IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.52434 of 2007 1. DR.KAMANI CHAUDHARI w/o Ravi Prakash @ Dr. Ravi Prakash Gupta, & 2. Dr. Ravi Prakash, son of Ram Chandra Chaudhari, Both resident of Navin Cinema Road, Hajipur, P.S. & District-Vaishali ...Petitioners Versus 1. THE STATE OF BIHAR & 2. Birendra Kumar Thakur, son of Sri Madhusudan Thakur, Resident of village- Mani Vakurahar, P.S. Sarai, Dist. Vaishali …Opposite Parties ----------- For the petitioners : M/s Surendra Kumar Thakur & Satya Prakash Parasar, Advocates For the O.P. no.2 : M/s Naresh Chandra Verma & Arun Kumar Lal, Advocates. For the State : Mr. Choubey Ishwar, A. P. P. ------------ 5/ 02.04.2010 Heard the parties. The petitioners have filed this application for quashing the order dated 3.10.2007 passed by the Chief Judicial Magistrate, Vaishali, in Complaint Case no. C-1 578 of 2006, by which the Chief Judicial Magistrate has taken cognizance for the offence under sections 304-A and 465 Indian Penal Code. The opposite party no.2, who is the brother-in-law of the deceased Godawari Devi, filed a complaint on 13.3.2006 that the deceased was in continuous treatment of one Dr. Meera Singh for abdominal pain and its complication but when her condition did not improve, on the suggestion of one Mamta Devi, staff of the Nursing Home of the petitioners, he consulted the present petitioners. The contention is that on 11.5.2005, he came with the patient to the petitioners and the petitioners on examination and perusal of the previous medical prescriptions and test reports suggested immediate operation to be done and on the same day performed the operation of - 2 - removal of Uterus. The condition of the deceased did not improve and then she consulted few doctors at Patna, one of whom was of the opinion that the surgery was slipshod and should not have been performed under the circumstances that the deceased had, in fact, cancer and further treatment was carried on, but the life of the deceased could not be saved and she, ultimately, succumbed to the disease on 31.1.2006. During enquiry under section 202 Cr. P. C., five witnesses were examined and thereupon the court took cognizance as mentioned aforesaid. Documents were also filed on behalf of the complainant. Before the present complaint was filed and also before the death of the deceased, the complainant filed a complaint before the Consumer Forum on 31.10.2005, in which the present petitioners were noticed. After they filed a reply on 20.12.2005, the present complaint was instituted before the criminal court. Learned counsel for the petitioners submitted that in the facts of the case no offence under section 304-A and 465 Indian Penal Code is made out against the present petitioners. The contention is that entire complaint has been built on the premise that there has been negligence on the part of the present petitioners but there is no averment that the petitioners’ action arose out of rashness without consideration of the imminent risk involved in performance of their act. Moreover, the Hon’ble Supreme Court has held that negligence by professionals can be held on either of the two findings; (I) either the - 3 - professional was not equipped with requisite skill and (II) he did not exercise reasonable competence in exercise of the skill that he possessed. Merely, an error of judgment can not amount to criminal negligence is the settled principle of law. It is the complainant’s case that patient had been accompanied with previous medical papers including test reports and it is on evaluation of the same that operation had been performed. The grouse of the complainant is simply that no independent medical reports had been sought for by the doctors before performance of the operation which cannot be termed as a rash act amounting to criminal negligence. Further submission is that the proceeding before the Consumer Forum is still subsisting and in the said proceeding a report has been called for from the medical experts of Patna Medical College & Hospital to determine the issue and, therefore, the complainant is already pursuing an alternative remedy of competent jurisdiction. For this reason, the counsel for the petitioners has sought for quashing of the entire proceeding. To substantiate the argument, learned counsel for the petitioners placed reliance on a decision of the Supreme Court reported in 2005 (4) PLJR SC 213 (Jacob Mathew Vs. State of Punjab & Anr) On the other hand, the counsel for the opposite party no.2 asserts that from the perusal of the complaint a case of criminal negligence having been committed by the petitioners is well established and no case for quashing is made out. His further submission is that the documents which have been annexed with the present petition by way of medical reports should not be looked into - 4 - by this court at the stage of 482 Cr. P.C. and the best remedy for the petitioners would be to file discharge application before the court below annexing these documents. Further submission is that at the stage of cognizance the documents of the accused is not be looked into and, therefore, the order of cognizance is completely valid. On perusal of the complaint, I am convinced that no case for criminal negligence is made out on behalf of the present petitioners and even though there may have been an error of judgment, the same being without mens rea, it could not be a case of rash and negligent act punishable under section 304-A Indian Penal Code. The complaint with regard to the forged and fabricated documents having been filed in the Consumer Forum also has no bearing upon the present case. While disposing of this matter, I may have the opportunity of citing a recent decision of the Hon’ble Supreme Court on this point reported in (2009) 9 SCC 221(Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee and others with Kunal Saha (Dr.) Vs. Dr. Sukumar Mukherjee and others) paragraph 133 and 180, which are reproduced below for a better understanding of a subtle difference between negligence and criminal negligence. “133. It is noteworthy that standard of proof as also culpability requirements under section 304- A of the Penal Code, 1860 stand on an altogether different footing. On comparison of the provisions of the Penal Code with the thresholds under the tort law or the Consumer Protection Act, a foundational principle that the attributes of care and negligence are not similar under civil and criminal branches of medical negligence law is borne out. An act which may constitute negligence or even rashness under torts may not amount to the same under Section 304-A. - 5 - 180. The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be (sic of a) much high degree. A negligence which is not of such a high degree may provide a ground for action in civil law but cannot form the basis for prosecution.” There is no doubt that at the stage of cognizance the documents of the accused are not be gone into by the court taking cognizance. In the present case, it has not been done and, so, the argument has no basis at all, nor is this court looking into the documents of the petitioners annexed herein. However, I may make it clear that the reasoning or the result given in this case is strictly for the purpose of this case only and will have no bearing on the proceeding pending before the Consumer Forum. In the result, this application is allowed and the order dated 3.10.2007 passed by the Chief Judicial Magistrate, Vaishali at Hajipur, in Complaint Case No. C-I 578 of 2006 taking cognizance against the petitioners under section 304-A and 457 of the Indian Penal Code is quashed in so far as the petitioners are concerned. The application stands allowed. JA/- (Anjana Prakash, J.)