Delhi District Court
Abida Begum @ Aamera Begum vs Dr.Rajendra Prasad Centre For ... on 4 March, 2025
IN THE COURT OF ADDITIONAL SESSIONS JUDGE-05, SOUTH
DISTRICT, SAKET COURTS : DELHI
DLST010050362024
Cr Rev/209/2024
Abida Begum @ Aamera Begum Vs. Dr. Rajendra Prasad Centre For
Opthalmic Sciences AIIMS, New Delhi
Abida Begum @ Aamera Begum
W/o Lt. Mohd. Sabir
R/o A-44, Navjeevan Camp, Govindpuri,
New Delhi ....... REVISIONIST
Vs.
Dr. Rajendra prasad Centre for Opthalmic
Sciences, AIIMS, New Delhi
AIIMS Campus Temple, Sri Aurobindo Marg,
Ansari Nagar, Ansari Nagar East,
New Delhi-110029 ....... RESPONDENT
DATE OF INSTITUTION : 18.05.2024
ARGUMENTS HEARD ON : 24.01.2025
DATE OF JUDGMENT : 04.03.2025
JUDGMENT
1. By way of the instant petition under Section 397 of Cr.
P.C., revisionist take exception to an order dated 22.02.2024 passed by Ld. MM-06, South District, Saket Court, New Delhi, in case bearing CT no. 369/2022, titled as 'Abida Begum @ Aamera Begum Vs. Rajendra Prasad Center for Opthalmic Science PURSHOTTAM Cr Rev/209/2024 PATHAK Abida Begum @ Aamera Begum Vs. Dr.Rajendra Prasad Centre For Opthalmic Sciences AIIMS, New Delhi Page 1 of 13 Digitally signed by PURSHOTTAM PATHAK Date: 2025.03.05 13:54:23 +0530 AIIMS, New Delhi and Anr.' whereby Ld. Magistrate has dismissed the complaint u/s 203 Cr.P.C.
2. The factual position has been noted by the Ld. Trial Court in following manner:-
"The case of the complainant is that on 26.04.2016 she was operated with surgery for complicated cataract in her left eye at Safdarjung hospital New Delhi. Doctors of Safdarjung hospital suggested that her vision could not be restored because of blood clotting in her left eye. Thereafter in May 2016 she visited AIIMS Hospital for her routine left eye checkup and further treatment. When she was regularly visiting AIIMS for her left eye checkup, one day before Covid 19 lockdown she was informed by the doctor of AIIMS that her right eye is diagnosed with glaucoma for which urgent surgery is required. Thereafter, date of 28th August 2021 was given for the surgery of her right eye in the AIIMS hospital. On 28.08.2021 she visited AIIMS and thereafter she was got admitted in the same hospital for her surgery. Then one doctor came to her and took her in one room and asked her to wait till injection (maybe anesthesia) will be given. But, suddenly a lady doctor came to her and took her to OT in other room. She immediately informed that lady doctor that earlier other doctor who took her in that room, asked her to wait till injection is given but till then no injection was given and the lady doctor brought her there in OT. But, that lady doctor ignored her concern. Thereafter, that lady doctor operated her right eye and suddenly something got torn in her right eye and it started bleeding and immensely paining. She started crying and shouting but that lady doctor ran away from the OT without providing her any urgent medical first-aid. After 30-40 minutes, one doctor namely Dr. Vinod Kumar came to her and provided her with requisite medical treatment and when she informed the doctor that she cannot see anything from her right eye, Dr. Vinod replied that something got torn in her right eye due to which her vision could not be restored in future. Thereafter on recommendation of doctor she remained admitted in the hospital from 28.08.2021 to 08.09.2021 and on 08.09.2021 doctor performed second eye surgery to restore her vision but her vision could not be restored. On 16.11.2021 she was admitted into AIIMS hospital for third eye surgery but despite her eye surgery her vision could not be restored. Then she visited Sarfa Hospital for my eye checkup but astonishingly she was informed by the doctor concern that her eye curtain is detached and now her vision cannot be restore. She lost her vision of right eye due to the negligence and carelessness of that lady doctor of AIIMS hospital namely Birnali Anand Yadav. On 22.12.2021 she gave complaint to DMC and on 01.02.2022 she Cr Rev/209/2024 Abida Begum @ Aamera Begum Vs. Dr.Rajendra Prasad Centre For Opthalmic Sciences AIIMS, New Delhi Digitally Page 2 of 13 signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2025.03.05 13:54:26 +0530 filed the complaint to SHO PS Hauz Khas and 24.02.2022 copy of complaint was given to ICMR, ACP and DCP but no action was taken."
3. On the basis of aforesaid allegations, the complainant sought prosecution of the respondent / proposed accused for offences under Section 269/287/325/326/336/338/34 IPC and filed the complaint u/s 200 CrPC alongwith an application u/s 156(3) CrPC. The application u/s 156(3) CrPC was dismissed by Ld. Trial court on 05.10.2023 and complainant was allowed to pursue the matter as a complaint case and to lead pre summoning evidence. The revisionist examined herself as CW1 in support of her allegations in pre-summoning evidence. Ld. MM, vide impugned order, dismissed the complaint of the revisionist finding no sufficient ground to summon the respondent/accused.
4. Vide impugned order, Ld Trial Court while deciding the application, observed as follows:-
"It is the allegation of complainant that when glaucoma in her right eyes was found by the doctor, she was suggested to be operation. When she was admitted on 28.08.2021 she was asked to wait until anesthesia is given. Thereafter one lady doctor came took her and ignored her concern. Without providing anesthesia they performed the operation due to which her curtain of right eye got torn. As per the allegations of complainant doctor was negligent in performing the operation. In the present case the report of Delhi Medico council was received on 07.07.2023 according to which prima-facie no case of medical negligence was made out on part of Dr. Rajender Prasad centre of Opthalmic Sciences, AIIMS in treatment administered to complainant. As per the report of Delhi Medical Council complainant was suffering progressive optic nerve damage due to raise intra-ocular pressure. It is further stated in the report that on the day of cataract surgery of right eye, the patient had intra-operative posterior capsule rent alongwith posterior dislocation of nuclear fragment. This was further complicated with the development of suprachoroidal hemorrhage further the patient was also diagnosed with diabetes. On 08.09.2021 when ultrasound confirmed Cr Rev/209/2024 Abida Begum @ Aamera Begum Vs. Dr.Rajendra Prasad Centre For Opthalmic Sciences AIIMS, New Delhi Page 3 of 13 Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2025.03.05 13:54:30 +0530 liquefaction of suprachoroidal blood the patient underwent right eye suprachoroidal drainage with vitro-retina surgery with phaco-fragmentation of dropped nuclear fragments along-with silicone oil injection. After an initial period of settled retina, patient was detected with inferior re- detachment alongwith macular hole. A re-VR-surgery with ILM peeling was done on 16.11.2021. Following this, the retina settled and the patient had a vision of hand movement close to face. The patient had an uncommon but potentially catastrophic condition in the form of suprachoroidal hemorrhage during the cataract surgery. The procedures adapted were timely standard and the very best available and also as per established medical literature.
Perusal of the detailed report of Delhi Medical Council, shows that there is no ground for summoning accused persons in the case. Further it is not necessary in every case that anesthesia be given before performing the cataract surgery. The status of case differ from patient to patient. Thus no medical negligence can be attributed to the concerned doctor who performed the operation.
Thus, there is no prima facie ground for proceeding u/s 269/287/325/326/336/338/34 IPC. against respondent. Thus the present complaint is dismissed u/s 203 Cr.P.C."
5. Revisionist has filed the instant petition assailing the impugned order on various grounds which can be summarized as under:-
i. that the impugned order is not only contrary to the facts but also contrary to the law and therefore unsustainable in the eyes of law.
ii. that the Ld. Trial Court in the impugned order failed to appreciate the averments and depositions of the Complaint and the pre-summoning evidence.
iii. that the Ld. Trial Court has wrongly relied upon the internal enquiry report of Delhi Medical Council.
