CRIMINAL MISCELLANIOUS No.14177 OF 2004 ********** In the matter of an application under Section 482 of the Code of Criminal Procedure. ********** DR. ANIL KUMAR SINHA S/O LATE JADUBANSH PRASAD R/O VILLAGE/MOHALLA-OPPOSITE HOTEL AMIT, MAHARAJ GANJ ROAD, AURANGABAD, P.O. AURANGABAD, DISTRICT- AURANGABAD (BIHAR) --------------------------(Appellant) Versus 1. THE STATE OF BIHAR 2. MANGAL MEHTA S/O PRABHU MEHTA, VILLAGE BELA, P.O.- BELA, P.S. AURANGABAD, DISTRICT- AURANGABAD. -----------------------(Respondents) ************ For the Petitioner : MR. SHAKEEL AHMAD KHAN SR.ADV. : MR. SHAILESH KR. SINGH ADV. For State : PUSHPA SINHA APP. P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH ********* Anjana Prakash, J. The petitioner seeks quashing of the order dated 29.4.2003 passed by the Chief Judicial Magistrate, Aurangabad P.S. case no. 313 of 2002 by which cognizance has been taken for the offence under Section 304 (A) I.P.C. 2. The case of the informant is that his wife was suffering on account of pain in her hand due to which she was taken to the private hospital of the petitioner, who made out a prescription for three injections and advised operation later in the day and went 2 home. A little while later the patient became unconscious, so the doctor was informed but it was found out that the petitioner with his family was going out from his residence for some urgent work and said he would come back at 4 p.m. However, in the meanwhile the wife of the informant died, where after the petitioner is said to have gone to the hospital but on learning she had died, left the premises. After investigation charge sheet was submitted for offence under Section 304 (A) I.P.C. and cognizance was taken as mentioned before. 3. By an order dated 21.09.2005 notices were issued to the opposite party no. 2 with a direction to stay the proceedings in the court below. However, despite the notices having been duly served upon the opposite party no. 2 none has appeared to contest the application. Finally on 29.6.2006 the matter was admitted for hearing with the interim order to continue. 4. It has been submitted on behalf of the petitioner that from the facts of the case enumerated in the First Information Report there is absolutely no mention of any criminal negligence having been committed on behalf of the petitioner. The informant has merely stated in the FIR that despite having been informed about the deteriorating condition of the patient, the petitioner failed to turn up by her side and therefore committed criminal negligence. In my view, just because a Doctor did not attend a patient on time it 3 would not constitute “criminal negligence” since it cannot be conclusively said that non attendance was a “criminally negligent” act. It is well known that the standard proof in Civil law is different from that in criminal law. In a criminal prosecution “mens rea” is an important element which must be shown to exist in absence of which the accused cannot be prosecuted under Section 304-A I.P.C. 4. In view of such, this application is allowed and the order dated 29.4.2003 passed by the Chief Judicial Magistrate, Aurangabad P.S. case no. 313 of 2002 by which cognizance has been taken for the offence under Section 304 (A) I.P.C. against the petitioner is quashed in so far as it relates to the petitioner. 5. Application stands allowed. ( Anjana Prakash, J.) Patna High Court, Patna Dated the 14th July, 2010 NAFR/ Fahad.