JAYESHBHAI VASHRAMBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY this petition under Section 482 of the Code of Criminal Procedure, the petitioner seeks to quash and set aside the impugned order dated 21-9-2010 passed below application Ex.3 and to discharge the petitioner from the Sessions Case No.45 of 2009 pending before the learned Addl. Sessions Judge and 3rd Fast Track Court, Ahmedabad Rural, Mirzapur.

(2.) THE facts in brief as explicit in the petition are that the petitioner, who is M.D.Consulting Gynaecologist of New Lakshmi Hospital, Dholka, Ahmedabad, performed operation on the wife of the complainant for her uterine problems on 21-6-2008 after necessary pathological investigations. According to the petitioner, as mild pallor was noticed after operation, urgent hemoglobin was advised. As the hemoglobin came to 5.4 g.m.%, blood transfusion was required to be carried out urgently and hence, complainant and relatives were asked to bring blood bottles from Prathma at Ahmedabad. Meanwhile, Haemacele injections were started. Dr.Thakker, Physician, Dr.Pujara, Surgeon and Dr.Momin, Anaesthetist were called urgently and vigorous treatment like intubation and artificial ventilation by Ambu's Bag were given after joint discussion. As the condition of the patient was deteriorating, patient was being shifted to Ahmedabad in ambulance with assisted ventilation and I.V.drip with medicines. Meanwhile, as blood bottles had come, blood transfusion was also started. However, on reaching V.S.Hospital, doctor on examination declared her dead and thereafter post-mortem was carried out on the dead body of patient. A notice was then sent by the complainant on 9-6-2008 making various allegations and demanding Rs.5,00,000/-. THE petitioner replied to the said notice on 12-7-2008. Ultimately, criminal complaint was filed on 18-7-2008 by the complainant in the Court of learned Judicial Magistrate (First Class), Dholka, and it was sent to Dholka Police Station where FIR was registered being M.Case No.2 of 2008 for the offence punishable under Sec.304 of IP Code. THE petitioner was granted anticipatory bail on 6-8-2008 and was released on regular bail on 20-8-2008. Charge sheet was filed on 15-9-2008 for the offence punishable under Sec.304 of IPC before the learned J.M.F.C., Dholka. THEreafter, the petitioner filed application Ex.3 for discharge on 17-11-2009. However, same was rejected by the learned Addl. Sessions Judge and Fast Track Court No.3, Ahmedabad Rural, Mirzapur, Ahmedabad vide order dated 21-9-2010. Hence, the present petition.

(3.) ALTERNATIVELY, it is submitted by Mr.Tirmizi that even if the allegation made in the complaint is accepted as it is, then also, offence is made out only under Sec.304-A of IPC and not under Sec.304 of IPC, which has not been considered by the trial court thereby committed error.