- (1.) HEARD the learned senior counsel appearing for the petitioner, learned counsel for the State and the learned counsel appearing for O. P. No.2.
(2.) INITIALLY this application was filed for quashing of the First Information Report of Bistupur P.S. Case No. 71/2008 (G.R. No. 524/2008) registered under Section 304/34 of the Indian Penal Code. Subsequently, an interlocutory application being I.A. No. 1799 of 2012, was filed whereby and whereunder, order taking cognizance was challenged but the order, under which cognizance was taken, was never part of the interlocutory application and, therefore, the matter was adjourned for today. Thereupon, the order dated 20/08/2010, passed in G.R. No. 524 of 2008, by the then Chief Judicial Magistrate, was brought on record through a supplementary affidavit. The case of the prosecution, as has been made out in the first information report, is that when the condition of Neha Kumari, niece of the informant Binod Kumar deteriorated, he, alongwith his friend Gourango, brought her for treatment at T.M.H. at 11.40 P.M. They came to emergency ward where this petitioner and Dr. O.P. Patra were on duty. Petitioner having examined Neha Kumari, immediately put her on Oxygen. When the informant saw that the condition of Neha Kumari has been deteriorating, he made request to this petitioner and other Doctor to make treatment. Thereupon, they asked the informant to deposit the money. Upon it, the informant went to deposit the money. By the time he came back after depositing money, the condition of Neha Kumari further deteriorated. Thereupon, both, this petitioner and other Doctor sent her to female ward, where at the first instance a Nurse, who was there on duty, asked the informant to take back Neha Kumari to emergency ward as nothing has been written in the paper about the treatment being given to her. However, when a lady Doctor came, he got Neha Kumari put under ICU but the Doctors, who were on duty on ICU never put her on life support gazettes in spite of request being made. Meanwhile, she died. On such allegation a case was registered as Bistupur P.S. Case No. 71/2008, under Sections 304/34 of the Indian Penal Code. The matter was taken up for investigation. After completion of investigation, charge sheet was submitted under Section 304 A/34 of the Indian Penal Code upon which cognizance was taken vide order dated 20/08/2010, which is under challenged.
(3.) MR . Bajaj, learned senior counsel appearing for the petitioner submits that from the allegations, made in the F.I.R., no case of negligence is made out as it is the case of the prosecution itself that when Neha Kumari was brought at the emergency ward her condition was quite serious and seeing the condition of the patient, this petitioner immediately put Neha Kumari on Oxygen and when the formalities were completed with respect to the admission in the hospital, this petitioner sent her to female ward and, therefore, the petitioner cannot be said to have committed offence of negligence under Section 304 A/34 of the Indian Penal Code and, hence, the Court below has committed illegality in taking cognizance of the offence under Sections 304 A/34 of the Indian Penal Code. As against this, learned counsel appearing for O.P. No.2 submits that from the allegations made in the F.I.R., it transpires that the petitioner or the order Doctor never responded quickly in extending treatment to Neha Kumari, who was quite serious when she had been brought to the hospital and, thereby, they can be said to have committed offence of negligence. In the context of submissions, I would straight away refer to a decision rendered in a case of "Jacob Mathew versus State of Punjab and Anr., reported in 2005 AIR SCW 3685", wherein it has been held that for every mishap or misfortune in the hospital or in the clinic, the Doctor cannot be held criminally liable though for want of adequate care and caution, one can be fastened with the civil liability. In that case, their Lordships after examining every ramification of medical negligence in the context of rising trend of implication of a Doctor in a case of negligence came to the conclusion that due care and caution should be taken in taking cognizance of the offence of negligence against the Doctor, as without adequate medical opinion pointing to the guilt of the Doctor would be doing great disservice to the community at large.;