NARENDRA PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner has approached this Court under Section 482 of the Code of Criminal Procedure to quash the order dated 17.4.2006 passed by the Chief Judicial Magistrate, Patna, in complaint Case No. 2739-C, of 2005, summoning the petitioner for the offence. under Section 304A, of the Indian Penal Code and also the order dated 13.8.2008 passed by the Additional Sessions Judge XI, Patna, dismissing the Criminal Revision No. 478 of 2006 as preferred by the petitioner against the aforesaid summoning order. A prayer has also been made to quash the entire proceeding arising out of the aforesaid complaint case.

(2.) In brief, the case is that the opposite party No. 2. Pramod Kumar Gupta, filed the complaint petition, numbered as Complaint Case No. 2739-C of 2005, in the Court of the Chief Judicial Magistrate. Patna. against the petitioner. Dr. Narendra Prasad with the allegation that his wife deceased, Nirmala Devi, was suffering from stomach pain since 7-8 months, hence, she was checked up by Dr. Suresh Prasad (Cardiologist and Physician) at his clinic; situated at Road No.1, Rajenura Nagar, Patna, on 25.1.2005 After examination of his wife, Nirmala Devi, Dr. Suresh Prasad, prescribed few medicines to continue for few days but his wife was suffering from stomach pain continuously. Dr. Suresh Prasad advised to take sameniedieines continuously and suggested for blood test and ultrasound of Nirmala Devi. Thereafter, the opposite party No. 2 and his son again approached Dr. Suresh Prasad on 30.1.2005 and handed over the blood and ultrasound report, then Dr. Suresh Prasad advised to consult the petitioner, Dr. Narendra Prasad, M.S., saying the problem of Gall-bladder. Thereafter, the opposite party No. 2 approached the petitioner at his Anupama Hospital, Khajanchi Road, Patna, on 3.2.2005, who told him to deposit Rs. 13,000 as operation and professional charge for operation of Gall-bladder. While the opposite party No. 2 and his son made request for test and examination of blood and also for ultrasound for satisfaction, but the petitioner did not give the importance of their requests. Then a request was made to give some time to arrange the money of Rs. 20,000 (Rs. 13,000 as operation cost and Rs.7,000 for medicine and room rent etc. as estimated). Thereafter, the opposite party No.: 2 again came in the private hospital of the petitioner aiongwith his wife, Nirmala Devi, on 21.2.2005 and deposited cash Rs. 10,000 as advance. While again request was made for test and ultrasound of Nirmala Devi, but the petitioner did not care and ultimately, operation of Nirmala Devi was done in hurriedness without observing the standard care and an important vein of stomach was negligently stitched in course of operation of Gall-bladder of Nirmala Devi. When Nirmala Devi, the wife of opposite party No. 2 came in consciousness, she was crying continuously for acute pain and despite the several requests, the petitioner did not come to know the condition of Nirmala Devi and she was discharged on 25.2.2005, preparing the discharged sheet. Since there was no relief in stomach pain of Nirmala Devi, hence, opposite part) No. 2. after 4-5 days again approached the petitioner on 2.3.2005 and also on 5.3.2005 and 9.3.2005 but every time the petitioner gave different medicines and injection with false consolation of relief When the condition of Nirmala Devi became serious and pathetic, then the opposite party No.2 getting no way approached the petitioner on 4.4.2005 but he did not spare time to check Nirmala Devi and advised to consult Dr. J.R. Pandey, a specialist Physician and also advised for her P.N.A.C. test. Thereafter, the opposite party No. 2 approached Dr. J.R. Pandey. on 9.3.2005 and after blood test and ultrasound report, it was detected that a vein at the time of operation of Gall-bladder was hurriedly stitched and blocked and due to that jaundice developed to Nirmala Devi and it was also detected in ultrasound report that there was cancer on the part of the body where the operation of Nirmala Devi was done. As such, there was prima facie professional failure on the part of the petitioner, who did not thoroughly check up Nirmala Devi before the operation of the Gallbladder to know as to whether the patient was suffering from cancer or from a simple problem of Gall-bladder. On knowing about the cancer to Nirmala Devi, the opposite party No. 2 and his son became perplex and lastly approached at Oncology Centre of Dr. Jitendra Kumar, on 6.4.2005 where Dr. Jitendra 'Kumar, examined Nirmala Devi and, accordingly, told that Nirmala Devi was suffering from cancer much before the operation of Gall-bladder and also told that due to major lapses at the time of operation of the Gall-bladder of Nirmala Devi, one important vein was stitched. Thereafter, the opposite party No. 2 brought his wife, Nirmala Devi to Tata Memorial Hospital, Indian Cancer Society, where she remained under the treatment since 10.4.2005 to 17.6.2005 and the opposite party No. 2 spent about Rs. 3,00,000 there and lastly, the opposite party No. 2 aiongwith his. wife, Nirmala Devi, came at Patna and hospitalized his wife. Nirmala Devi, at Magadh Hospital Patna on 4.8.2005. where she died on 8.8.2005. As such, the death of the deceased, Nirmala Devi, the wife of opposite party No. 2 was caused, by virtue of rash and gross negligence, of the petitioner, in operating the Gallbladder.

(3.) Learned counsel appearing on behalf of the petitioner made submission that it is itself clear from the complaint petition that the petitioner is Master in Surgery and the opposite party No.2 was advised by Dr. Suresh Prasad to approach the petitioner raising suspicion of Gallbladder problem. The deceased, Nirmala Devi, the wife of opposite party No. 2 had come at the clinic of the petitioner on 27.2.2005 and made complaint of her stomach pain, then an ultrasound was done by Dr. Usha Kiran Jha in which "No Malignant Cell were detected", which would appear from Annexure 4 to this application. The deceased, Nirmala Devi, the wife of opposite party No.2. again came to the petitioner on 9.3.2005 complaining of her stomach pain, then the petitioner advised to consult the Physician, Dr. J.R. Pandey, who after examining the deceased, Nirmala Devi, advised her to take medicine and rest but he has not stated in his report about the stitching of vein rashly and negligently by the petitioner, nor any cancer being developed, which would appear from Annexure '5' to this application. It has further been submitted that the deceased, Nirmala