Additional Sessions Judge and, hence, his order does not call for any interference. It is in light of submissions as referred to above, by the contesting parties, that I have to examine the correctness of the order passed by the learned Addl. Sessions Judge.
7. The first and most important document in this connection would, therefore, be the First Information Report lodged by the respondent Rahimuddin in Police Station Shastri Nagar Jodhpur before the Station House Officer, Shastri Nagar. The complaint was addressed to the Superintendent of Police, Jodhpur, who directed the Station House Officer, Shastri Nagar to register a case and investigate. The complaint which is treated as First Information Report was, therefore, made to the Superintendent of Police directly. It was made on 20th July, 1992. It states that the complainant Rahimuddin was admitted to the Jodhpur Hospital on 19th April, 1992 for the treatment of bleeding piles. In para 1 of the complaint the complainant Rahimuddin admits that he consented to the operation of piles. He states thus :-
(Vernacular matter omitted)
He accordingly, admitted himself to the hospital, of his own free will.
8. He then states that on 21st April, 1992 there was pain in his back and on complaining of the pain Dr. Harneja asked him to consult an Orthopaedist. Dr. Narender Singh Yadav was the concerned Orthopaedist, who examined the complainant and suggested that the complainant should undergo myelography test to ascertain the cause of pain. The complainant states in his complaint-
(Vernacular matter omitted)
The complainant thus, voluntarily consented to myelography test which was undertaken and the result of the test disclosed that the patient suffers from some disorder in the disc which can be corrected by surgery. He was, therefore, advised surgery. The complainant respondent No. 2 then states in his explicitly drafted detailed complaint to the Superintendent of Police that he declined any surgery for his backpain and desired surgery only for his bleeding piles. He then states that Dr. Khetani agreed to operate the complainant only for the bleeding piles. On 23rd April 1992, the complainant was operated both for his bleeding piles and for the trouble in the back. On attaining consciousness from anesthesia, the complainant learnt that he has been operated also for the back pain. He, therefore, demanded explanation from the doctors for that operation. He suffered pain because of that operation and after discharge from Jodhpur Hospital, undertook treatment in another hospital from which he was ultimately cured and relieved on 1st May 1992. He then states in the complaint that the authorities of the Jodhpur Hospital, with an intent to make money, took advantage of the unconscious condition of the patient and
(Vernacular matter omitted)
10. Investigations by the police reveal that the complainant did undergo the operation mentioned by him in the First Information Report and, therefore, they filed a report/challan on the basis of which the Additional Chief Judicial Magistrate framed charges against Dr. N. S. Yadav only under Section 338 and completely discharged Dr. Khetani. Aggrieved by this order, revision petition was filed by Rahimuddin before the Additional Sessions Judge. It was registered as a revision application No. 65/1993. Revision Application No. 5/94 was preferred by Dr. N. S. Yadav against the order framing charge against him under Section 338. Both these revision applications were decided by the learned Additional Sessions Judge by the impugned order dated 24-2-1994, whereby he dismissed the revision application filed by Dr. Yadav and allowed the revision application filed by Dr. Khetani and directed framing of the charges as aforesaid. Dr. Khetani and Dr. Yadav have, therefore, ap-proached this Court for setting aside this order under Section 397/401 of the Cr.P.C. on the grounds mentioned above.
11. I have scrutinized the record and have carefully considered the submissions made at the Bar against the impugned order. A scrutiny of the First Information Report discloses that the complaint made to the Superintendent of Police, Jodhpur on 20th July 1992 apart from being highly belated, is a well thought-over, well drafted document, where application of mind by experts is visible. Even if the averments in this documents is prima facie supported by the investigation made by the police, are accepted to be true, in my opinion, no criminal offence, as defined by Sections 420, 326/120B of the Indian Penal Code are made out, nor is there any offence under Section 338 disclosed by these averments.
12. Section 326 of the Indian Penal Code read thus :-
326. Voluntarily causing grievous hurt by dangerous weapons or means,- whoever, except in the clause provided for by Section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.
13. Then Section 338 reads thus :-
338. Causing grievous hurt by act endangering life or personal safety of others,- Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.
14. Then comes Section 420 which talks of punishment for cheating. Cheating is defined in Section 415 which reads thus :-
415. Cheating.- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to 'cheat.
15. Section 120B speaks of conspiracy to commit any of the offence including those mentioned above. It reads thus :-
120-B. Punishment of criminal conspirary,- (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in the Code of the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
16. I will now examine the position as mentioned in the First Information Report, including the First Information Report and the investigating papers, to see whether prima facie case is disclosed to have been committed by any of the petitioners. First I will take up Section 338 which contemplates causing of grievance hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others. Even if the entire averments in the First Information Report are accepted as correct and it is assumed that the other evidence mentioned in the investigating papers will support these averments, no case can be made out under Section 338. It pre-supposes rash or negligent act endangering human life. It is neither averred nor proved in any manner that the operation of the disk of complainant Rahimuddin was performed by Dr. N. S. Yadav and Dr. Khetani in any negligent manner or the performance of that operation in any manner endangered the life of the complainant. What is averred is that taking advantage of his unconscious condition under anesthesia, the operation of disk was undertaken, though he did not consent to it. There is no denial of the fact that the complainant did not suffer from any pain of disk nor is there any averment that the operation was performed negligently. It is also nowhere on record that the operation was in any manner performed negligently. There is, therefore, no question of application of S. 338 in the present case. It is, not and it was never the case of complainant, that the operation either for bleeding piles, or for ailing disk, was performed rashly or negligently by any of the Doctors. All that he says is that the operation was performed without his consent. Performance of operation by a Medical Expert, without consent of the patient by itself cannot be termed as a rash and negligent act. To say so would be serious inroad on the rights of Doctors to perform their duty of saving life irrespective of the desires of the patient in this regard. Apart from this aspect of the matter, the patient himself categorically stated in the Investigation Report that he did consent even to myelography test which disclosed his ailment on the disk. The only reason for objecting to operation, given by the patient Rahimuddin is, his diabetic condition.
