- (1.) HEARD learned counsel for the petitioner and learned A.G.A. for the State. This writ petition has been filed with a prayer to quash the order dated 11.3.2011 passed by Chief Judicial Magistrate, Bulandshahar in case no.356 of 2011 (Sudesh Vs. Dr. Vijendra Yadav) as well as order dated 30.6.2011 passed by Addl. Sessions Judge, Court No.9, Bulandshahar in criminal revision no.133 of 2011.
(2.) THE complaint filed by the petitioner has been dismissed under section 203 Cr.P.C. Revision has also been dismissed. THE complaint was filed against respondent no.4, a registered Medical Practitioner, alleging negligence in the treatment of the husband of the complainant. THE complaint has been dismissed on the ground that no negligence on the part of the doctor has been proved. No opinion was sought by the complainant from any medical expert or from a panel of Government Doctors in support of her claim. In Jacob Mathew Vs. State of Punjab & Another (2005) 6 Supreme Court Cases 1, Apex Court had laid certain guidelines which are reproduced below : 50. As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by police on an FIR being lodged and cognizance taken. The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to rash or negligent act within the domain of criminal law under Section 304-A of IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered in his reputation cannot be compensated by any standards. 51. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against. 52. Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld. Similar view was taken by the Apex Court in a subsequent decision in Martin F D.'souza Vs. Mohd. Isfaq (2009) 3 Supreme Court Cases 1, which is reproduced below : "117. We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer Fora (whether District, State or National) or by the Criminal Court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or Criminal Court should first refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the concerned doctor/hospital. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew case (supra), otherwise the policemen will themselves have to face legal action." In the absence of any expert opinion regarding negligence of the doctor, criminal prosecution against him is not maintainable. The complaint has been rightly dismissed by the Magistrate. The order passed by the Magistrate as well as the order passed by the first revisional court do not require any interference by this Court. Writ petition is accordingly dismissed.;