GULAB SINGH BHATI Vs. STATE OF U P

JUDGEMENT

(1.) THIS revision under Sections 397/401 of the Code of Criminal Procedure is directed against order dated 2.9.2011 passed by Addl. Chief Judicial Magistrate, Court No. 8 Ghaziabad in complaint case No. 165 of 2009 under Sections 279/304, 304-A IPC, P.S. Sahibabad, District Ghaziabad, whereby the learned Magistrate has summoned Government Pathologist and Physician (M.D.) as experts to give evidence. Heard learned counsel for the revisionist and learned A.G.A. for the State.

(2.) THE case is at the stage of summoning. THE grievance of the complainant-revisionist is that he has already adduced evidence under Sections 200 and 202 Cr.P.C. and the Magistrate is bound to take a decision on the basis of material available on record as to whether the accused should be summoned under Section 204 Cr.P.C. or the complaint is liable to be dismissed under Section 203 Cr.P.C.

(3.) IN Jacob Mathew v. State of Punjab and another, (2005) 6 SCC 1, Apex Court has laid certain guidelines which are reproduced below: Guidelines-Re: prosecuting medical professionals 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 tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against. 52. Statutory Rules or Executive INstructions incorporating certain guidelines need to be framed and issued by the Government of INdia and/or the State Governments in consultation with the Medical Council of INdia. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in Government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam's test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld."