Purushottambhai Govindbhai Patel & 1 Other(S) vs State Of Gujarat & 1 Other(S)

Ilesh J. Vora, J

By way of this application filed under Section 482 of the Cr.P.C, the applicants herein seek to invoke inherent powers of this Court praying quashment of FIR being I. CR. No. 26 of 2017, registered with Palanpur City Police Station, for the offence punishable under Section 304(2) and 114 of Indian Penal Code.

Facts and circumstances giving rise to file the present application are that, the applicant no. 1 - P.G. Patel is Doctor by profession and running his hospital in the name and style as ‘Meeta Hospital’ at Palanpur, whereas, applicant no. 2 is also doctor rendering his services as Anesthetic. According to case of the prosecution, the wife of the respondent no. 2 complainant died on 10.05.2016 at the hospital of applicant no. 1, when, she was admitted for necessary surgery as advised by the treating doctor Mr. Naik as well as present applicant No.1. On 10.05.2016, deceased was brought to the hospital of co-accused Dr. Naik as she was pregnant and she delivered a baby girl by normal delivery. However, after the delivery, due to continuous bleeding, the condition of the patient was deteriorated. Mr. Naik called the present applicant Mr. Patel at his hospital for further treatment and upon examination of the patient, he advised for further surgery. Mr. Naik, citing personal reasons, refused to perform surgery at his hospital and requested the present applicant Mr. Patel to perform the surgery at his private hospital. The respondent no. 2 was informed about the situation and accordingly, patient was shifted to Meeta Hospital at Palanpur and before surgery could perform, she expired due to excessive bleeding and other complications. The respondent no. 2 lodged an FIR against three doctors. The Investigation Agency sought report from the expert doctor and made a report to the concerned court for addition of Section 304(2) of the Indian Penal Code and seeks permission for deletion of Section 304(A) of the IPC. The Court concerned allowed the report submitted by I.O.

In the aforesaid facts, the applicants herein have been charged with culpable homicide not amounting to murder.

This Court has heard learned counsel Mr. Nandish Thackar appearing for and on behalf of the applicants, Mr. L.B. Dabhi, learned Additional Public Prosecutor and Mr. M.B. Rana, learned advocate for respondent no.2.

Mr. Nandish Thackar, learned advocate and Mr. M.B. Rana, learned advocate referring to the settlement affidavit of respondent no. 2 Jagdish Ramjibhai Prajapati, have submitted that, after filing the petition, the parties have settled their dispute amicably and respondent no. 2 complainant has no objection if FIR is quashed.

Mr. Nandish Thackar, learned counsel for the applicants would further submit that, the ingredients of the Section 304(2) of the IPC are not made out. If the allegations made in the FIR, even if they are taken at their face value and accepted in their entirety, do not prima-facie constitute offence under Section 304(2) of the IPC. It is the case of the prosecution that, on the day of incident, the applicants were called by the co-accused at his hospital for urgent medical services and accordingly, they reached there and without further delay, advised for surgery. Thus, so far role of the applicants are concerned, they had performed their duties diligently and in good faith. In such circumstances, the invocation of Section 304(2) of the IPC is unwarranted and having been added with malafide intention.

I have considered the rival contentions advanced by learned counsel for the respective parties and perused the allegations made in the FIR. On the facts on hand, the applicants have been charged with section 304(2) of the IPC. The respondent no. 2 in his affidavit has categorically stated that, after lodging of the FIR, he realized that the applicants were not negligent in performing their duties and had given timely treatment to the deceased and therefore, he has no objection if the FIR is quashed.

It is no more res-intigra that exercise of powers under Section 482 to quash criminal proceedings is only when an allegation made in the FIR or chargesheet constitute the ingredients of the offence alleged. Interference by High Court under Section 482 is to prevent abuse of process of court or otherwise, to secure ends of justice. An exercise of extra-ordinary powers would depend on the facts and circumstances of each case and can be exercised with the sole purpose to prevent abuse of the process of court.

In view of the compromise arrived at between the parties and considering the allegations leveled against the applicants herein, this Court is of opinion that, the averments made in the complaint do not disclose the ingredients necessary to constitute an offence under Section 304(2) of Indian Penal Code and therefore, continuation of the proceedings would certainly amounts to abuse of process of court. Thus, this court is convinced that, this is a fit case to exercise inherent powers to prevent the abuse of process of the Court. Accordingly, the impugned FIR being I.CR. No. 26 of 2017, registered with Palanpur City Police Station, for the offence punishable under Section 304(2) and 114 of Indian Penal Code and consequently proceedings therefrom are hereby quashed and set aside. The petition is allowed to aforesaid extent. Direct service permitted.