Bombay High Court
Premchand Mangalchand Patni And ... vs The State Of Maharashtra And ... on 27 March, 2023
Bench: R. G. Avachat
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
47 CRIMINAL APPLICATION NO.1882 OF 2022
1. Premchand Mangalchand Patni,
2. Sarla Premchand Patni,
3. Sarang Premchand Patni,
4. Sonali Sarang Patni. ...Applicants
VERSUS
1. State of Maharashtra,
2. Syed Aman Syed Imam. ...Respondents
...
Advocate for Applicants : Mr.Bora Satyajit S.
APP for Respondents-State : Mr.A.S.Shinde
Advocate for Respondent No. 2 : Mr.Ghanekar Nilesh S. and
Mr.Sohail Subhedar
...
CORAM : R. G. AVACHAT, J.
DATE : 27.03.2023.
PER COURT :
1. Heard. The applicants herein are the Medical
Practitioners. The challenge in this application is to the order of
issuance of process by the Court of learned Judicial Magistrate First
Class, Khultabad, District Aurangabad in SCC No. 103 of 2015 and
confirmed by the court of Additional Sessions Jude, Aurangabad in
Criminal Revision No. 257 of 2019. The applicants were alleged to
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have been negligent in treating a new born child. It is alleged that,
due to negligence of the applicants, a new born child passed away.
As such, the applicants are alleged to have committed an offence
punishable under Section 304A of the Indian Penal Code.
2. The order of issuance of process was passed after the
concerned Police Station submitted a report under Section 202 of the
Code of Criminal Procedure.
3. In the case of Jacob Mathew Vs. State of Punjab and Ors.
Criminal Appeal Nos. 144-145 of 2004 decided on 05.08.2005
(MANU/SC/0457/2005), the Hon'ble Apex Court in paragraph No. 53
of its judgment observed as under :
"53. 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
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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
unbaised 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
leveled 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."
4. The record indicates that the learned Magistrate, before
issuance of process, has not complied with the Apex Court's
directions in paragraph No. 53 of its judgment quoted hereinabove.
The order of issuance of process is liable to be set aside. The petition
thus, succeeds in terms of prayer Clauses (c) and (d).
5. The respondent/complainant is at liberty to move the
learned Magistrate to ensure the compliance of Hon'ble Apex Court's
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order in Jacob Mathew Vs. State of Punjab and Ors. (supra) to
proceed in the matter.
( R. G. AVACHAT )
JUDGE
mahajansb/
