Punjab-Haryana High Court
Harmeet Paul Singh And Anr vs State Of Punjab And Anr on 16 September, 2014
Author: Daya Chaudhary
Bench: Daya Chaudhary
Crl. Misc. No.M-17098 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl. Misc. No.M-17098 of 2011
Date of Decision: 16.09.2014
Dr. Harmeet Paul Singh and another ....Petitioners
Versus
State of Punjab and another ....Respondents
BEFORE :- HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Present:- Mr. Vikram Chaudhary, Sr. Advocate
with Ms. Vriti Gujral, Advocate
for the petitioners.
Mr. Atul Lakhanpal, Sr. Advocate
with Mr. Udhamjit Singh, Advocate
and Mr. Jaideep Verma, Advocate
for the respondents.
*****
DAYA CHAUDHARY, J.
The prayer in the present petition is for quashing of complaint dated 12.01.2009 (Annexure P-1) filed by respondent No.2 as well as summoning order dated 06.04.2011 (Annexure P-3) passed by Judicial Magistrate 1st Class, Jalandhar.
Briefly, the facts of the case are that the complainant/respondent No.2-Gurveen Singh Lamba filed a complaint against the present petitioners under Sections 304, 304-A and 506 of the Indian Penal Code before the Judicial Magistrate Ist Class, Jalandhar. It is the case of the complainant that his father was suffering from diabetes and was using insulin. He was also suffering from high blood pressure. Both the GURPREET KAUR 2014.09.22 10:45 I attest to the accuracy and authenticity of this document HIgh Court Chandigarh Crl. Misc. No.M-17098 of 2011 2 present petitioners are doctors by profession. The father of the complainant approached the petitioners and he was operated upon 14.08.2008 and ultimately died on 19.08.2008. Thereafter, the complaint was filed by respondent No.2.
After recording preliminary evidence of the complainant, Harjit Singh was examined as CW-1, the complainant himself was examined as CW2 and Dagjit Singh Chawala was examined as CW-3. However, on the basis of preliminary evidence, the petitioners were summoned to face trial under Section 304-A IPC. Hence, the present petition.
Learned counsel for the petitioners submits that the petitioners have falsely been implicated in the case, whereas, no offence is made out against them. He further submits that the petitioners, being doctors, excercised reasonable care and skill and nowhere, it has come on record that they were negligent at the time of performing the surgery upon the deceased. Learned counsel also submits that the summoning order passed against the petitioners, is not only the misuse of process of law but is also contrary to the settled proposition of law. He also submits that the issue of negligence on the part of doctors was discussed by Hon'ble the Apex Court in Jacob Mathew vs State of Punjab and another 2005(3) RCR (Criminal) 836 and also in Martin F. D'souza vs. Mohd. Ishfaq 2009 (2) RCR (Criminal) 64.
It is also the argument of learned counsel for the petitioners that the medical practitioner can be prosecuted, in case, some evidence is there proving his negligence but no such evidence/opinion has come on record. Learned counsel also submits that no opinion of the expert was obtained with regard to alleged negligence on the part of the petitioners. In case, it is a case of medical negligence then the complainant has remedy to claim the compensation before the Civil Court.
GURPREET KAUR2014.09.22 10:45 I attest to the accuracy and authenticity of this document HIgh Court Chandigarh Crl. Misc. No.M-17098 of 2011 3
Learned counsel for the petitioners has relied upon the judgments of Hon'ble the Apex Court in cases A.S.V. Narayanan Rao vs Ratnamala and another 2013(4) RCR (Criminal) 413, and Martin F. D'Souza's case (supra), as well as, the judgment of this Court in case Ram Chander vs Monika Chaudhary and others passed in Criminal Misc. No.M-31 of 2011, decided on 20.08.2013.
Learned counsel for respondent No.2 has raised a preliminary objection that the present petition is not maintainable as the petitioners were having remedy of filing revision under Sections 397 and 399 Cr.P.C before the Sessions Judge but the same has not been availed. He further submits that it is a case of total negligence and as per judgment of Hon'ble the Apex Court in case Minor Marghesh K. Parikh vs Dr. Mayur H. Mehta 2011(1) SCC 31, if the negligence is there on the part of the doctors, the complaint cannot be rejected on the ground that the opinion of the Committee has not been obtained. He also submits that the opinion of the expert is not necessary, in case, it is a case of gross negligence and consultation of the Committee of Doctors is required when the complaint is made before Consumer Forum.