Cr Rev/209/2024
Abida Begum @ Aamera Begum Vs. Dr.Rajendra Prasad Centre For Opthalmic Sciences AIIMS, New Delhi Digitally
signed by
PURSHOTTAM
Page 4 of 13 PURSHOTTAM PATHAK
PATHAK Date:
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iv. that the Ld. Trial Court while relying upon the internal enquiry report of Delhi Medical Council failed to appreciate the fact that there was no representation of Revisionist in such enquiry.
v. that the Ld. Trial Court mechanically dismissed the Complaint of the Revisionist without evaluating the prima facie allegation and offences it attracts.
vi. that the Ld. Trial Court wrongly gave the findings that "it is not necessary in every case that anesthesia be given before performing the cataract surgery" without analyzing the entire circumstances under which revisionist lost her right eye vision.
vii. that Ld. Trial Court did not gave any finding as why or how no prima facie offence is made out under section 269/ 287/336/338/34 IPC.
viii. that the impugned order apparently have been passed without appreciating the facts of the present case and the settled principals of Law in proper perspective.
ix. that the impugned order passed by the Ld. Trial Court not only suffers from material irregularities, but is perverse and against the well settled provisions of law and thus is liable to be set aside.
6. I have heard the rival submissions advanced by counsels for both sides and also perused the record.
Cr Rev/209/2024 Abida Begum @ Aamera Begum Vs. Dr.Rajendra Prasad Centre For Opthalmic Sciences AIIMS, New Delhi Digitally Page 5 of 13 signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2025.03.05 13:54:38 +0530
7. Ld. counsel appearing for the revisionist argued on the line of grounds as mentioned in the instant revision petition. He has vehemently argued that the Ld. Trial Court committed grave error in passing the impugned order as the same was passed hastily ignoring the factual matrix and materials available on record. He further argued that the material available on record is abundant to take cognizance and summon the respondent for all the offences. On the strength of these arguments, revisionist seeks setting aside of the impugned order.
8. Per contra, Ld. counsels appearing for respondent refuted the said contentions by arguing that the impugned order does not suffer from any illegality, infirmity or incorrectness. It was vehemently argued that no case for summoning is made out against the respondent as there is no specific allegation against the respondent. It was argued that no expert opinion has been produced by the complainant stating that there has been any medical negligence, instead the medical experts of DMC have found no fault in the treatment given to the complainant. It was further submitted that revisionist had a vision of 1/60 before surgery and as per WHO guidelines anybody having vision less then 3/60 is determined to be blind. It was submitted that entire process was explained to the revisionist and surgery was done only after obtaining the consent of revisionist. It is further argued that no medical negligence has happened. Ld. counsel for the Cr Rev/209/2024 Digitally Abida Begum @ Aamera Begum Vs. Dr.Rajendra Prasad Centre For Opthalmic Sciences AIIMS, New Delhi signed by PURSHOTTAM PURSHOTTAM PATHAK Page 6 of 13 PATHAK Date: 2025.03.05 13:54:42 +0530 respondent has relied upon the judgment i.e. Jacob Mathew Vs. State of Punjab (2005) 6 SCC .
9. The complainant has filed the complaint for taking cognizance and summoning the accused persons for offence under Sec. 269/287/325/326/336/338/34 IPC. To substantiate the averments, the complainant has examined herself as CW-1 but failed to prove a prima facie case against the accused. Admittedly, the revisionist/ complainant was operated with surgery for cataract in her left eye at Safdarjung hospital, New Delhi on 26.04.2016, where the doctors suggested that her vision could not be restored because of blood clotting in her left eye. Thereafter, she started visiting AIIMS hospital for routine check up, where Doctors diagnosed glaucoma in her right eye.
10. Complainant has stated that on 28.08.2021, she was admitted in AIIMS hospital for surgery, where the doctor took her into a room and asked her to wait till injection (may be anesthesia) is given. In the meantime a lady doctor came there and took her to OT, despite her informing the lady doctor that another doctor has told her to wait till injection is given. But the lady doctor did not listen to her and operated her right eye. Suddenly something got torn in her right eye which started bleeding with immense pain and lady doctor ran away from OT. Thereafter one Doctor Vinod came to her and gave medical treatment informing her that something got torn in her right eye due to which her vision cannot Cr Rev/209/2024 Abida Begum @ Aamera Begum Vs. Dr.Rajendra Prasad Centre For Opthalmic Sciences AIIMS, New Delhi PURSHOTTAM Page 7 of 13 PATHAK Digitally signed by PURSHOTTAM PATHAK Date: 2025.03.05 13:54:46 +0530 be restored in future. She has alleged that she lost vision in her right eye due to negligence and carelessness of that lady doctor.
