Brief Facts
- The Petitioner, a medical practitioner, filed the present Criminal Miscellaneous Petition under Section 482 Cr.P.C. seeking quashing of FIR No. 25/2007 registered at Sodala Police Station, Jaipur, and the consequential orders taking cognizance, charge order under Sections 304-A and 420 IPC, and dismissal of revision.
- The FIR was lodged alleging medical negligence during the delivery of the Complainant’s pregnant daughter-in-law at the Petitioner’s hospital, resulting in the death of the newborn.
- After investigation, the police initially filed a negative final report for want of evidence. Though no protest petition was filed by the Complainant, the CID (CB), Rajasthan, conducted further investigation. Accordingly, the Investigating Officer sought return of the case diary, which was allowed vide order dated 16.10.2008. Pursuant to investigation, CID(CB) submitted the charge sheet before the Magistrate Court.
- Thereafter, the Trial Court took cognizance under Sections 304-A and 420 IPC and issued process against the petitioner vide order dated 20.10.2008.
Issues
- Whether after filing the negative final report and without there being any protest petition by the Complainant, on application filed by the Investigating Officer, the Trial Court has the power to return the file/negative final report for the purpose of filing chargesheet against the Petitioner or not?
- Whether the prosecution against the Petitioner has been initiated in violation of the guidelines laid down by the Supreme Court in Jacob Mathew v. State of Punjab & Another, (2005) 6 SCC 1, inasmuch as no independent medical expert opinion was obtained prior to launching the prosecution?
Held
- he High Court dismissed the Petition upholding the order of cognizance and subsequent proceedings. The findings of the court are as under:
Magistrate Court committed no error in returning the file to CID(CB) for further investigation
- The High Court while examining section 173(8) of the CrPC and considering the judgment in the case of Mukum Singh & Others v. State of Rajasthan, 2011 Supreme (Raj) 1247, held thatit is clear that in the present case also the trial court has committed no mistake in returning the negative final report to the investigating agency and to allow filing of the charge sheet on discovery of new evidence during further investigation. Such process adopted either by the investigating agency or by the trial court is neither erroneous, nor illegal.
No breach of guidelines issued in Jacob Mathew Case
- The High Court while considering the judgment of the Hon’ble Supreme court in the case of Jacob Mathew v. State of Punjab & Another, (2005) 6 SCC 1, held that Meticulous examination of the aforesaid decision would reveal that a medical professional can be held liable for negligence in the cases where he does not possess requisite skill, which he professed to have possessed or, he did not exercise with reasonable competence in the given case, the skill which he did possess. The Hon’ble Supreme Court has also clearly observed that the investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of accused medical professional amounts to rash and negligent act within the domain of criminal law under Section 304-A IPC. Hence, Hon’ble Supreme Court directed that report of medical experts in such cases is necessary for prosecuting the medical professional.
- In the instant case, as referred to hereinabove, during further investigation, CID(CB)/the investigating agency has taken into account the reports given by Rajasthan Medical Council as well as Department of Obstetrics and Gynaecology, SMS Medical College, Jaipur. Therefore, it cannot be said that any of the guidelines laid down by the Hon’ble Supreme Court in the case of Jacob Mathew(supra) has been violated in the instant case either by the investigating agency or by the trial court.
Relevant Para No.
- 20,21,22,23 and 24