17. It is accepted medical fact that extra care and caution is to be taken while operating a person suffering from diabetes. It is no where even stipulated that a person suffering from diabetes cannot be operated upon at all. In the instant case, Rahimuddin, patient, voluntarily consented to the operation of bleeding piles. That means he could undergo and was willing to undergo, an operation for bleeding piles in spite of his diabetic condition. There is no averment in the First Information Report, nor do the investigating papers reveal any such statement of document, which will disclose that the operation of disk was negligently done or no care was taken of the diabetic condition of the patient while conducting those operations. If diabetic condition did not allow the patient to pemit surgery for disk how could he permit surgery for bleeding piles? The only risk of performing surgery on a diabetic patient in Medical Science being his deficiency in healing wounds, whether they be caused for operation of piles or for operation of disk. In the absence of any averment or any other evidence, prima facie to show that while performing either of the operation any of the Doctors was negligent or rash or did not take care of the diabetic condition of the patient, no such charge could be levelled against any of the Doctors. Both the Courts, therefore, erred in law in framing charge under Section 338 against Dr. Yadav, who at the most can be blamed for his enthusiastic performance of his duties in giving comfort to the patient irrespective of his murmured protest. For this, to permit an expert to be prosecuted is to give a bad meaning to the requirement of law. Law is not intended to harm citizens. It is intended to protect citizens from hurts committed by others.
18. That takes me to the provisions of Section 326 which is already quoted above. Section 326 requires voluntarily causing grievous hurt. Voluntarily is defined by Section 39. It reads thus :-
39. Voluntarily',- A person is said to cause an effect 'voluntarily' when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it.
19. Where a surgeon uses surgical instruments use of that instrument is always voluntary. Surgery necessarily results in injury which is hurt and injuries of the kind inflicted for curing diseases like bleeding piles or the ailing disk are bound to be grievous. Each surgery, therefore, cannot be said to be a voluntarily causes grievous hurt, unless it is established that the surgery was performed by the doctors concerned with an intent to cause such bodily injury which cannotbe said to be an injury caused to be punishable under Section 326 of the Act. Or else, every surgeon will be guilty of an offence under Section 326.
20. Then there is 'grievous hurt' defined by Section 320. It is nowhere averred that the complainant has been suffering for more than 20 days such bodily pain as was endangerable and that bodily pain was caused by performance of surgery either rashly or negligently or without his consent. Hence, none of the ingredients of section 326 is made out in the present case. The direction to frame charge under that section against any of the applicant doctors, is, therefore, unsustainable in law.
21. That takes me to the question of application of Section 420 which pre-supposes wrongful loss and wrongful gain. Unless it is established that by performing the surgery, wrongful gain was made by the Doctors, no charge under that section is maintainable. The acceptance of the First Information Report or other supporting documents, only lead to a conclusion that the surgery for disk ailment was performed possibly without consent of the complainant. The performance of surgery is not disputed. Consequently, treatment of complainant for that surgery and the surgery for bleeding piles cannot be disputed. It cannot, therefore, be said that any wrongful gain is made by Jodhpur Hospital or any of its doctors. There is nothing on record to show that operation for ailment of disk was wholly unnecessary and was yet performed solely with a view to gain money for the hospital or its doctors. In the absence of any such material, no charge under Section 420 of the Penal Code can be levelled in the present case.
22. I am not taking into consideration, white considering existence of prima facie case, the averments by Doctors that complainant Rahimuddin did factually consent to operation of the spinal cord and that they have papers to prove this consent. 1 am not taking into consideration the elaborate and exhaustive treatment as administered to the patient by the Doctors and mentioned in the investigating papers and submitted in arguments. I am examining the record as it exists and confine myself to the averments and records as they lead to the facts as disclosed in the First Information Report and yet 1 am of the opinion that to prosecute eitherol'the Doctors for performing an operation with due care and caution, presuming it to be so performed without the consent of the patient, can bring the case within the four corners of any of the provisions stated above.
23. In the circumstances, the revision applications must succeed, they are accordingly, allowed. The impugned order of the Additional Sessions Judge No. 2, Jodhpur, dated 24-2-1994 is quashed as also the order dated 3-8-93 of the Additional Chief Judicial Magistrate No. 1, Jodhpur by which charge was framed against Dr. S. N. Yadav under Section 338, as no offence whatever is disclosed by the First Information Report and other investigating papers.