For criminal liability under Section 304A IPC, gross negligence must be established, which was not proven in this case.

ORDER

This petition under Section 482 of Cr.P.C is filed for quashment of FIR registered at Crime No. 751/2019 of Police Station – Kotwali District- Dewas for the offence punishable under Sections 304A r/W 34 of IPC and consequential proceedings pending against the petitioners.

As per the case of prosecution, Dr. Mugdha Kulkarni, Director of Kulkarni Nursing Home, Dewas informed SHO P.S. Kotwali, Dewas on 10.07.2019 at 9:00 a.m. that a new born baby was found motionless near his mother, Sheetal Rathore W/O Devendra Rathore , who was admitted in the Nursing Home. The baby was taken for treatment to NICU, but he could not be saved and was declared dead at 8:30 a.m. on 10.07.2019. On such intimation, unnatural death intimation No. 26 of 2019 was registered at P.S. Kotwali, Dewas. Rajesh S. Solanki, brother of Sheetal Rathore also submitted a written complaint to the SHO, P.S. Kotwali, Dewas that his sister Sheetal Rathore was admitted at Kulkarni Nursing Home, Dewas on 09.07.2019 for delivery. Sheetal delivered a baby boy around 6:00 in the evening on same day. The baby was healthy till 4:00 a.m. on 10. 07.2019, he passed stool and urine but after one hour, the baby stopped responding, therefore, the attendant of Sheetal informed the staff of the nursing home. The doctor and nursing staff did not respond. There was no staff on the first floor of the Nursing Home. The Nursing Home management did not take care of the mother and the new born baby, therefore, the baby had died. During inquest, the dead body of new born baby was forwarded for post- mortem examination. A Panel of Doctors opined that baby had died due to 'asphyxia', but no definite opinion can be given regarding cause of death.

Statement of mother of the baby and her relatives were recorded. They alleged that the baby was healthy till 4:00 in the morning. The baby was fed milk. He cried and passed urine and stool. Around 4:30 a.m., he stopped responding. Staff Nurse, Reena Dhanak, was informed. After one hour, Reena Dhanak took the baby at NICU. Around 6:30 a.m. in the morning, Dr. Nilesh Gagrani attended the child in the NICU. Around 7:30 a.m., Dr. Kulkarni also came to NICU. Around 8:30 a.m., Dr. Kulkarni informed that baby has died. It is further alleged that the baby had died due to negligence of Dr. Kulkarni and Staff Nurse Reena Dhanak.

On such allegations, P.S. Kotwali, Dewas registered FIR at Crime No. 751/2019 for offences punishable u/S 304 A r/w Section 34 of IPC and Section 201 of IPC against Dr. Mugdha Kulkarni and Reena Dhanak. Medical papers regarding treatment of Sheetal Rathore were seized. The digital video recorder of Kulkarni Nursing Home was seized. Video of relevant time was not found in it, therefore, it was forwarded for forensic extraction. On completion of investigation, final report was submitted. Learned Chief Judicial Magistrate took cognizance of offence punishable u/S. 304 A and Section 34 of IPC and framed charges for offences punishable u/S 304 A of IPC against Dr. Mugdha Kulkarni and Reena Dhanak vide order dated 17.01.2023.

Feeling aggrieved by the FIR, final report and framing of charge, this petition is filed praying for quashment of FIR and consequential proceedings on the following grounds:- 1. Petitioners have been falsely implicated in the case. Petitioner No.1 is a reputed Gynecologist and petitioner no.2 is a Staff Nurse of the Nursing Home. They have never committed any irregularity in the treatment of patients.

2. The patient, Sheetal Rathore, was admitted at petitioner's Nursing Home for delivery of child. She gave birth to a healthy baby at 6:00 p.m on 09.07.2019. Petitioner no. 1 Dr. Mugdha Kulkarni, a Gynecologist, has not committed any fault in the process of delivery of baby, thereafter, the baby was under the supervision of Pediatrician Dr. Nilesh Gagrani.

3. The baby was handed over to the parents in a healthy condition. On the next day 6:00 a.m., all of a sudden baby got unwell and stopped responding. After receiving of i