BP SAHA Vs. VINIT SURI

JUDGEMENT

(1.) This is a revision petition made under the provisions of Sections 397 and 401 read with Section 482 of the Code of Criminal Procedure for setting aside the impugned order dated 29th November, 2003 passed by the Metropolitan Magistrate in a Complaint Case No. 206/1/95 for commission of offence punishable under Section 304-A, IPC.

(2.) Vide impugned order the Metropolitan Magistrate had recalled the summoning order made earlier against the petitioner a Doctor by profession and D.M. in Neurology.

(3.) The case originated by filing a private complaint under Section 304-A, IPC against the petitioner as the complainant's daughter who was patient of Epilepsy was under the treatment of the petitioner since 1994. On 16th March, 1995 at around 1 p.m. Alpana Sana since deceased had developed fits. Since she had been under the treatment of the petitioner for quite sometime, therefore, the father of the deceased immediately called the petitioner at his residence. The petitioner arrived there to attend the deceased. Alpana was immediately removed to Mool Chand Hospital. The petitioner removed her in his own car. On reaching the hospital, the petitioner asked the Nurse to inject dye to the patient. Since Dr. Dahiya, Radiologist was not present, therefore, according to the complainant, the petitioner Dr. Vineet Suri directed the Nurse Veena to inject the dye. Immediately after administering the same, the deceased started shrieking and screaming with pain and had to be taken to ICCU where she died on the night of 17th March, 1995/18th March, 1995 because of reaction of the dye. This necessitated the complainant to move the Court by filing a private complaint against the petitioner for commission of offence punishable under Section 304-A. The Metropolitan Magistrate ordered investigation under the Provisions of Section 156(3) of the Code of Criminal Procedure. The Investigator made discreet investigation and came to the conclusion that no lapse could be attributed to the petitioner and also no criminality to be attached to the act of the petitioner he having taken reasonable and due precaution by treating the deceased and that the death occurred incidentally and not in the manner as alleged by the complainant in his complaint and that there was no element of rashness or negligence on the part of the petitioner, yet the Metropolitan Magistrate proceeded to record evidence and summoned the petitioner as an accused. The petitioner thereafter made an application before the Metropolitan Magistrate seeking recalling of the summoning order. That application was entertained as law permitted recalling of the summoning order in view of Mathew's Judgment at that time. The Metropolitan Magistrate dealt with the matter at great length and gave a detailed judgment dealing with each aspect of the matter and also having regard to the report of the Investigating Officer and the decision of the District Consumer Forum rejecting the claim of the complainant, recalled the order of summoning on the ground that the cause of the death of the deceased was not due to rash and negligent act of the petitioner.