Bombay High Court
Dr. Anand R. Nerkar vs Smt. Rahimbi Shaikh Madar And Others on 6 November, 1990
Equivalent citations: 1991(1)BOMCR629, 1991CRILJ557, 1991(1)MHLJ644
ORDER
1. The petitioner, Dr. Anand R. Nerkar, has filed this Criminal Writ Petition under section 482 of the Code of Criminal Procedure, 1973 read with Article 227 of the Constitution of India, praying for the quashing of criminal proceedings instituted against him by respondent No. 1 Shrimati Rahimbi Shaikh Madar. The petitioner is a Senior Medical Practitioner and is Honorary Surgeon and Head of the Surgical Ward of the Bhagwati Hospital, which is a medical institution, run by the Bombay Municipal Corporation. Respondent No. 1 has filed a private complaint in the Court of the learned Metropolitan Magistrate, 26th Court, Borivali, Bombay, numbered as Criminal Case No. 168/S of 1988 against the present petitioner and one Dr. Ansari, charging both the doctors with having committed an offence punishable under section 337 read with Section 114 of the Indian Penal Code. The learned Metropolitan Magistrate, after recording the verification statement of the complainant and the statement of Dr. Jugalkishor Agarwal, passed an order dated 6-10-1988 issuing process against both the doctors under Section 337 read with Section 109 of the Indian Penal Code. It is against this order that the petitioner has moved this Court, the main contention being that the issuance of the process against him was unjustified and that the same is liable to be quashed.
2. Certain material facts need to be stated. Admittedly, the complainant, Shrimati Rahimbi Shaikh Madar, had complained of certain abdominal ailments and had gone to the Bhagwati Hospital in the year 1983 for treatment. She has stated in her complaint that on 13-9-1983, she developed sudden abdominal pain pursuant to which she proceeded to the M. W. Desai Municipal General Hospital, Malad from where she was sent to the Bhagwati Hospital for further treatment. Pursuant to the diagnosis that was done, she was advised certain surgical treatment, and admittedly, on 13-10-1983 she was operated upon. It is also not disputed that the present petitioner, who was at that time the Head of the Surgical Ward, had supervised the operation which was, in fact, performed by the 3rd respondent, Dr. Ansari. The learned Advocates appearing before me, in the course of their arguments, have produced copies of the case papers, and there is no dispute about the fact that the surgery that was performed related to a gall bladder operation, in medical terminology called "cholecystectomy" and "appendectomy", which in common parlance constitutes removal of the appendix. It is very material to note that the surgery had nothing to do with the patient's stomach and the case papers indicate this fact. The patient was discharged from the hospital on 26-12-1983. She has stated in her complaint that even in the course of the post operative treatment, she was suffering a lot of pain in the region where the operation was performed as a result of which she had to pay repeated visits to the hospital.
3. The complainant has further stated that in the subsequent period right up to November 1986, she had continuous medical problems which, according to the complainant, were an aftermath of the operation that had been performed on her. She has complained about the fact that in spite of the treatment for almost three years, her condition did not improve and that, finally, in Nomember 1986 she had been to the M. W. Desai Municipal General Hospital where she was examined by Dr. Agarwal. She was sent to the Cooper Hospital for an X-ray report and it is further her case that gastroscopy was done at the Cooper Hospital on 9-7-1986. She was admitted on 6-3-1987 and retained in the hospital till 12-3-1987. She states that because of the strike, the decision to perform a surgical operation on her was postponed and that after the strike was over, Dr. Agarwal sent for her and she was admitted at the M. W. Desai Municipal General Hospital, Malad on 16-4-1987. She was operated upon by three doctors, one of whom was Dr. Agarwal, and in the operation, one broad strip of corrugated rubber drain (10 cms. x 6 cms.) was removed from the stomach. It is the case of the complainant that this foreign object was left embedded in her body at the time when the original surgery was done, i.e., on 13-10-1983, and that she had undergone a tremendous amount of pain, hardship and expenditure of over R. 1,00,000/- in the subsequent four years. The complainant had contended before the trial Court that she had not undergone any other surgery except the operation performed on her by the petitioner and Dr. Ansari on 13-10-1983 and that consequently it was her case that the foreign object that was removed from the stomach on 16-4-1987 had been negligently left there at the time when the operation was performed by the two doctors in the year 1983. It is on these facts that the complaint was filed before the learned Metropolitan Magistrate alleging offence under section 337 of the Indian Penal Code against the two doctors.
