IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.6830 of 2006 DR.RAJANI KUMARI & ANR Versus STATE OF BIHAR & ANR ----------- 4 29.07.2008 Heard learned counsel for the petitioners as also the learned A.P.P for the State. Although the complainant was duly served with notice, yet he has not chosen to appear and contest this application. The petitioners through this application have sought for the quashing of the order dated 31.1.2005 passed by Sri Om Sagar , Judicial Magistrate, Ist Class, Khagaria , in Complaint Case No.323C of 2004 by which the learned Magistrate has taken cognizance against the petitioners under Section 304 A I.P.C. It appears that one Ajay Prasad, the complainant, who has been impleaded as Opp.Party no.2 herein filed the aforesaid complaint on 3.6.2004 inter alia alleging commission of offences under Sections 304 A , 312, 406, 120B I.P.C. It has been alleged that due to the negligence in treatment and performing operation his child was brought out dead from the womb and his wife continued bleeding in excess from the uterus, as a consequence whereof she eventually expired. After an enquiry under Section 202 Cr.P.C. the learned Magistrate took cognizance only under Section-304A I.P.C., but he has not stated the reasons wherefor he has taken cognizance thereunder. It has been submitted by the learned counsel for the - 2 - petitioners that the complainant had initially approached the District Consumer Redressal Forum at Khagaria vide Complaint Case No.30 of 2004 and the District Forum after looking into the materials available on the record and the evidence led by the parties dismissed the complaint vide order dated 19.2.2005. Aggrieved thereby the complainant preferred an appeal before the State Consumer Disputes Redressal Commission at Patna vide Appeal No.148 of 2005 and by order dated 3.7.2006 by a long speaking order the State Commission dismissed the appeal having considered all the pleas and issues raised by the Complainant- appellant against the petitioners herein. The Commission also gave their finding that there was sufficient evidence on record to prove beyond doubt that there was no negligence on the part of the doctors and as a matter of fact they did their best as doctors to treat the patient who had died under serious condition. The Supreme Court in the case of Jacob Mathew –Vrs. State of Punjab & Anr, reported in ( 2005)6 SCC 1 has observed that indiscriminate prosecution of medical professionals for criminal negligence is counter- productive and does no service or good to society . A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. It has further been observed that the criminal law has invariably placed medical professionals on a pedestal different from ordinary mortals. To prosecute a medical professional for negligence under criminal law - 3 - it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent. In the present case as would appear from the recital in the complaint petition, the complainant takes the plea basing his allegations on the alleged prescription of Dr. Kamini Roy and alleging that it was she who had stated that the petitioners herein had not performed their duties as is required of them at this grave situation and instead had grossly neglected and failed in their duty. However, the said Dr.Kamini Roy in her affidavit filed before the State Commission had specifically stated that she at no point of time had advised the complainant and that whatever allegations being raised against the petitioners based on her prescriptions were neither correct nor sustainable and the same can not be said to be “ professional negligence” or “medical negligence”. There is nothing on the record to convince me from not interfering with the impugned order. That apart the complainant has already tried his luck before the two Forums, namely, the District Consumer Redressal Forum at Khagaria and the State Consumer Disputes Redressal Commission at Patna without any success. Having failed in his mission filing of the complaint and cognizance being taken therein is an abuse of the process - 4 - of the court. Accordingly, this application is allowed and the order taking cognizance under Section-304A I.P.C. is hereby quashed. ( Abhijit Sinha, J ) NKS/-