SUMAN KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application under Section 482 of the Code of Criminal Procedure has been filed for quashing the order dated 26.08.2011 passed by the Chief Judicial Magistrate, Vaishali at Hajipur, in Mahua P.S. Case No.168 of 2008, by which he has taken cognizance against the petitioner and others for the offence under Section(s) 304-A, 420/34 Indian Penal Code.

(2.) Counsel for the petitioner has submitted that there is no any specific allegation in the Complaint Petition as to what disease the wife of the complainant-informant was suffering from and what type of negligence was done by this petitioner. Counsel for the petitioner has further submitted that petitioner is a qualified doctor having MS degree from Lalit Narain Mithila University (Annexure 3). Counsel for the petitioner has further submitted that as per the complaint, date of occurrence is 13.12.2007 and the Death Certificate has been enclosed by the Complainant with the complaint petition as Annexure-4, wherein, date of death has been shown as 06.01.2008, in village Mohammadpur Pojha. Petitioner is having his Clinic at Vaishali at Hajipur. Counsel for the petitioner has further submitted that in the complaint petition it is alleged that one Jimdar Rai stated to the complainant about the Nursing Home of this petitioner, but it is nowhere stated in the complaint petition nor it has come during investigation that Jimdar Rai was known to this petitioner. Counsel for the petitioner has further submitted that there is no such allegation in the written report or in the investigation that this petitioner misled the complainant-informant and induced him to get operated in his clinic.

(3.) Counsel for the petitioner has relied on the decision of the Supreme Court in the case of Jacob Mathew vs. State of Punjab, 2005 6 SCC 1, wherein, Hon'ble Supreme Court has held that it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. It must be shown that the accused doctor did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do.