The court quashed proceedings against a doctor for lack of allegations of negligence in the complaint and absence of an independent medical opinion prior to the FIR.

1. Affidavit of service filed in Court today is taken on record. Opposite party no.2 is also served through email by the petitioner. 2. From a report filed on behalf of the State on 18th July 2024, it appears that the opposite party no.2 was served through email at Mumbai where he was then residing.

3. In spite of service, none appears on behalf of the opposite party no.2.

4. This revisional application has been filed with a prayer for quashing the proceedings in connection with GR Case No.4518 of 2018 corresponding to Baguiati Police Station Case No.42 of 2018 dated 5th February, 2018 under Section 304A of the Indian Penal Code .

5. The de facto complainant/opposite party no.2 herein lodged a complaint before the Inspector-in-Charge of Baguiati Police Station on 1st February, 2018 alleging, inter alia, that he got her mother admitted in Charnock Hospital at Teghoria, Major Arterial Road, New Town, Kolkata on 18th January, 2018 with the problem of urine infection and pain in lower limb. She was moved from general ward to minor ICU in the evening on the same day and on 25th January, 2018, she was moved out of ICU and doctor confirmed her to be discharged by 29th January, 2018.

6. It was further alleged that on 28th January, 2018 at about 7.30 a.m. she was moved to ventilator due to respiratory problem and RMO on duty gave “TRAMADOL” to the patient “without consulting” primary consultant Dr. Raktimava Sarkar. He has further made allegation against medical negligence and hospital management. On receipt of that complaint, Baguiati Police Station Case No.42 of 2018 dated 5th February, 2018 was started under Section 304A of the Indian Penal Code . After investigation, charge sheet was submitted on 17th October, 2022.

7. Mr. Moyukh Mukherjee, learned counsel appearing on behalf of the petitioner has referred to the complaint itself and submits that written complaint did not disclose any single word towards negligence of the petitioner, Dr. Raktimava Sarkar. That apart, he relied on a case of Jacob Mathew v. State of Punjab & Anr., reported in (2005) 6 SCC 1 and particularly, paragraphs 50, 51 and 52 thereof which run as follows:

“50. As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by police on an FIR being lodged and cognizance taken. The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to rash or negligent act within the domain of criminal law under Section 304-A of IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered in his reputation cannot be compensated by any standards.

51. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefers recourse to criminal process as a too