11. The revisionist-complainant has not examined Dr. Vinod or any other doctor or medical expert in her pre-summoning evidence to give a contrary opinion from the one given in the Delhi Medical Council report. No document has been produced on the record to show the negligence of the said doctor or the respondent.
12. In case titled Jacob Mathew Versus State of Punjab and others 2005(5) Supreme 297 Hon'ble apex court observed that "a private complaint may not be entertained unless the complainant has produced a prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor."
13. After going through the Delhi Medical council report received on 07.07.2023, it is revealed that the following opinion has been recorded therein:-
"The Executive Committee noted that the patient Smt Abida Begum was diagnosed as right eye healed Keratitis with senile cataract (Nuclear sclerosis III) with secondary glaucoma and left eye as complicated pseudophakia with secondary glaucoma. Prior to this she had been operated in left eye on 26.04.2016 for cataract surgery (got complicated) at Safdarjung Hospital. Also, she was under treatment for glaucoma in right eye at R. P. Centre since 08.01.2018. The record show that she was not very compliant with the prescribed medical therapy and was suffering progressive optic nerve damage due to raised intraocular pressure. Her cup disc ratio as Cr Rev/209/2024 Abida Begum @ Aamera Begum Vs. Dr.Rajendra Prasad Centre For Opthalmic Sciences AIIMS, New Delhi Page 8 of 13 Digitally signe by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2025.03.05 13:54:49 +0530 recorded on 20.05.2021 were 0.7 and 0.9 respectively the visual acuity was 1/60 and finger counting close to face respectively. A guarded visual prognosis was mentioned in the OPD card prior to surgery and detailed consent was taken. On the day of cataract surgery of right eye i.e. on 28.08.2021, the patient had an intraoperative posterior capsule rent along with posteriro dislocation of nuclear fragments. This was further complicated with the development of suprachoroidal haemorrhage. The wound was immediately closed and surgery postponed. In the post-operative period, the eye condition was monitored closed particularly the status of suprachoridal haemorrhage. The patient was also treated for diabetes. On 08.09.2021 when ultrasound confirmed liquefaction of suprachoroidal blood the patient underwent right eye suprachoroidal drainage with vitro-retina surgery with phaco-gragmentation of dropped nuclear fragments along with silicone oil injectin. After an initial period of settled retaina. [atoemt was detected with inferior re-detagchment along with macular hole. A re-VR-surgery with ILM peeling was done on 16.11.2021. Following this, the retina settled and the patient had a vision of hand movement close to face.
The patient had an uncommon but potentially catastrophic condition in the form of suprachoroidal haemorrhage during the cataract surgery. The procedures adapted were timely standard and the very best available and also as per established medical literature. Inspite of the best possible effort, the visual acuity did not improve as per expectations. This is again as per described medical literature where the presence of certain risk factors like old age, atherosclerosis, diabetes mellitus, glaucoma, aphakia vitreous loss during surgery, hypotony and poor pre operative visual acuity are associated with poor visual recovery, subsequently to subarachnoid hemorrhage, Keratitis, glaucoma and macluar hole were other compounding factors. "
14. A perusal of the said report suggest that no case of medical negligence is made out on the part of doctors of Dr Rajendra Prasad Centre for Opthalmic Sciences, All India Institute of Medical Sciences, New Delhi. Perusal of Delhi Medical Council Report reveals that there are no negligence on the part of the respondent/accused.
15. Thus, there is nothing on the record to disbelieve the report of Delhi Medical Council. So far as offence under Cr Rev/209/2024 Digitally signed by Abida Begum @ Aamera Begum Vs. Dr.Rajendra Prasad Centre For Opthalmic Sciences AIIMS, New Delhi PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
Page 9 of 13 2025.03.0513:54:53 +0530 269/287/336/338/ IPC is concerned, no rash or negligent act has been done by the respondent/ accused, so prima facie no offence under aforesaid sections is made out.
16. The revisionist/complainant has alleged commission of criminal offence under Section 325/326 IPC but no allegations pertaining to the said sections have been mentioned in the complaint. So, prima facie no offence under these sections has been made out against the respondent/ accused. Even there is no prima facie intention or knowledge on part of respondent of causing grievous hurt of the patient/ revisionist.
