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Judgment
L. Rath, J.—Since all these three applications relate to one incident in respect of which cognizance has been taken by the reamed Sub-Divisional judicial Magistrate, Sadar Cuttack, Under Sections 304 and 201 read with Section 34, I. P. C, they are disposed of by this common judgment. Petitioner Nos. 1, 2 and 3 in Criminal Wise. Case No. 895/87 are opp. party Nos. 2, 4 and 5 in Criminal Misc. Case So. 845 of 1987 and the petitioner in Criminal Misc Case No. 1045 of 1389 is opp. party No. 3 in Criminal Misc Case No. 845 of. 1987 whereas the petitioners in Criminal Misc. Case Nos. 845 and 895 of 1337 figure as opp. party Nos 2 to 7 in Criminal Misc. Case No. 1045 of 1989.
The prosecution case in respect of which charge-sheet was filed against the respective petitioners related to an incident in which a hydrocele operation of one Rabindra Kumar Patnaik, an Assistant Engineer, was carried out in a private clinic in charge of the petitioner in Criminal Misc. Case No. 1045 of 1989, an Assistant Professor of Surgery in S. C. B. Medical College Hospital. Admittedly the said Rabindra Kumar Patnaik, who had been admitted to the nursing home on 24-11-1986 at 9 a. m., died on. the same day while he was inside the operation theatre. The information was lodged by his brother-in-law, one Shyam Sundar Patnaik in Mangalabag Police Station at about 11-45 p. m. on the same day alleging "that the victim met his death due to the utter, negligence and carelessness of_Dr. D. K. Roy and his associates in the nursing home. It is the prosecution case that the operation was to be conducted by Dr. D. K. Roy and Dr. Bishnu Charan Mishra. All the accused except Dr. Debendranath Tripathy were in the operation theatre where the victim was taken at about 3 p. m. Dr. Debendranath Tripathy reached the operation theatre at about 6 p. m. At about 7 p. m the relatives of the patient were informed of o he having died. During investigation, the prosecution claims to have found that the patient died due to asphyxia caused due to heavy dose of anesthesia though no proper test on the deceased had been earlier made, and that the patient had an enlarged heart. The clinic was also not equipped with proper equipments to render timely aid for recovery of the patient from the adverse effects of anesthesia. After the death occurred, some operation was carried out on the body of the patient for which purpose Dr. Debendranath Tripathy had been called in who had arrived at around 6. p. m. It is for such reason that the charge-sheet was submitted under Sees. 304 and 201 read with Section 34, IPC, On perusal of the charge-sheet the Sub-Divisional Judicial Magistrate took cognizance under the Sections against the petitioners for which they have come up before this Court assailing the order.
it is the submission of Mr. P. K. Dhal, the learned counsel appearing for the petitioners in Criminal Misc. Case No. 845/87 as also the learned counsel appearing in other cases that even if the prosecution case is accepted in toto, yet a case u/s 304, IPC is not made out; and as no substantive offence is established, cognizance could not have also been taken u/s 201, IPC. It is also frankly submitted by the learned Addl. Govt. Advocate that on the allegation though no offence under Sec 304, IPC is made out, yet a. clear case under Sec 304-A, IPC is made out: against the petitioners. It has been however submitted by Mr, S. K. Sahoo the Seamed counsel appearing for the informant that in view of Section 299, IPC, a case u/s 304, IPC must be held to have been made out" by the prosecution to enable the Magistrate to take cognizance under that Section.
The very FIR lodged by the informant alleged the deceased to have died due to negligence on the part; of the Surgeon and his associates and the owner of the nursing home. In all the statements made during investigation the allegation against: the petitioners is one of gross negligence. It is the specific case of the prosecution that the ''operation on the patient was carried out post mortem as has been opined by the various experts examined. The death according to the prosecution was due to asphyxia caused due to heavy dose of anesthesia. Section 304, IPC is an offence where death of the deceased is culpable homicide but does not amount to murder and yet the accused had either intended the death or had caused bodily injury as is likely to cause death or had the knowledge that death was the likely result of the act committed by them Prima facie as such Section 304, IPC is not attracted to the offence as described. It is however the submission of Mr: Sahoo that since Section 304, Fart II, IPC would also be attracted if the accused causes such I bodily injury as is likely to cause death and that they had the knowledge of such- likely effect of the injury. For the purpose he relies upon the Explanations 1 and 2 to Section 299, IPC. It is true that as far as Section 299 IPC is concerned, causing bodily injury in such circumstance as covered by Explanations 1 and 2 is also culpable homicide. Yet all the same from the narration of events by the prosecution, as in this case,, it can hardly be said that the injury was caused either with the intention of causing the same or with the knowledge that by such act the patient was to meet his death. A negligence on the part of a doctor in carrying out an operation ordinarily bears no intention of causing culpable homicide or a knowledge that it would likely result in death. It is true that there cannot be any uniform rule that wherever a patient dies in the process of an operation, the surgeon or his associates can never be called upon to answer charge u/s 304, IPC and indeed there may be cases where exposing the patient to treatment without properly checking his endurance may lead to a conclusion of commission of culpable homicide, but in cases where qualified doctors undertake an operation, such events must be extremely rare. So far as the present case is concerned, it does not appear from the facts revealed that there could be any knowledge that the likely result of the act of the petitioners was death. In the circumstances it must be raken, as has been fairly conceded by the learned Addl. Govt Advocate that offence would not be u/s 304, IPC.
Next is the question whether cognizance can be taken u/s 304-A, IPC. Since the learned Sub-Divisional Judicial Magistrate has not taken cognizance u/s 304-A, IPC, it would not be proper for me to express any opinion at that stage whether such an offence is prima facie made out. Having come to the conclusion that the offence u/s 304 IPC is not be made out, obviously Section 201, IPC would also not be made out. In that view of the matter, while quashing the order dated 16-7-1987 of the learned Sub-Divisional Judicial Magistrate taking cognisance against the petitioners under the respective Sections, I would remand the matter to he lea ned Magistrate to consider the question afresh as to whether any offence u/s 304-A, IPC or any other Section as also u/s 201, IPC is made out against the petitioners and decide in accordance with law.
In the result, the Criminal Misc Cases are allowed. Mr. Dhal prays that the petitioners may be afforded chance of hearing at the time of taking cognizance. The learned Magistrate would do well to hear the parties at the stage of taking cognizance.