The main legal point established in the judgment is the requirement for a prima facie evidence from a competent doctor before initiating prosecution for medical negligence and the necessity of a preliminary inquiry in cases of medical negligence.

JUDGMENT :

SANJAY DHAR, J.

1. The petitioner has challenged order dated 05.02.2018 passed by learned Chief Judicial Magistrate, Pulwama, whereby, in the complaint filed by respondent No. 1 against him, a direction has been issued to respondent No. 2, SHO, P/S, Pulwama, to register an FIR and investigate the case. Challenge has also been thrown to FIR No. 32/2018 for offence under section 304-A RPC that has been registered with P/S Pulwama pursuant to the aforesaid direction of the learned Chief Judicial Magistrate.

2. It appears that respondent No. 1 had a complaint before Chief Judicial Magistrate, Pulwama, alleging therein that his maternal aunt, Mst. Rafeeqa, was under the treatment of the petitioner and during her treatment, the petitioner prescribed a drug, namely, Gravidol-200 mg that was to be injected to the above-named patient. It was further alleged in the complaint that respondent No. 1/complainant purchased the said drug from the market and thereafter handed it over to the petitioner who got it injected to the patient through a medical assistant whereafter the condition of the patient deteriorated. It was further alleged that the petitioner did not bother to examine the patient which compelled respondent No. 1 to administer oxygen to the patient himself but the patient could not survive. It was alleged by the complainant that he sought medical advice from other experts in the field and he was told that the injection that was administered to the patient is advisable to be given to the patients with acute hypertension and not to the patients like Mst. Rafeeqa. According to the complainant, the death of the deceased patient was caused due to the administration of aforesaid drug which, according to the complainant, was a wrong treatment prescribed by the petitioner.

3. The learned Chief Judicial Magistrate, Pulwama, in exercise of his powers under section 156(3) of the Cr.P.C. upon going through the contents of the complaint, forwarded the same to SHO, P/S Pulwama and directed registration of FIR and investigation of the case. A further direction was issued to SSP, Pulwama, to monitor the investigation. It is this order as well as the FIR registered pursuant to the said order, which is under challenge by way of the instant petition.

4. It is contended in the petition that it was not open to the learned Magistrate to direct registration of the FIR on the basis of the aforesaid complaint without obtaining an opinion of the Medical Board. It is further contended that the petitioner is a Government employee who is removable from service by the Government, as such, without obtaining a sanction for prosecution in terms of Section 197 of the Cr.P.C. the direction for registration of the FIR against him could not have been made. It has been further contended that while issuing the impugned direction, the learned Magistrate has not followed the guidelines occupying the field.

5. Nobody has appeared on behalf of respondent No. 1 whereas respondent No. 2 has filed the status report. In its status report, respondent No. 2 has narrated the allegations made in the complaint and it has been stated that the impugned FIR discloses commission of cognizable offence against the petitioner, as such, its investigation is required to be taken to its logical conclusion.

6. I have heard learned counsel for the parties and perused the material on record.

7. As is clear from the contents of the complaint, which is subject matter of this case, respondent No. 1/complainant has alleged criminal negligence on the part of a medical professional while treating the deceased patient.

8. In the cases relating to prosecution of medical professionals for criminal negligence on their part, the Supreme Court has, in the case of Jacob Mathew vs. State of Punjab, (2005) 6 SCC 1 : 2005 (3) JKJ 5 (SC), issued certain guidelines which are reproduced as under:

50. As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal