AMAR KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application under Sec. 482 of the Code of Criminal Procedure has been filed for quashing the order dtd. 20/1/2015 passed by the Judicial Magistrate, Bhagalpur, in Complaint Case No.1141 of 2014 by which the learned Magistrate after holding enquiry has found prima facie case against the Petitioner for the offence under Sec. (s) 304 Indian Penal Code.

(2.) It is alleged in the Complaint filed by Dayamanti Mishra that her son, Uttam Kumar Mishra, sustained injury in his left arm in the motorcycle accident on 6/6/2006 as a result of which there was swelling on his hand. She consulted village Doctor, namely, Rajesh Kumar Mishra, on 7/6/2006, who advised and referred him to Dr. Amar Kumar (Petitioner). It is alleged that on 8/6/2006 at about 8.00 AM, in the morning, son of the Complainant went to Clinic of the Petitioner along with his friend, Vivek Thakur where, after investigation Doctor advised for operation. The son of the Complainant deposited a sum of rupees three thousand for test, medicines etc. The son of the Complainant asked the Doctor to talk to his father on mobile phone before operation. The Doctor talked to husband of the Complainant on telephone, who told not to start operation till arrival of the Complainant in Clinic, but the Doctor ignoring the advice of husband of the Complainant took him in the operation theater in her absence at 4.00 PM. The Complainant, in the meantime, reached in the Clinic along with her Dewar, Pankaj Kumar Mishra. She enquired from the Compounder at 5.00 PM about condition of her son, Uttam Kumar, who told that operation is continuing. The Doctor all of sudden came out from the operation theater at 7.00 PM and falsely informed the Complainant that condition of his son is serious and asked her to take him to Mayaganj Hospital immediately. The son of the Complainant by that time had died. The Petitioner called Ambulance and put the dead body of her son along with his two Compunders on the Ambulance and they proceeded towards Mayaganj Hospital. But, on the instruction of Compounders, the driver of the Ambulance took the Ambulance to Zero Mile instead of Mayaganj Hospital. The Complainant raised objection then both the Compounders told the Complainant that her patient has already died at 5.00 PM and told her to take the dead body, otherwise, they will kill her. In the meantime, three unknown persons came on motorcycle and both Compounders fled away on the motorcycles. Thereafter, the Complainant and her Dewar, Pankaj Kumar Mishra, made request with the driver of the Ambulance to take her back in the Clinic at Bhagalpur. The Complainant again reached in the Clinic of Dr. Amar Kumar at 8.30 PM and found that Dr. Amar Kumar had locked his Clinic from outside. The driver put the dead body out of the Ambulance and fled away with the Ambulance. Neighbouring people along with media persons arrived and took photograph and advised the Complainant to lodge First Information Report and get postmortem of the dead body done. The Dewar of the Complainant made call to police. The police took the dead body in emergency ward of JLNM Hospital. Relative of the Complainant came between 11.00 PM to 1.00 AM (night). The police handed over the dead body at 1.30 AM in the night after taking signature of five persons on plain paper. The police neither registered the First Information Report nor get the postmortem of the dead body done. Thereafter, the Complainant along with her villagers took the dead body of her son, Uttam Kumar Mishra, to her house in Godda on 9/6/2006. Younger son of the Complainant, Amit Kumar Mishra, who is posted in Indian Military Force in Manipur came to village on 10/6/2006 and dead body was cremated at 7.00 PM at Kahalgaon crematorium. The Complainant has alleged that Doctor and his two Compounders in conspiracy have illegally taken rupees three thousand on the plea of fees and without doing any operation gave wrong medicines to her son, who became unconscious. He committed murder of her son by making him unconscious.

(3.) The aforesaid Complaint was sent to P.S. under Sec. 156(3) Cr.P.C. for investigation. The police after investigation submitted final form on 30/4/2013 mentioning error of fact for the alleged offence. Xerox copy of the final form submitted by the police is annexed as Annexure-5. The Complainant had filed Protest Petition in the Court on 29/7/2006 alleging that the police was in collusion with the accused persons. Xerox copy of the Protest Petition is enclosed as Annexure-3. During pendency of police investigation, matter was reported to the Civil Surgeon cum Chief Medical Officer, Bhagalpur, by the Superintendent of Police, Bhagalpur, who constituted a Medical Board. Meeting of the Medical Board was held on 3/1/2007 in presence of Petitioner and husband of the Complainant. Both parties were heard and records were verified. The Medical Board by its report dtd. 15/6/2007 (Annexure-4) has submitted that it is difficult to say cause of death without postmortem report. The Medical Board has further mentioned in the aforesaid report that without submitting any document by the Complainant and the postmortem report, the Petitioner cannot be held guilty of negligence in treatment of son of the Complainant.