4. Mr. C. J. Sawant, the learned Advocate appearing on behalf of the petitioner, has raised certain valid contentions with regard to the maintainability as also with regard to the validity of the legal proceedings instituted against the petitioner before the trial Court. In the first instance, Mr. Sawant has contended that the record before the trial Court, namely, the relevant case papers, unmistakably indicate that a foreign body, namely, the rubber tubing, was removed from the stomach of the complainant in the year 1987. He has, with the assistance of several text books, demonstrated that a foreign object of this shape and size could not have entered into the stomach unless surgery had been performed on the stomach or, in the alternative, that the only other possible route of entry was through the oesophagus. Mr. Sawant has further submitted that there can be no degree of dispute with regard to the correct facts regarding this aspect of the case because the record unmistakably indicates that when the patient had complained about pain and discomfort in the year 1986-87, i.e., 3 years after the operation, and when the X-ray test was done on her, that the foreign object was, in fact, found lodged in the oesophagus and that the doctors treating her at the relevant time were of the view that if this object were dislodged into the stomach, in the normal course it would pass out of the system. It is, therefore, quite clearly established from the record that the rubber tubing that came to be surgically removed did, in fact, get into the patient's stomach via the oesphagus and not as a result of any surgery performed least of all three years earlier.
5. There is considerable force in the submissions made by Mr. Sawant with regard to this aspect of the case, because a perusal of the case papers further indicates that in the year 1987 when Dr. Agarwal performed a surgical operation on the patient for the purpose of removing the rubber tubing that he did not find any indication of previous surgery having been done on the patient's stomach. There can be no manner of doubt, therefore, that in the present case, the rubber tubing could not have entered the stomach as a result of any surgery. Mr. Sawant has also drawn my attention to a book on Basic Anatomy and Physiology by H. G. Q. Rowett (Second Edition). The Author of the Book is a Senior Lecturer at Plymouth Polytechnic in the United kingdom. A perusal of the text and explanatory diagrams in this particular publication lends support to Mr. Sawant's argument that the stomach is a sort of organ which consists of four layers and that, consequently, it is not physically possible for a foreign body to enter the stomach cavity through a minor perforation. A reference was also made to the Textbook on Abdominal Operations, Fifth Edition, by Dr. Rodney Maingot. In Chapter 6, wherein the learned Author has dealt with the aspect of foreign bodies in the oesophagus, stomach and the duodenum the learned Author has very categorically observed that normally foreign bodies do not remain lodged in the oesophagus or stomach for an extended period of time and that if such a situation does occur that there are several attendant complications which require immediate attention. We are, however, not immediately concerned with this aspect of the matter, but I am referring to it only in passing because one of the submissions that was advanced was that if the facts alleged against the present doctor were to be scrutinized that it would lead to an absurd conclusion since it was just not possible for an object of this type to have innocuously remained in the oesophagus or the stomach for a period of almost four years. There is also no explanation whatsoever as to how in the course of an appendix and gall bladder operation a piece of rubber tubing could have got lodged in the oesophagus. This is not a matter of conjecture, but it is the most material factual aspect of the case because in the absence of it being conclusively established that the foreign body, namely, the rubber tubing, was lodged in the patient's body at the time when the petitioner performed the operation, i.e. in September 1983, it cannot be alleged or argued in a criminal proceeding that the responsibility or liability for the same devolves on the petitioner.
