RAMESH GUPTA Vs. STATE OF M P

JUDGEMENT

(1.) This revision-petition preferred under Section 397/401 of Cr.P.C., is directed against the order dated 24th September, 2010 passed in Sessions Case No. 212/09, by the Second Additional Sessions Judge (Fast Track) Ganj Basoda District Vidisha (M.P.), whereby the learned trial Judge framed the charge against the Petitioner for commission of an offence punishable under Section 304-A of I.P.C. and transferred the case for trial to the court of Judicial Magistrate First Class, Ganj Basoda for trial, in the light of the provisions of Section 228 of I.P.C. Code of Criminal Procedure 1973.

(2.) The facts in short relevant for the disposal of the case are that 02nd September, 09, Shyam, s/o Kalu Ram Malviya went to the clinic of Dr. Ramesh Gupta at Gandhi Squire, Ganj Basoda for treatment of fever. After examining the patient, Dr. Ramesh Gupta (Petitioner herein) administered the drug "Benzyl Penicillin " in the form of injunction on his right glutei region. After receiving injunction, the patient was said to have suffering from pain in that portion coupled with swelling. On complaint, he was treated by Dr. Darshana Jain, in Government clink in Ganj Basoda. As he did not get relief, he was referred to the District Hospital Vidisha, where he died at 8.05 AM on 3rd September, 09. On report from the hospital, a Marg was registered. Post-mortem of the deceased was conducted. The viscera were preserved and were sent to examination by the State Forensic Laboratory Sagar. According to the report of Examiner, in Article A/3, i.e., skin and tissues, the presence of drug anti-biotic drug "Bezyl Penicillin" was detected. It also appeared that the physician Dr. Ramesh Gupta was having the certificate from "Bhartiya Chikitsa Padhhati" and was having the decree "Ayurvedacharya", Bachelor of Medicine and Surgery' from the Board of Indian Medicine, Uttar Pradesh, but he administered the allopathic medicine. Consequently, an FIR was registered against the Petitioner for committing the alleged offence. After investigation, the charge-sheet was filed and the case was committed to the court of Sessions.

(3.) The contentions of the learned Counsel representing the Petitioner are that the learned trial court, without considering the procedural law and the evidence collected during investigation framed the charge for offence under Section 304-A I.P.C., and committed thereby serious error of law and facts. As per post-mortem report of the deceased Shyam, no definite opinion was given about cause of death of the deceased. There is no conclusive evidence that due to administering the alleged drug "Benzyal Penicillin" after injecting the same in the body of deceased Shyam, it has resulted into his death. The Petitioner is a qualified Physician in recognized Ayurvedic system and he is having the degree of "Ayurvedacharya" Bachelor of Medicine and Surgery from the Board of Indian Medicine U.P. and same is also registered in the State of Madhya Pradesh. As per Notification issued by the State of Madhya Pradesh, the Petitioner is authorized to for providing the Allopathic Medicine. It is contended that the Investigating Officer, during investigation, did not make an Endeavour to verify from the Specialists of the Medical Board whether the Petitioner was grossly negligent in administering the drug as alleged. Therefore, no case of medical negligence against Petitioner is made out. It is requested that the impugned order passed by the trial judge be set aside and the Petitioner be acquitted from the charges as framed under Section 304-A of I.P.C. In support of the contention, learned Counsel for the Petitioner placed reliance on the gazette Notification dated 19th June, 03 and the decisions in the cases of B.K. Sharma v. State of U.P.,1987 3 Crimes 23 of the High Court of U.P., Dev Vrat Mishra v. State of M.P., 2011 2 MPLJ 365.