The main legal point established was the standard of care expected from medical professionals, the consideration of expert opinions on negligence, and the weight given to evidences in cases of medical negligence.

Suresh Kait, J.

Crl.M.C. 2140/2015

1. Vide the present petition, petitioners seek directions thereby quashing of FIR No. 219/2010, registered at PS-Deshbandhu Gupta Road, New Delhi for the offences punishable under Sections 337/420/468/471/201/120B IPC against them.

2. Further seek directions thereby setting aside the order dated 05.03.2015 passed by ld. Chief Metropolitan Magistrate, Central District, Delhi whereby the cognizance in the aforesaid case was taken.

3. The aforesaid case was registered on the complaint of respondent No. 2 filed under Section 156 (3) Cr.P.C. wherein she alleged that on 15.09.2009, she was admitted in Shree Jeewan Hospital for delivery and on the same day at about 11.15 PM, she gave birth to a female child. However, while conducting the delivery, the Doctors of the aforesaid hospital left a needle in her uterus. As a result of which, she suffered mental agony, trauma, pain and profuse bleeding. After the delivery, she was shifted to a room, but there also her bleeding did not stop and when she requested the Doctors for her check up, they did not pay any heed to her request. However, on the next day, i.e., 16.09.2009, her x-ray was conducted and it was revealed that a needle was left in her Uterus while conducting delivery, due to which she got infection and thus is not able to conceive in future. Accordingly, she reported the matter to the Police, but Police did not take any action. Thereafter, she filed a complaint under Section 156 (3) Cr.P.C. wherein ld. CMM directed to lodge an FIR and accordingly the aforesaid case was registered against the petitioners.

4. Ld. Counsel appearing on behalf of the petitioners submitted that during the course of investigation, Investigating Officer of this case wrote to Delhi Medical Council and Lady Hardinge Medical College & Smt. S.K. Hospital and sought their opinions whether the Doctors who had conducted the surgery on 15.09.2009 were negligent or not. Both the institutions mentioned above vide their letters dated 10.06.2011 and 29.03.2011 respectively opined that Doctors were not negligent. Despite the aforesaid opinions, the Investigating Officer once again sought the same opinion from Delhi Medical Council, which was replied vide letter dated 20.06.2012 thereby reiterating its earlier opinion dated 10.06.2011. Despite, the Police filed the chargesheet and thereafter vide order dated 05.03.2015, ld. CMM has taken the cognizance without noting that no-one was negligent in performing the surgery. In such eventuality, no case is made out against the petitioners. Therefore, there would be no purpose to direct the petitioners to face the trial which ultimately will result into acquittal of the petitioners.

5. To strengthen his arguments, ld. Counsel has heavily relied upon a case of Martin F D’Souza v. Mohd. Ishfaq 2009 3 SCC 1, wherein the Hon’ble Supreme Court held as under:

“22. The case of the respondent, in brief, is that the appellant was negligent in prescribing Amikacin to the respondent of 500 mg twice a day for 14 days as such dosage was excessive and caused hearing impairment. It is also the case of the respondent that the infection he was suffering from was not of a nature as to warrant administration of Amikacin to him.

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25. Cases, both civil and criminal as well as in Consumer Fora, are often filed against medical practitioners and hospitals, complaining of medical negligence against doctors/hospitals/nursing homes and hence the latter naturally would like to know about their liability. The general principles on this subject have been lucidly and elaborately explained in the three Judge Bench decision of this Court in Jacob Mathew v. State of Punjab and Anr. : 2005 6 SCC 1. However, difficulties arise in the application of those general principles to specific cases. For instance, in para 41 of the