R.R.PRASAD, J. - (1.) THIS application filed under Section 482 Cr.P.C. is directed against the order dated 14.8.2003 passed by learned Chief Judicial Magistrate, Jamshedpur in Mango P.S. Case No. 57 of 2003 (G.R. No. 402 of 2003), whereby learned Chief Judicial Magistrate took cognizance of the offence under Section 304A of Indian Penal Code against the petitioner.
(2.) THE facts giving rise to this application are that one Har Kumar Mhato lodged a case stating therein that when he developed pain in his stomach, his family members took him to the nursing home of the petitioner who, upon examining, advised him to undergo operation and on consent being given, he was admitted to the nursing home, where he was operated upon on 8.12.2002 and was subsequently discharged from the nursing home, but after few days, when he again developed pain in his stomach, he came to the nursing home of the petitioner where X -ray was taken and it was found that a scissor had been left out in his stomach and thereupon the apposite party No. 2 was taken to M.G.M. Hospital on 26.2.2003, where he was operated upon for the second time and the scissor was taken out and on such fard beyan, a case was registered against the petitioner under Section 308/338 of Indian Penal Code. Subsequently, said Har Kumar Mhato after being operated upon at M.G.M. Hospital was shifted to TATA Main Hospital on 12.3.2003, where he died on 14.3.2003. When the autopsy of the dead -body was done, it could be known that the death occurred due to septicemia and shock caused by surgical intervention. After completion of the investigation, the police submitted charge -sheet under Section 304A of Indian Penal Code and accordingly, cognizance of the offence was taken against the petitioner. Being aggrieved with that order, the petitioner has preferred this application before this Court. Learned Counsel appearing on behalf of the petitioner submits 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 and this proposition has been laid down by the Honble Supreme Court in a case of Jacob Mathew v. State of Punjab and Anr. reported in 2005 AIR SCW 3685 after examining every ramification of medical negligence in the context of rising trend of implication of a doctor in a case of negligence and the court 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 and, therefore, under these situations, the Investigating Agency should have also adopted such measure, as has been ordered by the Honble Supreme Court, but the Investigating Agency without resorting to that submitted charge -sheet and the court also took cognizance of the offence mechanically and as such order taking cognizance is quite illegal.
(3.) LEARNED Counsel further submits that the allegation of negligence has been imputed on the fact that the petitioner in course of operation had left scissor in the stomach of said Har Kumar Mhato, but neither the scissor seems to have been recovered by the Investigating Officer nor it was ever produced before the court and in absence of that, one can never be held guilty for committing offence under Section 304A of Indian Penal Code, as the sufficient material would not be there for holding a person guilty and thus on this count also the impugned order is fit to be set aside.;