*THE HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

+Writ Petition No. 13734 of 2016

% 26-07-2022

# Dr. T. Raja Rao .. Petitioner

Vs.

$ State of Andhra Pradesh, through

S.H.O., Ponnur Urban PS, Guntur

District, rep. by Public Prosecutor,

High Court at Hyderabad and another .. Respondents

<GIST:

>HEAD NOTE:

! Counsel for petitioner : Sri P. Sai Surya Teja

representing Sri Vikas Joshi

^ Counsel for respondent Nos.1&2 : The Assistant Public Prosecutor

? CASES REFERRED :

1) 1992 Supp (1) SCC 335

2) (2014) 2 SCC 1

3) (2006) 10 SCC 92

4) (2013) 3 SCC 330

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Crl.P.No.13734 of 2016

HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

WRIT PETITION No. 13734 of 2016

Between:

Dr. T. Raja Rao .. Petitioner

Vs.

State of Andhra Pradesh, through

S.H.O., Ponnur Urban PS, Guntur

District, rep. by Public Prosecutor,

High Court at Hyderabad and another .. Respondents

DATE OF JUDGMENT PRONOUNCED: 26.07.2022

SUBMITTED FOR APPROVAL:

THE HON'BLE SRI JUSTICE VENKATESW ARLU NIMMAGADDA

1. Whether Reporters of Local newspapers Yes/No

may be allowed to see the Judgments?

2. Whether the copies of judgment may be Yes/No

marked to Law Reporters/Journals?

3. Whether Their Ladyship/Lordship wish to Yes/No

see the fair copy of the Judgment?

__________________________________

VENKATESWARLU NIMMAGADDA, J

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Crl.P.No.13734 of 2016

HON’BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

CRIMINAL PETITION No. 13734 of 2016

ORDER:

This Criminal Petition is filed by the petitioner/accused, under Section

482 Cr.P.C., seeking quashment of the proceedings against him in respect of

Crime No.151 of 2016 of Ponnuru Urban Police Station, Guntur District,

which was registered for an offence punishable under Section 376-E IPC.

2. The case of the petitioner, in nutshell, is that he is a doctor and

running a hospital in the name of “Praja Vaidyasala” (People Hospital) with

an object to serve the poor and weaker sections at a nominal fee. He is also

the President of the A.P. Civil Liberties Committee, Guntur District, and he

is aged about 60 years. In respect of a dispute between his distant relatives,

when the petitioner approached T. Sandole Police Station and questioned the

misbehavior of the police, they manhandled and abused him in the name of

social status. Then, the petitioner submitted a representation to the higher

authorities concerned seeking to initiate action against the misbehaved

police officers. As there was no response, the petitioner filed a private

complaint against the Sub-Divisional Police Officer, the Inspector of Police

and three other police officials in CFSR No.16 of 2016 on the file of the

Additional Judicial Magistrate of First Class, Bapatla, for the offences

punishable under Sections 120-B, 167, 211, 270, 220, 323, 342, 357, 506

IPC and Section 3 (1) (p) (r) of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989. As a counter blast to it, the Sub-

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Divisional Police Officer and the Circle Inspector got filed the present

complaint against the petitioner by the 2

nd

respondent alleging that when the

2

nd

respondent went to the hospital of the petitioner for treatment of

abdomen pain, the petitioner touched her thighs and private parts and

inserted his finger into her vagina and having been afraid of his behavior, the

2

nd

respondent came out of the hospital and informed of the same to one

Avula Yesubabu, who accompanied the 2

nd

respondent to the hospital, and

on his advice, the 2

nd

respondent lodged the present complaint against the

petitioner.

3. Heard Sri P. Sai Surya Teja, learned counsel, representing Sri Vikas

Joshi, learned counsel for the petitioner, and learned Assistant Public

Prosecutor for the respondent-State.

4. Learned counsel for the petitioner contends that the petitioner has not

committed any offence as alleged by the 2

nd

respondent/de facto

complainant and he was falsely implicated in the present crime and as a

counter blast to the private complaint filed by him against the police officers,

with an ulterior motive the Sub-Divisional Police Officer and the Circle

Inspector got filed the present complaint against the petitioner for an offence

under Section 376-E IPC. The learned counsel submits that as a matter of

procedure and practice, the female patients are physically examined in the

presence of a female staff nurse in the doctor’s room behind the curtain

arranged for that purpose and the other patients would wait at the door steps

of the room as well as inside the room for their turn, in view of rush and time

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constraint. However, the respondent police without looking into all these

aspects registered the crime against the petitioner. The learned counsel

further submits that there are no ingredients in the complaint to constitute an

offence punishable under Section 376-E IPC. Section 376-E IPC illustrates

that whoever previously convicted of an offence punishable under Section

376 or Section 376-A or Section 376-D and is subsequently convicted of an

offence punishable under any of the said Sections shall be punished with

imprisonment for life. Whereas, in the instant case, the petitioner has never

been convicted of anyone of the said offences.

i) Learned counsel for the petitioner submits that as per the International

standard Gynecology Test Books, pelvic examination is necessary for the

patient of severe abdomen pain and lower abdomen pain. Non-conducting

of such examination and treating the patient for such problem amounts to

medical negligence on the part of the doctor. He contends that the present

alleged offence comes under the definition of Exception-I of Section 375

IPC. He also contends that at the instigation of one Mr. Yesubabu, who

accompanied the 2

nd

respondent to the hospital, the 2

nd

respondent lodged

the present complaint with the police. In fact, the said Yesubabu is an

accused in Crime No.133 of 2015 of Ponnur Urban Police Station and he is

in touch with the local police including the Station House Officer as well as

the Sub-Divisional Police Officer and to overcome the private complaint

lodged by the petitioner and with an intention to blackmail the petitioner to

come to their terms, this false case was foisted against the petitioner. The

learned counsel further emphasizes that as per the Manual on Clinical

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Surgery written by S. Das, the examination of acute abdomen is compulsory.

He contends that registration of the present crime is nothing but abuse of

process of law and in excess of the power vested with the authorities.

ii) The learned counsel contends that the police maliciously got filed the

report against the petitioner with an ulterior motive and to wreak vengeance

against the petitioner. In view of the facts and circumstances as stated

above, this Court can exercise the extraordinary jurisdiction under Article

226 or the inherent powers under Section 482 of Cr.P.C. either to prevent the

abuse of process of law or otherwise to secure the ends of justice. It is

contended that without conducting any preliminary enquiry, the police

erroneously registered the crime. In support of his contentions, the learned

counsel placed reliance on the decisions of the Hon’ble Apex Court in State

of Haryana Vs. Bhajan Lal

1

and Lalita Kumari Vs. Government of Uttar

Pradesh

2

.

He, therefore, prays for quashment of the subject crime.

5. On the other hand, learned Assistant Public Prosecutor would submit

that the 2

nd

respondent herself submitted the complaint to the police without

any instigation alleging that the petitioner committed the offence punishable

under Section 376-E IPC and therefore, prays for dismissal of the criminal

petition.

1

1992 Supp (1) SCC 335

2

(2014) 2 SCC 1

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Crl.P.No.13734 of 2016

6. In the facts and circumstances of the case, it is appropriate to refer the

Manual on Clinical Surgery which reads as under:

“EXAMINATION OF THE ABDOMEN - INSPECTION:-

The patient should lie flat on his back with legs extended. The

whole abdomen from the ripples above down to the saphenous

openings (thus the inguinal and femoral rings are exposed)

must be exposed. Examination should be carried out in good

light, preferably in day light.

AUSCULTATION:- This is a very important part of

examination in acute abdominal conditions and should never be

omitted. The student should be familiar with normal peristaltic

sounds noting their character and frequency by studying them

in abdomen. The „silent abdomen‟ is a pathognomonic feature

of diffuse peritonitis. Even localized absence of peristaltic

sound will be evident around acute inflammation of the organ

concerned.

To the contrary a „noisy abdomen‟ is a feature of acute

intestinal obstruction. Normal intestinal sound is heard as

clicks and gurgles but in intestinal obstruction distinct metallic

tinkles or borborygmi can be heard. In case of peritonitis or

paralytic ileus when the intestinal sounds are absent peculiar

respiratory and cardiac sounds become audible.

