Criminal prosecution for medical negligence requires evidence of gross negligence, not merely attendance during emergencies, and must be substantiated with expert testimony.

JUDGMENT :

R.K. PATTANAIK, J.

1. The instant petition under Section 482 Cr.P.C. is filed by the petitioners for quashing of the order of cognizance dated 27^th April, 2015 (Annexure-2) passed in G.R. Case No.622 of 2014 by the learned S.D.J.M. (Sadar), Cuttack corresponding to Purighat P.S. Case No.49(3) dated 6th April, 2014 registered under Section 304(A) read with 34 IPC on the grounds inter alia that the same is not tenable in law.

2. Petitioner No.2 was a pharmacist whereas petitioner No.2 worked as a nurse in the clinic in question, against whom, with the allegation of negligence, a report was lodged leading to the registration of Purighat P.S. Case No.49(3) of 2014 under the alleged offence. On completion of investigation, the petitioners were chargesheeted whereupon the learned court below took cognizance of the offence under Annexure-2.

3. Heard Mr. Pal, learned counsel for the petitioners and Mr. Praharaj, learned counsel for the State-opposite party.

4. As per the allegation in the FIR, the wife of the informant was pregnant and had been admitted in the clinic and during her treatment, it is claimed that she was not properly treated at the time of delivery leading to the premature death of her child. The details of the circumstances leading to the lodging of the report have been described in the FIR with the allegation directed against the petitioners who had attended the wife of the informant. As earlier mentioned, the chargesheet (Annexure-1) was filed and thereafter, the learned court below passed the order of cognizance.

5. Mr. Pal, learned counsel for the petitioners submits that the order of cognizance under Annexure-2 is erroneous, illegal and based on no material and therefore, the same is liable to be quashed. It is further submitted that even considering the facts alleged in the FIR at its face value and statements of the witnesses recorded under Section 161 Cr.P.C., a case under Section 304 A IPC is not made out and in so far as the petitioners are concerned, they apparently acted on the advice of the Gynecologist. It is also submitted by Mr. Pal that the informant’s wife was suggested for a caesarean delivery as the condition of the baby inside her womb was critical but it was refused and request was received for normal delivery but after the delivery, the child developed complications and could not survive and died. According to Mr. Pal, learned counsel for the petitioners, there was no negligence on the part of the petitioners, so to say and that apart, no post- mortem was conducted after death of the child and hence, in absence of any material to prima facie prove and establish their negligence, they could not have been chargesheeted. It is contended that the essential ingredients of Section 304A IPC are not at all satisfied since the act of rash or negligence is not proved against the petitioners, who were on duty and acting on the advice of the Paediatric doctor. It is also claimed that as the informant was not ready and consented for caesarean delivery, the doctor on duty had suggested his wife to be discharged from the clinic and in that regard, a copy of the report (Annexure-4) is referred to. With the above submission, Mr. Pal, leaned counsel for the petitioners submits that no case of criminal negligence is established and hence, the impugned order under Annexure-2 vis- à-vis the petitioners cannot be sustained in law and thus, liable to be quashed in the interest of justice.

6. Mr. Praharaj, learned counsel for the State, on the other hand, submitted that on the complaint of the informant and later to the receipt of FIR, Purighat P.S. Case No.49(3) of 2014 was registered and after the inves