For criminal liability under Section 304-A IPC, gross negligence or recklessness must be established, along with a violation of duty by the medical professional, necessitating a trial.

JUDGMENT :

G.Satapathy, J.

This application U/S.482 of Cr.P.C. seeks to quash the criminal proceeding instituted against the petitioner in G.R. Case No. 1655 of 2009 arising out of Lingaraj P.S. Case No. 70 of 2009 pending in the file of learned S.D.J.M., Bhubaneswar.

2. The facts in precise are the petitioner was a Doctor and attached to Bhubaneswar Municipal Corporation Hospital (in short, “BMC Hospital”) at Old Town, Bhubaneswar as a Medicine Specialist. At the relevant time of occurrence on 01.07.2009 at about 6 P.M., Madhusmita Sahoo (hereinafter referred to as the “deceased”) was admitted at bed No. 36 in Medicine Ward of BMC Hospital and she was under the treatment of the petitioner. As the deceased was having low haemoglobin and her condition was getting worse, her uncle requested the petitioner and staff of BMC Hospital to give her blood transfusion immediately for her treatment, but although they assured to give the blood on 02.07.2009, her condition became serious at about 11 P.M. on 01.07.2009 and despite being requested by Doctor Sujata for several times, the petitioner did not respond and thereby, the informant also requested the petitioner, but he refused and asked him to contact with Doctor B.N.Das Mohapatra Surgery Specialist to attend the patient and the said Doctor on being requested over phone assured to direct the petitioner to attend the patient immediately, but unfortunately the deceased died in the midnight due to negligence of the petitioner.

3. In order to pacify and manage the situation, Dr. Sujata shifted the deceased with Oxygen support by an Ambulance to Capital Hospital where the Doctor on duty declared the deceased as received dead. After this incident on 02.07.2009 at about 2 P.M. the uncle of the deceased namely Sanjay Kumar Sahoo lodged an FIR before IIC, Lingaraj Police Station who registered Lingaraj P.S. Case No. 70 of 2009 and entrusted the investigation to S.I. of Police Dullabha Patel who after completion of investigation, placed charge sheet against the petitioner. This is how the present criminal proceeding came to be instituted against the petitioner who by way of this application prays to quash the criminal proceeding.

4. In the course of hearing of this application, Mr.M.K.Mishra, learned Senior Counsel by drawing the attention of the Court to the ingredients of Section 304 -A of the IPC has submitted that there is absolutely no material against the petitioner to find out any prima facie case U/s. 304-A of . It is also advanced for the Petitioner that had the Ultra Sonography(USG) of abdomen and pelvis of the deceased been done in time, the diagnosis would have been established and treatment could have been properly provided to the patient(deceased) as opined by the District Medical Board (DMB), but the informant being advised in this regard had failed to conduct the USG and thereby, the family members of the patient were negligent. It is further submitted that the petitioner had discharged his duty by advising the patient to take her to Capital Hospital since there was no medical facility of USG at BMC Hospital. Mr.Mishra, learned Senior Counsel by relying upon the decisions in (1) Jacob Mathew v. State of Punjab and another ; (2005) 6 SCC 1 and (2) A.S.V. Narayan Rao v. Ratnamala and another ; (2013) 10 SCC 741 has prayed to quash the criminal proceeding instituted against the petitioner.

5. In repelling the above submissions, Mr.S.S.Pradhan, learned AGA by taking this Court to the relevant facts mentioned in the charge sheet has submitted that despite repeated telephone calls and requests made by Dr.Sujata Samanta,