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2022 DIGILAW 410 (ALL)

Girish Kumar v. State of U. P.

2022-03-22

GAUTAM CHOWDHARY

body2022
JUDGMENT : Gautam Chowdhary, J. List revised. None appears for the opposite party No. 2. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record. 2. This application has been filed for quashing the proceedings of Case No. 402/9/2007 (State of U.P. v. Dr. Girish Kumar and others), under Section 269, 270, 274, 337, 338, 304 I.P.C., P.S. Civil Lines, District Muzaffarnagar, pending in the Court of Ld. ACJM-II, Muzaffarnagar. 3. Brief facts of the case are that the first informant namely, Ram Gopal Sharma lodged a First Information Report against the applicant and one Dr. Veena Agarwal with the allegations that on 15.8.1996, his two children namely, Dikshant Sharma and Vishal Sharma were born at Singhal Nursing Home, Muzaffar Nagar. They were not healthy therefore he admitted them in ''Kumar Child Care Center at Muzafffar Nagar. It has also been stated that his son Vishal Sharma was complained of Pneumonia, due to which, blood was directed to be transfused and he brought the same Dr. Veena Agarwal Pathology Lab and Blood Bank. Thereafter blood transfusion was taken place, again on 10.7.2004 blood transfusion was done after making demand in writing from Dr. Veena Agarwal Pathology Lab and Blood Bank. On 7.12.2014, his son was referred to C.B.D. Chandigarh and during the course of treatment, his son was diagnosed HIV positive and it has been alleged in the F.I.R. that the applicant and Dr. Veena Agarwal have transfused HIV blood to his son. Upon aforesaid allegations, a First Information Report was lodged in Case Crime No. 12 of 2005 under Sections 269, 270, 274, 328, 308 I.P.C. against the applicant and Dr. Veena Agarwal. Thereafter the matter was entrusted for investigation, which culminated in submission of charge-sheet dated 2.4.2005 under Sections 269, 270, 274, 337, 338, 304-A, upon which cognizance was taken on 9.1.2006 and the case was registered as Case No. 402/9/2007 in which the applicant has been summoned vide order dated 12.5.2008. Being aggrieved by the summoning order, the applicant has challenged the entire proceedings of the aforesaid case in the instant application. 4. Learned counsel for the applicant submits that the applicant is a M.B.B.S. M.D. (Paediatrics), who is a praticing Doctor and is running a clinic since 1985 in the name and style of ''Kumar Child Care Center at Muzafffar Nagar. 4. Learned counsel for the applicant submits that the applicant is a M.B.B.S. M.D. (Paediatrics), who is a praticing Doctor and is running a clinic since 1985 in the name and style of ''Kumar Child Care Center at Muzafffar Nagar. He further submits that the applicant had given treatment to the son of the first informant with utmost care, diligence and medical skill and since he was of the opinion that patient was required blood transfusion and thus he asked the informant to arrange the same, therefore the informant arranged the blood from the licencee of Blood Bank, Dr. Veena Agarwal and licenceee shall be responsible to ensure that the blood collected, processed and supplied, confirms the standard as laid down under Indian Pharmacopoeia by the Government. He next submits that even assuming but not admitting for the sake of argument, no criminal prosecution would lie against the applicant. Learned counsel thus argued that there is no evidence against the applicant to show that he has committed any offence. He next argued that the co-accused Dr. Veena Agrawal, had filed a discharge application before the trial Court which was allowed vide order dated 24.10.2009 whereby the trial Court discharged the co-accused Dr. Veena Agarwal for the offence under Section 269, 270, 337, 338 I.P.C. but rejected the prayer for discharging her under Section 304 I.P.C. and directed for framing the charge under Section 304 I.P.C. Pursuant to which, charge was framed against her vide order dated 27.5.2010. Being aggrieved by the order dated 27.5.2010 and 24.10.2009, the co-accused Dr. Veena Agarwal had challenged the said orders by way of filing Criminal Revision No. 2393 of 2010 and Criminal Revision No. 4952 of 2009, which came up for consideration before this Court and another Bench of this Court vide Judgment and order dated 29.7.2011 allowed the revision, whereby the order dated 24.10.2009 as well as charge framing order dated 27.5.2010 under Section 304 I.P.C. was quashed. Learned counsel further submits that the informant challenged the aforesaid judgment and order dated 29.7.2011 before Hon'ble Supreme Court by way of filing SLP (Criminal) No. (s) 9894-9895/2011 (Ram Gopal Sharma v. State of U.P. and another) which was dismissed vide Judgement and Order dated 9.8.2012. She further submits that according to the prosecution case, the main allegations have been levelled against co-accused Dr. She further submits that according to the prosecution case, the main allegations have been levelled against co-accused Dr. Veena Agrawal, who has already been discharged by this Court, which judgment of this Court has also been affirmed by Hon'ble Apex Court, therefore, no offence against the applicant is made out. 5. This Court while passing the Judgment and order dated 29.7.2011 in the matter of main accused Dr. Veena Agrawal has observed as under : ''For the purposes of deciding the real controversy between the parties, at this stage, it is immaterial whether one unit of blood was purchased or obtained by the complainant from the Blood Bank of the revisionist or not. It is a matter of evidence, which is not material for disposal of these revisions. The crucial point is that even if it is assumed that blood obtained from the Blood Bank of the revisionist was transfused on the child Vishal Sharma on 12.7.2004, could the same blood have caused HIV + infection in the child so that CD4 count of 260 cells/l could have reached in December, 2004. It has been explained in the 7th Edition of ''Pathologic Basis of Disease'' by Kumar-Abbas-Fausto, Chapter 6 at Page 254 (page 52 of the supplementary-affidavit) that ''.........Thus with either mode of entry of the HIV virus, the virus initially replicates in the lymphoid organs and then spills over into the blood. The patient now experiences the acute HIV syndrome. This phase is characterized initially by high levels of virus in plasma and an abrupt, sometimes severe, reduction in CD4+ T cells.........'' ''Because the loss of immune containment is associated with declining CD4+ cell counts, CDC classification of HIV infection stratifies patients into three categories on the basis of CD4+ cell counts: CD4+ greater than or equal to 500 cells/l, 200 to 499 cells/l, and fewer than 200 cells/l. For clinical management, blood CD4+ counts are perhaps the strongest indicator of disease. In these circumstances, to permit the trial to continue till its logical conclusion, would not only be the harassment of the revisionist, but also wastage of time of the Court. The order directing framing of the charge as well as the charge framed under Section 304 IPC cannot be sustained and are liable to be quashed. Both the revisions are allowed. rogression.'' In 17th Edition of ''Harrison's Principles of Internal Medicine'', similar view was expressed. The order directing framing of the charge as well as the charge framed under Section 304 IPC cannot be sustained and are liable to be quashed. Both the revisions are allowed. rogression.'' In 17th Edition of ''Harrison's Principles of Internal Medicine'', similar view was expressed. On the Internet also, on the web site of National Aids Control Organization of India, the detailed information regarding HIV/AIDS is available, which has been filed by learned counsel for the revisionist as part of the supplementary-affidavit (Page 75 to 81). On page 81, CD4 Cell count 200 - 500 cells/l is described as intermediate immune deficiency and time period has been given as 2 to 3 years. According to this information, the HIV virus must have penetrated the body of the deceased about 2 years before the testing and the deceased could not have received HIV infection on 15.7.2004. These books and other medical literatures were also produced by learned counsel for the revisionist to show that for 3 to 12 weeks of the primary infection, CD4 cell count remains normal; for a period of 1 to 2 years, it is less than 200 cells/l. For 2 to 3 years, CD4 cell count is between 200 - 500 cells/l and after 3 to 5 years, it may be more than 500 cells/l. In these circumstances, it can be inferred that CD4 count of 260 cells/l could not have reached within a span of 5 months from the date of the transfusion. This clearly shows that the child Vishal Shama must have been exposed to HIV infection much earlier. It is also on record that on earlier occasion also, blood was transfused on Vishal Sharma. He might have received HIV contamination from earlier blood transfusion also, but it is apparent that CD4 cell count prima facie establishes that HIV+ infection was caught by the child much earlier and could not have been caused by blood transfusion on 12.7.2004. It was the duty of the investigating officer to obtain a proper medical opinion from a doctor expert in HIV+ diseases to