6. Mr. Sutrale, the learned Advocate appearing on behalf of the complainant, forcefully submitted that, in the first instance, he has led evidence before the trial Court to point out that the only time on a previous occasion when the complainant underwent any form of surgical treatment was at the hands of the petitioner. He has further stated that the patient was continuously suffering pain and several complications right from the time she was discharged from the Bhagwati Hospital, and that according to him this is an indication of the fact that because of the foreign body that was left in the stomach, the complainant was suffering continuously. It is not possible to uphold this contention because it is a pure matter of conjecture. It also runs contrary to the record which shows that the rubber tubing was first detected in the oesophagus and not in the stomach. Further, the medical books totally rule out any possibility of the backward movement of the rubber tubing from the stomach to the oesophagus because of the body's own mechanisms which totally prevents any such movement in the reverse direction. As I have pointed out earlier, this submission also runs contrary to the record that is before me. It is essential when a complainant sets the law in motion that all ingredients for the purpose of making out a prima facie case are established before the criminal Court. In a case where the law is set in motion four years after the date on which the patient was treated by a doctor and where, admittedly, the patient has been complaining of different ailments and where, admittedly, the patient has been visiting hospitals and doctors, it was essential for the trial Court before having accepted the allegation against the Accused doctors to have scrutinized the case papers carefully and to have had before it unimpeachable material to rule out any other possibility. This unfortunately is not the case as far as the present complaint is concerned.
7. Mr. Sawant has thereafter submitted that the present complaint is barred by limitation. It is Mr. Sawant's second submission that the offence under section 337 of the Indian Penal Code, which is punishable with imprisonment for six months or fine of Rs. 500 or both, is a charge in respect of which the criminal proceedings ought to be instituted within a period of one year. It is his submission that the present complaint is hopelessly time barred and that if at all the learned Magistrate for any reason was of the view that the complaint ought to be entertained, that an order setting out those reasons ought to have been passed and in the absence of such reasons, the complaint is liable to be quashed on this ground alone.
8. As against this, Mr. Sutrale, the learned Advocate appearing on behalf of the complainant, has raised a two-fold submission, both limbs of which are not only correct but deserve to be upheld. In the first instance, Mr. Sutrale has pointed out that even if the alleged offence dates back to the date when the operation was performed in the year 1983 that, admittedly, the complainant was not aware of the facts, namely, the rubber tubing that was found in the oesophagus until the year 1987 when the same was surgically removed by the doctors. Mr. Sutrale is right in his submission that the complainant came to know of the factors that are the subject-matter of this complaint only in the year 1987 and that she has moved the Court with the least possible delay, namely, within a period of three to four months, which is well within the period of limitation prescribed under the Act, because Section 469 of the Code of Criminal Procedure, 1973 takes into account the date of knowledge when the offence was committed. There is, therefore, no substance in the contention advanced by Mr. Sawant regarding the period of limitation and the complaint is not hit by the provisions of Section 468 of the Code of Criminal Procedure.
9. Mr. Sawant, in support of his submission that the present complaint is barred by limitation, raised another contention, namely, that even assuming the complaint in the present case has been presented before the learned Magistrate in the month of the November 1987, i.e., within 3 to 4 months of the complainant undergoing the last operation, the record indicates that the order issuing process in this case was passed by the learned Magistrate on 6-10-1988 which is, admittedly, more than one year after the date on which the complainant derived knowledge of the facts which, according to her, constituted an offence. It is, therefore, his case that the date on which the process was issued is the date on which the Court has taken cognizance of the offence and consequently the bar of limitation would be applicable in this case.
10. As against this, Mr. Sutrale has contended that the date on which the complaint was presented to the learned Magistrate should be construed as the date when the Court has taken cognizance of the case which is within the period of limitation. For the purposes of setting at rest this controversy, it would be useful to refer to the relevant provisions of the Code of Criminal Procedure and to determine the point of time at which the learned Magistrate, in a private complaint, is said in law to take cognizance of the proceedings. Undoubtedly, the Code of Criminal Procedure does not define the term "cognizance". The Random House Dictionary defines the term "cognizance" in law as "the act of taking judicial notice in dealing with a cause" or "as the right of taking jurisdiction". Black's Law Dictionary, Fifth Edition, at page 235, defines the term "cognizance" as follows :
"Jurisdiction, or the exercise of jurisdiction, or power to try and determine causes, judicial examination of a matter, or power and authority to make it. Judicial notice or knowledge; the judicial hearing of a cause; acknowledgment; confession; recognition."
