JUDGMENT

RAJEEV RANJAN PRASAD, J.:–

Petitioner in the present case is seeking the following reliefs:—

“i. For quashing of the order dated 09/12/2015 & 19.12.2016, passed in Complaint case No. 4053(c)/2015 by which the Court of Chief Judicial Magistrate, Patna has directed for forwarding/ forwarding/ sending the complaint to SHO/officer-incharge, Patrakar Nagar police station through the S.S.P, Patna for investigation of the case u/s 156(3) of the Cr.P.C.

ii. For quashing of the First Information report of Patrakar Nagar P.S. Case No. 46/2017 dated 01/02/2017, registered under sections 304/304A of the Indian Penal Code arising out of Complaint case no.- 4053(c)/2015.

iii. For direction to the respondents concerned for not to take any coercive steps against the petitioner on the basis of the above mentioned First Information Report.

iv. For any other writ/writs, order/orders, direction/directions which this court may find appropriate in the facts and circumstances of the case.”

2. It appears on perusal of the records that a complaint petition was filed in the court of learned Chief Judicial Magistrate at Patna by the opposite party no. 5. She alleged that her husband who was aged about 81 years and retired from the Postal Department in the year 1992 was treated by the petitioner in his hospital between 14.10.2015 and 29.10.2015. In course of consultation when it was noticed that the patient was suffering from Coronary Artery disease, the petitioner being a qualified doctor by profession advised her husband to undergo a procedure known as Coronary Artery Bypass Grafting (in short ‘C.A.B.G.’ disease). It is alleged that the petitioner assured the informant and her family that the disease would be completely cured. The allegation is that in fact in course of carrying on the procedure of C.A.B.G. the husband of the informant did not survive and he died. Negligence has been alleged on the part of this petitioner in carrying out the procedure.

3. The opposite party no. 5 though filed the complaint petition but in the said petition no statement was made that after the Police refused to register her F.I.R., she made an application under Section 154(3) Cr.P.C. to the Superintendent of Police. The complaint petition was filed without any affidavit attached with the same. In fact on perusal of the records, it appears that a typed one page affidavit was though attached to the complaint petition but there is no seal and signature of any Notary Public and in course of hearing, it is found to be an admitted position that the complaint was filed without any affidavit.

4. The learned Chief Judicial Magistrate vide his order dated 09.12.2015 sent the copy of the complaint petition to Kankarbagh Police Station under Section 156(3) Cr.P.C. through the S.S.P., Patna but the Officer-In-Charge of Kankarbagh Police Station reported that the matter pertains to the jurisdiction of Patrakar Nagar Police Station then vide order dated 19.12.2016 the copy of complaint petition was sent to the S.H.O. of the Patrakar Nagar Police Station through the S.S.P., Patna to register the complaint and investigate the matter. Accordingly, Patrakar Nagar P.S. Case No. 46 of 2017 has been registered for the offences punishable under Section 304/304A of the Indian Penal Code. A copy of the F.I.R. has been placed as Annexure ‘1 series’ to the writ application.

5. Mr. Chittaranjan Sinha, learned Senior Counsel assisted by Mr. Sunil Kumar, the Advocate-on-Record has assailed the impugned order dated 19.12.2016 passed by learned C.J.M. It is submitted that while passing the said order, the learned C.J.M. failed to examine as to whether the complaint petition was filed duly supported by an affidavit.

6. Learned Senior Counsel submits that in the case of Priyanka Shrivastava and another Vs. The State of Uttar Pradesh and others reported in (2015) 6 SCC 287, the Hon’ble Supreme Court held inter alia that an F.I.R. registered against statutory authorities by misusing remedy available under S