Summary
A paediatric surgeon was prosecuted for removing a child's undescended testicle (orchidectomy) allegedly without consent and for interpolating the procedure in the consent form. As the Medical Board found orchidectomy an appropriate alternative, the signed consent form listed both procedures separated by a slash, and there was no material of a different ink or handwriting, continuing the prosecution was an abuse of process and it was quashed under Section 482 CrPC.
Issues
- Whether criminal proceedings against a surgeon for performing orchidectomy, allegedly without consent and by interpolating the consent form, should be quashed under Section 482 CrPC.
- Whether the High Court can examine a question of fact such as alleged interpolation in a document while exercising jurisdiction under Section 482 CrPC.
Provisions considered
- Section 482, Code of Criminal Procedure, 1973Although interpolation in a document is ordinarily a question of fact for trial, the High Court is not absolutely barred from considering facts under Section 482 where needed to prevent abuse of process or secure the ends of justice; on the record, continuing the prosecution was an abuse of process. (¶¶ 18, 20)
- Sections 88 and 92, Indian Penal Code, 1860Cited as illustrating that the criminal law treats medical professionals differently, protecting acts done in good faith for a person's benefit with consent, or in specified circumstances without it. (¶ 16)
Held
- Jacob Mathew's requirement of independent medical opinion before prosecuting a doctor for negligence did not strictly apply because the dispute was about consent rather than negligence, but the Medical Board's report that orchidectomy was an appropriate procedure for an undescended testicle remained significant; the operating surgeon is the best judge of which of the two procedures to adopt. (¶¶ 16, 17)
- Interpolation or tampering in a document is ordinarily a matter for trial, and courts should be slow to examine it under Section 482 CrPC, but there is no absolute bar where examination is necessary to prevent abuse of process or secure the ends of justice. (¶ 18)
- Where no malice was attributed to the surgeon, a consent form was admittedly executed before surgery, it listed both orchidopexy and orchidectomy separated by a slash indicating alternatives, the Director of Medical and Rural Health Services found no fault in it, and there was no material that orchidectomy was written in different ink or handwriting, continuing the criminal proceedings was an abuse of process and liable to be quashed. (¶¶ 17, 19, 20)
Result
Appeal allowed; the High Court order was set aside and the proceedings in C.C. No. 13 of 2008 before the Judicial Magistrate No. 1, Poonamallee were quashed; no order as to costs.