Learned counsel for respondent No.2 also submits that the allegations in the complaint are matter of evidence and can be proved during the trial. There are certain instances which show that there was negligence on the part of the petitioners. Moreover, at the time of summoning, it is to be seen as to whether on the basis of allegations or the statement in preliminary evidence, the prima facie case is made out or not. He further submits that the summoning order is well reasoned and no interference is required at this stage.
Learned counsel for respondent No.2 has relied upon the judgments of Hon'ble the Apex Court in cases V. Kishan Rao vs Nikhil GURPREET KAUR 2014.09.22 10:45 I attest to the accuracy and authenticity of this document HIgh Court Chandigarh Crl. Misc. No.M-17098 of 2011 4 Super Speciality Hospital and another 2010(5) SCC 513 as well as in Minor Marghesh K. Parikh's case (supra).
Heard the arguments of learned counsel for the parties and have also perused the complaint as well as summoning order.
Admittedly, the father of respondent No.2 was under treatment of the petitioners and he died on 19.08.2008. The case of the complainant is that certain tests were required to be conducted prior to surgery in order to locate the original and exact position regarding infection suffered by the deceased but no such test was conducted. It is also the case of the complainant that had the accused conducted the tests prior to surgery then the deceased could have been saved.
The case of the petitioners is that all due care was taken while performing surgery upon the father of the complainant and intention of the petitioners was to treat the deceased by providing complete medical care which were required at the time of his surgery. It is also the case of the petitioners that they are qualified and competent doctors to conduct surgery and consent of the complainant in this regard was also obtained. Due care and caution was applied and the risk involved in the surgery was also explained to the patient as well as to the complainant. It is also the stand of the petitioners that sometimes un-calculated risk is there in a surgical operation which does not mean that the doctor was guilty of negligence. The duty of the doctor is to take all possible care and skill and it was taken at the time of surgery as well as conducting tests.
The issue of medical negligence was before Hon'ble the Apex Court in Jacob Mathew's case (supra). In the said judgment, it was held that the private complaint cannot be entertained unless a prima facie evidence in the form of a credible opinion given by board of doctors to support the charge of rashness and negligence is there. GURPREET KAUR 2014.09.22 10:45 I attest to the accuracy and authenticity of this document HIgh Court Chandigarh Crl. Misc. No.M-17098 of 2011 5
Similarly, the question of medical negligence was also the subject matter of challenge in Martin F. D'souza's case (supra), wherein, it was held that a private complaint should not be entertained unless there is enough evidence. Certain guidelines were issued in Jacob Mathew's case (supra), which are as under :-
"Guidelines re: prosecuting medical professionals 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 Indian Penal Code. 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."
The conclusion in that judgment was sum up, which is 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 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 GURPREET KAUR 2014.09.22 10:45 I attest to the accuracy and authenticity of this document HIgh Court Chandigarh Crl. Misc. No.M-17098 of 2011 6 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 GURPREET KAUR 2014.09.22 10:45 I attest to the accuracy and authenticity of this document HIgh Court Chandigarh Crl. Misc. No.M-17098 of 2011 7 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 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 GURPREET KAUR negligence. It cannot be pressed in service for determining 2014.09.22 10:45 I attest to the accuracy and authenticity of this document HIgh Court Chandigarh Crl. Misc. No.M-17098 of 2011 8 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."
The test of medical negligence was also laid down in Bolam v. Friern Hospital Management Committee reported in 1957(2) All England Law Reports 118, which was accepted by Hon'ble the Apex Court for laying down correct tests in cases of medical negligence. It was held in the said judgment that in case, the doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. It was also held therein that in the area of diagnosis and treatment, there is ample scope for genuine difference of opinion and a doctor cannot be stated to be negligent merely because his conclusion differs from the opinion of other doctor. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care.
In another three Judge Bench in case Dr. J.J. Merchant and others vs Shrinath Chaturvedi reported in 2002(3) RCR (Civil) 700, it was held that it is for the Commission to examine experts if required in an appropriate matter. In a case, where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing proves itself. In such a case, it is for the accused to prove that he has taken care and done his duty to repel the charge of negligence. The doctrine of res ipsa loquitur which is applied in cases of medical negligence is to be seen on the basis of facts and circumstances of the case and the same is a matter of evidence.