Measurement: Rate of distension in acute intestinal obstruction

or paralytic ileus or post-operative peritonitis can be assessed

through repeated measurements.

Rectal Examination – No examination of an acute abdominal

case is complete without the digital examination of the rectum.

The right wall may be tender in pelvic type appendicitis, which

may not show any tenderness or rigidity of the anterior

abdominal wall. Tenderness is often elicited in the rectovesical

pouch in perforated peptic ulcer. The bulging of the anterior

wall of the rectum with tenderness is significant of a pelvic

abscess. In intussusceptions, after the rectal examination has

been finished one will find the gloved finger to be smeared with

mucus and blood (red-currant jelly) but there will be no faecal

odour.

In majority of cases of acute abdomen there is ballooning

of the rectum whose significance is yet to be found out.

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Vaginal Examination – Purulent discharge and tenderness in

both fornices are suggestive of acute salpingitis. In case of

ruptured ectopic gestation, the cervix feels softer and any

movement of the cervix will initiate pain.”

7. As seen from the above and as per the International standard

Gynecology Test Books, acute abdomen and pelvic examinations are

necessary for the patient of severe abdomen pain and lower abdomen pain,

and non-conducting of such examinations on the patient for such problem

amounts to medical negligence on the part of the doctor.

8. It is the version of the 2

nd

respondent that she consulted the petitioner

with a complaint of severe abdomen pain. While testing her, the petitioner

touched her thighs and private parts and inserted his finger into her private

parts. Thereafter, she came out of the room with fear and went home and

informed of the same to her neighbour, Mr. Avula Yesubabu, who, in turn,

advised her to lodge a complaint to the police and on his advice, they went to

the police station and gave a report. But, it is not the case of the 2

nd

respondent that when the petitioner misbehaved with her as alleged, she

made any noise and that she informed of the incident to her family members

or relatives. It is the case of the petitioner that said Avula Yesubabu is an

accused in Crime No.133 of 2015 of Ponnur Urban Police Station and he is

in touch with the local police including the Station House Officer as well as

the Sub-Divisional Police Officer. In view of the above, lodging a complaint

by the 2

nd

respondent against the petitioner only on the advice of her

neighbour, Avula Yesubabu, without taking the assistance of her family

members or relatives by informing them of the incident, specifically reveals

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a suspicion on her part that only at the instigation of others, she lodged the

present complaint.

9. The further contention of the petitioner is that as a counter blast to the

private complaint filed by him against the police officers, the present case

has been got foisted in order to wreck vengeance against him. The petitioner

filed a private complaint before the Additional Judicial Magistrate of First

Class, Bapatla, against the Sub Divisional Police Officer, Bapatla, the Circle

Inspector of Police, Bapatla Rural, the Assistant Sub-Inspector of Police,

T.Sandole P.S., and two others, alleging that with regard to a dispute

between his distant relatives, when the petitioner approached T. Sandole

Police Station and questioned the misbehavior of the police, they

manhandled and abused him in the name of social status. Having regard to

this contention, there is a considerable substance and there is every

possibility of abuse of process of law by the police in the case on hand.

10. The facts and circumstances narrated above indicate that the present

criminal proceedings are manifestly attended with mala fide and where the

proceedings are maliciously instituted with an ulterior motive for wrecking

vengeance on the accused and with a view to spite him due to personal

grudge. In this connection, learned counsel for the petitioner placed reliance

on the decision of the Hon’ble Apex Court in State of Haryana Vs. Bhajan

Lal (1 supra) wherein it is held thus:

“102. In the backdrop of the interpretation of the various

relevant provisions of the Code under Chapter XIV and of the

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principles of law enunciated by this Court in a series of

decisions relating to the exercise of the extraordinary power

under Article 226 or the inherent powers under Section 482 of

the Code which we have extracted and reproduced above, we

give the following categories of cases by way of illustration

wherein such power could be exercised either to prevent abuse

of the process of any court or otherwise to secure the ends of

justice, though it may not be possible to lay down any precise,

clearly defined and sufficiently channelised and inflexible

guidelines or rigid formulae and to give an exhaustive list of

myriad kinds of cases wherein such power should be

exercised.

xxxxx xxxxx xxxx xxxx xxxxx xx xxxxxxx xxxxxx

xxxxxx

(6) Where there is an express legal bar engrafted in any of the

provisions of the Code or the concerned Act (under which a

criminal proceeding is instituted) to the institution and

continuance of the proceedings and/or where there is a

specific provision in the Code or the concerned Act, providing

efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with

mala fide and/or where the proceeding is maliciously

instituted with an ulterior motive for wreaking vengeance on

the accused and with a view to spite him due to private and

personal grudge.”

