Dr. S. Balagopal vs State of Tamil Nadu & Anr.

Held: In the opinion of the Medical Board the procedure adopted was appropriate – Moreover, the operating surgeon is the best judge of which one of the two procedures is to be adopted – As regards any interpolation in the consent form to add the alternative procedure-Orchidectomy, being a question of fact is to be determined in a trial based on evidence led therein and, thus, courts must be loath to examine such issues in a summary proceeding, like the one u/s.482 – However, no absolute bar on High Court’s power to consider questions of fact in exercise of jurisdiction u/s.482, particularly when such consideration necessary to prevent the abuse of the process of the court or to secure the ends of justice – No malice attributed to the doctor and no dispute that the consent form was executed for undertaking medical procedure – Medical opinion is to the effect that the procedure adopted by the doctor was one of the alternatives recognized to meet such medical exigency – No doubt, Medical Board’s opinion indicates that such procedure should be carried out after obtaining consent, but nothing to indicate that the consent form already obtained was not in order or that no consent was obtained – Perusal of the consent letter indicates that in the column where the nature of proposed surgery is to be mentioned, both types of surgery-Orchidopexy and Orchidectomy are mentioned by putting a slash, which means that the other surgery, namely, Orchidectomy, was one of the options available – No material on record that alternative surgery, Orchidectomy, was entered by a different ink or in a different handwriting, and having regard to the Medical Board’s opinion that in such medical situations, Orchidectomy is a normal alternative, continuance of criminal proceeding against the appellant abuse of the process of the court and, thus, to secure the ends of justice, the same is quashed – Impugned judgment and order of the High Court set aside. [Paras 17-21]