It, therefore, follows that in sum and substance, the term "cognizance" embodies the act of taking judicial notice and has no bearing or relation with any subsequent stage of the proceeding or the passing of judicial orders. Mr. Sawant's submission that the Court can be said to take cognizance of a criminal complaint after the stage of preliminary examination is over and only at the point of time when the process is issued is, therefore, unacceptable, because the Court has commenced the process of taking judicial notice of the case on and from the point of time when the complaint came to be presented to the learned Magistrate. There can be little dispute about this position, because Section 190 of the Code of Criminal Procedure specifies the situations in which a Magistrate may take cognizance of an offence. Section 190 of the Code of Criminal Procedure reads as follows :
"190 (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence -
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try."
It is clear from clauses (a), (b) and (c) of sub-section (1) of Section 190 of the Code of Criminal Procedure that the Court takes cognizance of the offence upon receipt of the complaint or the police report or the information that constitutes the subject-matter of the charge.
11. The present complaint being a private complaint, it is governed by the provisions of Chapter 15 of the Code of Criminal Procedure, which prescribes the procedure to be followed in such cases. S. 200 of the Code of Criminal Procedure prescribes the manner in which the examination of the complainant is required to be done. Section 201 very clearly specifies that in cases where the complaint is made to a Magistrate who is not competent to take cognizance of an offence, the same shall be returned for presentation to the proper Court, or that the complainant shall be directed to the proper Court. Section 202 prescribes the procedure in cases where the process may be postponed and an enquiry into the matter may be conducted. Section 203 sets out the circumstances under which the Magistrate is empowered to dismiss the complaint. Section 204 lays down the procedure to be followed for issue of process in cases where the Magistrate is of the view that there is ground for proceeding against the accused.
12. It is very clear from these sections of the Code of Criminal Procedure that the Magistrate takes cognizance of the complaint when it is received, that he is required at that point of time to consider the preliminary issues, such as jurisdiction, that he is required to hold a preliminary inquiry into the matter or direct such inquiry through the Police and thereafter dispose of the complaint or take steps for securing the appearance of the accused and proceed with the case. It stands to reason, therefore, that the point of time when the Court takes cognizance of a criminal complaint is the stage at which the complaint is presented to the Court or filed in the Court. It follows by necessary implication that for the purpose of computing limitation, it is this date that is material and not the date on which the process is issued. The subsequent stages, such as the examination of the complainant and witnesses, the consideration of the case on merits, the preliminary enquiry, etc., would all take considerable time and it would, therefore, be unreasonable and irrational to compute the period of limitation from the date when the process is issued. Furthermore, these processes are dependent on the time available to the Court which is something over which the complainant has no control and it would, therefore, be wholly untenable to hold that a complaint, even if presented within the period of limitation, would be barred merely because a certain amount of time elapsed until the order of process was passed. The submission of Mr. Sawant, will, therefore, have to be rejected, since the date on which the complaint in the present case was presented before the learned Magistrate was well within the period of limitation.
13. In support of this view, it may be well to draw a parallel with the computation of the period of limitation in respect of civil proceedings. The period of limitation is counted up to the date on which the plaint is lodged before the Court and not the date on which the notice or summons is ordered to be issued. Undoubtedly, even in a civil proceeding the scrutiny stage follows the date on which the plaint has been lodged and the length of time that this process envisages is not necessarily within the control of the plaintiff. In both civil and criminal proceedings, therefore, where the object behind prescribing a limitation is essentially in order to ensure that legal remedies are pursued within a reasonable time, it is the date on which the party approaches the Court which is material and not the date on which the Court completes itsinitial scrutiny.
14. In support of his contention that the criminal complaint is liable to be quashed. Mr. Sawant relied on a decision of the Supreme Court in the case of Nagawwa v. V. S. Konjalgi, . The Supreme Court has, in that case, laid down four tests and has very clearly specified certain categories in which the process issued against the accused can be quashed. We are for the time being concerned with the first two of the four tests applied by the Supreme Court which are as under (at p. 1537 of Cri LJ) :
"(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;
(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused."
15. It is the submission of Mr. Sawant that the allegations made in the complaint, even if taken at their face value, would not disclose the essential ingredients of the offence that is alleged against the accused and furthermore that this is a case where the allegations made in the complaint are patently absurd and inherently improbable and that no prudent person could reach a conclusion that there is sufficient ground for proceeding against the accused.
