Delhi District Court
M/S M.M. Healthcare Ltd vs Sh. P.K. Chauhan on 29 August, 2013
IN THE COURT OF SH. T.S. KASHYAP
ADDITIONAL SESSIONS JUDGE-01/SPECIAL JUDGE (NDPS)
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI
Crl. Revision No. : 07/13
Unique I.D. No. : 02402R0083372013
In the matter of :-
1. M/s M.M. Healthcare Ltd. . . . Revisionists
Pushpanjali Medical Centre
A-15 Pushpanjali
Vikas Marg Extension, Delhi
2. Dr. Ashok Grover
S/o B-116, Madhuban
Vikas Marg, Delhi
VERSUS
Sh. P.K. Chauhan . . . Respondent
S/o Late Sh. Kailash Singh Chauhan
R/o 17E/716, Konark Enclave
Vasundhara, Ghaziabad, U.P
Date of Institution : 18/03/13
Date of reserving order : 19/08/13
Date of pronouncement : 29/08/13
ORDER
This revision has been preferred by M/s M.M. Healthcare Ltd and Dr. Ashok Grover against the order dated 08/01/13 passed by Ld. Metropolitan Magistrate-08/East District, Karkardooma Courts, Delhi in criminal complaint case No. 30/13 titled as P.K. Chauhan (Advocate) v M/s M.M. Healthcare Ltd & Ors wherein the respondent had sought a direction from Ld. Trial Court for getting an FIR registered against the revisionists and others for offence U/s 304, 304-A, 384, 506, 511 IPC and Crl. Rev. No. 07/13 Page 1 of 9 other relevant provision.
2. Ld. Metropolitan Magistrate vide order dated 28/02/12 had dismissed the complaint U/s 156(3) Cr.P.C. However, vide impugned order dated 08/01/13, Ld. Trial court summoned the accused No. 1 and 3 therein for offence U/s 304A IPC r/w Sec. 34 IPC which order has been assailed by the revisionists herein.
3. I have heard the submissions and gone through the record. Ld. Counsel for revisionists has submitted that the complainant and his brother admitted their father for treatment at M/s M.M. Healthcare Ltd, Pushpanjali Medical Centre (the revisionist herein) after getting him discharged from Indraprastha Apollo Hospital. Admittedly, the patient was suffering from respiratory failure, severe infections, live dysfunction, kidney dysfunction and hypoalbuminemia; that as per case summary of Apollo Hospital, Kailash Singh Chauhan was diagnosed as :-
(a) Chronic Obstructive Pulmonary Disease (COPD), Acute Exacerbation with septic shock.
(b) Type II respiratory failure.
(c) Atrial Fibrillation (AF) with fast ventricular rate (FVR)
(d) Acute kidney injury
(e) Dyselectrolytmia
4. The history of the patient as recorded by Indraprastha Apollo Hospital reads as under :-
"Mr. Kailash Singh 58 year old male, ex- smoker who is a known case of hypertension had complaints of cough with expectation, breathlessness, fever and orthopnea for 4-5 days. Initially he managed at Muzaffar Nagar but as his condition deteriorated so he was shifted to IAH".Crl. Rev. No. 07/13 Page 2 of 9
5. The patient was treated at Indraprastha Apollo Hospital from 07/08/11 till 17/08/11 when he was discharged on request. It is regretted that the respondent filed the false complaint merely to avoid the liability for payment of bill and to create a false defence to the suit filed by petitioner No. 1 against the respondent for recovery of dues and a criminal complaint case under Sec. 138 of the Negotiable Instruments Act.
6. The respondent got received legal notice dated 25/09/11 on 18/10/11 through speed post, filed suit for injunction dated 18/11/11 against the petitioner, filed a complaint dated 09/01/12 U/s 156(3) Cr.PC against the petitioner and filed a consumer complaint before State Consumer Dispute Redressal Commission bearing the date 13/04/12 and interestingly in each successive action the respondent improved the history of the patient making new allegations and came with more and more averments.
