Gujarat High Court
Rahul Bharatkumar Shah vs State Of Gujarat on 15 December, 2023
NEUTRAL CITATION
R/CR.RA/537/2015 JUDGMENT DATED: 15/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 537 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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RAHUL BHARATKUMAR SHAH
Versus
STATE OF GUJARAT
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Appearance:
MR. SUDHIR NANAVATI, SR. ADVOCATE WITH MR. SURAJ A
SHUKLA(7185) for the Applicant(s) No. 1
MS DIVYANGNA JHALA APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 15/12/2023
ORAL JUDGMENT
1. This Revision Application is filed challenging the order dated 10th August, 2015 passed by learned 9th Additional Page 1 of 19 Downloaded on : Mon Dec 18 20:43:06 IST 2023 NEUTRAL CITATION R/CR.RA/537/2015 JUDGMENT DATED: 15/12/2023 undefined Sessions Judge, Surat in Sessions Case No.383 of 2014 passed below Exh.4 rejecting the application preferred by the present applicant praying to discharge for the offence punishable under Sections 304 Part-II and 114 of the Indian Penal Code.
2. At the outset, it is required to be noted that though in the First Information Report (FIR) and in the charge-sheet, names of two accused were mentioned wherein, the present applicant was accused No.1 and it was informed by the learned Senior Advocate, Mr.Sudhir Nanavati, appearing with Mr.Suraj Shukla, learned advocate for the petitioner that trial has not been proceeded qua other accused, vide an order dated 14.9.2015, as this Court has granted the interim relief in terms of paragraph No.12(C) staying the proceedings in this revision application, which is filed by the accused No.1 only.
3. It is the case of the prosecution that present applicant No.1 is the Doctor by profession - ENT Surgeon having his Hospital, namely, Parshwa Hospital situated at Udhna, District: Surat. One FIR came to be filed being I-C.R.No.226 of 2013 by Mr.A.S.Rajput, Page 2 of 19 Downloaded on : Mon Dec 18 20:43:06 IST 2023 NEUTRAL CITATION R/CR.RA/537/2015 JUDGMENT DATED: 15/12/2023 undefined the then Police Inspector of Udhna Police Station, Surat against the present applicant and other accused, namely, Kalusinh @ Raju Kanusinh Parmar for the offence punishable under Sections 304 Para-II and 114 of the Indian Penal Code on 19.11.2013. It was alleged in the FIR that deceased, namely, Prakash Dashrathbhai Pavar, on 14.6.2012 consulted the applicant at his Hospital complaining pain in his ear. After check-up, he was informed that surgery is to be performed in his ear. As the applicant installed microscope machine in Vardhman Hospital, the deceased was asked to be operated in Vardhman Hospital, for that deceased consented and deceased was operated on 14.7.2012. The operation performed between 2.30 p.m. to 6.30 p.m. on 14.7.2012 and it was successful. Thereafter, deceased Prakash Dashrathbhai Pavar was fully conscious and started responding to verbal commands and was well oriented to time, place and person. It was further alleged in the FIR that at 10.00 p.m. when applicant herein was not present and ward boy, namely, Kalusinh Parmar had given him 5 injunctions at a time in his vain, namely, (1) Pantoprazole (2) Fytobact (3) Dexona (4) Ehasyl and (5) Emset. That thereafter, health of the deceased Page 3 of 19 Downloaded on : Mon Dec 18 20:43:06 IST 2023 NEUTRAL CITATION R/CR.RA/537/2015 JUDGMENT DATED: 15/12/2023 undefined became deteriorated and he was facing trouble in breathing and movements of the body was sluggish. Applicant was informed by the Ward Boy. Applicant reached to the Hospital and deceased was taken to the emergency ward and thereafter to other Hospital, namely, K.P. Sanghvi Hospital in the ambulance where he died at 11.50 p.m. on the very day. Initially, the accidental death was declared under Section 174 of the Code of Criminal Procedure.
3.1 The Police Officer, thereafter, had called for the Postmortem Report and cause of death certificate wherein it is found that:
"No positive finding at autopsy, negative chemical analysis report and negative histopathalogical and microbiology analysis report, so cause of death is obscured and possibility of death due to anaphylactic reaction of drug cannot be ruled out.
