IMPORTANT POINT
Cognizance of medical negligence cannot proceed without prima facie expert opinion as per established legal standards, emphasizing the need for significant evidence to substantiate claims of gross negligence.

ORDER :

SANDEEP KUMAR, J.

1. Heard the learned counsel for the petitioner, learned APP for the State and the learned counsel for the O.P. No.2.

2. The application has been filed for quashing the order dated 16/04/2019 passed by the learned Chief Judicial Magistrate, in connection with Town P.S. Case No. 44 of 2016 by which cognizance was taken for the offence under Section 304 of the IPC .

3. The prosecution case, in brief, is that one Dhananjay Sharma submitted a written application before the Officer-in-Charge of Town Sadar Police Station, stating that his elder brother, Ranjay Kumar, had been suffering from neck inflammation for the past twenty days and was undergoing treatment under the care of Dr. Avinash Kumar Sharan at Kritika Clinic located in Aurangabad. The informant has alleged that the death of his brother occurred due to the negligence of the treating doctor. It is further stated that on 05.02.2016, his brother, who was in healthy condition, arrived at the clinic by self-driving his bike. Upon arrival, the doctor started treatment, and during the course of treatment, an injection was administered to his neck. Immediately after the injection, the informant claims that his brother collapsed and died. The informant further alleges that the doctor and his compounder, upon realizing the death, collectively placed the body of the deceased on the road and fled from the clinic.

4. On the basis of aforesaid application, an FIR vide Town P.S. Case No. 44 of 2016 has been registered for the Offence under section 304 of the Indian Panel Code.

5. It is submitted by the learned counsel for the petitioner that after the institution of the FIR, the police conducted an investigation into the matter and subsequently filed a charge sheet bearing No. 222/2016 dated 30/04/2016, under Section 304 A of the Indian Penal Code ( IPC ). The charge sheet was submitted by the investigating officer based on the statements of five witnesses, including the informant, three independent witnesses, and the doctor who conducted the postmortem examination of the deceased. The learned Chief Judicial Magistrate took cognizance of the case against the sole accused, Dr. Avinash Kumar Sharan, under of the , stating that a prima facie case had been established based on the materials available on record.

6. The learned counsel for the petitioner further submits that the petitioner is innocent and has not committed any offence as alleged against him. He further submits that on 01/02/2016, the deceased, Ranjay Kumar, was brought to the petitioner’s Kritika Clinic for treatment. After a physical examination, the petitioner advised the patient to undergo certain pathological tests and prescribed some medication in tablet form. On 05/02/2016, Ranjay Kumar returned to the clinic with his brother, presenting the pathological reports. After reviewing the report and assessing the patient's condition, the petitioner immediately referred him to A.N.M.C.H. Gaya for further treatment. He further submits that the petitioner did not administer any injection to Ranjay Kumar and this fact is corroborated by the postmortem report, which does not show any signs of injection or external injury on the deceased's body.

7. The learned counsel for the petitioner has further submitted that no prima facie case under Section 304 of IPC has been made out against the petitioner. The order of cognizance has been passed in a routine manner, even though, at the time of passing the order, no expert opinion regarding the cause of death was available on record. Therefore, the learned court below has failed to apply its mind before taking cognizance. He further submits