determine as to whether a CD4 count of 260 cells/l indicated that the HIV+ infection could have been caused by blood transfusion on 12.7.2004 or not. No such opinion was sought by the investigating officer and no such opinion was given by Dr. Arora, Associate Professor, P.G.I., Chandigarh. No such opinion was sought by the investigating officer and no such opinion was given by Dr. Arora, Associate Professor, P.G.I., Chandigarh. As held in Jacob Jacob Mathew's case (supra), the Apex Court has clearly directed that the prosecution of professionals like doctors should not be done without obtaining prior medical opinion regarding their negligence. Unless a body of experts comes to the conclusion about the medical negligence or criminal medical negligence of a doctor, he should not or cannot be prosecuted for the same. The prosecution cannot survive simply on the basis of suspicion and presumption. For framing a charge, there must be material on record showing strong suspicion against the accused. In the instant case, there is no material to show strong suspicion against the revisionist, but the medical literature shows that CD4 count of 260 cells/l could not have reached within 5 months, but must have reached after a much longer period from the HIV contamination in the body. In such circumstances, the prosecution of the revisionist is neither justified nor warranted and is an abuse and misuse of process of the Court. Neither the investigating officer obtained any proper medical opinion nor the Magistrate or the learned Sessions Judge obtained any medical opinion and the order directing framing of the charge as well as rejecting the prayer for discharge has been passed simply on the basis of suspicion, which is not even a strong suspicion. To sustain a charge, there must be some basis for the same, but in the instant case, there is nothing on record to show that the unfortunate child Vishal Sharma got HIV infection from blood transfusion dated 12.7.2004. To sustain a charge, there must be some basis for the same, but in the instant case, there is nothing on record to show that the unfortunate child Vishal Sharma got HIV infection from blood transfusion dated 12.7.2004. In Dilawar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135 , the Apex Court held that ''in exercise of powers under Section 227 of the Code of Criminal Procedure, the Court has the power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; when the material placed before the Court discloses grave suspicion against the accused, which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial ; and by and large, if two views are equally possible and the Judge is satisfied that the evidence produced before him, while giving rise to some suspicion, but not grave suspicion against the accused, he will be fully justified to discharge the accused.'' Similar views were expressed by the Apex Court in Yogesh @ Sachin Jagdish Joshi v. State of Maharashtra, (2008) 10 SCC 394 and P Vijayan v. State of Kerala and another, (2010) 2 SCC 398 . Learned counsel for the complainant as well as learned A.G.A. could not rebut on merits the submission of learned counsel for the revisionist that CD4 count of 260 cells/l could not have been reached within a span of 5 months and the child got HIV+ infection much earlier. In these circumstances, to permit the trial to continue till its logical conclusion, would not only be the harassment of the revisionist, but also wastage of time of the Court. The order directing framing of the charge as well as the charge framed under Section 304 IPC cannot be sustained and are liable to be quashed. Both the revisions are allowed.'' 6. Considering the fact that the main accused-Dr.Veena Agarwal has already been discharged and the role of the applicant is merely advising to transfused the blood to the informant's son, which blood collected from the Blood Bank of the co-accused Dr. Veena Agarwal, and therefore the applicant has not role to play except to transfuse the blood collected from the lab of Dr. Veena Agarwal, and therefore the applicant has not role to play except to transfuse the blood collected from the lab of Dr. Veena Agarwal and thus the applicant is also liable to be discharged from the charges levelled against him. 7. In view of above, the instant application is liable to be allowed. 8. Accordingly, the proceedings of Case No. 402/9/2007 (State of U.P. v. Dr. Girish Kumar and others), under Section 269, 270, 274, 337, 338, 304 I.P.C., P.S. Civil Lines, District Muzaffarnagar, pending in the Court of Ld. ACJM-II, Muzaffarnagar is quashed. 9. The instant application is allowed.