3.2 The said certificate was issued by Dr. Shri Chandresh Tailor, Dr. Ganesh Govekar and Dr. Chirag Gajera but in the said Page 4 of 19 Downloaded on : Mon Dec 18 20:43:06 IST 2023 NEUTRAL CITATION R/CR.RA/537/2015 JUDGMENT DATED: 15/12/2023 undefined certificate the signature of the Professor Head Dr. Ganesh Govekar was not there thus, again a cause of death certificate was issued with the signature of Professor Head Dr. Ganesh Govekar, wherein it was stated that :-
"cause of death cannot be commented due to negative chemical analysis report, negative histopathological and microbilogical report and no positive findings at autopsy."
3.3 Thereafter, report was made to the Dean of New Civil Hospital, Surat to give his final opinion regarding the final cause of death, against which the report was given:-
"Generally anaphylactic shock and allergic reaction can occur due to drugs of the penicillin group which can also cause death of a patient and negligent of a doctor can be found if the same is given in absence of a doctor".
3.4 Thereafter, for further clarification Head of Pharmocology Department, Government Medical College, Surat was asked to give his opinion and to give final cause of death by putting several questions against which opinion dated 21.10.2013 has Page 5 of 19 Downloaded on : Mon Dec 18 20:43:06 IST 2023 NEUTRAL CITATION R/CR.RA/537/2015 JUDGMENT DATED: 15/12/2023 undefined given by Dr.N.D.Katharia, as under:
"If the Penicillin Injection is given to a patient without test dose than it might create problem to breathe and both the hands and legs may stretch."
3.5 On receiving this Report, FIR came to be lodged on 19 th November, 2013 against the applicant and ward boy. It is submitted that thereafter charge-sheet came to be filed under Section 304 Part-II and 114 of the Indian Penal Code on 21.1.2014 and the same was culminated in to Sessions Case being Sessions Case No.383 of 2014. It appears from the record that thereafter settlement was arrived at between the parties i.e applicant and the relatives of the deceased and applicant had paid the amount of Rs.15 lacs for which settlement agreement was executed, which was produced by the applicant at page No.115 of the revision application dated 13.4.2015. On the basis of the settlement, quashing petition was filed before this Court, which was ultimately permitted to withdraw vide an order dated 27.4.2015 with a view to file the discharge application before the learned trial Court. Thereafter, the applicant had approached to Page 6 of 19 Downloaded on : Mon Dec 18 20:43:06 IST 2023 NEUTRAL CITATION R/CR.RA/537/2015 JUDGMENT DATED: 15/12/2023 undefined the learned trial Court by filing the application below Exh.4 under Section 227 of the Code of Criminal Procedure praying to discharge from the offences. Learned trial Court, after considering the evidence placed in the charge-sheet and considering the postmortem report, comes to conclusion that, prima-facie, case is made out against the applicant No.1, and without recording the evidence, it cannot be held that accused was innocent and no case is made out against the applicant No.1. Therefore, the application praying to discharge from the charges came to be rejected vide an order dated 10.8.2015, which is impugned before this Court.
4. It transpires from the record that vide an order dated 14.9.2015, interim relief granted while admitting the present revision application in term of para 12(C) however, as stated earlier, the trial Court had not proceeded with the trial for the remaining accused in view of the pendencyi of this matter before this Court.
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5. Heard Mr.Sudhir Nanavati, learned Senior Advocate appearing for Mr.Suraj Shukla, learned advocate for the petitioner and learned APP, Ms.Divyangna Jhala, for the Respondent - State.
6. Mr.Sudhir Nanavati, learned Senior Advocate submitted that no direct or indirect evidence is available to suggest that present applicant is involved in the offence. Mr.Nanavati, learned Senior Advocate further submits that injections was given pursuant to the instructions given by the present applicant to the ward boy and as the said injections was combination of penicillin groups, therefore, no test dose is required. Mr.Nanavati, learned Senior Advocate has submitted that only when injections of pure penicillin group is to be given, then and then only the test doze is required, therefore, the present applicant cannot be held liable for the death of the deceased or cannot be held negligible in absence of recommending test dose. Mr.Nanavati, learned Senior Advocate further submits that the complaint is filed by the Investigating Officer, however, the settlement has already been arrived at between the parties and the amount of compensation Page 8 of 19 Downloaded on : Mon Dec 18 20:43:06 IST 2023 NEUTRAL CITATION R/CR.RA/537/2015 JUDGMENT DATED: 15/12/2023 undefined is already paid to the relatives of the deceased, therefore, there would be less chance of conviction. Mr.Nanavati, learned Senior Advocate further submits that as far as in the case of medical negligences are concerned, the burden upon doctor is only to prove that he has opted standard medical procedure and had done level best efforts to save the life of the deceased. Mr.Nanavati, learned Senior Advocate further submits that present applicant is the life time member of Indian Medical Association and well known ENT surgeon in Surat city having degree of Master in Surgery and practicing since more than 15 years and applicant did thousands of successful surgery and there was no any allegation of negligence till date. Learned Senior Advocate further submits that on bare perusal of the entire charge-sheet, no role is made out against the present applicant and therefore, in that case, trial would be the futile exercise and unnecessary applicant had to pass the rigorous of the trial. In view of the same, Mr.Nanavati, learned Senior Advocate prays to allow the present application and to discharge the applicant from the charges.