In D'souza's case (supra), the Hon'ble Apex Court held that in the facts and circumstances of the case, expert evidence is not required. GURPREET KAUR 2014.09.22 10:45 I attest to the accuracy and authenticity of this document HIgh Court Chandigarh Crl. Misc. No.M-17098 of 2011 9
In the judgment relied upon by learned counsel for respondent No.2 in V. Kishan Rao's case (supra), it was held that the question whether a medical practitioner or the hospital is negligent or not, is a mixed question of fact and law and the Fora is not bound in every case to accept the opinion of the expert witness. There may be simple cases of medical negligence where expert evidence is not required. In certain complicated cases where expert evidence is required, the parties have a right to approach the Civil Court.
In A.S.V. Narayanan Rao's case (supra), it has been held that the doctors are not immune from legal proceedings in the event of their negligence in discharging their professional duties but in the interest of the society, it is necessary to protect doctors from frivolous and unjust prosecution. The observation made by Hon'ble the Apex Court in the said judgment is as under :-
"11. This Court further opined that though doctors are not immune from legal proceedings in the event of their negligence in discharging their professional duties, in the interest of the society, it is necessary to protect doctors from frivolous and unjust prosecution. It was further pointed out the need to frame either statutory rules or administrative instructions incorporating guidelines for prosecuting doctors on charges of criminal negligence. This Court therefore, ordered that until such guidelines are laid down, the following procedure is required to be followed :-
"52. ...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 GURPREET KAUR 2014.09.22 10:45 I attest to the accuracy and authenticity of this document HIgh Court Chandigarh Crl. Misc. No.M-17098 of 2011 10 the court in the form 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 the Bolam 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 investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld."
In case of medical negligence, it is to be seen that the concerned doctor was competent and was having professional qualification and had taken due care and caution at the time of performing his duty. The test in fixing negligence is the standard of ordinary skilled doctor exercising and professing to have that special skill. It is not necessary that the doctor is said to be expert only without he is having highest expert skill. The relevant is that the doctor was negligent while discharging his duty and in such circumstances also, the medical negligence can be proved. Mere simple negligence may result only in civil liability but the gross negligence may result in criminal liability as well. The civil liability can be imposed by the Court by awarding damages but for criminal liability, the doctor is to be sent to jail. Simple negligence and gross negligence may be a matter of dispute even among experts as has been held in Jacob Mathew's case GURPREET KAUR 2014.09.22 10:45 I attest to the accuracy and authenticity of this document HIgh Court Chandigarh Crl. Misc. No.M-17098 of 2011 11 (supra). The judges are not expert in medical science and it is very difficult for them to decide cases relating to medical negligence. Only the testimonies of other doctors are to be relied. The basic principle relating to medical negligence is known as the Bolam Rule as has been held in Bolam's case (supra).
It is to be seen as to whether the doctor has taken reasonable care and is having reasonable degree of skill and knowledge about his field. It cannot be said that the doctor can be held liable for medical negligence only on the ground that certain things went wrong. During course of performing his duty in the filed of diagonis and treatement, there can be difference of opinion but it cannot be said that it was a case of medical negligence. The standard of care is to be considered in the light of knowledge available at that time. In case of emergency, sometime the complications can arise and there can be chances of error of judgment. No doubt, the element of risk is also there and doctor cannot be advised by layman to adopt a procedure which involves higher element of risk. That is to be left to the doctor only. Moreover, the doctor cannot be punished/penalized, in case, he adopts some method while giving treatment to a patient. In case of death of a patient or if some serious complication is suffered by the patient, the blame is always to the doctor. It is also not necessary that the doctor is always successful in every case like a lawyer cannot win every case in his professional career but he cannot be penalized for losing a case. It is to be seen as to whether he has made all efforts and he is expert of his field.
To fasten liability in criminal proceedings, for example, under Section 304-A IPC the degree of negligence has to be higher than the negligence which is enough to fasten liability in civil proceedings. For medical negligence, it is to be proved that the doctor did not exercise GURPREET KAUR 2014.09.22 10:45 I attest to the accuracy and authenticity of this document HIgh Court Chandigarh Crl. Misc. No.M-17098 of 2011 12 reasonable care in accordance with the principles as already mentioned.
In case of conviction of a doctor in a criminal case, it is necessary to be proved that the negligence was gross amounting to racklessness. The difference between simple negligence and gross negligence has been has been discussed in Jacob Mathew's case (supra). The necessary requirement for this purpose is that the doctor is having special skill and that skill has been exercised with reasonable care and caution.