7. It has been submitted by Ld. Counsel for revisionists that the impugned order on summoning suffers from material illegality and irregularity and is bad in law which deserves to be set aside because of the following reasons :-
(a) That in authority reported as Martin F. D'Souza v Mohd. Ishfaq AIR 2009 Supreme Court 2049, the Hon'ble Supreme Court has held that whenever a complaint is received against a doctor or hospital by the Consumer Fora (whether District, State or National) or by the Criminal Court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or Criminal Court should first refer the matter to a competent doctor or committee Crl. Rev. No. 07/13 Page 3 of 9 of doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the concerned doctor/hospital.
(b) That summoning a Doctor for offence U/s 304 IPC without obtaining the report of competent Doctor or Medical Board regarding negligence in surgery and treatment has been treated as abuse of process of court (reliance also placed on authority reported as Dr. Narendra Prasad v The State of Bihar & Anr, Criminal Miscellaneous No. 39802 of 2008 decided by Hon'ble Patna High Court on 04/01/12.
(c) That the Ld. Trial Court has not correctly appreciated the facts of the case and passed the impugned order without application of judicial mind.
(d) That the Ld. Trial Court did not take notice of the fact that the complainant had also made a complaint to Delhi Medical Council, a statutory expert body of Doctors and has given a report that prima facie no medical negligence can be attributed on the part of the Doctors of Pushpanjali Medical Centre in the treatment administered to late Sh. Kailash Chand (copy of the report is already placed on trial court record).
(e) That the revision petition is maintainable as an order directing issuance of summons is not interlocutory order as such the bar under sub-section 2 of Sec. 379 IPC is not applicable. Reliance placed on Rajendra Kumar Sitaram Pande & Ors v Uttam and Anr 1999 CRI.L.J Crl. Rev. No. 07/13 Page 4 of 9 1620 (1) in head note Criminal Procedure Code 1973 Sec. 397 (2); Mrs. Ramona M. Chandiramani v Arunodav Mills Ltd and Others 2006 (2) CrlJ 180 and Dhariwal Tobacco Products Ltd and Others v State of Maharashtra and Anr (2009) 2 SCC 370; and
(f) That the Ld. Trial court has failed to appreciate that even as per medical report filed and proved on record of Trial court it is established that apart from petitioner No. 2 the patient was attended by Dr. Sunil who was Doctor on duty in ICU and also by Dr. Rajesh Dhall, the intensivist and Incharge of ICU who throughout remained present and provided due medical care including mechanical ventilation to the patient which fact is confirmed by the case history.
8. Ld. Counsel for the revisionists has submitted that the impugned order passed by Ld. Trial court is in violation of directions issued by Hon'ble Supreme Court in authority reported as Martin F. D'Souza v Mohd. Ishfaq AIR 2009 Supreme Court 2049, ignoring the report of Delhi Medical Council and by misreading the authority reported as Jacob Mathew v State of Punjab AIR 2005 SC 3180 and therefore the impugned order be set aside and the revisionists be discharged.
9. On behalf of the respondent Ld. Counsel has submitted that the impugned order does not suffer from any illegality; that Ld. Trial court has formed a prima facie opinion holding that it appears that there was rash and negligent act on the part of accused No. 3. By his acts, particularly his acts of omission not reaching and attending the patient Crl. Rev. No. 07/13 Page 5 of 9 timely despite repeated reminders and requests. Moreover, the accused No. 1 did not make any provision for a competent specialty Doctor of similar experience in absence of accused No. 3 and therefore as per the record and evidence produced by the complainant prima facie offence U/s 304A IPC r/w Sec. 34 IPC is made out against accused No. 1 and 3. Ld. Counsel for the respondent submitted that the revision against the impugned order is not maintainable. He has relied on authority reported as Gurnam v State of Punjab and Others (2008) 9 SCC 140 and Rajeshwar Prasad and Others v State of U.P and Anr 2008 Crl.J. 2555 and therefore it has been submitted that the revision be dismissed.