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NEUTRAL CITATION R/CR.RA/537/2015 JUDGMENT DATED: 15/12/2023 undefined 6.1 Learned advocate, relies on the decision rendered by the Hon'ble Apex Court in the case of M.A.Biviji V/s. Sunita and others reported in 2023 SCC Online SC 1363 and judgment referred by the High Court of Kerala in the case of Dr.Balachandran V/s. State of Kerala reported in 2023 LiveLaw (Ker) 61 and submitted that it is natural that there shall always be different opinions including contesting views regarding the chosen line of treatment, or the course of action to be undertaken in such circumstances just because a doctor opts for a particular line of treatment but does not achieve the desired result, they cannot be held liable for negligence provided that the said course of action undertaken was recognized as sound and relevant medical practice. Mr.Nanavati, learned Senior Advocate further submits that to hold medical practitioner liable for negligence, a higher threshold limit must be met. It is to be ensured that these doctors are focused on deciding the best course of treatment as per their assessment rather than being concerned about possible prosecution or harassment that they may be subjected to in high-risk medical situations. Mr.Nanavati, leaned Senior Advocate further submits that to safeguard these Page 10 of 19 Downloaded on : Mon Dec 18 20:43:06 IST 2023 NEUTRAL CITATION R/CR.RA/537/2015 JUDGMENT DATED: 15/12/2023 undefined medical practitioners and to ensure that they are able to freely discharge their medical duty, a higher proof of burden must be fulfilled by the complainant. Mr.Nanavati, learned Senior Advocate submits that prima-facie from the material collected during investigation not an iota of evidence is made out with regard to the involvement of the applicant and therefore, he prays to discharge the applicant from the charges.
7. On the other side, Ms.Jhala, learned APP submits that learned trial Court, after considering the evidence collected during the investigation, comes to the conclusion that prima- facie case is made out against the applicant and without recording the evidence, it is difficult to come to the conclusion that no case is made out against the applicant and therefore, order passed by learned trial Court dismissing discharge application is just and proper and no interference is required.
8. Considering the submissions advanced by the learned advocates for the respective parties and considering the material of the charge-sheet, it transpires that the surgery was performed Page 11 of 19 Downloaded on : Mon Dec 18 20:43:06 IST 2023 NEUTRAL CITATION R/CR.RA/537/2015 JUDGMENT DATED: 15/12/2023 undefined successfully between 2.30 to 6.30 p.m on 14.7.2012. Thereafter, deceased was taken into the hospital ward where he was declared fit and conscious. At night hours, around 10 o'clock, the applicant was not present, at that time, ward boy, namely,Kalusinh Parmar who is serving with the present applicant came to the ward and gave one tablet, namely, ampicillin + and started one bottle of Glevo (Inj. Levofloxacin) Thereafter, in the vain, 5 injections given, namely, (1) Pantoprazole (2) Fytobact (3) Dexona (4) Ehasyl and (5) Emset. within 5 minutes only, the deceased was feeling difficulty in breathing and movement of body was sluggish. Subsequently, he was referred to the K.P. Sanghvi Hospital where he declared dead at 11.50 p.m. in the night. The last certificate which was issued dated 21st October, 2013, by Dr.N.D.Katharia, stating that 5 injections given at a time one after another without test dose in that case there are chances of creating problem in breathing and both the hands and legs may stretch.
9. The judgment which is relied by the learned Senior Advocate, Mr.Sudhir Nanavati would not help to the applicant in Page 12 of 19 Downloaded on : Mon Dec 18 20:43:06 IST 2023 NEUTRAL CITATION R/CR.RA/537/2015 JUDGMENT DATED: 15/12/2023 undefined the present case as in the said judgment, it is held that during the treatment if any complications arrive and Doctor had opted for a particular line of treatment, Doctor cannot held liable. In the present case, it is undisputed fact that operation was performed successfully. The patient was declared fit and even able to walk in the Hospital premises and on giving the injunctions in vain, his condition become deteriorated, therefore, the said judgment would not came for the rescue in the present case to the applicant.
