Criminal negligence requires substantial proof of gross negligence; mere allegations do not suffice for prosecution under IPC, particularly in medical cases.

Order :

ANAND SHARMA, J.

1. Both these petitions have been filed by the petitioners challenging the FIR No.846/2018 registered at Police Station- Shipra Path, District-Jaipur City (South) for offences under Sections 304 & 120B of IPC .

2. At the outset, learned counsels appearing for the petitioners submit that there is an inadvertent typographical error in the prayer clause of both these petitions, where FIR number has wrongly been shown as 848/2018 instead of 846/2018 and date of FIR has also been wrongly mentioned as 02.11.2018 instead of 10.11.2018. On oral request made by learned counsels for the petitioners, they have been permitted to carry out necessary rectification in the prayer with red pen after putting their signatures over the corrections.

3. Learned counsels appearing for the petitioners would submit that bare perusal of the contents of FIR makes it clear that there is no whisper with regard to ingredients of Section 304 of IPC in the entire FIR and at the best, it can be treated to be allegations for committing offences under A of for causing death on account of medical negligence. It is submitted that the sole allegation levelled in the FIR is that the doctors as well as hospital did not properly take care of the patient and on account of negligence of the doctors as the condition of the patient became pathetic and ultimately, the patient died on 05.11.2018.

4. It is further submitted by the learned counsels for the petitioners that treatment of a patient was conducted by the petitioners on the basis of guidelines and line of treatment prescribed in the authentic books; as well as on the basis of knowledge and experience acquired by the doctors. As such, without there being any opinion of expert reflecting any medical negligence whatsoever, the medical experts/hospitals cannot be prosecuted only on the basis of assumptions and allegations levelled by a layman. It has been specified in the petition that whatever best treatment has been prescribed in the authentic guidelines for treating a patient suffering from 'dengue shock syndrome', all the necessary steps were taken, which also reveals from the bed ticket and other record of the patient. As the patient was suffering from critical illness and was having quite severe infection, therefore, after carrying out the necessary tests, it was found that the patient, who was initially admitted in Saket Hospital, Mansarovar, his condition became pathetic and thereupon, he was admitted in Fortis Escorts Hospital Emegency on 04.11.2018, where after assessing the physical condition of the patient necessary treatment was given to him.

5. It is also submitted by the learned counsels for the petitioners that as there was an increasing tendency to lodge criminal cases against the medical experts, which used to cause a hurdle in the functioning of hospitals as well as the same would demean the reputation of medical experts, the Hon’ble Supreme Court in the case of Jacob Mathew Vs. State of Punjab & Anr. reported in 2005 (6) SCC 1 laid down certain guidelines for prosecuting the medical practitioners and it has been held that only after referring the matter to a Medical Board duly constituted and after receiving the report from the Medical Board, in case, medical negligence is found by the expert board, medical practitioners can be permitted to be prosecuted. However, in the instant case, without even referring the matter to the Medical Board and without waiting for report of Medical Board, the police has committed serious error in registering FIR against the petitioners.

6. It is further submitted by the learned counsels for the