11. It is contended by learned counsel for the petitioner that without

conducting any preliminary enquiry as mandated, the police registered the

present crime against the petitioner with an ulterior motive. In support of

this contention, he relied upon the decision of the Hon’ble Supreme Court in

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Lalita Kumari case (2 supra). In Para No.120-6 of its judgment, the Hon’ble

Apex Court specifically directed the prosecution in respect of investigation

as well as enquiry, as under:

“120.6 As to what type and in which cases preliminary

inquiry is to be conducted will depend on the facts and

circumstances of each case. The category of cases in which

preliminary inquiry may be made are as under:

a) Matrimonial disputes/family disputes

b) Commercial offences

c) Medical negligence cases

d) Corruption cases

e) Cases where there is abnormal delay/laches in initiating

criminal prosecution, for example, over 3 months‟delay in

reporting the matter without satisfactorily explaining the

reasons for delay.

The aforesaid are only illustrations and not exhaustive of all

conditions which may warrant preliminary inquiry.”

12. The other contention of the petitioner is that the petitioner conducted

clinical examination on the 2

nd

respondent at busy clinical timings i.e., in the

morning hours and there were en-number of patients waiting at the door

steps of the doctor’s room and even in doctor’s room there were medical

staff other than the petitioner i.e., staff nurse and medical maid. Therefore,

there is no possibility of taking place of the alleged offence as complained.

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In similar circumstances, in Sadashiv Ramrao Hadbe Vs. State of

Maharashtra

3

, the Hon’ble Supreme Court held as follows:

“9. It is true that in a rape case the accused could be

convicted on the sole testimony of the prosecutrix, if it is

capable of inspiring confidence in the mind of the Court. If the

version given by the prosecutrix is unsupported by any medical

evidence or the whole surrounding circumstances are highly

improbable and belie the case set up by the prosecutrix, the

court shall not act on the solitary evidence of the prosecutrix.

The courts shall be extremely careful in accepting the sole

testimony of the prosecutrix when the entire case is improbable

and unlikely to happen.

10. In the present case there were so many persons in the clinic

and it is highly improbable that the appellant would have made

a sexual assault on the patient who came for examination when

large number persons were present in the near vicinity. It is

also highly improbable that the prosecutrix could not make any

noise or get out of the room without being assaulted by the

doctor as she was an able bodied person of 20 years of age with

ordinary physique. The absence of injuries on the body

improbabilise the prosecution version.”

13. This Court has taken note of the law as declared by the Hon’ble

Supreme Court of India in Rajiv Thapar Vs. Madan Lal Kapoor

4

on the

aspect of the judicial conscience of the High Court to exercise its power

under Section 482 of Cr.P.C. to quash criminal proceedings. In the said

judgment, the following has been held in the relevant portion:

“29. The issue being examined in the instant case is the

jurisdiction of the High Court under Section 482 of the

Crl.P.C., if it chooses to quash the initiation of the prosecution

against an accused, at the stage of issuing process, or at the

stage of committal, or even at the stage of framing of charges.

These are all prosecutions/complainants case without allowing

the prosecution/complainant to lead evidence. Such a

determination must always be rendered with caution, care and

3

(2006) 10 SCC 92

4

(2013) 3 SCC 330

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circumspection. To invoke its inherent jurisdiction under

Section 482 of the Cr.P.C. the High Court has to be fully

satisfied, that the material produced by the accused is such, that

would lead to the conclusion, that his/their defence is based on

sound, reasonable, and indubitable facts; the material

produced is such, as would rule out and displace the assertions

contained in the charges leveled against the accused; and the

material produced is such, as would clearly reject and overrule

the veracity of the allegations contained in the accusations

leveled by the prosecution/complainant. It should be sufficient

to rule out, reject necessity of recording any evidence. For this

the material relied upon by the defence should not have been

refuted, or alternatively, cannot be justifiably refuted, being

material of sterling and impeccable quality. The material

relied upon by the accused should be such, as would persuade a

reasonable person to dismiss and condemn the actual basis of

the accusations as false. In such a situation, the judicial

conscience of the High court would persuade it to exercise its

power under Section 482 of the Cr.P.C. to quash such criminal

proceedings, for that would prevent abuse of process of the

court, and secure the ends of justice.

30. Based on the factors canvassed in the foregoing

paragraphs, we would delineate the following steps to

determine the veracity of a prayer for quashing, raised by an

accused by invoking the power vested in the High Court under

Section 482 of the Crl.P.C.:-

i) Step one, whether the material relied upon by the

accused is sound, reasonable, and undubitable, i.e., the

material is of sterling and impeccable quality?

ii) step two, whether the material relied upon by the

accused, would rule out the assertions contained in the

charges leveled against the accused i.e., the material is

sufficient to reject and overrule the factual assertions

contained in the complaint, i.e., the material is such, as

would persuade a reasonable person to dismiss and

condemn the factual basis of the accusations as false.

iii) step three, whether the material relied upon by the

accused, has not been refuted by the

prosecution/complainant; and/or the material is such,

that it cannot be justifiably refuted by the

prosecution/complainant?

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iv) Step four, whether proceeding with the trial would result

in an abuse of process of the Court and would not serve

the ends of justice?

If the answer to all the steps is in the affirmative, judicial

conscience of the High Court should persuade it to quash such

criminal proceedings, in exercise of power vested in it under

section 482 of Cr.P.C. such exercise of power, besides doing

justice to the accused, would save precious court time, which

would otherwise be wasted in holding such a trial (as well as,

proceedings arising therefrom) specially when, it is clear that

the same would not conclude in the conviction of the accused.”

14. Section 376-E IPC illustrates that whoever previously convicted of an

offence punishable under Section 376 or Section 376-A or Section 376-D

and is subsequently convicted of an offence punishable under any of the said

Sections shall be punished with imprisonment for life. But, in the present

case, the petitioner has never been convicted of anyone of the said offences

and there are no ingredients in the complaint to constitute the offence

punishable under Section 376-E IPC, as contended by the learned counsel

for the petitioner. In fact, said contention was not disputed by the learned

Assistant Public Prosecutor. Apart from the above, the other contention of

the petitioner is that the alleged offence comes under the definition of

Exception-I of Section 375 IPC which envisages as under:

“A medical procedure or intervention shall not constitute rape.”

In view of the above, this Court is of the considered opinion that the

alleged offence squarely falls under the purview of Exception-I of Section

375.

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15. As seen from the entire record and having regard to the contentions of

the counsel for the petitioner and the learned Assistant Public Prosecutor,

there is a prima facie substance that the police officers got filed the present

complaint in retaliation to the private complaint filed by the petitioner

without conducting any preliminary enquiry and this Court is of the opinion

that the aforesaid decisions relied on by the learned counsel for the petitioner

are squarely applicable to the facts of the case on hand, and in view of the

aforesaid reasons and the findings recorded and the principles laid down by

the Hon’ble Apex Court in the above referred judgments, this Court has

absolutely no scintilla of hesitation to hold that continuation of the

prosecution against the petitioner undoubtedly tantamount to abuse of

process of law. Therefore, this Court is inclined to quash the subject F.I.R.

by exercising the power under Section 482 Cr.P.C.

16. Accordingly, the Criminal Petition is allowed and the proceedings

initiated against the petitioner in Crime No.151 of 2016 of Ponnuru Urban

Police Station, Guntur District, are hereby quashed.

As a sequel, miscellaneous applications, if any, pending in the

criminal petition shall stand closed.

___________________________________

VENKATESWARLU NIMMAGADDA , J

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HON’BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

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Criminal Petition No.13734 of 2016

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