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IN

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 31ST DAY OF MAY 2019

BEFORE
THE HON’BLE MR. JUSTICE ALOK ARADHE

CRIMINAL PETITION No.2678 OF 2017

BETWEEN:

Dr. Prabhakar,
S/o. Srikanth V. Gudisagar,
Aged about 40 years,
Consultant ENT Surgeon, Vinayaka ENT Hospital,
Railway Station Road, Sagar,
Shivamogga – 577 401. ... Petitioner

(By Sri. Bharath Kumar V., Advocate)

AND:

Sri. K. Sigbathulla,
S/o. Abdul Rehman, Aged about 50 years,
C/o. Alfaz Cushion Works,
N.H.206, Sagar,
Shivamogga – 577 401. ... Respondent

(By Sri. Nataraj C.D., Advocate for

Sri. Pruthvi Wodeyar, Advocate)

This Criminal Petition is filed under Section 482 of

Cr.P.C. praying to quash the entire proceedings in
matter bearing PCR No.39/2016 currently renumbered
as matter bearing C.C.No.5/2017 pending on the file of
the Prl. Civil Judge & JMFC, Sagara wherein the
petitioner herein is arraigned as accused for the alleged
offences under Sections 284 and 326 of IPC.

This Petition coming on for Admission, this day,

the Court made the following:-
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ORDER

The petition is admitted for hearing. With consent

of the parties, same is heard finally.

2. In this petition under Section 482 of the Code

of Criminal Procedure (hereinafter referred to as

‘Cr.P.C.’ for brevity), petitioner inter alia seeks

quashment of proceedings in C.C.No.5/2017 pending

before the Principal Civil Judge and JMFC, Sagara by

which, cognizance has been taken in respect of offences

under Sections 284 and 326 of the Indian Penal Code

(hereinafter referred to as ‘IPC’ for brevity).

3. The facts giving rise to filing of this petition

briefly stated are that on 6.3.2013 respondent consulted

the petitioner who is a medical practitioner. The

respondent is the chronic tobacco chewer and had

difficulty in opening his mouth. The petitioner

administered treatment to the respondent for the period

from 6.3.2013 to 19.3.2013. However, on 19.3.2013,

on account of treatment being administered to the

respondent, due to side effects of medicine, the

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respondent developed puss formation in the back jaw.

Thereafter, the respondent approximately after a period

of 3 years i.e., on 5.3.2016 filed a complaint for the

offences under Sections 284 and 326 of the IPC against

the petitioner. Being aggrieved by the order of taking

cognizance passed by the Magistrate, the petitioner has

preferred Criminal Revision Petition No.10004/2017.

4. The revision preferred by the petitioner was

partly allowed by the V Additional District and Sessions

Judge, Shivamogga by order dated 25.2.2017 and order

taking cognizance of the offence under Section 326 was

set aside. Being aggrieved, petitioner has filed this

petition.

5. Learned counsel for the petitioner submitted

that the impugned order dated 23.12.2016 passed by

the learned Magistrate taking cognizance for an offence

under Section 284 of the IPC is in violation of the law

laid down by the Supreme Court in the case of Martin F

D’Souza Vs. Mohd Ishfaq AIR 2009 SC 2049

inasmuch as cognizance of a complaint against the

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medical practitioner could not have been taken without

obtaining an opinion from an Expert. It is further

submitted that the offence under Section 284 of IPC is

punishable with an imprisonment for a period of six

months and under Section 468 of Cr.P.C., limitation for

taking cognizance is one year. Admittedly, in the

instant case, the complaint under Section 200 of Cr.P.C.

has been filed beyond the period of one year i.e., on

5.3.2016. Therefore, the same is barred by limitation.

It is also argued that continuation of proceedings

against the petitioner amounts to abuse of process of

law. On the other hand, learned counsel for the

respondent has supported the order passed by the

learned Magistrate.

6. I have considered the submissions made by the

learned counsel for the parties and have perused the

records. The Supreme Court in the case of Martin F

D’Souza supra has held that in case of medical

negligence, the cognizance of an offence against a

medical practitioner should be taken and an opinion of

an Expert Doctor/Committee of Doctors should be

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obtained and thereafter, notice should be issued.

Admittedly, the impugned order in the instant case

dated 23.12.2016 has been passed in violation of the

law laid down by the Supreme Court. Besides that, the

complaint filed by the respondent is barred by limitation

as the same has been filed beyond the period of one

year i.e., on 5.3.2016. The continuance of proceeding

against the petitioner in the fact situation of the case

amounts to abuse of process of law, which is not

permissible in law. In view of the preceding analysis,

the impugned order dated 23.12.2016 taking

cognizance of offence under Section 284 of IPC against

the petitioner is hereby quashed.

In the result, petition is allowed.

Sd/-
JUDGE

bkp