Judgment :-

Petitioner, a medical practitioner, faces indictment in a prosecution under Section 304A IPC. Cognizance has been taken on the basis of a final report submitted by the police after due investigation.

2. The crux of the allegations against the petitioner is that she was guilty of professional negligence in the matter of treatment of a patient, who unfortunately breathed her last after delivery.

3. The learned counsel for the petitioner contends that the nature of the alleged inadequacy in the professional conduct of the petitioner can by no stretch of imagination be held to be culpable rashness or negligence which alone can attract an allegation or charge under Section 304A IPC.

4. The learned counsel for the petitioner relies on the decision reported in Dr. Suresh Gupta v. Govt. of NCT of Delhi & Another (2004 (6) SCC 422) and contends that at any rate, the alleged conduct of the petitioner while she allegedly treated the patient in question cannot qualify to be termed culpable rashness and negligence attracting a charge under Section 304A IPC. Even though it is said that the dictum in the said decision has been doubted and referred to a larger bench, the law remains what it is declared in the above decision and no later decision has been brought to my notice.

5. It is admitted that after the court took cognizance, petitioner had appeared before the learned magistrate and has been enlarged on bail. Particulars of the offence have not been read over to the petitioner. I need only mention that before the learned Magistrate proceeds to read over the particulars to the petitioner accused, the learned Magistrate must consider whether such allegations have been raised against the petitioner and such materials placed before court as to expose the petitioner to a criminal prosecution under Section 304A IPC. It is not necessary or possible for this court in every case to consider all the allegations raised against the indictees and the materials collected against them to decide whether they deserve to stand trial. That question must initially be considered by the trial Magistrate who has the requisite materials before him before a charge is frame/discharged under Section 239/240 Cr.P.C. or while considering whether there is any sufficient material to read over the particulars of the offence to the indictee at the stage of Section 251 Cr.P.C. If accusations and materials are not sufficient to attract culpability the indictee should not be compelled to unnecessarily stand the trauma of trial. In these circumstances, I am satisfied that this petition can be disposed of with specific directions to the learned Magistrate to consider the contention of the petitioner that there is no sufficient allegations or materials raised against her to justify her being compelled to face further proceedings.

6. How can this be done by the learned Magistrate? The offence alleged is one punishable under Sec. 304A IPC. It is a summons case. Procedure prescribed under Chapter XX has to be followed. There is no question of framing any charger at the stage of Sec. 251 Cr.P.C. There is only the requirement of reading over the particulars of offence to the indictee. A formal framing of charge is not required; but certainly the particulars of offence of which he is accused must be stated to the accused and his plea has to be recorded. Notwithstanding the fact that the formal requirement of framing of a charge is not there, the section pre-supposes that the learned Magistrate must consider whether such allegations are raised which amount to an offence. If no offence is made out, then there is no particulars of offence which have to be read over to the accused and therefore proceeding cannot proceed beyond Sec. 251 Cr.P.C. This appears to be implied from a reading of S. 251 Cr.P.C. which I extract below:-

“Substance of accusation to be stated: When in a summons case the accused appears or is brought before the Magistrate, the particulars of the offence of whic