16. In answer to this submission, Mr. Sutrale, the learned Advocate appearing on behalf of the complainant, submitted that the Court in a case of the present type should be extremely slow in interfering with the order of process issued by the trial Court, because the complainant has not had the opportunity of adducing the full evidence before that Court. It was his further submission that given an opportunity, the complainant would establish her case fully before the trial Court, and similarly the accused would have a full and fair opportunity of defending themselves and establishing to the satisfaction of the Court that the offence has not been established against them. Unfortunately, on a perusal of the present record, the submission made by Mr. Sutrale cannot be accepted, because the complainant has set out her entire case in the complaint. She has repeated in her elaborate verification statement all that she had to say with regard to the factual aspect of the case. In addition to this, the medical papers have also been produced and the statement of Dr. Agarwal was also before the trial Court. It is, therefore, not correct to say that there is any other additional or substantially different evidence that was capable of being produced before the trial Court, or that can still come forward before the trial Court. On the basis of the material that was before the Court in a case where a medical practitioner is facing a serious charge of professional negligence, that too of criminal negligence, a high duty is cast on the trial Magistrate to scrutinize the material placed before him very carefully. It is only if all relevant and necessary ingredients of the offence have been made out that the issue of process would be justified.
17. In the present case, it is necessary to ascertain as to whether the ingredients of S. 337 of the Indian Penal Code have been satisfied. S. 337 of the Indian Penal Code reads as follows :
"337. Causing hurt by act endangering life or personal safety of others. - Whoever causes 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 six months, or with fine which may extend to five hundred rupees, or with both."
Firstly, the act of causing hurt by the accused must be interconnected with the rash or negligent act on the part of the accused. The charge in the present case relates to the non-removal of the rubber tube from the complainant's stomach and it is alleged that this was as a result of the negligence of the concerned doctors at the time when they operated on her in the year 1983. By implication, complainant alleges that the accused displayed rashness or total recklessness and negligence in the performance of their duties, namely, that they failed to take the necessary care and caution which a prudent man ought to have taken in the circumstances. The charge would have been justified if the complainant were able to establish even prima facie that the rubber tube had entered the stomach cavity in the course of the operation in 1983, that it ought to have been removed and that this was not done. On facts, however, there is nothing on record to establish that the accused were in any way responsible for the rubber tube entering the patient's stomach nor is there evidence to suggest even remotely that this had happened in the course of the operation performed in 1983.
18. On the contrary, the facts indicate that the rubber tube was found in the oesophagus in the year 1986, that the patient had been undergoing various forms of treatment including gastroscopy and that the doctors who examined her at that point of time pushed the tube into the stomach in the hope that it will pass out. The evidence on record, therefore, runs directly counter to the charge that is sought to be made out against the accused. An instance of criminal negligence arose in the case of Gulam Hyder Panjabi reported in 17 Bom LR 384 : (1915 (16) Cri LJ 437, where a Hakim performed an operation of the eye with the ordinary type of scissors and sutured the wound with an ordinary thread and needle. The instruments used were not disinfected and the complainant's eyesight was permanently damaged. It was held that the Hakim had acted rashly and negligently and was guilty under this Section. Drawing a distinction, it is necessary to point out that it is not even alleged in the present case that the operation performed in the year 1983 on the complainant was improperly conducted by medical standards or that it lacked care and caution.
19. Having regard to this position, it is necessary to observe that in cases where a professional is involved and in cases where a complainant comes forward before a criminal Court and levels accusations, the consequenses of which are disastrous to the career and reputation of the adverse party such as a doctor, the Court should be slow in entertaining the complaint in the absence of complete and adequate material before it. It is always open to the learned Magistrate to direct an enquiry through the Police so that all relevant aspects of the case are looked into before process is issued. Alternatively, it is a salutary procedure adopted by some of the Magistrate in Bombay City that notice is issued to the accused so that he is afforded an opportunity of placing before the Court relevant material which the complainant himself omitted to disclose. It must be realised in the present context that a professional whose career and reputation can be seriously damaged through the commencement of a criminal proceeding can never be adequately compensated in the public mind, even if he is acquitted of a charge at a later point of time. The duty cast on the trial Magistrate under section 202 of the Code of Criminal Procedure is not to be understood as being confined to ascertain as to whether the complainant and the witnesses have mechanically averred that the accused has committed an offence, but it presupposes that a judicial mind will apply itself to the case made out as a whole and conclude as to whether there is sufficient justification to hold that an offence has been committed. The establishment of a prima facie case, therefore, indicates that on the face of the record all ingredients that would constitute the commission of an offence are before the Court. Where there exist serious lacunae in the case made out and where the possibilities and probabilities of an adverse conclusion are remote, it would not be justified in holding that a prima facie case has been made out.
