Dr. Apurba Dutta @ Dr. Apurba Kumar ... vs The State Of Jharkhand
2023 Latest Caselaw 90 Jhar

         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        Cr.M.P. No. 2467 of 2022
         1. Dr. Apurba Dutta @ Dr. Apurba Kumar Dutta @ Apurva Dutta
         2. Manoj Kumar @ Manoj Kumar Saw                 .... .. ... Petitioner(s)
                                      Versus
         1. The State of Jharkhand.
         2. Sonu Prasad                                   .. ... ...  Opp. Party(s)
                        ...........

CORAM :HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY .........

         For the Petitioner(s) : Mr. Rahul Kumar, Advocate
         For the State              : Mr. V. K. Vashistha, Spl.P.P.
         For the O.P. No.2          : Mr. R. N. Chatterjee, Advocate
                        ......

04/ 04.01.2023. The instant Cr.M.P. has been filed for quashing the entire criminal proceeding including the order dated 27.05.2022 passed by learned Judicial Magistrate, 1st Class, Dhanbad, in connection with Complaint Petition No.577 of 2022 whereby and whereunder a prima facie case under Section 315/ 504/ 34 has been made out and the process was directed to be issued against the petitioners/ accused persons.

2. The prosecution case in brief is that the sister-in-law of the complainant was admitted and getting treatment from Dr. Apurba Dutta at Shree Durga Clinic and Fertility Clinic Centre, Aam Bagan, Bhuli. The date of delivery was stated to be on 12.01.2022, but on 04.01.2022, the lady had labour pain and she was admitted in the Nursing Home. At that time, Doctor was not present, but accused nos.2 and 3 were present. It is alleged that in absence of Doctor, delivery was conducted in which she gave birth to a baby child. Immediately after the birth, the child became critically ill and the Doctor informed that the child cannot be treated in that Clinic. On request by the patient to be referred, demand of Rs.8110/- was made. It took some time to arrange the fund and when the child was brought for treatment to Rani Hospital, Ranchi, the condition of the child was beyond the redemption and child died during infection. It is alleged that Dr. A. Dutta and his associates misbehaved with the attendants and had also taken Rs.1400/- from the pocket.

3. It is submitted that the petitioner no.1 is registered practitioner/ Doctor whereas petitioner no.2 is compounder.

4. It is further submitted that during enquiry, three enquiry witnesses were examined during enquiry and the learned Court found prima facie case to be made out under Sections 315/ 504/ 34 of the Indian Penal Code. As such, the entire criminal proceeding including the order taking cognizance is under challenge before this Hon'ble Court.

5. It is submitted that from bare reading of the complaint petition itself, it will be evident that the patient was admitted in the Hospital of the petitioner(s)/ Doctor for delivery of the child which was successfully completed. On 04.01.2022, the infant child developed infection and thereafter died during course of treatment in Rani Children Hospital, Ranchi. Even if the allegation as made in the complaint is accepted no offence will be made out.

6. The order taking cognizance is a non-speaking order and the materials as disclosed in the complaint petition and in the statement of the witnesses do not make out a prima facie case of any negligence on the part of the petitioners. Petitioner No.1 is the registered medical practitioner and the criminal prosecution cannot be initiated without any evidence of criminal negligence on the part of the petitioners/ accused persons. In this regard, reliance has been placed in the judgment reported in 2005(6) SCC 1.

7. It is further submitted that the present case is an instance of malicious prosecution where the criminal law has been set into motion without having sufficient materials for initiating prosecution. In this regard, reliance has been placed in the judgment reported in (1998) 5 SCC 749 wherein it has been held that summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion.

8. Learned APP for the State assisted by learned counsel for the O.P. No.2/ complainant has vehemently opposed the prayer and submitted that there is specific allegation of medical negligence in the complaint petition and the witnesses have supported the case in their statement in enquiry. It is further submitted that the cognizance order is a speaking order and nothing more is required to be stated while issuing process against the accused persons/ petitioners under Section 204 Cr. P. C.

9. It is settled principle of law that at the stage of cognizance, no detailed evaluation of the materials or probative value of evidence collected during investigation is to be entered into. Where material on record discloses offence, cognizance of offence cannot be quashed. On plain reading of the complaint it is apparent that the sister-in-law of the complainant was admitted in the Nursing Home of the petitioners in a stage of pregnancy for delivery of the child. Baby was born on 4.1.2022 and unfortunately the infant life came to an end two days thereafter. The baby was not in treatment of the hospital of the petitioner and therefore, death cannot be attributed to the medical negligence of the petitioners on the basis of the averments made in the complaint petition. In this view of matter the criminal prosecution will be an abuse of process of Court.

Under the circumstance impugned order is set aside and the entire criminal proceeding arising out of Complaint Petition No.577 of 2022 is quashed.

The Criminal Miscellaneous Petition is allowed.

(Gautam Kumar Choudhary, J.) Sandeep/