DR. BHUSHAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard. Rule. Rule made returnable forthwith.

(2.) The present petition challenges the final report/charge- sheet No.278 of 2017, for the offence under Sec. 304 read with Sec. 34 of IPC, filed by the Police Inspector, Police Station Gadge Nagar, Amravati, in which the present petitioner has been made an accused. The F.I.R. leading to the charge-sheet was lodged on the report of the Civil Surgeon, General Hospital, Amravati, on the allegation that between the night of 28/5/2017 and early morning of 29/5/2017, between 10:30 p.m. to 3:50 a.m. (3:50 a.m. of 29/5/2017 as per the post mortem report), there occurred unfortunate demise of four babies, who were admitted in the Neonatal Intensive Care Unit (hereinafter referred to as "the NICU"), Department of Paediatrics at Dr. Punjabrao Deshmukh Medical College, Amravati, due to wrong administration of an injection by the nursing staff on duty, namely, sister Vidya Thorat, who administered the drug "Potassium Chloride" instead of injection "Calcium Gluconate", as prescribed. The complaint also named the present petitioner, who was occupying the post of Junior Resident Doctor at the relevant time and was stated to be absent and was arrayed as an accused on the ground that he had not taken proper care, due to which the unfortunate incident happened.

(3.) Mr. Anil Mardikar, learned Senior Counsel, for the petitioner, submits, that filing of the F.I.R. as well as the charge- sheet against the petitioner under Sec. 304 read with Sec. 34 of I.P.C. is clearly not justified on the face of it. He submits that it was an admitted position that the petitioner though on duty, was not present at the time of administration of the injection, and was somewhere else at the relevant time. That what was prescribed was the injection "Calcium Gluconate" to be administered to the babies, instead of which, what was administered was the injection "Potassium Chloride" (Kesol). He submits that the injection "Potassium Chloride" (Kesol) was never prescribed by the petitioner, as would be indicated from the clinical notes on record at page 211 and onwards. He invites our attention to the admission given by the staff nurse, who was on duty at that time, namely, Vidya Bhanudas Thorat, who had admitted her mistake in administering the injection "Potassium Chloride" (Kesol) instead of "Calcium Gluconate", which is on record at page 57. He further invites our attention to the report of the fact finding Committee constituted for this purpose, dtd. 31/5/2017, which also found that death of the four newborns was possible by injection Kesol (Potassium Chloride) 2 CC IV, which is corroborated by the post mortem finding. He further invites our attention to the CCTV footage visualization panchanama dtd. 30/5/2017, to submit that the admission as given by the on-duty staff nurse is borne out therefrom. He, therefore, submits a perusal of the entire charge-sheet and the material along with it as placed on record, would indicate, that no case is made out against the petitioner under Sec. 304 of I.P.C. The learned Counsel invites our attention to the definition of "culpable homicide: as contained in Sec. 299 and the Exceptions - 1 to 3 of Sec. 300 of the IPC and submits, that the ingredients necessary for invoking the said sec. are not made out against the petitioner. He submits that there was no intention, or knowledge on part of the petitioner as is necessary to attract Sec. 299 of I.P.C. and, therefore, no offence, even if the entire charge-sheet is taken to be proved, can be made out against the petitioner. He submits that, at the most, a departmental action can be taken for his absence in the NICU at the particular time on the given day; but in any case, the petitioner cannot be charged with the offence under Sec. 304 of I.P.C.