Crl.Misc.No.M-10058 of 2009 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Misc. No. M-10058 of 2009 Date of Decision: 25 - 5 - 2009 Dr.Suman Goel .....Petitioner v. State of Punjab and another .....Respondents CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.Manoj Kumar Sood, Advocate for the petitioner. Mr.A.S.Brar, DAG, Punjab. Mr.K.K.Bansal, Advocate for respondent No.2. *** KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present petition has been filed under Section 482 Cr.P.C. seeking quashing of case FIR No.65 dated 13.5.2008 registered at Police Station Tapa, District Barnala under Section 304-A IPC being abuse of process of law. The controversy in the present case is that petitioner is a registered medical practitioner and she has been awarded degree of B.A.M.S. from Punjabi University, Patiala. Petitioner has got herself registered with the Board of Ayurvedic and Unani Systems of Medicine, Punjab on 9.5.1980. In pursuance of registration certificate, petitioner is a Crl.Misc.No.M-10058 of 2009 [2] practising doctor and is running a Hospital at Tapa. It is stated that Mamta daughter of complainant-respondent No.2 was admitted in the Hospital of the petitioner for delivering a child. Mamta on 12.5.2008 gave birth to a male child. It is stated that after the delivery, child developed the respiratory problem and he was referred to Aggarwal Hospital where facility of ventilator was available. In the FIR, it is stated that when the child was to be taken to Aggarwal Hospital where he was referred, the testicles of the child was cut. It is stated that this was due to rash and negligent act of the doctor. State has filed the reply, in which it has been stated that report under Section 173 Cr.P.C. has been submitted and case is fixed for framing of charge. Counsel for the petitioner has relied upon Jacob Mathew v. State of Punjab, 2005 (6) SCC 1. It has been held in Jacob Mathew’s case (supra) as under: “50. As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by police on an FIR being lodged and cognizance taken. The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to rash or negligent act within the domain of criminal law under Section 304-A of IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered in his reputation cannot be compensated by any standards. Crl.Misc.No.M-10058 of 2009 [3] 51. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against. 52. Statutory rules or executive instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam's test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.” Crl.Misc.No.M-10058 of 2009 [4] Since in the present case after registration of the case, report under Section 173 Cr.P.C. has been submitted and the case is fixed for framing of charge, no useful purpose would be served by quashing the FIR. However, the trial Court is directed to strictly comply with guidelines framed in Jacob Mathew's case (supra). After these guidelines are followed, then only the trial Court shall arrive at a conclusion whether petitioner is to be charged or not. Counsel for the petitioner has further relied upon a judgment in of Hon'ble Apex Court in Martin F.D'Souza v. Mohd. Ishfaq, JT 2009(2) SC 486 in which guidelines laid down in Jacob Mathew's case (supra) were reiterated. The trial Court should also take into consideration the observations of the Hon'ble Apex Court in Martin F.D'Souza's case (supra) while,formulating an opinion whether charge is to be framed against the petitioner or not. Petition is disposed off. ( KANWALJIT SINGH AHLUWALIA ) May 25, 2009. JUDGE RC