ORDER :

Heard

1. The facts as pleaded, the petitioner's mother, aged about 69 years, was admitted to hospital named Ram Krishna Care Medical Science Pvt. Ltd. on 22.09.2020 with an infection of Jaundice and no symptom of Covid-19. Subsequently, she was put in a Covid ward after she was tested covid positive at the time of admission. It is stated that the mother was administered with Remdesivir Injection and due to wrong treatment of administrating injection her health got deteriorated from 26.09.2020. Subsequently after deterioration Remdesivir injection was stopped. Further, on 29.09.2020 RTPCR test was conducted wherein she was found covid negative but still she was kept with the covid patient and on 02.10.2020 the mother of the petitioner died due to post covid complication. Further, it is stated that the dead body was delivered to the petitioner without following the safety protocol and it was transported through the Ambulance without safety measures. Consequently, violation of guidelines issued by the Central and the State Government was committed by the respondent No.5, hospital, for which they are liable to be prosecuted. With such pleading the two fold prayer is made. The hospital is responsible for the negligent treatment and another one that the hospital did not follow the covid protocol norms in handling the dead body; therefore, the hospital is liable to be prosecuted.

2. Learned counsel for the petitioner would submit that the mother of the petitioner when admitted was tested Covid-19 positive and though she recovered from covid but eventually died on 02.10.2020. Before the date of death, the RTPCR test was carried out of patient for covid and it was found that she was negative; thereby recovered from covid but died subsequently. It is stated though the mother of the petitioner died because of covid complication yet after her death the dead body was handed over without following the guidelines issued by the Government of India, Ministry of Health & Family Welfare (Annexure P-6). He would submit that as per the guidelines, the Hospital was required to give the body in a double layer leak proof zipped body bag and to be handed over to the transport employee. Whereas, in respect of case of mother of petitioner, it was handed over to the petitioner instead and the petitioner carried the body to Ambikapur and cremated the body there only. Consequently, the guidelines which was issued under the Pandemic Act were not followed. The counsel further submits that the applications complaining the incidents were made to the respective Director, Health Services wherein allegations were made but it was not taken care of. Therefore, this petition to proceeding against the hospitals for penal actions.

3. Learned State counsel opposes the argument advanced by the counsel for the petitioner.

4. Heard learned counsel for the parties, perused the pleadings and the documents appended thereto.

5. The primary allegation of the petitioner that there has been a negligence in the treatment and wrong injection i.e. Remdesivir Injection was administered to the mother of the petitioner by which her health condition was deteriorated. With respect to the medical negligence and criminal case whether under the circumstances Remdesivir Injection was necessary or not, it cannot be tested by the Court.

6. The Supreme Court in case of Dr. Suresh Gupta v. Govt. of NCT of Delhi & Another, AIR 2004 SC 4091, has held that the bonafide medical practitioners should not be put through unnecessary harassment. The court observed that Doctors would not be able to save lives if they were to tremble with the fear of facing criminal prosecution. In such a case, a medical professional may leave a terminally ill patient to his own fate in an emergency where the chance of success may be 10% rather than taking the risk of making a last ditch effort towards saving the subject and facing criminal prosecution if the effort fails. The court held that simple lack of care, error o