- (1.) HEARD learned counsel for the petitioners and learned counsel for the State.
(2.) THE petitioners are aggrieved by the order dated 26.03.2007 passed by Shri A. K. Mishra No. 2, learned Judicial Magistrate, Dhanbad, in Dhanbad P.S. Case No. 559 of 2004, corresponding to G.R. Case No. 2925 of 2004, whereby the application filed by the petitioners u/s 239 of the Cr.P.C., for discharge, has been rejected by the Court below, finding that there are sufficient materials in the case diary for framing charge u/s 304 A/ 34 of the Indian Penal Code. Petitioner Nos. 1, 2 and 3 are the medical practitioners whereas petitioner Nos. 4 & 5 are their Assistants and they have been made accused in Dhanbad P.S. Case No. 559 of 2004, corresponding to G.R. Case No. 2925 of 2004 for the offence u/s 304 A / 34 of the Indian Penal Code on the written report submitted by the informant Surendra Prasad, who had admitted his wife for treatment in the clinic of Dr. Mahendra Prasad Jha, the petitioner No.1. It is stated that the doctor had advised surgical operation on the patient, and accordingly on 11.09.2004 the surgical operation was performed, as it appears from the F.I.R., for removal of the gall bladder. It is alleged in the F.I.R. that the patient was taken in the operation theatre at about 5:00 p.m. where the other accused persons were also present and at about 10:00 p.m. in the night the informant was called in the operation theatre where he was informed about the death of his wife, in the course of operation. On the basis of the written information given by the informant, the police case was instituted and investigation was taken up. After investigation the police submitted the charge-sheet for the offence u/s. 304 A/ 34 of the Indian Penal Code against all the accused persons and accordingly, the cognizance was taken against the petitioners. Subsequently, the petitioners filed their application for discharge, which was rejected by the Court below by the impugned order dated 26.03.2007.
(3.) FROM the case diary, it appears that the post mortem examination of the deceased was done by a Board of Doctors. The concluding portion of the post mortem report reads as follows :- Opinion: 1) In our opinion cause of death was shock as a result of Bacteremis and sepiticaemia. 2) Time elapsed since death was 12 hours to 18 hours before the time of postmortem examination. 3) Surgical operation was found done for the purpose of cholecyrtectomy and the gall bladder was found removed out. Re-exploration of the Abdomen having been done, cannot be ruled out. 4) Except the proper surgical wounds, no injury was found anywhere in the Internal organs of the body. Learned counsel for the petitioners has submitted that the petitioners have been falsely implicated in this case as there was no negligence in the treatment of the deceased, rather in the course of surgical operation she had died. It has been submitted that the charge- sheet has been filed in this case only on the basis of the statement of the witnesses that due to the negligent treatment the patient died. Learned counsel for the petitioners has further pointed out from the post-mortem examination report that the death of the deceased, in the opinion of the medical board was caused due to shock as a result of Bacteremis and Sepiticaemia. It is also submitted that it is apparent that except the proper surgical wounds there was no injury anywhere in the internal organs of the body. Learned counsel has accordingly, submitted that the case of the petitioners is fully covered by the decision of the Hon'ble Supreme Court of India in the case of Jacob Mathew Vs. State of Punjab & Anr., reported in (2005) 6 SCC 1, wherein elaborate and detailed guidelines have been laid down by the Hon'ble Supreme Court of India, after discussing earlier precedents about the criminal liability of a medical practitioner in such cases. Learned counsel accordingly, submitted that in view of the law laid down by the Hon'ble Supreme Court of India, it is a fit case for discharge and the impugned order cannot be sustained in the eyes of Law.;