Sandeep Kumar, J. – This application has been filed by the petitioner for quashing of the order dated 03.02.2016 passed by learned A.C.J.M., 1st East, Muzaffarpur, in Kaji Muhammadpur P.S. Case No. 137 of 2012, by which the learned Magistrate has taken cognizance against the petitioner for the offence under Sections 420 and 308/34 of the Indian Penal Code as well as the order dated 18.08.2022 passed by learned Additional Sessions Judge, XII, Muzaffarpur, in Sessions Trial No. 643 of 2019, by which the discharge petition filed by the petitioner has been rejected.

2. As per the F.I.R. on 02.05.2012 the mother of the informant got ill and was taken to Maa Bhawani Hospital and was admitted under the petitioner-Dr. Durga Shankar. It is alleged that according to the doctor, the mother of the informant needed “A positive” blood and the blood was donated by the informant himself. When more blood was needed, it was advised by the doctor that blood may be procured from the blood bank. It is also alleged that the blood was arranged by a staff of the hospital for a cost of Rs.2200/- but when the said blood was transfused in the body the patient, the patient became serious. It is also alleged that when the matter was reported to the petitioner, he did not respond and when the informant went to the pathology department, the person who arranged the blood ran away.

3. Learned counsel for the petitioner submits that the informant brought his mother to the hospital on 02.05.2012 in a serious condition suffering from jaundice and liver failure. The petitioner duly attended the patient and looking to her condition, she was referred to S.K.M.C.H./P.M.C.H. for proper treatment but on the request of the informant the patient was admitted in the said hospital and advised the informant to arrange the blood from blood bank as the blood in the body of the patient was much less. He further submits that in place of taking required blood from the blood bank, the petitioner contacted some tout and brought the blood. He further submits that it is well known fact that blood is not sold from any blood bank rather it is exchanged only as per the request of the doctor and after taking the same quantity of blood from the relative/well wishers of the patient.

4. Learned counsel for the petitioner further submits that the petitioner is a qualified doctor. He got commissioned in the Indian Army and has worked in various prestigious hospitals. He further submits that in the present case as per the direction of the District Magistrate a committee of medical expert has been constituted and the said expert committee visited the hospital and upon investigation it was opined that statement of the informant that his blood was transfused in the body of his mother (mother) does not corroborate with the treatment card of the patient. It was also opined that upon perusal of the medical documents that the patient was suffering from liver failure.

5. Learned counsel for the petitioner further submits that before lodging the F.I.R. the police did not follow the mandatory guidelines issued by the Hon’ble Supreme Court in the case of Jacob Mathews vs. State of Punjab & Anr. reported in AIR 2005 SC 3180.

6. Learned counsel for the State has opposed this application.

7. Learned counsel for the informant/opposite party no.2 submits that as per the F.I.R. prima facie case is made out against the petitioner and therefore, this application may be dismissed.

8. I have considered the submissions of the parties. Upon perusal of the materials available on record and the F.I.R. it appears that there is no any material available on record which suggest that the petitioner has cheated or committed negligence while treating the patient. In the case of Jacob Mathews vs. State of Punjab and Anr. (supra), the Hon’ble Supreme Court has held in paragraph nos. 48 to 52 as follows: –

“48. Conclusions summed up we sum up our conclusions as under. – (1) Negligence is the breach of a duty caused by omission to d