Criminal liability for medical negligence requires a higher degree of negligence than civil cases, necessitating proof beyond reasonable doubt.

ORDER :

(Subodh Abhyankar, J.)

Heard finally with the consent of the parties.

2] This petition has been filed by the petitioner under Section 482 of the Cr.P.C. against the FIR dated 31.03.2017 lodged at Crime No.134/2017 at Police Station Shujalpur, District Shajapur under Sections 269, 337, 336 and 308 of the Indian Penal Code, 1860 and the consequent criminal proceedings arising out of the aforesaid crime number.

3] The allegation against the petitioner is that at the relevant time, she was posted as a doctor in Government Hospital and was working as a Gynecologist and it is alleged that the complainant Smt. Preeti Nema had labour pain and thus, was taken to the Government Hospital Shujalpur where the petitioner was posted and according to the FIR, the petitioner initially advised them to get her admitted in a private hospital, however, at the instance of the family members of the complainant, she was operated upon by the petitioner on 27.12.2016 and was discharged on 03.01.2017. In this operation, the petitioner gave birth to a child, however, as she was suffering from pain, she got herself examined through various investigating agencies and her CT scan was also conducted and it was found that she has some foreign body lying in her stomach and thus, the complainant was again operated on 11.03.2017 by Dr. Siddharth Jain of SNG Hospital, Indore and he found that cotton (sponge) was left behind in the earlier operation, which had been contaminated and had started to rot. It is alleged by the complainant that after the operation, she is continuously suffering from various problems and she is also required to defecate through an artificial outlet, which has also led the complainant to suffer seriously. Thus, the FIR was lodged under the aforesaid sections.

4] Soon thereafter, the petitioner filed a petition under Section 482 of Cr.P.C., M.Cr.C. No. 6228/2017, which was allowed and disposed of by this Court on 04.09.2017 in the following way:-

“Arguments heard.

The petitioner has challenged the registration of Crime No.134/2017 registered at Police Station Sujalpur, District Sahajapur under Section 269, 337, 336 and 308 of IPC. Grievance of the petitioner is that investigating officer is not adhering the documents related to the operation available in the hospital and he also does not following the pronouncement of Hon’ble the Supreme Court in the case of Jacob Mathew vs. State of Punjab and Another reported in (2005) 6 SCC and the direction given in the case of Dr. B.C. Jain vs. Maulana Saleem vide order dated 28.02.2017 passed in MCRC No.965/2008 by the co-ordinate Bench of this Court.

In both of these judgments, Hon’ble the Supreme Court and the co-ordinate Bench of this Court have issued certain directions with regard to the registration of cases against doctors.

The prosecution has fairly admitted that investigating officer has to follow these directions while investigating the case and also to collect and consider all the documents available with regard to the alleged offence. Therefore, the prosecution has no objection in issuing direction to the investigating officer to adhere the documents available on record of the hospital regarding the disputed of operation and also to follow the direction passed by Hon’ble the Courts in the aforesaid judgment.

Therefore, the petition is allowed to the extent and it is directed that the investigating officer to adhere all the documents available in the record of the hospital related to the disputed operation and strictly follow the direction of the Court passed in the case of Dr.B.C. Jain (Supra) and Jacob Mathew (supra).

A copy of this order be sent to the Superintendent of Police, District-Shajapur to ensure strict compliance of the guidelines of the Courts as stated above.

With the aforesaid direction, the present petition is allowed and disposed of.”

(Emphasis Supplied)

5] Subsequently, as per the aforesaid order passed by this Court, a Medical Board was formed and in the report dated 24.04.2