IMPORTANT POINT
Medical negligence – Death of patient – Where allegations in FIR and other materials brought in support thereof do not disclose commission of cognizable offence justifying investigation by police officer under Section 156(1) Cr.P.C., Magistrate should act only as per Section 155(2) Cr.P.C.

ORDER (ORAL)

Heard learned counsel for the petitioner and Ms. Divya Verma, learned AC to AAG-3 for the State.

2. Despite service of notice on the informant-respondent no. 4, he has not turned up to contest this application.

3. Petitioner in the present case is one Paras Global Hospital, Darbhanga represented through its Unit Head namely Ashish Mukherjee. The petitioner is seeking quashing of the first information report being Lahariyasarai P.S. Case No. 579 of 2018 registered for the offences registered under Sections 304A, 420 and 34 of the Indian Penal Code.

Brief Facts of the Case:—

4. It is stated that on 01.02.2018, at about 11:30AM, the FIR in question was lodged by the respondent no. 4 alleging therein that one Jitendra Kumar met with an accident and he was referred to Paras Global Hospital, Darbhanga from Darbhanga Medical College and Hospital, Darbhanga (hereinafter referred to as ‘D.M.C.H.’). The allegation is that there were negligence in the matter of treatment of said Jitendra Kumar. Further allegation is that the hospital manager namely Farukhi kept on assuring that Jitendra Kumar would be alright and in the name of saving his life, he cheated the relatives and took Rs. 72,000/-. The said Jitendra Kumar was referred to Paras HMRI Hospital, Patna for advanced treatment.

It is further alleged that the hospital took four hours in giving papers relating to the treatment provided to said Jitendra Kumar. It is alleged that because of the negligence in the matter of treatment, said Jitendra Kumar died and his two minor children became orphan. He was working in Aristo Pharma and while discharging his duty, he was going to Benipur and had met the road accident on way.

5. On the basis of aforesaid allegations, the FIR was lodged. This Court has been informed that the investigation of the case has been kept pending so far and no police report has been submitted till date.

6. Learned counsel for the petitioner has argued that on a bare reading of the first information report, it may be found that the allegations are completely vague and does not disclose commission of a cognizable offence. The entire allegations are based on surmises and conjectures saying that the deceased was not properly treated by the hospital and had he been treated properly, he could have been saved.

7. Learned counsel further submits that Annexure ‘2’ series of the writ application are the copies of the admission form and referral summary of the injured Jitendra Kumar who was referred to Higher Centre/Paras HMRI Hospital, Patna. The documents have remained uncontroverted, therefore, this Court may safely rely upon them.

8. Learned counsel has further submitted that in this case prior to lodging of the FIR no preliminary inquiry was held. Reliance has been placed upon the judgment of the Hon’ble Supreme Court in the case of Jacob Mathew versus State of Punjab and Anr. reported in (2005) 6 SCC 1, judgment of the Constitution Bench of the Hon’ble Supreme Court in the case of Lalita Kumari versus Govt. of U.P. reported in (2004) 2 SCC 1 to submit that in the nature of the present case, it was obligatory upon the police to conduct a preliminary inquiry before registering the FIR. The submission is that even if it is assumed without admitting that it may be a case of negligence, a first information report could not have been lodged in a routine and in a mechanical manner and on mere asking that an allegation of medical negligence.

9. Learned counsel has further submitted that in fact from Annexure ‘2 series’, it would appear that the patient was referred for further treatmment at Patna Paras HMRI Hospital/Higher Centre. He was shifted from ICU to ambulance and put on ventilator and two units of blood were handed over to E.M.T. Technician of that ACLS Ambulance, along with attendants. Some attendants of the patient remained there and after completing the paper formalities they left. But immediately after the patient left for Patna, the relatives of