10. Learned Senior Advocate Mr.Nanavati fairly admitted that said instructions for giving the injections was given to the ward boy by the present applicant. Therefore, accused No.2 cannot be held liable. In view of the statement made by the learned senior Advocate for the applicant, it is further required to be noted that as per the report submitted by the Dr. N.D. Katharia, dated 5 th August, 2013, in answer to the questions put by the Investigating Officer with regard to the reaction which was done whether it is possible with the injections, which was given to the patient or not. Doctor replied that there are chances of allergic reactions on Page 13 of 19 Downloaded on : Mon Dec 18 20:43:06 IST 2023 NEUTRAL CITATION R/CR.RA/537/2015 JUDGMENT DATED: 15/12/2023 undefined giving all these injections immediately, however, fact that chances are 4 patients out of one lac. From the statement of the witnesses, staff members who were present at the time of incident in the Hospital, it reveals that accused No.2 was working with the present applicant and after surgery was completed, he was available for post operation treatment. After the operation, the deceased was fit and able to walk in the Hospital premises. If the 5 injunctions which was given one after the other in the vain, his health became deteriorated. From the communication dated 2.1.2013, addressed by the Department of Forensic Medicine & Tosicology, Government Medical College and New Civil Hospital, Surat,it reveals that because of the injections which was of penicillin group and there are all chances of having allergic reactions on giving this injection and therefore, it is stated in the said communication that if the said injection is given without supervision of the Doctor then the Doctor can be held liable. From the undated communication addressed to the Police Inspector, Udhna Police Station from the Sardar Vallabhbhai Patel Paramedical and Institute, it reveals in para-3 that accused had completed the training course and injection is to be given is the Page 14 of 19 Downloaded on : Mon Dec 18 20:43:06 IST 2023 NEUTRAL CITATION R/CR.RA/537/2015 JUDGMENT DATED: 15/12/2023 undefined responsibility of Senior staff and the Doctor.
11. This Court has considered the law laid down by the Hon'ble Apex Court in the case of State of Bihar V/s. Ramesh Singh reported in AIR 1977 SC 2018. In para-4, it is observed as under:-
"Under section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. 'The Judge has to pass thereafter an order either under section 227 or section 228 of the Code. If "the Judge consider that there is not. sufficient ground for proceeding against the accused, he shall discharge the Page 15 of 19 Downloaded on : Mon Dec 18 20:43:06 IST 2023 NEUTRAL CITATION R/CR.RA/537/2015 JUDGMENT DATED: 15/12/2023 undefined accused and record his reasons for so doing", as enjoined by section 227. If, on the other hand, "the Judge is of opinion that there, is ground for presuming. that the accused has committed an offence which-
(b)is exclusively triable by the Court, he shall frame in writing a charge against the accused'-', as provided in section 228.
Reading the two provisions together in juxta position, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally Page 16 of 19 Downloaded on : Mon Dec 18 20:43:06 IST 2023 NEUTRAL CITATION R/CR.RA/537/2015 JUDGMENT DATED: 15/12/2023 undefined applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under section 227 or section 228 of the Code. At that stage the Court is not to 'see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the, initial stage is not in the sense of the law governing the trial of criminal cases in Page 17 of 19 Downloaded on : Mon Dec 18 20:43:06 IST 2023 NEUTRAL CITATION R/CR.RA/537/2015 JUDGMENT DATED: 15/12/2023 undefined France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. if the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the, trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But, if, on the Page 18 of 19 Downloaded on : Mon Dec 18 20:43:06 IST 2023 NEUTRAL CITATION R/CR.RA/537/2015 JUDGMENT DATED: 15/12/2023 undefined other hand, it is so at the initial stage of making an order under section 227 or section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under section 228 and not under section 227".
12. Thus, in view of the above decision and discussion, the impugned order does not suffer from any illegality, irregularity or impropriety and the Revision is liable to be dismissed. Accordingly, this revision application stands rejected. Rule discharged. Interim relief,if any, stands vacated.
(M. K. THAKKER,J) ASHISH M. GADHIYA Page 19 of 19 Downloaded on : Mon Dec 18 20:43:06 IST 2023