The need for a credible opinion from another competent doctor to support the charge of negligence before entertaining a private complaint against a doctor and the inability to fasten vicarious liability in the absence of direct allegations against the accused doctor.

JUDGMENT :

Heard Mr. Bibhash Sinha, learned counsel for the petitioner, Mr. A.K. Kashyap, learned senior counsel along with Mrs. Chaitali Chatterjee Sinha, learned counsel for respondent no.2 and Mr. Piyush Anand, learned counsel for the State.

2. This petition has been filed for quashing the entire criminal proceeding including the order dated 05.10.2016, whereby cognizance for offence under Section 304A of the Indian Penal Code has been taken against the petitioner in connection with C.P. Case No.379/2015, pending in the court of the learned Judicial Magistrate, 1st Class, Bokaro.

3. I.A. No.11562 of 2022 has been filed, whereby, subsequent development has been sought to be challenged by way of amendment as substance has been explained to the petitioner vide order dated 25.08.2022.

4. Mr. Bibhash Sinha, learned counsel for the petitioner submits that this I.A. may kindly be allowed as there was stay of proceeding, which was being opposed by Mr. A.K. Kashyap, learned senior counsel for respondent no.2. Mr. Kashyap submits that substance has already been explained and in view of that at this belated stage, this I.A. may not be allowed.

5. In view of the above submissions of the learned counsel for the parties, this Court finds that the petitioner has moved before this Court and vide order dated 03.03.2017, the stay of further proceedings was granted in favour of the petitioner and during the pendency of the petition, the said order of explanation of substance has been passed and to avoid multiplicity of the litigation, the prayer made in the said I.A. is allowed.

6. Accordingly, I.A. No. 11562 of 2022 is disposed of.

7. Let this I.A. be treated as part of the present writ petition.

8. Now, the order dated 25.08.2022 is also under challenge in this petition.

9. The complaint case was filed by the complainant-respondent no.2 alleging therein that the wife of the complainant was suffering from weakness, since January, 2014 for which she has got treated herself by the doctor of Bokaro General Hospital who has prescribed her medicines, but later on, some absus was developed in the Filarial effected right leg of the wife of the complainant. It was further alleged that she was admitted in Bokaro General Hospital on 18.03.2014 and from blood report dated 19.03.2014, it was found that hemoglobin (H.B.) level was 4.7%. The complainant further alleged that though the blood transfusion was required, but the treating doctors have administered sline to his wife and they did not take care towards her condition. It was also alleged that once the H.B. Level was found below 8%, blood transfusion was required, but due to negligence committed by the treating doctor, his wife died on 22.03.2014. The complainant lastly alleged that the treating doctors have intentionally killed his wife and, therefore, is liable for offence under Section 304A of the Indian Penal Code. The complainant has also lodged claim before the District Consumer Forum, Bokaro i.e. C.C. No.77/2014.

10. Mr. Bibhash Sinha, learned counsel for the petitioner submits that the petitioner was posted as Unit In-charge of Surgery in Bokaro General Hospital and he is a qualified medical practitioner having long unblemished service. He further submits that the complainant's wife Late Shreemati Devi was admitted in Bokaro General Hospital on 18.03.2014 with a provisional diagnosis of filarial lower limb with hypertension. He further submits that the deceased was known case of filarial left limb and hypertension with obesity for the last eight years and she was getting treatment for this. He submits that as a routine check-up, blood investigation e.g. HB, TLC, DLC, Blood Urea, Creatinine, Sodium, Potassium were conducted. The patient was being treated by the said Unit and a team of doctors was looking after the patient and in spite of their best efforts, the life of the wife of respondent no.2 was not saved. He further submits that the learned court has taken cognizance against the petitioner only,