- (1.) THIS criminal revision has been preferred against the order dated 11.4. 2014, whereby the revisionist has been summoned by Judicial Magistrate, Court No. 35, Lucknow, in complaint case No.4659 of 2012 Sunil Kumar Sonkar vs. Dr. Rahul Agrawal, to face trial under Sections 326/338/420 and 427 I.P.C.
(2.) BRIEFLY stated the facts of the case are that a complaint was filed by the opposite party no. 2 that the revisionist gave treatment to him very negligently and cut the roots of his tooth due to his incompetency. The revisionist was also negligent at the time of removing stitches of the complainant, which resulted in excessive bleeding. On 30.3.2012 the complainant consulted in the dental department of the medical college, where he was told that wrong operation has been conducted and if the same will not be treated urgently, infection may be hazardous to him. Thereafter, he consulted two dental surgeons on 1.4.2012 and 6.4.2012. And, on 12.4.2012, after seeing the two X -rays, another doctor, Dr. Praveen Mehrotra, confirmed the cutting of root of the jaw, and replaced the two teeth to that of artificial. On being infected and presence of pus, on 29.5.2012 under the supervision of Dr. Mehrotra, operation of his jaw was conducted in Sardar Patel Post Graduate Institute of Dental and Medical Science. It has been averred that towards the treatment, huge amount has been spent by him, and for the negligent, incompetent treatment given by the revisionist as well as in greed of money, the complainant had to suffer physical and economical loss with mental agony. The revisionist kept the complainant under wrong impression of treatment. On the basis of the allegations made in the complaint, going through the statement recorded under Sections 200/202 Cr.P.C. and other material on record, the Magistrate prima -facie, found that the case of negligence is made out against the revisionist, therefore, revisionist was summoned to face trial under the aforesaid sections.
(3.) I have heard Sri Arun Sinha, learned counsel for the revisionist as well as Sri S.M. Nasir for opposite party No.1. Learned counsel for revisionist submits that learned Court below without proper application of mind has issued summons in complaint case under Sections 326, 338, 420, 427 I.P.C. There was no evidence to support the allegations of medical negligence as there was no experts' opinion and no medical practitioner was examined by learned Court below while issuing summoning order. It is submitted that in view of law laid down by Apex Court in the case of Rajendra Kumar Sitaram Pande and others Vs. Uttam and another, 1999 3 SCC 134 the impugned order is revisable. It is further submitted that Apex Court in the case of Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee and others, 2010 2 SCC(Cri) 299 has categorically held that in order to establish criminal negligence on the part of medical practitioner it is necessary to show that accused did something or failed to do something which no medical professional in his prudence would have done or have not done.;