10. As per the allegations made by the respondent in the criminal complaint No. 30/13 titled as P.K. Chauhan v M.M. Health Care and Others, his father was admitted on 18/08/11 at Pushpanjali Medical Centre. However, his treatment for ailments relating to lungs infections on 23/08/11 at 9:30 a.m., he was feeling acute pain and breathing problems and the complainant informed Dr. Ashok on his mobile phone requesting him to attend his father but he did not turn up despite repeated reminders and requests. It is alleged that Dr. Ashok Grover, his associates and attending staff did not take care at all and ultimately father of the complainant expired that day. The complainant had sent a complaint dated 25/09/11 addressed to the Chairman, Indian Medical Council, New Delhi against the accused persons (revisionists herein) Annx. C-5 (colly) filed by the complainant in the trial court. The complainant had examined Sh. Satish Kumar CW2, Medical Record Clerk Pushpanjali Medical Centre who proved report Ex. CW2/A (colly) bearing order No. DMC/EC/F. 14/Complaint 913/2012/167791 to 167796 dated 13/07/12, which is signed by the Board with following opinion:-
"In the light of the observations made hereinabove, it is the decision of the Executive Crl. Rev. No. 07/13 Page 6 of 9 Committee that prima facie no medical negligence can be attributed on the part of Doctors of Pushpanjali Medical Centre in the treatment administered to late Sh. Kailash Chauhan"
11. It is pertinent to note that Ld. Trial court has failed to consider the said report which has not been discussed in the impugned order at all. In authority reported as Martin F. D'Souza v Mohd. Ishfaq AIR 2009 Supreme Court 2049, Hon'ble Supreme Court has directed that whenever a complaint is received against a doctor or hospital by the Consumer Fora (whether District, State or National) or by the Criminal Court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or Criminal Court should first refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the concerned doctor/hospital. Ld. Trial court has passed the impugned order without complying with the above directions.
12. In authority reported as Jacob Mathew v State of Punjab and Anr AIR 2005 SC 3180, Hon'ble Supreme Court has held that 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. Res ipsa loquitor, if at all has a limited application in trial on a charge of criminal negligence. Keeping in view the facts and circumstances and the report of Delhi Crl. Rev. No. 07/13 Page 7 of 9 Medical Council prima facie, no case of criminal rashness or negligence on the part of accused persons (the revisionists herein), appears to have been made out.
13. As per Section 397(2) Cr.PC the powers of the revision conferred by Sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
14. In the authority reported as Rajeshwar Prasad & Ors v State of U.P & Anr, 2008 CRI.L.J 2555 relied by Ld. Counsel for respondent, "in view of the observations made by Hon'ble Supreme Court in the case of Adalat Prasad v Rooplal Jindal & Ors 2004 (50) ACC 924 and Subramanium Sethuraman v State of Maharashtra and another (2005 (51) ACC 684) : (AIR 2004 SC 4711), revision against summoning order is not maintainable, as the Hon'ble Apex Court has held that the only remedy available to the accused against summoning order is to invoke the jurisdiction of High Court under Section 482 Cr.PC. This Court also in the case of Bhajan Lal and others v State of U.P and another (2006 (55) ACC 942) : (2006) 5 All LJ 175 has held that revision against summoning order is not legally maintainable". However, in the said authority order issuing warrant was treated as interlocutory order within the meaning of Sec. 397(2) Cr.PC. In authority reported as Bholu Ram v State of Punjab and another (2008) 9 Supreme Court Cases 140, the question of summoning was under 319 Cr.PC and is not applicable on the facts of this case.
15. In the authority reported as Rajendra Kumar Sitaram Pande & Ors v Uttam and Anr 1999 CRI.L.J 1620 (1) Hon'ble Supreme Court has held that the order directing issuance of process is not a purely Crl. Rev. No. 07/13 Page 8 of 9 interlocutory order and bar under Section 397(2), therefore, is not applicable. In authority reported as Dharimal Tobacco Products Ltd and Others v State of Maharashtra and Anr AIR 2009 Supreme Court 1032, Hon'ble Apex Court has held that indisputably issuance of summons is not an interlocutory order within the meaning of Section 397 of the Code. In view of the said authority, the present revision is maintainable. With due respect the authorities relied by Ld. Counsel for respondent are not applicable.
16. In view of the above discussion, the impugned order is illegal and deserves to be set aside, Accordingly, the present revision is allowed. The impugned order is set aside and the accused persons, the revisionists herein, are discharged. Copy of this order alongwith trial court record be sent to the Ld. Trial court. Revision file be consigned to Record Room.
Announced in the open court today i.e 29th August 2013 (T.S. Kashyap) ASJ-01/Spl. Judge (NDPS) Shahdara District Karkardooma Court, Delhi Crl. Rev. No. 07/13 Page 9 of 9