GIRISH KUMAR Vs. STATE OF U. P.

JUDGEMENT

(1.) List revised. None appears for the opposite party No. 2. Heard learned Counsel for the applicant, learned A.G.A. for the State and perused the record. This application has been filed for quashing the proceedings of Case No. 402/9/2007 (State of U.P. v. Dr. Girish Kumar and others), under Sec. 269, 270, 274, 337, 338, 304 I.P.C., P.S. Civil Lines, District Muzaffarnagar, pending in the Court of Ld. ACJM-II, Muzaffar- nagar.

(2.) Brief facts of the case are that the first informant namely, Ram Gopal Sharma lodged a first information re- port against the applicant and one Dr. Veena Agarwal with the allegations that on 15/8/1996, his two children namely, Dikshant Sharma and Vishal Sharma were born at Singhal Nursing Home, Muzaffar Nagar. They were not healthy therefore he admitted them in "Kumar Child Care Center at Muzafffar Nagar. It has also been stated that his son Vishal Sharma was complained of Pneu- monia, due to which, blood was directed to be transfused and he brought the same from Dr. Veena Agarwal Pathology Lab and Blood Bank. Thereafter blood transfusion was taken place, again on 10/7/2004 blood transfusion was done after making demand in writing from Dr. Veena Agarwal Pathology Lab and Blood Bank. On 7/12/2014, his son was referred to C.B.D. Chandigarh and during the course of treatment, his son was diagnosed HIV positive and it has been alleged in the F.I.R. that the applicant and Dr. Veena Agarwal have transfused HIV blood to his son. Upon aforesaid allegations, a first information report was lodged in Case Crime No. 12 of 2005 under Sec. 269, 270, 274, 328 and 308 I.P.C. against the applicant and Dr. Veena Agarwal. Thereafter the matter was entrusted for investigation, which culminated in submission of charge-sheet dtd. 2/4/2005 under Sec. 269, 270, 274, 337, 338 and 304-A, upon which cognizance was taken on 9/1/2006 and the case was registered as Case No. 402/9/2007 in which the applicant has been summoned vide order dtd. 12/5/2008. Being aggrieved by the summoning order, the applicant has challenged the entire proceedings of the aforesaid case in the instant application.

(3.) Learned Counsel for the applicant submits that the applicant is a M.B.B.S. M.D. (Paediatrics), who is a praticing Doctor and is running a clinic since 1985 in the name and style of "Kumar Child Care Center at Muzafffar Nagar. He further submits that the applicant had given treatment to the son of the first informant with utmost care, diligence and medical skill and since he was of the opinion that patient was required blood transfusion and thus he asked the informant to arrange the same, therefore the informant arranged the blood from the licencee of Blood Bank, Dr. Veena Agarwal and licenceee shall be responsible to ensure that the blood collected, processed and supplied, confirms the standard as laid down un- der Indian Pharmacopoeia by the Government. He next submits that even assuming but not admitting for the sake of argument, no criminal prosecution would lie against the applicant. Learned Counsel thus argued that there is no evidence against the applicant to show that he has committed any offence. He next argued that the co-accused Dr. Veena Agrawal, had filed a discharge application before the Trial Court which was allowed vide order dtd. 24/10/2009 whereby the Trial Court discharged the co-accused Dr. Veena Agarwal for the offence under Sec. 269, 270, 337, 338 I.P.C. but rejected the prayer for dis- charging her under Sec. 304 I.P.C. and directed for framing the charge un- der Sec. 304 I.P.C. Pursuant to which, charge was framed against her vide or- der dtd. 27/5/2010. Being aggrieved by the order dtd. 27/5/2010 and 24/10/2009, the co-accused Dr. Veena Agarwal had challenged the said orders by way of filing Criminal Revision No.2393 of 2010 and Criminal Revision No. 4952 of 2009, which came up for consideration before this Court and another Bench of this Court vide Judgment and order dtd. 29/7/2011 allowed the revision, whereby the order dtd. 24/10/2009 as well as charge framing order dtd. 27/5/2010 under Sec. 304 I.P.C. was quashed. Learned Counsel further submits that the informant challenged the aforesaid judgment and or- der dtd. 29/7/2011 before Hon 'ble Supreme Court by way of filing SLP (Criminal) No. (s) 9894-9895/2011 (Ram Gopal Sharma v. State of U.P. and another) which was dismissed vide Judgment and Order dtd. 9/8/2012. She further submits that according to the prosecution case, the main allegations have been levelled against co-accused Dr. Veena Agrawal, who has already been dis- charged by this Court, which judgment of this Court has also been affirmed by Hon 'ble Apex Court, therefore, no of- fence against the applicant is made out.