JOAN MATHAIKAL Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD the parties.

(2.) THIS is an application for quashing the order dated 29.4.2005 passed by Sri S.K. Singh, Judicial Magistrate, 1st Class, Patna City in C.A. No. 953 of 2004, wherein and whereunder, the learned Magistrate took cognizance against the accused persons u/ss. 304A, 304 Part -II, 326 and 465 of the I.P.C. pursuant to the order of the learned Additional Sessions Judge -12th, Patna in Cr. Rev. No. 37 of 2005 dated 26.2.2005, although the learned Judicial Magistrate, Patna City had earlier refused to take cognizance under the aforesaid provisions by passing a detailed order dated 12.1.2005. The complaint case filed by the complainant is as follows: - Wife of the complainant was ailing in the month of May, 2004 and she had loss of appetite, vomiting and yellow eyes and mild fever with pain in abdomen. She had been taken to Arshi Clinic, Sultanganj. Accused M.A. Rasheed (non -petitioner) prescribed medicines. The condition of the patient deteriorated and despite request of the complainant, the complainant 'swife was not treated for Jaundice. There was repeated pathological tests. Accused Dr. M.A. Rasheed despite being a Allopathic practitioner did not diagnosis disorder properly and prescribed Ayurvedic medicines. The condition of the patient further deteriorated. Accused No. 2 (non -petitioner) who was Director of Arshi Clinic did not call any specialist for the particular disease and both of them had committed gross negligence and when the condition did not improve, the patient was taken to Dr. U.C. Samal. Dr. U.C.Samal did not examine the condition of the patient clinically nor advised for ultrasound. Without examining the patient he prescribed certain medicines as mentioned in the complaint petition. The condition of the patient was still deteriorating and Dr. Samal advised the complainant to take her to Magadh Hospital, Rajendra Nagar, Patna for hospitalisation as there was no nursing arrangement in his clinic, but unfortunately Magadh Hospital refused to admit the patient in the hospital as there was no vacant bed available in the hospital. Thereafter, Dr. Samal (Accused No. 3) referred the patient to Kurji Holy Family Hospital, Patna suggesting some test to be conducted. He also did not take care in selection of drugs. On the same day of admission the patient felt breathing trouble, but the breathing of the patient could not be made stable. The duty Incharge was asked to make quick arrangement for ventilator (Artificial respiratory system), but the management of the said Kurji Holy Family Hospital denied to provide the same and said that the same cannot be supplied due to fear of infection to other patients lying on the bed in the said hospital. The deceased was suffering from jaundice which was detected in the said Hospital. The petitioner is Administrator of Kurji Holy Family Hospital, and the patient did not survive as there was no ventilation system for the survival of the patient. It is alleged that the petitioner alongwith others had criminal mens rea and had acted in the most negligent way in treating the patient, which ultimately caused death of the deceased. In the complaint petition a plea was taken for taking cognizance u/ss. 304A, 304 Part -ll, 328 and 468 of the I.P.C.

(3.) IT has been submitted on behalf of the petitioner that even if the entire statement made in the complaint petition be treated as gospel truth, no case is made out against the petitioner as the complainant and his associates had not approached the petitioner to supply the ventilator. The petitioner claims herself to be administrator and she had nothing to do with the treatment of the patient. It is stated that the Doctor decides line of treatment and medicines.