The main legal point established in the judgment is the requirement for obtaining a proper medical opinion before proceeding against a doctor accused of rashness or negligence.

JUDGMENT

Jay Sengupta, J. - This is an application for quashing of a charge-sheet being Charge Sheet No. 398 of 2015 dated 04.12.3015 under Section 304A of the Indian Penal Code and the entire proceedings in G.R. Case No. 993 of 2015 pending before the learned Judicial Magistrate, 3rd Court, Durgapur, Paschim Burdwan.

2. A report filed by the State as regards service of notice upon the defacto complainant is taken on record. Despite earlier service of notice by post and inspite of the present service through the Inspector-in-Charge of Andal Police Station, no one appears on behalf of the defacto complainant.

3. Learned counsel appearing on behalf of the petitioner submits as follows.

The defacto complainant alleged that in the First Information Report that he had taken his daughter to a hospital at Durgapur and on the advice of the accused/petitioner she was admitted to the hospital for an abortion. After about half an hour of the commencement of such operation, the doctor came out and told the defacto complainant that the condition of the petitioner was bad and that she should be removed to another hospital. After reaching the other hospital the doctors there declared his daughter brought dead. The defacto complainant suspected that it was due to the wrong treatment of the petitioner that his daughter lost her life. At the time of filing the charge-sheet, the investigating officer admitted that a requisition was sent to the CMOH, Asansol for causing an enquiry about the negligence in the treatment by the petitioner, but the same was not received. Therefore, the charge-sheet was submitted in this case without obtaining a medical opinion. This is a clear violation of the ratio laid down by the Hon'ble Apex Court in the case of Jacob Mathew vs. State of Punjab and Anr., (2005) AIR SC 3180 . Subsequently in Aruna & Anr. vs. Mukund & Ors., Criminal Appeal No. 2063 of 2010 the Hon'ble Apex Court, relying on the Jacob Mathew's ratio, set aside an order of the High Court quashing the discharge directed by the Sessions Court and remanded back the matter to the Trial Court to examine witnessess and to take the views of the medical expert on behalf of the complainant and only thereafter to form an opinion whether any charge was made out in the case or not. As such, the impugned proceeding including the charge-sheet filed herein and the subsequent orders cannot be sustained in law.

4. Learned counsel appearing on behalf of the State submits as follows. Even as per the ratios laid down by the Hon'ble Apex Court in the case of Jacob Mathew (supra) and Aruna (supra) the entire proceedings will not go away. An opportunity may be given to take the doctor's opinion, especially when the investigating officer of the case actually did seek an opinion, but the same was not received.

5. I have heard the submissions of the learned Counsels appearing for the parties and have perused the revisional application and the Case Diary.

6. In the case of Jacob Mathew (supra) the Hon'ble Apex Court was pleased to hold as follows :

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53. Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of