IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.1055 of 2010 DR. SMT. MAMTA SINHA wife of Dr. Shailesh Kumar Sinha resident of 40 MIG, Kankarbagh, P.S.- Kankarbagh, District- Patna. . . . . . Petitioner. Versus 1. THE STATE OF BIHAR, through the Principal Secretary, Department of Health, Government of Bihar, Patna. 2. Satish Kumar Son of Harendra Prasad, resident of Chitragupta Kitabghar, Postal Park, P.S. Kankarbagh, District- Patna. . . . Respondents. ----------- 2/ 11.10.2010 Heard. The petitioner has been made accused in Complaint case no. 1750 (C) of 2003 under Sections 326, 307, 379, 465, 468, 420, 471 of the I.P.C. filed on 08.08.2003. The complainant stated that he was operated for the disease Chyloria on 13.09.2000 by accused no.1 along with his team, which constituted of his wife, the petitioner, and two assistants and one anesthetist. However, after operation, the ailment did not subside and the complication of petitioner increased. On advice of another doctor, he got subsequently U.S.G. examination of whole abdomen at Patna Scan Centre on 20.07.2003. In U.S.G. X – Ray the kidney was not visible. The complainant alleged that accused persons dishonestly removed his kidney without his consent. Learned counsel for the petitioner submits that the learned Magistrate finding prima facie materials took cognizance of offence under Sections 326, 307, 420, 468 and 471 of the I.P.C. and issued process against the accused persons including petitioner. He submits that non-visualization of kidney in Ultra sound is very much possible on account of various factors, some of which has been detailed in paragraph 15 of petition as follows: 2 (i) Agenesis- Complete absence of kidney since Birth. (ii) Hypoplasia- Small kidney. (iii) Atrophy of kidney, Shrinkage, emaciation of kidney. (iv) Nephrectomy- removal of kidney. And in the further following four circumstances kidney can not be visualize in routine test/examination: (a) Chronic phonephritis. (b) Post tubular atrophy. (c) Vascular infection. (d) Post inflammatory atrophy, due to infection or tuberculosis. Learned counsel submits that the court ought not to have proceeded against her, unless it had sought expert opinion on medical negligence attributed. Learned counsel submits that Hon’ble apex Court in case of Martin F. D’souza Vs. Mohd. Ishfaq, reported in (2009) 3 SCC 1, has observed in paragraph 106, which is quoted hereinbelow: “106: We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer Forum (whether District, State or National) or by the criminal court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or the criminal court should first refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the doctor/hospital concerned. This is 3 necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down on Jacob Mathew vs. State of Punbaj, reported in (2005) 6 SCC 1, otherwise the policemen will themselves have to face legal action.” Counsel for the State submits that the petitioner should have raised this matter before the court concerned itself instead of moving this Court in writ jurisdiction. In view of the above, this writ application stands disposed of with the observation that if so advised, petitioner may make a prayer before the learned Magistrate or court in seisin of the matter first itself, instead of moving this Court in writ jurisdiction, which would be decided on its own merit, in accordance with law. Uday/ (Samarendra Pratap Singh, J.)