1 CR.W.P. NO.852/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.852 OF 2010 Dr.Prakash s/o Madhukar Shivnikar, Age 36 years, Occ: Medical Practitioner, r/o.Patangan Galli, Dhondipura, Beed, Bee- 431 122 ...PETITIONER VERSUS State of Maharashtra, Through Police Station, City Police Station, Beed. ...RESPONDENT ... Mr.Girish Kalidas Naik Thigle, Adv., for the petitioner. Mr. G.R.Ingole, APP for State. ... CORAM: K.U.CHANDIWAL, J. DATE:June 14th, 2011 *** PER COURT : 1. The accused/applicant, a Medical Officer, questions prosecution dt.25.10.2004 for an offense under Section 304-A of I.P.C. 2. Dilshan Begum was admitted at Civil Hospital, Beed, for delivery at about 10.30 p.m. She developed complications and expired. The 2 CR.W.P. NO.852/2010 FIR attributed negligence to the accused/applicant and also Hospital authorities. A Special Civil Suit No.16/2005 came to be instituted by husband of the said deceased against the State Civil Hospital and the accused applicant Dr.Prakash ( he was arrayed as defendant no.3). The suit was partly decreed as against the State as the State was directed to compensation with interest, however, it was dismissed as against accused/applicant ( as defendant No.3). The said verdict is subject of question before this Court. 3. Based on the FIR referred earlier, chargesheet bearing Case No.227/2005 is lodged before the learned Chief Judicial Magistrate, Beed. The accused/applicant contends that he had no knowledge of such prosecution against him till he was served summons and called to attend the case. 4. Shri Thigale submits that the finding recorded by the learned Judge while deciding Special Civil Suit No.16/2005 exonerates the accused/applicant from the charge of negligence as no sooner he was called, he attended the patient; unfortunately, the patient, due to complications and, non removal of placenta, expired. The learned Judge, in fact, at page No. 58 of the judgment has observed, "even if it is 3 CR.W.P. NO.852/2010 held that the defendant no.3 (accused/applicant) was negligent still he can be not held liable because the employer is the person who is responsible". It is also observed that the accused/applicant has tried his best to save life of the patient but it was very late and the responsibility would be to the person who attended the deceased prior to arrival of the accused/applicant in the Labour Room. 5. Learned Counsel placed reliance to the judgment of Hon'ble Apex Court in Jacob Mathew V. State of Punjab and another ( (2005) 6 SCC 1). The Hon'ble Lordships have held about import of civil liability and criminal prosecution for rash or negligent act. The scope of Section 304-A of IPC in such contingencies was also discussed. It is observed that, it is necessary that death should have been the direct result of rash and negligent act of the accused and that act must be the proximate and efficient cause without the intervention of another's negligence. 6. The death of Dilshan Begum is not in controversy. There is a Civil Court's finding of negligence on the part of the hospital authorities which also primarily will include the accused/applicant as he too attended the said patient (Dilshan Begum). It is part of the evidence as to at what stage, the 4 CR.W.P. NO.852/2010 accused/applicant was instructed to entertain and treat the patient and what treatment he has given. At this stage, it is difficult to conceive that the charge of negligence against the accused/applicant is a hollow formality and he has been prosecuted on erroneous grounds. Since chargesheet is filed, the accused/applicant has also an alternate remedy before the said Court to move for discharge as the learned Judge would primarily weigh and assess the material placed before him by virtue of investigation papers. 7. Taking survey of above facts, there is no merit in the application. It is, accordingly, dismissed. The observations are prima facie in nature. (K.U.CHANDIWAL) JUDGE ... agp/852-10crwp