20. Mr. Sawant has further contended that the Supreme Court in the case of Madhavrao v. Sambhajirao, , has observed as follows (Para 7) :
"The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage."
The Supreme Court has, in this case, enunciated a proposition of immense importance, namely, that the special distinguishing features of each case have to be taken into account. In a criminal proceeding, one of the important ingredients that a Court has to take into account, both at the stage of the issuance of process and at the stage of framing of the charge, the important aspect as to whether there exist serious or fundamental infirmities or lacunae in the prosecution which would make a conviction virtually impossible. The Supreme Court in this decision clarified that this is one of the tests that needs to be applied in criminal proceedings and that a High Court would be justified in quashing the proceedings even at the initial stage on this ground, namely, that it is not in the interests of justice to allow such a prosecution to continue.
21. Mr. Sutrale, the learned Advocate appearing on behalf of the complainant, has placed strong reliance on the decision of the Supreme Court in the case of Radhey Shyam v. Kunj Behari, . In that case, the High Court had quashed a charge on the ground of inadequacy of evidence. The Supreme Court, after considering the law on the point, has observed that the High Court was not justified in having quashed the charge on the ground that the evidence was insufficient. In other words, the view of the Supreme Court was that at the preliminary stage of the trial, namely, when the charge was being framed, it was not the duty of the Court to consider the adequacy or otherwise of the material and that the High Court was, therefore, in error in having quashed the proceedings. The above case is distinguishable on facts of the present case in so far as the case before us is concerned, it is not the inadequacy of evidence that is being complained about but the basic submission, which deserves to be upheld, is that the charge against the present petitioner squarely falls within the first and second categories of cases set out in Nagawwa's case, , namely that the ingredients of the offence are missing and further that the material produced before the Court by the prosecution would virtually render the conclusion which the complainant has arrived at totally impossible and unacceptable.
22. With regard to the submission that this Court should not exercise its inherent powers at this point of time and that the trial Court should be directed to continue with the trial until the stage when the accused could apply for the discharge, as advanced by Mr. Sutrale, I am of the view that the continuance of the trial would constitute misuse of the judicial process. The petitioner in this case is a highly qualified doctor and a reputed surgeon. There is no ground to hold that any prima facie case has been made out against him under Section 337 of the Indian Penal Code. Under these circumstances, the continuance of the trial would not be justified.
23. In the present day context where dissatisfaction is being expressed with regard to the degree of care and caution and above all dedication that is involved in the treatment of patients, such charges are becoming more frequent in the case of public hospitals than private medical practitioners. There is no doubt about the fact that Courts will have to take an extremely serious view of instances involving professional negligence and liabilities, both criminal and civil, arising therefrom. At the same time, a word of caution needs to be sounded in so far as there also exists a growing tendency on the part of patients to blame medical practitioners if cures are not complete or if the symptoms persist. Negligence, both criminal and civil, are well-defined concepts and merely because a patient has a grievance, the Court would not be justified in straightway arriving at a conclusion, even prima facie, that the doctor is ipso facto responsible. In the light of this position, and considering the consequences of even the initiation of such action, it would be a salutary principle to insist on all requisite evidence, particularly the medical documents and the supporting material, before entertaining charges of the present type.
24. In this view of the matter, the criminal complaint filed against the petitioner is liable to be quashed.
25. In the result, the Criminal Writ Petition succeeds. The Criminal Complaint No. 168/5 of 1988, pending before the learned Metropolitan Magistrate's 26th Court, Borivali, Bombay, is quashed as against the present petitioner. The rule is made absolute accordingly.
26. Order accordingly.