{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.751 OF 2010 Dr.Sadatkhan s/o Yaqubali Khan Age-48 years, Occ-Medical Practitioner R/s Mehar Hospital, Old Jalna Dist-Jalna APPLICANT VERSUS The State of Maharashtra Through Police Station Kadim Jalna RESPONDENT ....... Mr.G.D.Kale h/f Mr.R.T.Nagargoje, Advocate for applicant Mr.N.R.Shaikh, APP for respondent State ....... WITH CRIMINAL APPLICATION NO.759 OF 2010 Dr.Bhimsingh Badu Chavan Age-49 years, Occ-Medical Practitioner R/s Kacheri Road, Old Jalna Dist-Jalna APPLICANT VERSUS The State of Maharashtra RESPONDENT ....... Mr.Joydeep Chatterjee, Advocate for applicant Mr.N.R.Shaikh, APP for respondent State ....... [CORAM : A.V.POTDAR, J.] {2} DATE: 23rd February 2010 PER COURT: 1. By these applications, the applicants, who are anesthetist and ENT specialist respectively, have prayed to release them on anticipatory bail in the event of their arrest in connection with CR No.34/2010 registered with Kadim, Jalna Police Station for an offence punishable u/s 304 r/w 34 of the Indian Penal Code. 2. Heard learned counsel for the respective applicants and learned APP. Perused the papers of investigation carried out till today. 3. The said offence is registered on the complaint of one Sitaram Kahane. It is alleged in the complainant that his son, namely Yogesh, aged about 14 years, was admitted in the hospital on 10.02.2010 as he was suffering from breathing problem. It is further alleged that the applicant Dr.Bhimsing demanded payment in the sum of Rs.10,000/-, as operation was likely to be performed. It is also alleged that the son of the complainant got admitted in the hospital and the complainant was asked to bring some medicines, probably for treatment to be provided to Yogesh at pre- surgical stage. Thereafter, it is alleged, the complainant noticed that already his son was taken inside the operation theater for {3} performing the operation. It is further alleged that at about 8.00 p.m. the applicant Dr.Bhimsing came out of the operation theater in a frightened condition and after about two hours another doctor was called. The other doctor informed the complainant that the operation is performed and it would take sometime to regain consciousness. Thereafter, it is further alleged, the son of the complainant was taken out of the operation theater. It is also alleged that in the midnight son of the complainant felt uneasy and hence on advice he was shifted to the hospital of Dr.Huse. Dr.Huse informed the complainant that his son is already dead and hence on 11.02.2010 the complaint came to be filed against both the applicants. 4. It is not disputed that the son of the complainant was admitted in the hospital of applicant Dr.Bhimsing. It is also not disputed that he was under medical treatment. It is urged by learned counsel for applicants that the papers of medical treatment indicate that though preparation was made for operation to be performed on the son of the complainant, yet no surgery or operation was ever performed, as the patient was not responding to the pre-surgical treatment. It is urged that as the condition of the patient was critical and hence he was taken out of the operation theater and was shifted to recovery room. Medical papers indicate that the son of the applicant was in the hospital for the said period, however, no surgery or operation was performed on him. It is urged that as the patient was not responding to the treatment, {4} applicant Dr.Sadatkhan was called. It is not disputed that applicant Dr.Sadatkhan examined the patient, however not provided any treatment to him and only after examining the patient he had left the hospital, after giving opinion, which is recorded in the notes maintained in the concerned hospital. It appears, from the medical notes, that as the patient was not responding to the treatment and as his condition was deteriorating, he was shifted to the hospital of Dr.Huse, where he was declared to be dead. 5. Considering the overall picture emerged from the submissions and in view of the PM notes, which does not reflect any surgical complication in the body of the deceased Yogesh, section 88 of the IPC would come into picture in respect of the role played by the medical practitioner while providing medical treatment to the patient. Section 88 of the IPC reads thus- “88 Act not intended to cause death, done by consent in good faith for person’s benefit- Nothing which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm.” 6. It has to be noted that after the body of the dead person is opened for PM, if any clinical defect is found and all {5} probable care appears to be taken by the medical expert, then it cannot said that the death caused which is to be termed as homicidal not amounting to murder. In the premise, the documents do not suggest that the act of both the applicants, come under the ambit of section 304 r/w 34 of the IPC. Hence, case is made out to exercise discretion u/s 438 of the Criminal Procedure Code to enlarge the applicants on anticipatory bail. 7. In the result, both the applications are allowed. In the event of arrest of both the applicants, in connection with CR No. 34/2010 registered with Kadim Jalna Police Station, they be released on bail on their furnishing surety in the sum of Rs. 15,000/- each and on executing PR bond in the like amount. The applicants are directed to cooperate with the investigating officer and to attend the concerned police station whenever required by the concerned IO on written requisition. The applicants to hand over all the notes of medical treatment provided to deceased Yogesh, for examination of expert, on demand from the concerned IO. [A.V.POTDAR, J.] drp/A10/criapln751-759-10