Rajesh Dayal Khare, J. - (1.) HEARD learned Counsel for the applicant, learned A.G.A. for the State and Sri R.B. Sahai, learned Counsel for the opposite party No. 2.
(2.) THE present application has been filed for quashing the summoning order dated 17.04.1999 passed by learned Chief Judicial Magistrate, District Fatehpur in Criminal Case No. 1476 of 1999 State v. Dr. Nigar Sultana Rizvi and Ors. Vide order dated 03.11.1999 another Bench of this Court had issued notices and in the meantime stayed the proceedings of Criminal Case No. 1476 of 1999 (State v. Dr. Nighar Sultana Rizvi) pending before learned Chief Judicial Magistrate, District Fatehpur.
(3.) LEARNED Counsel for the applicant has contended that the applicant is a Doctor who attended the wife of the opposite party No. 2 during the time of her delivery and a child was born but she expired. Learned Counsel for the Applicant has drawn the attention of this Court to Annexure -7 to the affidavit accompanying the application and has argued that the bed head ticket discloses that utmost care was given to wife of the opposite party No. 2. Learned Counsel for the applicant has further drawn the attention of this Court to the post mortem report, copy of which is annexed as Annexure -7 and has argued that the cause of death shown in the post mortem report is due to anti -mortem cardiac air embolism. It is further argued that the patient expired due to reasons beyond her control, inspite of the fact that best treatment was given to the wife of the opposite party No. 2 It is further contended that the opposite party No. 2 had filed a suit for damages against the applicant, copy of which is annexed as Annexure -10 to the affidavit accompanying the application. It is thus contended that criminal liability cannot be fixed upon the applicant and the Investigating Officer after Investigation submitted final report against which protest petition has been filed by the opposite party No. 2 which was allowed and the applicant has been illegally summoned. Learned Counsel for the applicant has relied upon a judgment of Hon'ble Apex Court reported in, V (2004) ACC 257 Dr. Suresh Gupta v. Government of N.C.T. of Delhi and Anr. and has argued that no criminal liability can be fixed upon the applicant in view of well settled law as laid down by Hon'ble Apex Court in view of paragraphs No. 21, 22 and 23 of the aforesaid judgment which is quoted below: 21. Thus when a patient agrees to go for medical treatment or surgical operation, every careless act of the medical man cannot be termed as 'crimina'. It can be termed 'criminal' only when the medical man exhibits a gross lack of competence or inaction and wanton indifference to his patient's safety and which is found to have arisen from gross ignorance or gross negligence. Where a patient's death results merely from error of judgment or an accident, no criminal liability should be attached to it. Mere inadvertence or some degree of want of adequate care and caution might create civil liability but would not suffice to hold him criminally liable. 22. This approach of the Courts in the matter of fixing criminal liability on the doctors, in the course of medical treatment given by them to their patients, is necessary so that the hazards of medical men in medical profession being exposed to civil liability, may not unreasonably extend to criminal liability and expose them to risk of landing themselves in prison for alleged criminal negligence. 23. For every mishap or death during medical treatment, the medical man cannot be proceeded against for punishment. Criminal prosecutions of doctors without adequate medical opinion pointing to their guilt would be doing great disservice to the community at large because if the Courts were to impose criminal liability on hospitals and doctors for everything that goes wrong, the doctors would be more worried about their own safety than given all best treatment to their patients. This would lead to shaking the mutual confidence between the doctor and patient. Every mishap or misfortune in the hospital or clinic of a doctor is not a gross act of negligence to try him for an offence of culpable negligence.;