Rajasthan High Court - Jodhpur
Dr.Jitendra Kumar Vyas vs State & Anr on 13 February, 2012
Author: Sandeep Mehta
Bench: Sandeep Mehta
1
S.B. CRIMINAL MISC. PETITION NO. 1287/2009
(Dr. Jitendra Kumar Vs. State of Rajasthan & Anr.)
DATE OF ORDER : 13th February, 2012
HON'BLE MR. JUSTICE SANDEEP MEHTA
Mr. Mahesh Bora, Sr. Advocate, assisted by Mr. Nishant Bora, for the petitioner.
Mr. K.K. Rawal, Public Prosecutor.
Mr. V.R. Choudhary, for the respondent No.2.
The present misc. petition has been filed on behalf of the petitioner seeking quashing of the FIR No.196/2009, registered at Police Station Sojat City, Distt. Pali and the subsequent charge-sheet filed against the petitioner for the offences under Sections 269, 270 and 338 IPC.
Briefly stated the facts necessary for the disposal of this misc. petition are that on 21.05.2009, the respondent No.2 filed a complaint in the court of the learned Addl. Chief Judicial Magistrate, Sojat, in which, he alleged that his wife Smt. Sugna Devi was admitted in the Government Hospital, Sojat City for Tubectomy operation in the camp organized by the Medical Department. It was further stated in the complaint that the Tubectomy operation of his wife was conducted by the petitioner Dr.Jitendra Kumar and the petitioner negligently conducted her operation and severed the intestine of the respondent's wife namely Smt. Sugna Devi, due to which, she had to be hospitalized again and ultimately she was admitted at the M.G. Hospital, Jodhpur on 02.04.2009, where, the complainant was informed by Dr. Pankaj Kumar Saxena that the Tubectomy operation was done negligently, due to which, the intestine of Smt. Sugna Devi was severed leading to infection in the body, 2 which was endangering to her life. It has also been alleged in the complaint that Smt. Sugna Devi was subjected to further operation by Dr.Pankaj Kumar Saxena, as such, she remained in the hospital till 30.04.2009. It was also stated by the complainant that due to the shock of this incident, his mother died on 06.05.2009 and that a huge amount had to be spent for the treatment of his wife. The complaint thus submitted on 21.05.2009 was sent to the police under Section 156(3) Cr.P.C.
and on receipt of the complaint, a FIR No.196/2009 was registered at the Police Station Sojat City, Distt. Pali and investigation was commenced.
The petitioner challenged the aforesaid FIR by way of filing the instant misc. petition but even before this misc. petition could be taken up, the police filed a charge-sheet against the petitioner on 22.12.2011 without informing the petitioner, on which, a prayer has been made for amending the misc. petition and now the prayer has been made on behalf of the petitioner for quashing of the FIR No.196/2009, registered at Police Station Sojat City, Distt. Pali and the order dated 22.12.2011 passed by the learned Addl. Chief Judicial Magistrate, Sojat, Distt. Pali in FIR No.196/2009, whereby, cognizance has been taken against the petitioner for the offences under Sections 269, 270 and 338 IPC.
Learned counsel for the petitioner submits that there is no material available on the record of the case to show that the petitioner had acted rashly and negligently while treating the complainant's wife and thus ex facie the charge-sheet filed against the petitioner amounted to an abuse of the process of the court. It has further been submitted that there is no opinion 3 of any medical officer in the charge-sheet that the act of the petitioner in allegedly severing the intestine of Smt. Sugna Devi whilst performing the Tubectomy operation was an act of gross negligence so as to make the petitioner liable for medical negligence punishable under Sections 269, 270 and 338 IPC.
Learned counsel while placing reliance on the decision of the Hon'ble Apex Court in the case of Jacob Mathew Vs. State of Punjab and another, reported in AIR 2005 SC 3180 submits that the complainant has tried to draw much water out of the fact that Dr.Pankaj Kumar Saxena informed him after the surgery of his wife that the negligence had been done in the tubectomy of his wife. Learned counsel while referring to the statement of Dr.Pankaj Kumar Saxena recorded under Section 161 Cr.P.C.
submits that Dr.Pankaj Kumar Saxena has rather denied that he operated the complainant's wife. Learned counsel also submits that it is a mandatory requirement before filing of the charge-
sheet for medical negligence that there should be an opinion of a medical officer to the effect that Doctor sought to be prosecuted has committed gross negligence whilst treating the patient and then only the prosecution of the medical officer can be permitted.
