@JUDGMENTTAG-ORDER
Ahsanuddin Amanullah, J.@mdashHeard Mr. Sumit Kumar Singh, learned counsel for the petitioner, Mr. Banwari Sharma learned counsel for the opposite party no. 2 as well as Mr. Jharkhandi Upadhaya learned counsel for the State. The present application u/s 482 of the Code of Criminal Procedure, 1973 was originally filed for quashing the first information report leading to Laheri P.S. Case No. 6 of 2008 corresponding to G.R. No. 137 of 2008 which had been lodged for offence punishable under Sections 304 /34 of the Indian Penal Code and also quashing of the entire criminal proceeding arising therefrom. Subsequently it appears that after submission of charge-sheet, cognizance has also been taken, which has also been challenged by the petitioner by filing I.A. No. 1766 of 2009. The said cognizance is dated 18.8.2008. Learned counsel for the petitioner has challenged the lodging of the F.I.R. as well as the order taking cognizance on various grounds, but basically he submits that as per the plain reading of Section 300 of the Indian Penal Code the ingredients required to constitute the offence are not made out in the facts and circumstances of the present case. He has tried to persuade this Court that in the case of a Medical Practitioner the negligence, if any, has to be proved to the level of being grave negligence on his part and the normal mistakes which may be committed in the usual course cannot be brought under the gamut of the section so as to fasten any criminal liability. He submits that in fact Medical Practitioners are excluded from criminal culpability by Section 88 of the Indian Penal Code and in the present case also allegation is that there is negligence on the part of the petitioner while performing an operation and thus, no criminal liability can be fastened or a criminal trial be permitted to proceed. Learned counsel sums up his argument by submitting that in any view of the matter, at best the case can be one of tortious liability having civil consequences but no criminal intent or liability can be fastened on the petitioner for the act alleged or criminal proceeding initiated against him. Learned counsel in support of his contention has relied upon the decisions rendered in the following cases:--
(i)
(ii)
(iii)
(iv)
(v)
2. Learned counsel appearing for opposite party no. 2, who is the informant in the criminal case, submits that the present petition is premature and misconceived for the reason that this is not the proper stage where this Court would go into the merits of the evidence of either the defence or the petitioner and hold a minitrial. He submits that it shall be open to the petitioner to adduce and lead evidence in support of his contention that he is not liable for any criminal act and at the stage of taking of cognizance this Court may not interfere in the process of a fair trial.
3. Upon consideration of the rival contentions, this Court is of the opinion that the issues raised by the petitioner definitely merit consideration but the stage at which this should be so agitated is probably premature at the stage of taking cognizance. The Court is only required to prima facie see that sufficient materials are available so that full-fledged trial is warranted. It is at this stage, i.e., discharge/framing of charge, that the parties shall be at liberty to lead evidence in support of their rival contentions. The decisions relied upon by learned counsel for the petitioner in sum and substance hold that the liability to be judged with regard to a Medical Practitioner is of a higher level than ordinary circumstances in ordinary course of events. The Courts have also held that because of the nature of the job performed by the Medical Practitioners, if all their acts which are bona fide and done in the normal course of duty, are made to appear and tested on the touchstone of criminal jurisprudence or law, it would be against the interest of the society and would also not be just and proper. It has been held that there has to be supporting evidence to show any performance of duty by medical practitioner has been done either in the absence of proper qualification to do the same or has been done in a manner which would not have been done by an ordinary and prudent person in due discharge of his professional duty. Thus, it has been generally held that though such test may vary from case to case depending upon the facts and circumstances of the individual case before the Court, but broadly it has to be seen whether the Medical Practitioner was competent and authorized to perform the duty which he performed normally during the discharge or performance of his duty and that he did it with due care and without negligence. In the present case the petitioner has brought on record the F.I.R. as well as the ultra sound report on the basis of which the operation to remove appendix of the deceased was performed by the petitioner as also the report of the post mortem conducted within 12 hours of death occurring. From perusal of the ultra sound report it is clear that appendix of the deceased was swollen. Thus, in that view of the matter definitely an operation to remove the same was required but the question remains as to whether the petitioner performed such operation with due care and diligence or was there any negligence on his part. This Court at this stage has only prima facie gone into those aspects on which the report gives some indication inasmuch as the cause of death has been mentioned as "Shock & haemorrhage due to non-ligation of misso-appendix and its muscle (Improper haemostatis)".
4. Thus, from the above, prima facie this Court feels that the post mortem report held that the ligation which ought to have been done was not done or if done, it was improper. This is some indication of negligence on the part of the petitioner. However, this may not be construed as giving a finding against the petitioner.
5. Considering the entire facts and circumstances of the case, this Court is of the opinion that taking of cognizance u/s 304 of the Indian Penal Code is not proper for the reasons that it is the punishment prescribed for culpable homicide not amounting to murder and culpable homicide has been defined u/s 299 of the Indian Penal Code which relates to an act performed with the intention of causing death. In the present case this not being the case, taking of cognizance u/s 304 of the Indian Penal Code appears untenable. However, Section 304A of the Indian Penal Code deals with causing death by negligence. This Court feels instead of Section 304 of the Indian Penal Code, at best cognizance could be taken u/s 304A of the Indian Penal Code. Accordingly, the order taking cognizance dated 18.8.2008 is modified to the extent that cognizance shall be deemed to have been taken u/s 304A/ 34 of the Indian Penal Code.
6. With the aforesaid modification in order dated 18.8.2008 taking cognizance, this application stands disposed off. The petitioner shall also be at liberty to take appropriate action in light of the observations made in this order. The records received from the Court below may be sent to the Court concerned for proceeding further in the matter.
