To establish criminal negligence against medical professionals, evidence of gross negligence is essential. Mere errors in judgment are insufficient for prosecution.

JUDGMENT

Hon'ble Prashant Kumar, J.

1. Heard Sri I.K. Chaturvedi, learned Senior Advocate assisted by Sri Shailendra Kumar Rai, learned counsel for the applicant, Sri S.D. Pandey, learned A.G.A. for the State and Sri S.K. Mishra, learned counsel for O.P. no.2.

2. The present application under Section 482 Cr.P.C has been filed by the applicant with a prayer to quash summoning order dated 15.09.2008 passed by A.C.J.M., Court No.19, Deoria under Section 304A, 315, 323 and 506 IPC as well as the entire proceedings of Case No.17 of 2008 pending in the court of Additional Chief Judicial Magistrate, Court no.19, Deoria.

FACTS OF THE CASE

3. In the instant matter, an FIR was lodged on 29.07.2007 by O.P. no.2 wherein it is alleged that wife of younger brother of the informant/O.P. no.2 was admitted in Savitri Nursing Home, Deoria, which is owned/runned by the applicant, who happens to be a doctor. It has been alleged that the patient was admitted to the hospital on 28.07.2007 at 10.30 A.M. for delivery. At around 11 O’Clock on 29.07.2007 the applicant called O.P. No.2 and checked up the patient and told her relatives that it is necessary for the patient to undergo surgery and asked for their consent. The same was immediately given, however, the surgery was not carried out in time. In the meanwhile, condition of the patient kept deteriorating and it is only at about 5.30 P.M. the patient was taken into the operation theatre. After operation, the informant was informed that the foetus has died. When objection was raised by the family members of the patient, and then they were beaten up by the employees of the doctor (applicant) and his associates. The doctor has also taken Rs. 8700/- for the surgery and asked the informant to deposit another Rs. 10,000/-. Even no discharge slip was given to the patient. After registration of the FIR, post mortem examination was conducted on the dead body of the child.

4. After registration of FIR, police wrote a letter to the concerned Chief Medical Officer calling for his opinion in the matter. The C.M.O. called upon the applicant to give his version. The applicant herein had immediately given statement on 14.11.2007 to the C.M.O. which reads as follows:-

5. After receiving the statement of the applicant, the C.M.O. constituted Medical Board to look into the issue. The Medical Board looked into the case and gave following report on 17.11.2007 :-

6. Immediately thereafter the C.M.O. sent a letter to the I.G. Police Gorakhpur stating that the applicant is not at fault by giving following report :-

7. However, at this point of time there was no mention of the post mortem report which was carried out of the foetus and same was not placed before the Medical Board.

8. On the basis of the report of the Medical Board, final report was submitted by the I.O. on 30.11.2007. Aggrieved by this final report, the complainant filed protest petition on 15.03.2008 in which it is specifically stated that the consent for surgery was given at 11 O’Clock on 29.07.2007. However, surgery was not carried out. It was only at 5.30 P.M. the patient was taken to O.T. Thereafter, husband of patient made to sign on some papers, and soon, thereafter staff of the applicant announced that the foetus as dead. The death was due to the negligence of the doctor and when the same was challenged, the info