In Jacob Mathew's case (supra), while laying down certain rules, it has been stated that the investigating officer, before proceeding against the doctor, should have an independent and competent medical opinion from a doctor and that opinion should be impartial by applying the Bolam test.
It has also been held in Jacob Mathew's case (supra) that a doctor should not be arrested in a routine manner only for the reason that he has been charged in a criminal case, unless his arrest is necessary for further investigation or for collecting evidence or unless the Investigating Officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested.
Hon'ble the Apex Court has also held in case Parmanand Katara vs Union of India 1989(4) SCC 286 that it is the duty of the doctor in an emergency to begin treatement of the patient and he should not await the arrival of the police or to complete the legal formalities as the life of a person is far more important than legal formalities. It has also been held in the said judgment that it is the duty of the doctor to attend a patient who has been brought before him in an emergency. It is not that the penalty will be imposed upon a doctor who refuses to attend the patient. If the doctor is having this fear in his mind that he would be implicated in a criminal case, GURPREET KAUR 2014.09.22 10:45 I attest to the accuracy and authenticity of this document HIgh Court Chandigarh Crl. Misc. No.M-17098 of 2011 13 then he will not like to attend any patient even in a critical condition.
In the present case, it cannot be said that the doctors were not having requisite qualification of being doctors as they are possessing MBBS degree and also M.S in General Surgery. They are having experience of various hospitals to their credit. From bare perusal of their bio-data, which are on record, it cannot be said that the doctors were not having requisite qualification which was necessary for discharging of their duties. Petitioners-doctors are not only qualified but competent to conduct all tests which were required at the time of surgery and due care and caution was also taken but since, the patient was suffering from diabetes and hyper-tension, the risk was higher, which was explained to the patient and the complainant. In case of any surgical operation, some un-calculated risk can be there and some complications may arise during surgery but it cannot be said that the doctor was guilty of negligence. The doctor is to exercise reasonable care and skill and it cannot be said on the basis of allegations in the complaint that the petitioners remained negligent at the time of surgery of the deceased. Only on the basis of apprehension of the complainant, it has been stated that certain tests were to be conducted by the doctor but those tests were not conducted. It has also been held in the judgment of Hon'ble the Apex Court in Kusum Sharma vs Batra Hospital 2010(3) SCC 480 that in case, some unfortunate event occurs, the tendency is there to blame to the doctors. The observations made by Hon'ble the Apex Court in para 78 of its judgment are as under :-
" It is a matter of common knowledge that after happening of some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. A GURPREET KAUR 2014.09.22 10:45 I attest to the accuracy and authenticity of this document HIgh Court Chandigarh Crl. Misc. No.M-17098 of 2011 14 professional deserves total protection. The Penal Code, 1860 has taken care to ensure that people who act in good faith should not be punished. Sections 88, 92 and 370 of the Penal Code give adequate protection to the professionals and particularly medical professionals."
The trial Court, while issuing summoning order, has not considered this aspect and has not given any finding as to how the petitioners remained negligent and 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. Without recording any such finding and without seeking any opinion by the Medical Board or to have any expert medical opinion in the case, the petitioners should not have been summoned.
On perusal of allegations in the complaint and the summoning order and in the absence of having any expert opinion by the other doctors or team of doctors, it cannot be said that it was a case of gross negligence.
As per judgment of Jacob Mathew's case (Supra), a private complaint cannot be entertained unless the complainant produce prima-facie evidence in the form of credible opinion given by another doctor or Board of Doctors to support the charge of rashness and negligence.
Similar view was also subject matter of challenge in Martin F. D'souza's case (supra), wherein, it was held that a private complaint should not be entertained unless there is enough evidence.
In the present case, the summoning order has been passed only on the basis of oral statement of the complainant and other witnesses without having opinion by the Board of Doctors or other expert doctor as nothing has been mentioned in the complaint.
Accordingly, keeping in view the facts and law position as GURPREET KAUR 2014.09.22 10:45 I attest to the accuracy and authenticity of this document HIgh Court Chandigarh Crl. Misc. No.M-17098 of 2011 15 discussed above, the present petition is allowed and the impugned complaint dated 12.01.2009 (Annexure P-1) filed by respondent No.2 as well as summoning order dated 06.04.2011 (Annexure P-3) passed by Judicial Magistrate 1st Class, Jalandhar are set aside.
(DAYA CHAUDHARY) 16.09.2014 JUDGE gurpreet GURPREET KAUR 2014.09.22 10:45 I attest to the accuracy and authenticity of this document HIgh Court Chandigarh