/ HIGH COURT OF CHHATTISGARH AT BILASPUR ISB: Hon’bie Mr.T.P.sharma.J.1 ,f Criminal Revision No. 484 of 200.4 K “APPLICANT Vidyu't umar VERSUS State of Chhattisgarh Post for pronouncement of order on 25-6-200 RESPONDENT 9 y’A?! ‘“\ HIGH COURT OF CHHATTISGARH AT BILASPUR ISB: Hon’ble Mr.T.P.Sharma.J.1 Criminal Revision No. 484i2004 APPLICANT Vidvut Kumar Aaed about 38 vears. aGn v: ¥ ulnx ¢k unuclc kA-AuAvnnaé-k Iulana u IMAM nuann, DIA xvv Viilage Patnanya,' District Bugspur, Chhattisgarh. VERSUS NON APPLICANT State of Chhattisgarh throuch Poiice Stat§Gn Pathafly ulatlw‘ B ia‘spun, CG Mr Manoi Paraniape counse! fOithe annlican? ’ Mr Sum... Bajpaa u, GA fer the a3“ agphcante’iatate CRiMiNAL REVISION UNDER $ELTIQN 39?i481 OF THE GGJE OF rpmmmm pnngEhLw: v: \unuwnn. ORDER §2 {ca-2mg; This petition is diriected aaainst the order dated 4.9.2004 gnawed by the Additional Sessions Judge (FTC) Mungeli, in Sessions Triai No. 267/2004 framing charge against the appiicant fer the bffence punishable under Sestion' 304 of the lndiam Pena? Code. 2. The arder Is challenged on the around met without ihere beina any ma‘zerial coHected by the proeecutio‘n reiatiag to the offence underSection 304 of the Indian Penai Code'the Ceurt bebw has committed an illeuamv in framina charge against the apolicant. e "3. . Case of the prosecution in biief is ihat the apoiicant is an Avurvedic doctor registered in the Madhya Pradesh Ayurvedic Tatha Unani Chikitsa Paddhati and Naturopathi Board, Bhopai; Deceased Jagrati Des was suffering from vomiting and ioose motion and he was taken to the appiioant by'his reiatives for treatment. Applicant gavehim sometable‘ts‘and intravenous saline. After sometime he fell down and died. Merg was registered. Dead body was sent to? autoosv and team D of doctors opined that Cause of death was shook as a result of druu induced @KV m/M _ ‘ ' ’7 06 “2 anaphylactic; leading to cardio respiratory arrest. After completion of investigation charge sheet wasiiied against the appticant‘ 4. Heard counsel for the parties and perused the material availabie on record including the orderimpuoned. 5. Counsel for the applicant submits that the appilcant is a registered doctor and though he is not competent to administer atlopathic medicines. the prosecution has not collected any material to show‘ that he acted in Such a manner which resulted in the death of Jagrati Das. He further submits that in the absence of any such material the charge under Section 304 is not made out against the applicant. He fairly submits that at the most‘the act of the appiicant may fall under Section 304 of the Indian Penal Code for causing death by negligence. He placed reiiance on the decision of the High Couit of Madhva Pradesh in the matter of Dr. Khusaidas Pammandas v. State 1 i. which it has ’ been held that Hakim ignorant of knowledge administered Penicillin lniection for treatment resulting in death: the offence is punishable under Section 304-A of the indian Penal ’Code. Further retiance is'ptaced on the decision of Hioh Court of Madhya Pradesh in the matter of Ghanshyamdas Bhaqwandas \1. State of Madhya Pradesh 2 in which it has been heid that there most he direct nexus between death and the rash and negligent act of the accused. Physician giving Coramine injection to patient of bronchial asthma — post mortem not showing injectrbn as proximate cause of death — charge under Section 304—A is not tenable. Reliance is placed on the decision of the Apex Court in the matter of Jacob Mathew v. State of Punjab and another 3 in which it has been h_!d that the doctor who administers medicine known to or used in a particular branch of medical profession impliedly declares that he has the knowledge of that branch, of science, the prosecution is required to collect the material to show that he has 3 1 1§59 MPLJ 966 ‘ 1977*MPLJ’ 165 3 2005 AIR SCW 3685 - 8M m/M ‘, Q ‘3'? ‘ committed gross negliaence' which resulted in the death of the patient In the absence of anv matenal no charue under Section 304-A of the lndlan Penai Code Is sustainable A mere deVIatmn from norma‘ professwna! nracuce is net hecessarilv evidence of negHgence. 6. On the other hand counsel for the respondentlobjector submitted that the triai Court is the best authority to decide an appropriate charge at an appropriate staae of trial and in suitabie cases suitable application may be filed before the trial Court for alteration of the charge in accordance with Section 216 of the Code of Criminal Procedure and therefore, the revision is liable to be dismissed. l-le further submits that the applioant is not competent to treat the patient by allooathio svstem of medicine but he is only competent to treat the patient by Unani and Avurvedic system of medicine. He further Submits that the applicant has intentionally and knowingly treated the patient by using the aliopathic medicr'hé for which he was not competent. His act squarely falls Within the ambit of knowlnolv and intentionally causing the death of the patient punishable under section 304-A of the lndian Penal Code. He placed reliance on the decision of \l the Apex Court in the matter of State of Maharashtra v. Salman Salim Khan and “other 4 in which it has bee“ he“ that framing of proper charge can be best decided by the trial Court at an appropriate stage of trial. Further reliance is placed on the decision Apex Court in the matter of Smt. Savita Garg v. Director, relational Heart 'rwhtnte in which'it has been held that Ir‘ case of charge o. r neglg'ence on the part of the doctor. the burden is on the hospital to justify that there was no negligence on their part. Further reliance is placed on the decision ' of Madras High Court in the matter of nr .Ayth an a .o... r . State m. which it has been held that deliberate conduction of surgery in store room which was ill- / u“... “nan-«u n. nu u . av u uv-u nun. “ha... w / K I tr equipped for such major surgery is not mere negligent but the offence punishable : l under section304 of the lndian Penal Code. 4 2004 cam, 92o 5 2004 AIR scw 5820 f 6 2003 cam. 48 37 J ZWK ligww/w ‘1 & r wq__‘ 7V . in this case, according to the case of ihe prosecution deceased Jagrati Das was treated by the applicant who was not a registered aiicpat‘nic medicine practitioner. He wasiregistered for Ayurvedic and Unani system of medicine. However, he administered medicine (entizoi forte omepren) and intravenous saline. Patient died due to 'shock as a result of drug induced anaphylactic leading to cardio respiratory arrest. Prosecution has not collected any materiai to show that the applicant has. intentionally or knowingly administered the medicine with an intention to cause homicidal death of the Jagrati Das: and as a result of which he died. However, the prosecution has collected sufficient material to show that the applicant was not an expert in the allopathy branch of medicine and as such was not competent to administer allopathic medicine to treat the patient. Prosecution has not collected any material to show that the applicant was reckless while administering the allopathic medicine including intravenous saline to the patient which ultimately resulted in his death. At the most the act of the applicant falls within the ambit of causing death of a person by his negiigent act punishable under Section 304-A of the indian Penal Code. 8. The Court below has not considered the material which is not prima facie sufficient for framing the charge against the applicant and thereby has committed an illeoaiitv. Accordingly, the revision is aitow‘ed. Order framing charge against the applicant under Section 304 IPC is set aside. Court below is directed to frame the proper charge under section 304—A IPC in accordance with the provisions of / Section 228(1) (a) of the Code of Criminal Procedure. d \ ‘21‘w \