1. Heard the learned Counsel for the applicants and the learned APP for State.

2. This is an application under section 438 of the Code of Criminal Procedure, 1908. The applicants herein are apprehending their arrest in Crime No. 71 of 2018 registered with Ratnagiri City Police Station for offence punishable under section 304 read with section 34 of Indian Penal Code.

3. The applicant No. 1 happens to be the wife of applicant No. 2. The applicants are medical practitioners. The qualification of the applicants is M.D. (Gynecology).

4. Issue for consideration : Prescription without diagnosis and hence resulting into death of the patient amounts to criminal negligence on the part of the doctors.

5. The whole thrust of the applicants in the present case is that the act of the applicants would fall under section 304A of the Indian Penal Code or under section 304 of the Indian Penal Code and therefore, this Court is considering the issue.

6. It is the case of the prosecution that on 7th March, 2018 Pranav Pramod Polekar was constrained to lodge a report at the police station. The first informant informed the police that Dnyanada was his wife. Dnyanada was hail and hearty. That in the month of June, 2017 preliminary diagnosis indicated symptoms of having conceived and therefore, they had visited the hospital of Dr. Pawaskar. Dr. Sanjiv Pawaskar (applicant No. 2) had examined Dnyanada and had confirmed that she was pregnant. Dnyanada was registered with Dr. Pawaskar. Dnyanada used to visit the hospital regularly for routine check-up. She had taken the medicine prescribed by Dr. Pawaskar. He was informed that due date is approximately 18/2/2018.

7. On 5/2/2018 she had started having labour pains and therefore, they had rushed to Dr. Pawaskar Hospital. The doctor and his wife were present. She was admitted in the hospital. Initially, the family members were informed that she would have normal delivery. On 6/2/2018 she was advised to undergo sonography test at Gurukrupa Sonography Center. Upon seeing the sonography report, the doctors were of the opinion that she should undergo cesarean operation. On 6/2/2018 she had undergone cesarean operation. Dr. Ketkar was the anaesthesist. Dnyanada had given birth to a female child. The baby was admitted in Gajanan Bal Rugnalay of Dr. Vijay Suryagandh. On 6/2/2018 Dnyanada appeared to be normal. The first informant had deposited Rs. 25,000/- towards medical fees. On 8/2/2018 baby was also discharged and on 9/2/2018 at 5 p.m. Dnyanada was discharged from Dr. Pawaskar Hospital. At the time of discharge, doctors were not available. The staff had also not informed the family members or the patient about the post-operative care.

8. On 10/2/2018 Dnyanada was vomiting throughout the day. Her relatives had called upon Dr. Deepa Pawaskar. She had asked them to call her from medical shop. The doctor had given instructions to the medical shop owner and accordingly, he had given them tablets which she had taken. On the same day, in the evening Dnyanada had fever and she continued vomiting and therefore, she was taken to the hospital of Dr. Deepa Pawaskar at 8.30 p.m.. In their presence, the staff nurse had called upon Dr. Deepa Pawaskar. She was advised to admit the patient. The staff had informed that the doctors are not available in the hospital. The first informant had asked as to whether she should be taken to another hospital. However, he was informed that it was not necessary and that the patient would be admitted for one day and on the next day, she would be discharged.

9. Dnyanada was being treated by two nurses, who were administering medicines on the telephonic instructions of Dr. Deepa Pawaskar. The condition of the patient was deteriorating and the relatives, out of anxiety were accordingly informing the staff nurse. The relatives were insisting upon shifting the patient to another hospital. However, the staff nurse upon instructions of the applicant No. 1 had informed the relatives that they need