Medical professionals cannot be prosecuted for negligence unless there is gross negligence established through expert opinion; mere errors or lack of consent do not suffice.

JUDGMENT :

R.K. PATTANAIK, J.

1. By invoking the inherent jurisdiction under Section 482 Cr.P.C. the petitioner has filed the instant petition for quashing of the impugned order under Annexure-1 and also the entire of the proceeding in G.R. Case No. 482 of 2015 on the grounds inter alia that the learned J.M.F.C. (City), Cuttack failed to appreciate the matters on record in reaching at a conclusion directing him to face the trial despite a view that the IO ought to have obtained an expert opinion with regard to the alleged medical negligence.

2. A written report dated 21^st March, 2015 was lodged by the informant alleging therein regarding rashness and negligence on the part of the petitioner, while carrying out surgical operation on her husband, who died thereafter. On the F.I.R. being lodged, Mangalabag P.S. Case No. 65 dated 21^st March, 2015 was registered under Section 304 -A I.P.C. for the negligence by the petitioner due to the death of the informant’s husband, who was under his treatment. Finally on completion of investigation, chargesheet was filed against the petitioner under the alleged offence. Later to it, the learned Court below, on being moved by an application under Section 239 Cr.P.C. by the petitioner, declined to discharge him and passed the impugned order dated 20th September, 2019 in G.R. Case No. 482 of 2015 and fixed the hearing to the next date for framing of charge. Being dissatisfied, the petitioner has knocked the doors of this Court seeking its indulgence by exercising power under Section 482 Cr.P.C on the ground that not only the impugned decision but also the entire proceeding which is based on no expert opinion vis-à-vis the medical negligence is unjustified and liable to be quashed.

3. Heard Mr. Mukherji, learned counsel for the petitioner and Mr. Praharaj, learned counsel for the State.

4. Mr. Mukherji, learned counsel for the petitioner submits that the learned court below committed gross error while rejecting the application filed under Section 239 Cr.P.C despite a conclusion that the guidelines of the Apex Court not being followed by calling upon the IO to furnish a report and to explain as to why the case was not referred to an expert body for opinion on medical negligence before submission of the chargesheet. According to Mr. Mukherji, the deceased was admitted in the hospital on 2nd January, 2015 with a complaint of abdominal pain with vomiting and fever and was diagnosed with chronic liver disease leading to jaundice caused by stricture of Common Bile Duct (CBD) and Pancreatitis but after his condition was stabilized and restored to normalcy with medication, he underwent an endoscopic procedure on 20^th January, 2015 and ERPC with biliary stenting, whereby, the stricture in the CBD was corrected by implanting a stent to clear the blockage. It is further submitted that the surgical intervention was done to the bile duct and not in the heart as believed and claimed and be that as it may, on 25th January, 2015, after complete recovery and as he was found normal, was discharged with medical advice and after a gap of one and a half month, again visited the hospital complaining of fever and hence, was admitted on 8^th March, 2015 after diagnosed with acute Cholecystitis and on 9th March, 2015, the petitioner was operated for removal of stones from the gall bladder but despite proper care and surgical intervention, he died on 21^st March, 2015 and the post-mortem revealed the cause of death due to be Septicemic shock and not due to any fault in surgery. While claiming so, Mr. Mukherjee refers to a copy of the PM report as at Annexu