Medical professionals can only be held criminally liable for negligence if gross negligence is established. The presence of a co-accused in a procedure does not automatically imply responsibility without substantial evidence.

JUDGMENT :

CHANDRA SHEKHAR JHA

Heard Mr. Ajay Kumar Thakur, learned counsel for the petitioner, Mr. Navin Kumar Pandey, learned APP for the State and Mr. Sanjay Singh, learned senior counsel appearing on behalf of O.P. No.2.

2. The present petitioner preferred under Section 482 of the CRIMINAL PROCEDURE CODE (in short ‘Cr.P.C.’) by the petitioner for quashing of the order dated 23.02.2024 as passed by learned Additional Sessions Judge-X, Patna in Sessions Trial No.440 of 2023 arising out of Complaint Case No.1750(c) of 2003, whereby the learned trial court has dismissed the application of discharge filed by the petitioner under Section 227 of the Cr.P.C.

3. The prosecution case, in brief, is that one Satish Kumar (O.P. No.2/complainant) lodged a complaint case stating therein inter alia that he is working as a mail man in Railway Mail Services at Patna Railway Station. In the month of June 2000, he was suffering from acute abdominal pain associated with the passing of red-white substances along with urine. It is further alleged that as he was facing difficulty in passing urine, he got himself examined in the dispensary of Central Government Health Scheme at Kankarbagh. He was advised by the doctor posted there for Ultrasonography of the whole abdomen. On 29.08.2000, the ultrasonography was done. According to the said sonographic report, he was found suffering from mild Hepatomegaly and also with mild Benign. In the aforementioned report, his right kidney was found intact and no abnormality around the kidney was found. Further, on the advice of the doctor at Central Government Health Scheme, other pathological examinations were done, where all the reports were found within normal limit. Thereafter, someone at Central Government Health Scheme recommended the name of accused No.1 namely, Dr. Shailesh Kumar Sinha, where the complainant got himself examined. He was suggested few other pathological examination and medicine was also prescribed to him. The accused No.1 found him suffering from “Chyluria”. The accused no.1 confirmed his diagnosis by performing Cystoscopy on 07.09.2000. Subsequently, on the advice of accused No.1, he was operated for his disease namely, “Chyluria” on 13.09.2000. In the aforesaid operation, the accused No.1 was accompanied by his team consisting of his wife namely, Mamta Sinha (petitioner), two Assistants, namely, Satyam Kumar and Gaurav Kumar and one anaesthetist. After the operation the complication of the complainant increased, as he started having severe pain in the right side of the abdomen. After which, he was again examined by the accused No.1, who suggested USG of the whole abdomen on 27.09.2000. For the said USG, the accused no.1 personally suggested name of Dr. Rajan Chaudhary, a Radiologist. After the complainant got himself examined by accused no.5, the report clearly indicated existence of the right kidney of the complainant in its normal size. Further, it is stated that even after all aforesaid examinations, the complications of the complainant kept increasing. After remaining in the hospital of accused no.1 for couple of days, he was discharged but, his complications were not resolved. When the complication kept increasing then, the complainant got himself examined by a physician namely, Dr. Ajay Kumar Sinha, where his treatment underwent for one year but, his condition did not improve. Thereafter, Dr. Ajay Kumar Sinha suspected foul play and suggested the complainant a USG examination of whole abdomen. Since the complainant has scarcity of money, he got himself examined at CGHS, Patna on 20.07.2003. The report of the said examination showed that the right kidney “not seen”. After which, the complainant got himself examined at Mahavir Cancer Sansathan, Patna where the report confirmed that his right kidney had been operated and is not visible. Finally, the complainant suspected that the accused persons under conspiracy have dishonestly induced him for an operation, where his right kidney wa