Criminal liability under IPC 304-A for medical negligence requires prima facie gross negligence by ordinary competent doctor standard; no prosecution without material proving rash act, as simple error or unlinked death insufficient.

JUDGMENT :

URMILA JOSHI-PHALKE, J.

1. Heard learned counsel Shri Mandar Deshpande for the applicant, learned APP Shri A.M.Kadukar for the State, and learned counsel Shri Anup Dhore for the non-applicant No.3.Admit. Heard finally by consent.

2. By this application, the applicant seeks quashing of the FIR in connection with Crime No.161/2023 registered under Sections 304-A and 201 of the IPC and consequent proceeding arising out of the same bearing SCC No.649/2023.

3. In the present case, informant Ganesh Dinkar Kayande serving as PSI of Police Station Telhara, District Akola alleges “medical negligence” on the part of the applicant, who is doctor by profession, who has allegedly given an “injection” in Spinal Cord of Dilip Malekar (the deceased) who unfortunately succumbed to the injection. As per recital of the FIR, initially, a Murg was filed and an enquiry was conducted. The investigating officer prepared spot panchanama, inquest panchanama, and referred the dead body of the deceased for postmortem. The investigating agency has recorded statements of witnesses who were employed at “Gomati Clinic” and also forwarded samples for chemical analysis. After receipt of the CA Report, opinion was given that cause of death of the deceased was, “due to shock due to pulmonary edema due to trauma to thoracic spinal cord and coronary artery disease with acute tubular necrosis of the kidneys". As per the investigation papers, the deceased had been to the clinic of the applicant where he was injected and, thereafter, he never regained consciousness and subsequently succumbed to death on 16.5.2022. During investigation, it further revealed that the cause of death of the deceased was because of “pulmonary edema”. It could be the reaction due to trauma to the thoracic spinal cord due to “an unknown injection:. Despite treatment papers were demanded, the applicant has not provided the same. The Department of Forensic Medicine and Toxicology, Akola by letter dated 3.11.2022 also intimated cause of death of the deceased. The Advisory Committee has accepted the said cause of death and, thereafter, FIR came to be lodged against the applicant.

Learned counsel for the applicant further submitted that the applicant had been to Pune for his personal work and he came to Shegaon by Maharashtra Express and reached Telhara at 12:30 pm on 16.5.2022. The applicant came to his clinic at 2:15 pm and was attending patients. While he was attending his other patients, he received a call by his sweeper informing him that a patient, whose name was not known to him, was sitting on a bench. In consultation with the wife of the applicant, who is also a medical professional, the said patient was allowed to take rest on bed kept adjoining the waiting area. At about 2:45 pm, after taking lunch, the applicant was examining his patients. He heard a noise of crowd from patients who were waiting in the waiting area and it revealed that the person who was taking rest in the nearby adjoining area of the waiting room had fallen down and, therefore, the applicant immediately rushed to him and examined him and found that he was already dead. Thereafter, he informed the police. It was found that the said person had succumbed to death. After doing necessary formalities, the dead body of the deceased was sent for postmortem.

It is submitted by learned couns