IMPORTANT POINT
The expression "rash or negligent act" as occurring in Section 304-A IPC has to be read as qualified by the word "grossly"."

Judgment :-

Chelameswar, J.

1. Leave granted.

2. This appeal arises out of an order dated 28th October 2010 in Criminal Petition No.6506 of 2007 of the High Court of Andhra Pradesh.

3. The aforementioned criminal petition was filed praying that the proceedings initiated against the appellant herein in C.C. No.600 of 2006 on the file of the XIV Additional Chief Metropolitan Magistrate, Hyderabad for the offence punishable under section 304A IPC be quashed. The said petition along with another similar petition by one of the co-accused was heard and disposed of by a common order (order in appeal).

4. While the petition filed by the appellant herein was dismissed by the High Court, the other petition of the co-accused was allowed.

5. The appellant is a cardiologist. The husband of the first respondent (one Divakar) approached the appellant herein, complaining of a pain in the chest on 22.04.2002. Divakar was admitted in the hospital where the appellant was working and kept in the Intensive Care Unit (ICU). Thereafter, the appellant informed the first respondent that Divakar had suffered a mild heart attack. On 23.04.2002, an angiogram was conducted which showed three blocks in the vessels carrying blood to the heart. On 25.04.2002 at 9.30 a.m., the appellant unsuccessfully attempted to perform an angioplasty on Divakar. Around 1.30 in the afternoon, the appellant informed the first respondent that the angioplasty failed as the blocks were calcified. Same day at around 3.30 p.m., by-pass surgery was conducted on Divakar in the same hospital. Subsequently, various complications developed and eventually Divakar died on 09.05.2002.

6. On 14.05.2002, the first respondent lodged a complaint against the appellant and others under section 304A IPC which came to be registered as FIR No.416 of 2002.

7. The police on investigation submitted a final report on 02.02.2005 treating the case to be one of lack of evidence. The respondent filed objections before the Metropolitan Magistrate to the final report and prayed the Magistrate to take cognizance of the offence. The learned Magistrate by his order dated 11.12.2006 came to the prima facie conclusion that there exists material to try the accused for the offence punishable under section 304A IPC. Challenging the said order the appellant approached the High Court by way of Criminal Petition No.6506 of 2007.

8. By judgment under appeal, the High Court opined that the material on record “clearly shows negligence on the part of A1” [The sworn statement of Dr. P.V.N. Rao also discloses that A1 without consulting the Anesthetist and without a surgical stand conducted Angioplasty, which should be done by the Surgeon, as the surgeon was out of station which fact he came to know through the Anesthetist. The operation was delayed by 5 hours due to want of surgeon who has to come from New Delhi, which clearly shows the negligence on the part of A1. Further as the patient was a chronic smoker he should be prepared before undertaking Angioplasty and the Cardiac Anesthesian should be consulted for fitness of the patient before conducting the same.

The entire record adduced does not indicate as to whether A1 assessed the condition of the patient on consultation of the cardio Anasthesian and obtained the fitness certificate for going Angioplasty on the patient.] and declined to quash the proceedings.

9. Mr. P.S. Narasimha, learned senior counsel appearing for the appellant submitted that the High Court clearly erred in dismissing the petition of the appellant herein. Learned senior counsel argued that the law laid down by this Court in Jacob Mathew Vs. State of Punjab & Anr. (2005) 6 SCC 1 has completely been ignored by both the learned Magistrate and the High Court in deciding to proceed with the case against the appellant herein. On the other hand, learned counsel for the first respondent submitted that the conduct of the appellant in undertaking the angioplasty without having a standby surgical unit is clearly in vio