Heard Mr.Chaudhary, learned advocate for the applicant, and Ms.Moxa Thakkar, learned Assistant Public Prosecutor for respondent No.1-State.
By way of the present application under Section 482 of the Code of Criminal Procedure, 1973 (the Code) the applicant has prayed for quashing of F.I.R. being C.R. No.I-110 of 2012 registered at Chanasma Police Station, Dist. Patan for the offences under Section 304 Part-A of the Indian Penal Code, 1860 (the IPC).
Mr.Chaudhary, learned advocate for the applicant, has taken this Court to the factual matrix arising out of the present application. At the outset reliance is placed upon the ratio laid down by the Apex Court in the case of Jacob Mathew Vs. State of Punjab & Anr., (2005) 6 S.C.C. 1 and it is contended that the guidelines which are issued by the Apex Court in the aforesaid judgment needs to be followed by the investigating agency in its true letter and spirit.
Reliance is also placed upon the decision dated 28.03.2012 rendered by this Court (Coram: Harsha Devani, J) in Criminal Misc. Application No.7627 of 2000 (in the case of Hemin M. Shroff Vs. State of Gujarat & Anr.) and it is submitted that similar directions be issued to the investigating officer.
Learned advocate for the applicant does not invite any other order on merits.
The Apex Court in the case of Jacob Mathew (supra) has issued certain guidelines and observed thus (at Paragraph Nos.50-52):
50. As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by police on an FIR being lodged and cognizance taken. 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 the accused medical professional amounts to rash or negligent act within the domain of criminal law under Section 304-A of IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered in his reputation cannot be compensated by any standards.
51. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.
52. 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 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 unbiased 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 levelled 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.
In the instant case also the present applicant, who is arrayed as an accused in the impugned F.I.R. is a medical practitioner and, therefore, considering the ratio laid down by the Apex Court in the case of Jacob Mathew (supra) as well as the order dated 28.03.2012 passed by this Court Hemin M. Shroff (supra), the investigating officer, before proceeding against the applicant for rash and negligent act or omission, while carrying out the investigation is required to 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 impartially and unbiased opinion as held by the Apex Court in the case of Jacob Mathew (supra).
Accordingly, interest of justice would be met if the investigation is permitted to proceed further and the investigating officer is hereby directed to carry out further investigation in the matter and obtain an independent and competent medical opinion, preferably from a doctor in government service, qualified in that branch of medical practice. It is further provided that if the medical expert in the said branch is not available at Government Hospital, Patan district, investigating officer shall preferably obtain medical opinion from the exert in that branch from Civil Hospital, Ahmedabad.
It is also further provided that before submitting any report the investigating officer shall carry out these directions in its true letter and spirit.
It is pointed out by the learned advocate for the petitioner that the applicant is already enlarged on bail.
The application stands disposed of accordingly. Rule is discharged. Ad-interim relief stands vacated.
Sd/-
[R.M.CHHAYA, J ] *** Bhavesh* Page 5 of 5