- (1.) Leave to appeal is granted.
(2.) The appellant who is a Doctor (Plastic Surgeon) is in the dock as an accused on the charge under S. 304-A of the Indian Penal Code (for short the 'IPC') for causing death of his patient on 18-4-1994. The patient was operated by him for removing his nasal deformity. It may be mentioned at the outset, that the Anesthetist who was assisting the surgeon in the operation was also made co-accused but it is reported that he died pending the trial. The proceedings, therefore, stand abated against him.
(3.) The appellant urged before the Magistrate that the medical evidence produced by the prosecution, does not make out any case against him to proceed with the trial. The learned Magistrate in deciding to proceed with the trial recorded following reasons in the impugned order dated 28-11-1998 passed by him :- "Post-mortem report is very categorical and very clear and it has been clearly mentioned therein that death was due to the complication arising out of the operation. That operation was conducted by both the accused persons. It is also clear from the material on record that deceased was young man of 38 years having no cardiac problem at all and because of the negligence of the doctors while conducting minor operation for removing nasal deformity, gave incision at wrong part due to that blood seeped into the respiratory passage and because of that patient immediately collapsed and died and it was also attempted to show by the accused persons that he was alive at that time and was taken to Ganga Ram Hospital for further medical attention.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . It is clear from the record that patient had actually died at the clinic of the accused and, therefore, I am of the opinion that there are sufficient grounds on record to make out a prima facie case against both the accused for commission of offence under S. 304-A, I.P.C. Let notice be served accordingly." (Emphasis supplied);