CRIMINAL MISCELLANIOUS No.26163 OF 2001 In the matter of an application under Section 482 of the Code of Criminal Procedure, 1973 …………. 1. DR. MRS.VIJAYA RANI SINGH, WIFE OF DR. RAJIV KUMAR SINGH. 2. DR. RAJIV KUMAR SINGH, SON OF LATE RAMANAND PRASAD SINGH, UPHAR SEWA SADAN, MUNICIPAL CHOWK, CHAPRA. -------------- (Petitioners/Appellants) Versus 1. STATE OF BIHAR . 2. SANTOSH KUMAR SINGH, SON OF SHRI PANCHAM SINGH, RESIDENT OF HOSPITAL ROAD, BETTIAH CHAWNI, P.S. CHAPRA TOWN IN THE DISTRICT OF SARAN. ------------(Opposite Parties/Respondents) …………… For the Petitioner : Mr. Kanhiya Prasad Singh, Sr. Advocate Mr. Nachiketa Jha, Advocate For the State : Mr. Hirday Prasad Singh, A.P.P. ………….. P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. Two petitioners, by profession medical doctors, who were running a Nursing Home in the name and style of Uphar Sewa Sadan in the District of Saran at Chapra, have approached this Court while invoking its inherent jurisdiction under Section 482 Cr.P.C. with a prayer to quash an order dated 28.5.2001 passed by the Chief Judicial Magistrate, Chapra as well as for quashing of entire Criminal Proceeding arising out of Chapra Town P.S. Case No. 22 of 2001. By the said order, learned Magistrate has taken cognizance of offence under Section 304A of Indian Penal Code. Short fact of this case is that earlier a 2 complaint case was filed vide Complaint Case No.104 of 2001 in the Court of the Chief Judicial Magistrate, Chapra against the petitioners on allegation of commission of offences under Sections 304/304A/383/420/34 of the Indian Penal Code. It was disclosed in the complaint petition by the complainant that his elder brother’s wife (Bhabhi) was under medical treatment of the petitioners since she was carrying pregnancy and petitioner No.1 indicated expected date of delivery as 31.4.2001. The wife of elder brother of the complainant was in regular check up. On 16.1.2001 in the morning she complained some problem in her abdomen and she was carried to the Nursing Home where on the prescription it was mentioned by petitioner no. 1 that the condition of the patient was serious and she was admitted in the Nursing Home. It was alleged that in the night of 16/17.1.2001 her condition became more serious. The complainant and other family members of the patient tried their level best so that either of the petitioners may come and examine the patient. Even telephonically the compounder of the petitioners intimated regarding the seriousness and thereafter over telephone some instruction was issued by the petitioner no.2 and thereafter the compounder injected Utodin. However, 3 none of the petitioners bothered to examine the patient even in such serious condition of the patient. Immediately after she was injected, the patient died. On the aforesaid allegations the complaint was filed which was referred to the police for its registration and investigation under Section 156(3) of the Code of Criminal Procedure. Accordingly an First Information Report vide Chapra Town P.S. Case No. 22 of 2001 was registered on 20.1.2001 for the offences under Sections 304/304A/383/420/34 of the Indian Penal Code. After registering F.I.R. the police investigated the case. During the investigation materials were collected showing involvement of the petitioners and charge sheet was submitted by the police. Learned Magistrate after examining the case diary as well as charge-sheet vide its order dated 28.5.2001 has taken cognizance of the offence under Section 304A of the Indian Penal Code. Aggrieved with the order of cognizance both the accused approached this Court by filing the present petition. On 29.1.2004, while admitting the case, lower Court Record was called for in the present case and same has been received. Sri Kanhaiya Prasad Singh, learned Senior 4 Counsel appearing on behalf of the petitioners, while challenging the order of cognizance and entire criminal proceeding at the very out set has submitted that it was not at all a case of criminal negligence. It was further submitted that it cannot hardly be said as negligence on the part of the petitions, and for such act, criminal prosecution was not liable to be initiated against the petitioners. It was submitted that both petitioners had taken proper care and according to the ailment, the compounder was directed to give injection, which was necessary at that very time. Sri Kanhaiya Prasad Singh, Learned Senior Counsel further submits that on the request of the Superintendent of Police, Saran a Medical Board was constituted and a detailed report was submitted wherein it was mentioned that both the petitioners were well qualified doctors and for the purposes of treatment, the injunction which was injected, was advisable. Learned Senior Counsel for the petitioners in support of his argument has relied upon a judgment of Apex Court reported in 2005 Criminal Law Journal 3710 Jacof Mathew Vs. State of Punjab. The learned Senior Counsel for the petitioners has also relied on a judgment reported in 2010 (1) PLJR SC 197 Kushum Sharma’s Vs. Batra Hospital and Medical Research Centre and others. In sum and substance, it 5 has been submitted that if there is material to show that a medical officer-cum- Civil Surgeon had taken sincere efforts for the treatment and surgery of a patient, in that event no medical practitioner cannot be prosecuted. Learned senior counsel has also referred to paragraphs 7 and 14 of the petition in support of his stand that both the petitioners were well qualified and report of medical board has given clean cheat to the petitioners. Accordingly, it has been prayed to set aside the order of cognizance as well as entire criminal proceeding. Sri Hirday Prasad Singh, learned Additional Public Prosecutor appearing on behalf of the State has vehemently opposed prayer of the petitioners. It has been submitted that sufficient materials are available in the case diary. It has also been submitted that number of witnesses have supported the prosecution case and only after collecting sufficient materials the police has submitted charge-sheet. Learned Additional Public Prosecutor has referred to paragraph nos. 11, 22, 35, 36, 44, 45 of the case diary which corroborates that there were sufficient materials available in the case diary showing commission of alleged offence. Besides hearing learned counsel for the 6 parties, I have perused the materials available on record. So far as judgments cited by the learned Senior Counsel for the petitioners is concerned, the court is of the opinion that there is no dispute that if there is material on record to show that sincere effort was taken by a doctor for rendering medical aid in that event even on the death of a patient a Medical Officer can not be prosecuted. It is also not in dispute that on frivolous allegation one can not be prosecuted. In the present case material indicates that petitioners had not taken any sincere effort to prevent the life of the patient. In the present case it is not a case that due to Surgery conducted by either of the petitioners the patient died. In the present case, there is specific allegation that despite the fact that the condition of patient had become very serious and steps were taken to call for the doctors both the petitioners did not take care and only on telephone issued certain direction and due to lack of proper medical aid in the nursing home of the petitioner patient died. In the facts and circumstances of the present case, the Court is of the opinion that petitioners may not get any advantage from the case laws which have been cited on their behalf. In the facts and circumstance of the present 7 case, the Court is of the opinion that it was a case of gross negligence on the part of the petitioners. It is not in dispute that despite the petitioners were requested by the attendant of the patient or even by compounder, they did not bother to examine the patient and subsequently the patient died. Accordingly the court is of the opinion that while taking cognizance; learned Magistrate has committed no error. I do not find any ground for interference with the order of cognizance. Accordingly the petition stands rejected. In view of the rejection of this petition interim order of stay stands automatically vacated. It is made clear that whatever observation has been recorded by this Court has been recorded for the just decision in the present case. This order may not prejudice the court below at any subsequent stage. With the above observation and direction, the petition stands rejected. Office is directed to send back the Lower Court Record along with a copy of this order to the Court below. Patna High Court Dated 22nd November,2010 N.A.F.R./ Amit (Rakesh Kumar, J.)