IMPORTANT POINT
Criminal liability for medical negligence requires proof of a higher degree of negligence than mere error of judgment, as established in Jacob Mathew v. State of Punjab.

ORDER :

Sanjay Prasad, J.

This Criminal Revision Petition has been filed on behalf of the petitioner challenging the order dated 22.4.2019 passed by Shri Pawan Kumar, learned Judicial Magistrate, Ist Class, Giridih in connection with Giridih Town P.S. Case No.286 of 2009, corresponding to G.R.No. 2208 of 2009, T.R. No. 1097 of 2019, by which the petition filed on behalf of the petitioner under Section 258 of the Cr.P.C. has been rejected.

2. The prosecution case, in brief, is that the informant-Shashi Jaiswal, w/o of Late Kamleshwari Prasad had given Fardbayan before the Officer-in-Charge on 15.10.2009 stating before him that her husband was suffering from abscess in the thumb of his right leg and for which on 07.10.2009 he came for treatment at the Private Clinic of Dr. Shashi Bhushan Choudhary, i.e. the petitioner and the doctor had operated her husband and on the instruction of the doctor she brought her husband to their house. She used to come for dressing to the doctor on alternate days. However, on 15.10.2009, while she came to the clinic of the doctor along with her husband at around 11 a.m. in the morning, then Dr. Choudhary had taken her husband to the ‘Operation Theatre’ for operating him and after half an hour her husband was brought outside in an unconscious condition. It is alleged that despite being forbidden by her husband the doctor had administered him injection for unconsciousness in higher quantity and due to which her husband never regained his consciousness and after half an hour he died. When she enquired from the Doctor about the death of her husband then no satisfactory explanation was given and the doctor fled away by taking the prescription of the medicine of her husband after closing the clinic. It is alleged that due to negligence of the doctor the husband of the informant has died.

3. Heard Mr. Jitendra Shankar Singh, learned counsel for the petitioner and Mr. Pankaj Kumar, learned Public Prosecutor for the State.

4. It is submitted by the learned counsel for the petitioner that the impugned order dated 22.04.2019, passed by the Judicial Magistrate, Ist Class, Giridih is illegal, arbitrary and not sustainable in the eye of law. It is submitted that there is no eye witness to the occurrence. It is submitted that there is no negligence on the part of the petitioner while treating the husband of the informant and to fasten liability in criminal law, the degree of negligence has to be higher. It is submitted that there is no mens rea on the part of the petitioner for causing the death of the deceased. It is submitted that the petitioner being a doctor will not commit any act or omission which may result into loss or injury to his patient as his professional reputation is at stake. It is submitted that petitioner has been implicated in this case on mere suspicion by the informant. It is submitted that the deceased was about 58 years of age and the death took place due to heart failure. It is submitted that the police has failed to locate anything about anesthesia. It is submitted that the patient was suffering from diabetes and at best it was an accidental death, but not due to the fault of the petitioner.

Learned counsel for the petitioner, in support of his submission, has relied upon the judgment passed in the case of Jacob Mathew v. State of Punjab, reported in (2005) 6 SCC 1.

It is submitted that the Paragraph 14 of the Case Diary reveals that there was no mistake on the part of the petitioner as the patient was suffering from diabetes and hence, the impugned order may be set aside and this Criminal Revision may be allowed.

5. On the other hand, learned Public Prosecutor appearing for the State has submitted that this Criminal Revision Application is devoid of merit. It is submitted that no illegality has been committed by the learned Court below while passing the impugned order. It is submitted that although the petitioner is a doctor but he is negligent and due to his sheer negligence the husband of the