PRAHLAD Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This criminal revision petition under Sec. 397 read with Sec. 401 Cr.PC. is directed against the order dated 15.1.2004 passed by the Additional Sessions Judge (Fast Track) No. 2, Bikaner (for short, 'the trial court'), whereby the petitioner was discharged from the offence under Sec. 304 IPC; however, it was directed to frame a charge against him for the offence under Sec. 304-A, IPC. Aggrieved by the Order impugned framing charge, the petitioner has filed the instant revision petition.

(2.) I have heard learned counsel for the parties and perused the order impugned. I have also carefully gone through the record of the trial court.

(3.) Complainant Laxmi Narain lodged an FIR No. 81 on 18.8.2003 alleging therein that due to negligence of the doctor, the death of his brother Jagdish Bhati has been caused. In the FIR, inter alia, it was also alleged that his brother late Jagdish Bhati was suffering from throat disease and, therefore, on 9.5.2003, at about 6.00 pm, his brother went to Dr. N.K. Soni's residence, who, on medically examining the patient, wrote a prescription on a slip after having charged the fee of Rs.100.00. On the basis of the prescription slip, he purchased the medicines from Bikana Medicos and thereafter went to his house situated in Gangashahar, contacted the petitioner and showed him the prescription slip written by Dr. Soni and requested the petitioner for giving injection to his brother. The petitioner assured that he would come to his residence and administer the injection. However, the petitioner did not go to the house of the complainant and, therefore, the complainant again came to petitioner's house, whereupon the petitioner informed that he is not feeling well and suggested the complainant to take his son Prem, who would administer the injection to his brother. At about 8.30 pm, co-accused Prem, after seeing the prescription slip of Dr. Soni, administered the injection (Lynx). At the time of administering the injection, Jagdish suddenly made complaint of head-ache and froath started coming from his mouth. Thereafter the complainant contacted the petitioner and the petitioner advised to take Jagdish to PBM Hospital, Bikaner. Jagdish was taken to PBM hospital, where he was declared dead. The post-mortem of the dead-body was conducted. According to the Medical Officer, the opinion regarding the cause of death shall be given after receipt of chemical examination report and the report of Histopathology examination, for which visceras had been preserved and sealed. The police investigated the matter. During investigation, the opinion was sought from the Medical Board. Vide letter No. 578 dated 16.6.2003, the Medical Board opined that the medicines which had been prescribed by Dr. N.K. Soni for accute Tonselitis Pherenkes disease have been correctly prescribed and for the said disease, injections Lynx/Rincocyal and Dicloran/Dynbipar, Tablet Nirmolid MD and syrup Mucaine jel prescribed by Dr. Soni are the medicines for the cure of the said disease. The Medical Board also opined that for the disease accute tonsilitis Pherenkes, there is no laboratory test and it can be digonised by seeing the symptoms of the patient and, therefore, the medicines prescribed by Dr. Soni for the said disease are fully effective. After investigation, the police did not file any challan against Dr N.K. Soni. However, on 31.7.2003. the police filed challan against the petitioner and co-accused Prem Prakash for the offence under Sec. 304 IPC. After hearing the parties, the trial court came to the conclusion that prima facie no offence under Sec. 304 Penal Code is made out; however, the offence under Sec. 304-A, Penal Code is made out and accordingly, the learned trial court sent the matter to the Chief Judicial Magistrate, Bikaner under Sec. 228 Cr.PC. for trial of the case.