Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.13448 of 2010 ====================================================== Dr.Ashok Kumar Singh , son of Late Ram Nandan Singh, resident of Mohalla- Krishna Toli, P.O. M.I.T. P.S. Brahampura, District-Muzaffarpur .... .... Petitioner Versus 1. The State Of Bihar 2. Anil Kumar Singh, Son of Late Ram Manohar Prasad Singh, resident of Balughat, P.S. Muzaffarpur, District-Muzaffarpur .... .... Opposite Party/s ====================================================== With Criminal Miscellaneous No.14951 of 2010 ====================================================== Dr.S.K.Jayaswal @ Shushil Kumar Jaishwal , son of Shri Krishna Jayaswal, resident of Mohalla- Brahmpura, Police Station-Brahmpura, District- Muzaffarpur .... .... Petitioner Versus 1. The State Of Bihar 2. Anil Kumar Singh, son of Late Ram Nihara Singh, resident of Bauighat, P.S. Town, District-Muzaffarpur .... .... Opposite Party/s ====================================================== Appearance: (In Cr.Misc. No.13448 of 2010) For the Petitioner : Mr. Ratan Kumar, Advocate For the Opposite Party : Sri Krishna Prasad Singh, Sr. Advocate Sri Rakesh Singh, Advocate For the State : Mr.Jharkhandi Upadhaya, A.P.P. (In Cr.Misc. No.14951 of 2010) For the Petitioner : Mr. Rajeev Roy, Advocate For the Opposite Party : Mr. Sri Krishna Prasad Singh, Sr. Advocate Mr. Manindra Kishore Singh For the State : Mr. Jharkhandi Upadhaya, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR ORAL ORDER ------------------ 3 27-07-2012 Both the cases arise out of same order i.e. order dated 19.02.2010 passed in Ahiyapur P.S. Case No.81 of 2001 , T.R. No.538 of 2010 by the learned Chief Judicial Magistrate, Muzaffarpur and, as such, both the cases have been heard Patna High Court Cr.Misc. No.13448 of 2010 (3) dt.27-07-2012 2 / 10 2 together and are being disposed of by this common order. By order dated 19.02.2010, the learned Chief Judicial Magistrate has rejected the petition dated 09.02.2010 filed by the petitioner in the second case i.e. in Dr. S.K.Jayaswal’s case. Petition was filed by the petitioner before the learned Chief Judicial Magistrate for proceeding with the case as summons trial case and not as warrant case. Learned Chief Judicial Magistrate, while dismissing the petition, directed the accused persons to remain present on 08.03.2010 for framing of charge. Short fact of the case is that a written information was given by Opp.Party no.2 before the Officer Incharge of Ahiyapur Police Station disclosing therein that Dr. S.K.Jayaswal and others had committed offence under [STATUTE] . It was alleged that in a minor operation of the nose, the nephew of the informant died due to over dose of anesthesia. On the aforesaid allegation, an F.I.R. vide Ahiyapur P.S. Case No.81 of 2001 was registered for the offence under [STATUTE] . The police after investigation submitted chargesheet under [STATUTE] against the petitioners of both the cases. However, the learned Chief Judicial Magistrate differing with the Patna High Court Cr.Misc. No.13448 of 2010 (3) dt.27-07-2012 3 / 10 3 police report took cognizance of offence under [STATUTE] and the case was subsequently committed to the court of Session and the learned court remanded the case holding that the offence under [STATUTE] was not made out rather it was the case for offence under [STATUTE] . In the meanwhile, petitioner Dr. S.K.Jayaswal approached this Court, while invoking its inherent jurisdiction under Section 482 of the Code of Criminal Procedure vide Cr.Misc.No.29016 of 2002 on the plea that it was not a case under [STATUTE] rather it was a case for the offence under [STATUTE] . This Court after hearing the parties was of the opinion that the case was under [STATUTE] . After hearing the parties this Court by its order dated 11.10.2006 in Cr.Misc.No.29016 of 2002 observed as follows: “From submission made on behalf of the parties it appears that prima face if the case is proceeded under [STATUTE] ., the same will not prejudice any of the party. The learned court below is directed to hear the parties on the above premises and pass an order afresh in accordance with law in consonance with the above observation.” Patna High Court Cr.Misc. No.13448 of 2010 (3) dt.27-07-2012 4 / 10 4 Thereafter, a petition was filed on behalf of Dr. S.K.Jayaswal on 18.12.2006 under Section 228 of the Code of Criminal Procedure in view of order passed by this Court in Cr. Misc.No.29016 of 2002. The petitioners in either of the petitions have not brought on record the order dated 26.02.2007 passed by the learned Sessions Judge-cum- F.T.C. no.3. However, at the time of hearing, learned counsel for the petitioners has produced a photo copy of the order dated 26.02.2007, which is kept on record. While opposing the prayer of the petitioners before learned Addl. Sessions Judge, learned Special Public Prosecutor had drawn attention of the learned Sessions Judge towards evidence of the informant , the mother of deceased as well as patients of the hospital and the circumstances “that Dr. S.K. Jaiswal has also taken away B.H.T. of deceased from hospital to rectify the wrong and further submitted that the present case is squarely covered [STATUTE] ctor, as a result of which, the deceased had died, and therefore this case cannot be remanded to the court below for holding trial [STATUTE] ’ble Court.” Learned Sessions Judge in view of direction of this Court observed “Therefore in view of the said observation there Patna High Court Cr.Misc. No.13448 of 2010 (3) dt.27-07-2012 5 / 10 5 is no option l

Applicable IPC Section: 304

Statute Text:
Section 304 of the Indian Penal Code. Culpable homicide not amounting to murder, If act by which the death is caused is done with intention of causing death, etc. Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.