The central legal point established in the judgment is the requirement for expert opinion before initiating criminal proceedings against doctors and the potential abuse of process of law in cases of alleged medical negligence.

JUDGMENT :

Heard Mr. Pandey Neeraj Rai, assisted by Mr. Rohit Ranjan Sinha and Mr. Saurabh Sagar, learned counsel for the petitioner, Mr. Bishambhar Shastri learned counsel for the State and Mr. Ashish Jha, learned counsel for the O.P. No.2.

2. This criminal miscellaneous petition has been filed for quashing of entire criminal proceeding including order taking cognizance dated 16.08.2010 passed by the learned Chief Judicial Magistrate, Sahibganj in connection with P.C.R. Case No. 189 of 2009 whereby cognizance has been taken under section 304-A/34 of the Indian Penal Code. Prayer has also been made for quashing of order dated 23.01.2013, passed by the learned Sessions Judge-I, Sahibganj in Criminal Revision No. 83 of 2010 whereby the Criminal Revision No. 83 of 2010 has been dismissed as not maintainable, pending in the Court of learned Chief Judicial Magistrate, Sahibganj.

3. P.C.R. Case No. 189 of 2009 has been filed by the O.P. No. 2 in the Court of learned Chief Judicial Magistrate, Sahibganj alleging therein that on 10.08.2009 at 9 A.M. the complainant brought his father to Surya Nursing Home, Sahibganj for operation of Hernia and the petitioner told him that the operation will be performed in the evening at 7 P.M.. It is further alleged that at 7.30 P.M. the patient was taken to the operation theater and after 30 minutes the patient was brought out of the operation theater and shifted to a room. It is further alleged that the complainant was waiting that his father regain consciousness but thereafter the complainant saw that the veins of his father stopped. Thereafter immediately the doctor attended the patient and went away to his room and sent a message that the patient has died and when the doctor was again called he did not turn up.

4. Mr. Pandey Neeraj Rai, learned counsel appearing for the petitioner submits that the petitioner is a practicing doctor in the district of Sahibganj and he has clinic in the name of Surya Nursing Home. He further submits that earlier the O.P. No. 2 had filed a written application before the Officer-in-Charge, Town Police Station, Sahibganj on 10.08.2008 at 10.30 P.M. which was registered as Sahibganj (T) P.S. Case No. 86 of 2008 which was investigated by the police and final form bearing Final Form No. 81 of 2008 dated 31.10.2008 has been submitted stating the mistake of facts. On 11.08.2008 at 5.00 P.M. the Manager of the Nursing Home had lodged a written report before the Officer-in-Charge, Sahibganj (T) Police Station stating therein that on 10.08.2008 one Naimuddin along with his son-in-law, Samdani came to his clinic for the operation of Hernia and at 7 P.M. the operation was successfully conducted and the patient sent in the ward at Bed No. M/12. The relatives of the patient remained with him for about 1 hour and at 8 P.M., the petitioner received information that the condition of the petitioner is not well. The petitioner immediately attended the patient and on medical check up he found the patient dead. He further submits that the accused persons sent information through his mobile and called about 100 to 150 persons at the Nursing Home and the mob was led by five accused persons those are Md. Alim, Mehruddin, Mokhtar, Salauddin and Md. Samdani and the mob ran sacked the nursing home, assaulted the staff members of the Nursing Home. The mob was shouting to kill Dr. Vijay Kumar/petitioner. He submits that on the basis of above mentioned written report Sahibganj (Town) P.S. Case No. 87 of 2008 was registered against five named accused persons and 100 to 150 unknown for the offence under sections 341, 323, 427, 504, 34 I.P.C. and later on after investigation chargesheet has been submitted and cognizance has been taken in that case. He further submits that in the case filed by the O.P. No. 2 final form has been submitted and notices were issued to the O.P. No. 2 for filing protest petition. He further submits that the learned court has taken cognizance on the protest petition under sect