ASHWANI KUMAR SINGH, J.

1. The petitioners, who are medical professionals, have challenged the order dated 16.07.2012 passed by the learned Sessions Judge, Bhagalpur, whereby the revision application filed by the petitioners against an order dated 15th March, 2012 passed by the learned Judicial Magistrate, 1st Class, Bhagalpur in connection with Complaint Case No. 1951 of 2009, holding that a prima facie case is made out for the offences under Sections 304-A, 420 read with 34 of the Indian Penal Code against the petitioners and one another and summoning them to face trial, has been dismissed.

2. The prosecution case, in brief, as alleged by the complainant in his written report filed before the learned Chief Judicial Magistrate, Bhagalpur with regard to an occurrence which took place on 9.3.2008 is that the complainant’s brother Pankaj Chaudhary was taken to the clinic of petitioner no. 1, Dr. Ashok Kumar Singh for treatment of his ailment. The medical history of the patient was told to him and all earlier prescriptions relating to treatment of the patient was also shown to him. After examining the patient and going through his medical history, petitioner no. 1 Dr. Ashok Kumar Singh advised him for operation of hernia. He told that he would charge Rs. 5,500/- as operation fee and the anesthetist assisting him would charge Rs. 800/- as his fee. On 8th March, 2008, the complainant paid Rs. 2,800/- to the petitioner no. 1 and promised to pay the remaining amount after operation. On 9.3.2008 at 10.00 a.m. the patient was taken to the clinic of petitioner no. 1 and on the same day, at about 4.15 p.m. he was taken to the operation theatre for operation of hernia. After a few while, the family members of the complainant heard cry of the patient and when they tried to inquire about the same, the nurse chided them. At about 6.00 p.m., the nurse told them that the operation was successful and the patient would be taken out of the operation theatre very soon. After about half an hour, when petitioner no. 2 Dr. Abha Singh was contacted by the family members of the complainant in order to inquire about the condition of the patient, she also reprimanded them, but after a few while, petitioner no. 1 told that the condition of the patient was deteriorating and a senior doctor had to be called to attend the patient. Thereafter, the family members of the complainant rushed into the operation theatre. They were shocked to see that the patient was already dead by that time. When they questioned the necessity of calling the senior doctor when the patient was already dead, they were pushed out of the clinic.

3. It has further been alleged in the complaint that the matter was reported to the police, pursuant to which, Industrial Area P.S. Case No. 12 of 2008 was registered. The anesthetist, Dr. Vikash Kumar, was arrested and taken to the police station but he was released on police bail after initial inquiry. It has been claimed that due to the medical negligence of the petitioners, the patient had died.

4. As noted above, on the basis of the written complaint submitted by the complainant to the police, Bhagalpur Industrial Area P.S. Case No. 12 of 2008, was already registered under Section 304-A of the Indian Penal Code on 9.3.2008 itself.

5. The allegations made in the first information report are verbatim the same as alleged in the present complaint petition. The police investigated the case and on completion of investigation, found the accusation to be false. Accordingly, a final report was submitted by the police in the matter.

6. During pendency of investigation of the police case, the aforementioned complaint case was filed before the learned Chief Judicial Magistrate, Bhagalpur on 20.03.2008 in the form of protest petition. While accepting the final report submitted by the police, the learned Chief Judicial Magistrate, Bhagalpur directed the protest petition to be registered as a complaint pursuant to which Complaint Case No. 1951 o