17. It is a settled law that summoning of an accused in a criminal case is a serious matter as held by Hon'ble Apex Court in M/s. Pepsi Foods & Anr Vs. Special Judicial Magistrate & Ors., AIR 1998 SC 128, wherein it was observed:-
"Summoning an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and that would be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused".
Cr Rev/209/2024 Digitally
signed by
Abida Begum @ Aamera Begum Vs. Dr.Rajendra Prasad Centre For Opthalmic Sciences AIIMS, New Delhi PURSHOTTAM
PURSHOTTAM PATHAK
Page 10 of 13 PATHAK Date:
2025.03.05
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18. Similar are the observations of Hon'ble Supreme Court in Ravindranatha Bajpe vs Mangalore Special Economic Zone Ltd. & Others, Crl Appeal No.1047-1048/2021 dated 27th September 2021.
19. If the factual matrix of the present case is tested upon the touchstone of the principles as laid down in said cases, I find that there is no such evidence giving strong suspicion for commission of offences punishable u/s 269/287/325/326/336/338/34 IPC against the respondents. This court is of the view that the Ld. MM has provided clear and cogent reasons for not summoning the respondent. I am of the considered view that no ground for summoning of respondent was made in the instant case and therefore, the view as taken by Ld. MM cannot be faulted with.
20. In the matter of Taron Mohan v. State & Anr 2021 SCC OnLine Del 312 Hon'ble Delhi High Court has observed as under:-
"9. The scope of interference in a revision petition is extremely narrow. It is well settled that Section 397 CrPC gives the High Courts or the Sessions Courts jurisdiction to consider the correctness, legality or propriety of any finding inter se an order and as to the regularity of the proceedings of any inferior court. It is also well settled that while considering the legality, propriety or correctness of a finding or a conclusion, normally the revising court does not dwell at length upon the facts and evidence of the case. A court in revision considers the material only to satisfy itself about the legality and propriety of the findings, sentence and order and refrains from substituting its own conclusion on an elaborate consideration of evidence."
Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK Cr Rev/209/2024 PATHAK Date:
2025.03.05 Abida Begum @ Aamera Begum Vs. Dr.Rajendra Prasad Centre For Opthalmic Sciences AIIMS, New Delhi 13:55:00 +0530 Page 11 of 13
21. Further, Hon'ble Apex Court in Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke and others, 2015 (3) SCC 123 observed as under :
"14.....Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction."
14. In the above case also conviction of the accused was recorded, the High Court set aside the order of conviction by substituting its own view. This Court set aside the High Court's order holding that the High Court exceeded its jurisdiction in substituting its views and that too without any legal basis."
22. Therefore, in view of the settled position of law, this court in its revisional jurisdiction, is not expected to substitute its own view with that of court below unless the order passed by Ld. Trial Court suffers from jurisdictional error or patent infirmity/illegality. In the instant case, as evident from record, Ld. Magistrate while narrating (in detail) the facts, passed a well reasoned detailed order, thereby dismissing the complaint of revisionist under section 203 CrPC finding no sufficient ground for proceedings against the respondents and therefore, this court cannot and rather ought not substitute its own view with that of Cr Rev/209/2024 Abida Begum @ Aamera Begum Vs. Dr.Rajendra Prasad Centre For Opthalmic Sciences AIIMS, New Delhi Page 12 of 13 Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2025.03.05 13:55:04 +0530 Ld. Magistrate (while exercising its revisional jurisdiction) and thereby arriving at a different conclusion.
23. This Court does not find any legal infirmity or material illegality or jurisdictional error in the impugned order which would occasion injustice, if it is not set aside, Accordingly, the criminal revision petition filed by the petitioner is dismissed.
24. In view of the aforesaid, the revision petition is disposed off.
25. TCR alongwith a copy of this judgment be sent to the Ld. Trial Court.
26. The revision file be consigned to the Record Room after due compliance. Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2025.03.05 13:55:08 +0530 ANNOUNCED IN THE OPEN COURT (PURSHOTAM PATHAK) TODAY ON THIS ASJ-05(SOUTH) 04th DAY OF MARCH, 2025 SAKET COURTS: N.D (This judgment contains total 13 signed pages) Cr Rev/209/2024 Abida Begum @ Aamera Begum Vs. Dr.Rajendra Prasad Centre For Opthalmic Sciences AIIMS, New Delhi Page 13 of 13