Dr. Nawal Kishore Gupta and Others vs State of U.P. and Another

S.K. Phaujdar, J.—It is an Application for quashing an order directing the police to register a case and investigate a complaint of opposite party No. 2 before the Magistrate. A preliminary objection is being taken by the other side that in fact an F.I.R. and the investigation are really challenged through this application in the garb of challenging the order u/s 156(3), Code of Criminal Procedure. The opposite party No. 2 made a complaint that his kidney was fraudulently removed by the present applicants and the pain under which he was suffering and for which he has met Surgeon is still persisting. A Magistrate gets a jurisdiction u/s 156(3), Code of Criminal if he is empowered to take cognizance u/s 190, Code of Criminal Procedure and if the complaint prima facie discloses a cognizable offence. The Magistrate had before him a complaint prima facie disclosing a cognizable offence and there is no challenge that he was not competent to take cognizance u/s 190, Code of Criminal Procedure. Seen in this light, the order of the Magistrate may not be challenged. However, certain defense papers are brought on record to indicate that the surgery was taken up with full consent of the Petitioner and with a view to save his life and the applicants pointed to the consent letter of the opposite party No. 2. It is further argued that there had been an inordinate delay in lodging the F.I.R. and that was done with an ulterior motive as the opposite party No. 2 was sure that his application before the Consumer Forum would fail. The continuance of investigation in view of the defense papers may be challenged in a proper writ petition, but the scope of the instant application is very limited and, and I am of the view that there has been no abuse of the process of the Court simply by directing registration of a case and investigation of the same. With liberty to the Petitioners to move a writ petition, challenging the investigation on the grounds mentioned, the present application stands disposed of. The interim order stands vacated. However, for one week more no coercive measures may be taken against the Petitioners, to enable them to file a writ petition.