Learned counsel for the petitioner also submits that the very nature of the Tubectomy operation is a blind process, which is done by a procedure called laparoscopy, wherein, a probe is inserted into the patient's body and then the surgery is conducted and in this process the possibility of damage to a nearby organ always exists and if such a damage takes place then it cannot be said that the Doctor has acted negligently.
Learned counsel thus prayed that the instant misc. petition deserves to be allowed and the FIR impugned, the charge-sheet 4 as well as the order dated 22.12.2011 passed by the learned Addl. Chief Judicial Magistrate, Sojat, Distt. Pali in FIR No.196/2009, whereby, cognizance has been taken against the petitioner for the offences under Sections 269, 270 and 338 IPC deserve to be quashed and set aside.
Per contra, learned Public Prosecutor and learned counsel for the respondent No.2 submit that it is only because of the negligence of the petitioner that the complainant's wife namely Smt. Sugna Devi suffered a severing on her intestine and such negligence is definitely punishable for the offences under Sections 269, 270 and 338 IPC.
I have heard learned counsel for the parties, perused the order impugned and have given thoughtful consideration to the arguments advanced at the bar.
A perusal of the charge-sheet filed against the petitioner nowhere reveals that there is any opinion of any medical officer available on the record of the case to the effect that the treatment conducted or the procedure adopted by the petitioner upon Smt. Sugna Devi was conducted with negligence or rather gross negligence, which is sine qua non for the purpose of prosecuting a medical officer. The Hon'ble Apex Court whilst deciding the case of Jacob Mathew (supra) has laid down the following principles which are necessarily to be followed before a medical person can be prosecuted for medical negligence:-
"49. We sum up our conclusions as under :-
(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The 5 definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.
(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional.
So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.
(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the 6 performance of the professional proceeded against on indictment of negligence.
(4) The test for determining medical negligence as laid down in Bolam's case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India.
(5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.
(6) The word 'gross' has not been used in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be 'gross'. The expression 'rash or negligent act' as occurring in Section 304A of the IPC has to be read as qualified by the word 'grossly'.
(7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.
(8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.
50. In view of the principles laid down hereinabove and the preceding discussion, we agree with the principles of law laid down in Dr. Suresh Gupta's case (2004) 6 SCC 422 and re- affirm the same. Ex abundanti cautela, we clarify that what we are affirming are the legal principles laid down and the law as stated in Dr. Suresh Gupta's case. We may not be understood as having expressed any opinion on the question whether on the facts of that case the accused could or could 7 not have been held guilty of criminal negligence as that question is not before us. We also approve of the passage from Errors, Medicine and the Law by Alan Merry and Alexander McCall Smith which has been cited with approval in Dr. Suresh Gupta's case (noted vide para 27 of the report).
Guidelines - re : prosecuting medical professionals
51. As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by police on an FIR being lodged and cognizance taken. The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to rash or negligent act within the domain of criminal law under Section 304-A of IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered in his reputation cannot be compensated by any standards.
52. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.
53. Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form 8 of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam's test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld."
The emphasis as has been laid down that the negligence which is attributed to a Doctor must be gross negligence and that there must be an opinion of a medical officer on the record to show that the act of the Doctor amounted to a gross negligence but no such opinion of a medical officer is available on the record.
Thus, definitely, in the opinion of this Court, the prosecution in this case has failed to bring any material on the record to show that the petitioner had acted with gross negligence, as such, the prosecution of the petitioner in this case is absolutely unwarranted.
Resultantly, this misc. petition succeeds. The FIR No.196/2009, registered at Police Station Sojat City, Distt. Pali, the charge-sheet as well as the order dated 22.12.2011 passed by the learned Addl. Chief Judicial Magistrate, Sojat, Distt. Pali in FIR No.196/2009, whereby, cognizance has been taken against 9 the petitioner for the offences under Sections 269, 270 and 338 IPC are hereby quashed and set aside.
(SANDEEP MEHTA), J.
ms rathore