The central legal point established in the judgment is that a private complaint of medical negligence must be supported by prima facie evidence from another competent doctor, as per the legal principles laid down by the Hon’ble Supreme Court.

JUDGMENT :

Both the cases are arising out of same complaint case as well as the order taking cognizance that is why both the cases are heard together.

2. Heard Mr. Ankit Kumar and Mr. Ajay Kumar Sah, the learned counsels for the petitioners, Mr. Keshri, the learned counsel for the respondent State and Mr. J.N. Upadhyay, the learned counsel appearing on behalf of the O.P.No.2.

3. These petitions have been filed for quashing of the entire criminal proceedings pertaining to C.P.Case No.2528 of 2014 including the order taking cognizance dated 30.06.2017 whereby the learned court has been pleased to take cognizance under section 304A IPC, pending in the court of learned Judicial Magistrate, First Class, Dhanbad.

4. The complaint case has been filed alleging therein that the O.P.No.2 is the son of the deceased Ramesh Kumar Chopra. It is alleged that the patient was taken to Patliputra Nursing Home and admitted there on 20.09.2014 at about 3.00 p.m. and paid registration fees of Rs.50/-. It is alleged that the accused no.1 and the petitioner diagnosed the patient and they induced the patient attendant to deposit Rs.20,000/- however only Rs.1000/- was deposited. In the evening, again further amount was demanded whereafter it is alleged that another Rs.5,000/- was deposited. It is alleged that the accused no.1 gave some drugs to the ailing father due to which the condition became critical. Thereafter the phone numbers of the accused no.1 was switched off. It is alleged that patient became critical on intentional omission and neither the patient was referred nor any life supporting system, ventilation, etc was provided. It is alleged that accused persons killed the father in law of the complainant by administering drug and wrongfully gained the property and also extorted witness no.1 and caused death with the knowledge that their act will cause death of the father in law of the complainant.

5. The learned counsel for the petitioners submit that only on the basis of the solemn affirmation and of the enquiry witness the learned court has taken cognizance under section 304A IPC. He submit that both the doctors namely, Dr. Nirmal Drolia @ Nirmal Kumar Drolia and Dr. Sanjay Mukherjee treated the father in law of the informant in terms of the medical protocol, however, in course of treatment, the life of the father in law of the informant was not saved in spite of best efforts made by these doctors. He submits that straight-way the complaint case has been filed and the learned court has taken the cognizance ignoring the judgment of the Hon’ble Supreme Court in the case of Jacob Mathew v. State of Punjab, (2005) 6 SCC 1.

6. Mr. Upadhyay, the learned counsel appearing for the O.P.No.2 submits that father of the complainant was treated by these doctors negligently and that is why the learned court has rightly taken cognizance. He submits that one of the doctor has not attended the patient and subsequently he has left for his heavenly abode. He submits that the learned court has rightly taken cognizance under section 304A IPC.

7. Learned counsel for the respondent State submits that on complaint petition the learned court has taken cognizance.

8. Looking to the complaint petition, it transpires that only allegations are made that Dr. Sanjay Mukherjee by that time was not present in the hospital, but it is admitted in the complaint petition that Dr. Drolia, has attended the patient, however, the life of the patient was not saved. A preliminary enquiry with regard to the said negligence is necessitated as held by Hon’ble Supreme Court in the case of Jacob Mathew v. State of Punjab(supra), paragraph nos. 48 to 52 of the said judgment is quoted below:

“48. We sum up our conclusions as under:

(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Th