The main legal point established is the requirement for prima facie evidence by another competent doctor to support the charge of medical negligence, as laid down by the Supreme Court in Jacob Mathew Vs. State of Punjab & Anr.

Saumitra Dayal Singh, J.

Heard Shri G.S. Chaturvedi, learned Senior Advocate, assisted by Shri Samit Gopal, Advocate, for the applicant; Shri Dharmendra Singhal and Shri Manoj Kumar Tiwari, learned counsel for opposite party no.2 and Shri S.N. Mishra, learned AGA for the State.

2. This application under Section 482 Cr.P.C. has been filed to quash the order dated 27.03.2017 passed by the Additional Sessions Judge, Court No.14, Varanasi in Criminal Revision No. 305 of 2015 (Dr. Smt. Indu Singh Vs. State of U.P. & Anr.), by which the discharge application filed by the applicant under Section 245(2) Cr.P.C. has been rejected.

3. The facts giving rise to the present application fall in a narrow compass. The wife of opposite party no.2 was under treatment of the applicant who, admittedly, is a trained allopathic doctor, holding degree of M.B.B.S; M.D. in Gynaecology & Obstetrics. It is the admitted case between the parties that the wife of opposite party no.2 first visited the applicant on 5-6 October 2008 when she was diagnosed with fibroid uterus (with profused bleeding), she was admitted for a surgery for removal of uterus on 06.11.2008. The surgery itself was performed on 10.11.2008 and consequently biopsy report was received on 20.11.2008, disclosing malignancy in uterus. The patient was then discharged on 24.11.2008. She died on 31.12.2008.

4. The complaint then narrates that the applicant had practised gross negligence in the treatment offered by her to the patient, inasmuch as in the Pap Smear Test (P.S.T.) and Doppler Pelvis Test (D.P.T.), of which reports had been received on 10.10.2008 and 17.10.2008 respectively, malignancy had been suggested. However, the applicant acted negligently by disregarding those pathology test reports, recklessly operated upon the patient which resulted in the spread of the disease cancer causing her eventual death. Also, it has been stated in the complaint that while the patient was under the treatment of the applicant, the complainant had arranged a telephonic conference between the applicant and a physician Dr. I.S. Jain, who had suggested to the applicant to get further tests done, to rule out malignancy. Thus, in such circumstances, allegations have been made that the applicant gave false assurances to the patient and the complainant that there was nothing to worry about and the patient would recover post-surgery. However, upon her condition deteriorating, the patient had to be taken to another medical facility at Delhi, where the doctors expressed surprise as to why the patient had been operated upon when she was clearly suffering from cancer and should therefore have never been operated.

5. In support of the complaint, statement of the complainant was recorded under Section 200 Cr.P.C. Also, statements of eight other family members of the deceased were recorded under Section 202 Cr.P.C. They testified to the effect that the deceased had been treated by the applicant and also to the negligence as had been claimed by the complainant in his complaint.

6. Upon such complaint and on such statements being recorded, the learned Chief Judicial Magistrate, Varanasi, by his order dated 12.04.2012 summoned the present applicant. That order was challenged by the applicant by means of Application u/s 482 No. 14373 of 2012, which was disposed of by order dated 27.04.2012. While no interference was made with the summoning order, this Court had observed as below:

"Considering the facts and circumstances of the case and submissions made by the learned counsel for the applicant and the learned AGA, it is directed that in case the applicants moves an application under section 245(2) Cr.P.C. before the court concerned, through his counsel within 30 days from today, the same shall be heard and disposed of expeditiously in accordance with the provisions of law. Till the disposal of that application, no coercive steps shall be taken against the applicant.

With the above direction, this application is finally