DR. PRASANTA KUMAR SAHOO Vs. KUNTALA DEBI

JUDGEMENT

(1.) THE Petitioner has filed this application under Section 482 Code of Criminal Procedure for quashing the order dated 10.8.2006 passed by the Learned S.D.J.M., Bhubaneswar in I.C.C. No. 2004 of 2006 taking cognizance of offences under Sections 269, 271,307,506,354,323,304,337 and 338 of the Indian Penal Code.

(2.) THE case of the complainant is that prior to 2.2.2004 the daughter of the complainant was maintaining good health and was a recognized singer. She met with an accident and was treated in the Capital Hospital, Bhubaneswar. After taking medicines prescribed by the physician of the said hospital, she suffered from Jaundice and her health became such that she was referred to Kalinga Hospital at Bhubaneswar for further treatment. The Petitioner took charge of treatment from 2.2.2004 and implanted a temporary peacemaker. According to the complainant, a peacemaker whether temporary or permanent is needed only when the breathing of the heart falls from 72 times per minute. The work of peacemaker is like an inverter to maintain the heart beat at a constant pace. According to the complainant, 7 to 8 days after the temporary peacemaker was implanted, the same was removed and the daughter of the complainant was shifted to general ward of the said Kalinga Hospital and was assured that she would be discharged within 4 to 5 days. On 24.2.2004 instead of discharging the daughter of the complainant, only to get a substantial amount of commission from the pacemaker company, the Petitioner in presence of Secretary of the Saraswati Sisu Mandir advised that unless a foreign made permanent pacemaker worth Rs. 1,50,000/ - is implanted on the next day morning, the daughter of the complainant may suffer from paralysis or may die at any time. When the complainant expressed her inability to arrange such huge amount of money, she was advised to deposit a part of the money immediately and the balance at the time of discharge. Accordingly, the complainant was forced to agree for implanting a permanent pacemaker without the required test being done. However, on the advise of the Petitioner, a permanent pacemaker was implanted in the body of the daughter of the complainant. From the second day of implantation, the daughter of the complainant started vomiting continuously and also complained pain in the chest. In spit of such complain made by the daughter of the complainant, she was discharged from the Kalinga Hospital on 9.3.2004. Not being in a position to bear the pain and also due to continuous vomiting, a request was made to remove the permanent pacemaker, but the Petitioner did to listen. Since the pain became unbearable, the complainant contacted Dr. Hrudananda Mishra Professor and Head of the Department, Cardiology, S.C.B. Medical College and Hospital, Cuttack. However, it is alleged that Dr. Hrudananda Mishra neither treated her nor referred her to AIIMS, New Delhi. Being disgusted, the complainant and her daughter decided to commit suicide and accordingly, on 4.8.2006 both of them tried to commit suicide in the front of the State Assembly when the monsoon session was going on. However, they were prevented by the S.P., Bhubaneswar and were promised that action would be taken against the doctors treating her. It is also alleged that on 6.8.2006 the complainant and her daughter along with a social worker namely, Bhuban Behari Mohanty met the Petitioner for treatment but in spite of payment of consultation fees the Petitioner scolded them in obscene language and pushed the complainant and her daughter out of his consultation room. On these allegations, the complaint was filed for commission of offences under Sections 337, 338, 307 and 354 of the Indian Penal Code. However, the Learned Magistrate in the impugned order took cognizance of other offences apart from the above as stated earlier.

(3.) IN the case of Jacob Mathew v. State of Punjab and Anr. (Supra) an F.I.R. was lodged by one Ashok Kumar Sharma alleging therein that on 15.2.1995 his father late Jiwan Lal Sharma was admitted as a patient in a private ward of CMC Hospital, Ludhiana. On 22.2.1995 his father felt difficulties in breathing and the complainant's elder brother who was present in the room contacted the duty nurse, who in her turn called some doctor to attend to his father. No doctor turned up for about 20 to 25 minutes and then Dr. Jacob Mathew the Appellant before the Apex Court and one Dr. Allen Joseph came to the room where an oxygen cylinder was brought and connected in the mouth of the patient but the breathing problem developed. The patient tried to get up but the medical staff asked him to remain in the bed. The oxygen cylinder was found to be empty. There was no other gas cylinder available in the room. The brother of the informant went to the adjoining room and brought a gas cylinder therefrom. However, there was no arrangement to make the gas cylinder functional and in between 5 to 7 minutes were wasted. By that time, another doctor came who declared that the patient had died. On these allegations, the case was registered for commission of offence under Section 304 -A read with Section 34 of the Penal Code. The Apex Court in paragraphs -19 and 49 of the judgment held as follows: