IMPORTANT POINT
The necessity of obtaining expert medical opinion before taking cognizance against a doctor in cases of alleged medical negligence is paramount to avoid wrongful prosecution.

JUDGMENT :

MITALI THAKURIA, J.

1. Heard Mr. P. Das, learned counsel for the petitioner. Also heard Mr. P. Borthakur, learned Additional Public Prosecutor for the State respondent No. 1 and Mr. S. Dutta, learned counsel for the respondent No. 2.

2. This is an application under Section 482 of the Code of Criminal Procedure, 1973 for setting aside and quashing of the Order dated 07.11.2019, passed by the learned Sub-Divisional Judicial Magistrate (Sadar)-I, Kamrup (M) in Complaint Case No. 3459/2019 taking cognizance against the present petitioner under Section 192/304(A)/316 of the Indian Penal Code, 1860 as well as the entire proceedings thereof insofar as the petitioner is concerned.

3. The case of the petitioner, in brief, is that she was working as a Junior Consultant in the Department of Obstetrics and Gynecology and prior to being a Junior Consultant, she was serving as a Senior Registrar, Obstetrics and Gynecology Department, Apollo Hospitals, Guwahati from January, 2018 upto September, 2019. The petitioner was not aware about the case pending against her before the Court of SDJM, (Sadar)-I, Kamrup (Metro) at Guwahati, but on receipt of summons from the learned Trial Court below, dated 26.11.2019, she came to know that the case has been registered under C.R. Case No. 3549/2019 on the basis of a complaint made by the respondent No. 2 wherein the present petitioner has been arrayed as an accused No. 11.

4. Upon enquiry, she came to know that the learned Trial Court below, after recording the deposition of the complainant under Section 200 Cr.P.C. and also recording the statement of the mother-in-law of the complainant as witness under Section 202 Cr.P.C. had taken cognizance vide Order dated 07.11.2019, under Sections 192/304(A)/316 IPC, against the present petitioner as accused No. 11 along with others. But, it is contended that on plain reading of the complaint petition, it is apparent that there is no allegation leveled against the present petitioner except the allegation in paragraph No. 13 of the complaint petition with regard to not making any attempt to deliver the baby in the I.C.U. where the deceased was administered emergency treatment as a patient.

5. It is further stated that at the relevant point of time, the petitioner was working as a doctor in the Apollo International Hospital Limited, Guwahati as an Obstetrician. On 15.07.2018, at around 12.15 a.m. (Midnight), a patient was brought to the Apollo International Hospital as an emergency patient, who was in unconscious state at that time, and hence, considering her condition, she was directly admitted to the I.C.U. Accordingly, the team of doctors in the I.C.U. including the present petitioner, had started treating the patient as per protocol which included administering Cardio Pulmonary Resuscitation (CPR) amongst other as the patient had no palpable carotid pulse. The present petitioner, being the Obstetrician on duty, examined the Fetal Heart Rate (FHR) (heart rate of the baby) and the same was not found. Thereafter the patient was declared death at about 1.15 a.m. on 15.07.2018.

6. The petitioner further stated that the allegation made in paragraph No. 13 of the complaint against the petitioner and his colleagues at Apollo International Hospital relating to not causing delivery of the unborn child from the deceased is misconceived and totally improbable in view of the established medical jurisprudence that successful delivery of an unborn child is possible within 5 minutes of maternal cardiac arrest. But, in the instant case, from the complaint it transpires that the cardiac arrest happened at Institute of Human Reproduction and the said Institute had no Ambulance facility and at 11.30 p.m. only, the ambulance arrived and thereafter the patient arrived Apollo Hospital at 12.15 a.m. That aspect of the matter is further clear from the quote of Dr. Rita Bhuyan as quoted by the respondent No. 2 in his complaint that the baby had to be saved at Institute of Human Repro