Decided on July 30,2007

STATE Respondents


S.RAVINDRA BHAT, J. - (1.) This is a criminal revision, preferred against an order dated 07.04.2005. of the Metropolitan Magistrate, (hereafter "the Trial Court") discharging the accused, second respondent.
(2.) The necessary facts to decide this case are that the petitioner, and the father of the deceased (minor Akash, hereafter called "Akash") was Chief Medical Officer at Pahar Ganj, D.B. Gupta Road, MCD Dispensary. Akash, aged about 14 years, was suffering from an acute form of Bronchial Asthma since his childhood. He was a regular patient of O.P.D. of Kalawati Saran Children's Hospital (hereafter "KSC Hospital") since 1990. On the fateful day of 30.03.99, he suffered an acute incident of Bronchial Asthmatic attack. Resultantly, he developed breathing problems and was rushed to the O.P.D./ Casualty section of the KSC Hospital by his parents; they were accompanied by their neighbour.
(3.) It was alleged that when Akash was rushed to the hospital, the doctor on duty, respondent No.2 Dr. Reema S. Nagpal, did not attend him and provide him immediate medical treatment or first-aid. This omission her part, it was alleged, cost Akash his life. An FIR was lodged on 2-8-1999. A final report recommending closure of the case, on the basis of the police investigation, and opinion that no case for criminal negligence had been made out, was filed in court on 19-6-2000. Earlier, during course of investigation, the DCP had sought opinion from the Director General of Health Services, Central Government, on 13-9-1999. The matter was taken up with the Smt. Sucheta Kripalani Hospital and Lady Hardinge Medical Hospital; a committee was constituted. The Committee apparently submitted its report. The report, authored by three doctors, concluded that there appeared to be no evidence of misbehaviour or use of harsh words by the accused doctor. It also concluded that Akash was brought to the casualty of KSC Hospital in a very critical condition. Dr. Nagpal, the accused, had the option of resustication in the casualty or to refer the case to the main casualty of Smt. SSK Hospital, an associated hospital. She opted to refer the case to the SSK hospital as proper resustication equipment was unavailable for that particular patient. This option was not refuted by the HOD Paediatrics and Senior Paediatrician, KSC Hospital. Dr. Chandraker, father of Akash, filed a complaint. In the meanwhile, the accused doctor had approached this court, seeking quashing of criminal proceedigs; the court was of opinion that she should apply for recall of summoning order, in view of the ratio in K.M. Mathew Vs. State of Kerala 1992 (1) SCC 217. She did so; the trial court, after considering all the materials, including the oral testimony of the complainant and his witnesses, issued the impugned order.;

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