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2005 DIGILAW 971 (RAJ)

Sadha Sukhi v. State of Rajasthan

2005-04-04

K.C.SHARMA

body2005
Judgment K.C. Sharma, J.-Heard Counsel for the parties. 2. Through this petition the petitioner has invoked inherent jurisdiction of this Court thereby seeking to quash the order dated 15.04.2004 passed by the Judicial Magistrate taking cognizance of the offence under Section 304-A IPC and affirmed by the revisional Court vide order dated 110.2004. 3. The allegation against the petitioner, Unit Head of IInd Unit of Urology Department of S.M.S. Hospital, Jaipur, as per complainant Banshidhar Sharma is that he operated his son Kamal Kant at his (petitioners) residence and as a consequence of negligence on his part, Kamal Kant died. 4. Mr. Sharma, appearing for the petitioner has mainly challenged the impugned orders on the ground that there is no evidence whatsoever to establish that death of Kamal Kant occurred due to gross negligence on the part of the petitioner. According to learned Counsel the investigation agency has not been able to collect any document so as to establish that Dr. Sadasukhi, petitioner herein conducted operation of deceased Kamal Kant at his residence. In fact the deceased died of cardio respiratory failure, pyrexia and actual renal failure with poor general condition. According to learned Counsel, to constitute the offence under Section 304-A, IPC, it is necessary that the death should have been the direct result of negligent act of the accused and that the act must be the proximate and efficient cause for death. There being no evidence, worth the name, the Courts below have committed serious error in taking cognizance of the offence under Section 304-A IPC in respect of the petitioner. In support of his argument, learned Counsel for the petitioner has relied upon Hussein Mohammadalli Rangawalla vs. State of Maharashtra, AIR 1965 SC 1616 , Jagannath Sahu vs. Sasibhusan Rath & Ors., 1995 CrLJ 4070 , Mohammad Atulah vs. Ram Saran, AIR 1981 SC 1155 , Pitambar Buhan and Another vs. State 1992 CrLJ 645 (Ori), Hanuman Singh vs. State of Rajasthan & Ors., 1997 RCC 144 and 1991 (1) RCC 741 5. I have given my anxious consideration to the above arguments and have gone through the cases laws cited at the bar. The ratio of the above cited Judgment s is that before taking cognizance of the offence it has to be looked into whether the material so collected during investigation is sufficient to prima facie make out a case. I have given my anxious consideration to the above arguments and have gone through the cases laws cited at the bar. The ratio of the above cited Judgment s is that before taking cognizance of the offence it has to be looked into whether the material so collected during investigation is sufficient to prima facie make out a case. The trial Court has taken cognizance of the offence after taking into consideration the evidence and material collected during investigation and placed before it and after having satisfied that the evidence and material so collected prima facie makes out a case constituting offence under Section 304-A, IPC. 6. Mr. Shrama appearing for the petitioner has strenuously contended that there is no evidence whatsoever to indicate negligence on the part of the petitioner while treating the deceased. He further contended that for death of patient during treatment, the medical man cannot be proceeded against. Relying upon a decision of the Apex Court in Dr. Suresh Gupta vs. Government of NCT of Delhi & Anr., 2004 (6) SCC 422 , learned Counsel argued that unless it is proved that negligence is so gross and the act of the doctor was so reckless as to endanger the life of the patient the doctor cannot be made criminally liable. 7. I have carefully gone through the case law cited at the bar. Suffice it to state that ratio in the above cited case was referred to the larger Bench of the Apex Court for consideration and it is given out that Judgment is still awaited. For the reason, therefore, this Judgment is of no help to the petitioner. 8. It must be noticed here that the complainant in the case did not get the full opportunity to produce his evidence before the concerned Court. That apart, the negligence on the part of the petitioner can be ascertained only be scanning the material, if any and the expert evidence that may be adduced. Taking into consideration the entire facts and circumstances of the present case, I feel that prosecution should have an opportunity to present its case before the Magistrate. In this view of the matter, quashing the order taking cognizance at the threshold would not be justifiable specially in a case where the culpability could be established only on proper analysis of the expert evidence that may be adduced by the complainant. In this view of the matter, quashing the order taking cognizance at the threshold would not be justifiable specially in a case where the culpability could be established only on proper analysis of the expert evidence that may be adduced by the complainant. Therefore, I am of the firm view that the order taking cognizance so also the order passed by the revisional Court affirming the order taking cognizance cannot be interfered with. 9. In the result, this petition fails and is hereby dismissed.