Allahabad High Court
Dr. Sushil Kumar Gupta vs State Of U.P. And Another on 21 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 450
Author: Harsh Kumar
Bench: Harsh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 79 Case :- APPLICATION U/S 482 No. - 25818 of 2018 Applicant :- Dr. Sushil Kumar Gupta Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rajesh Kumar Chitragupt,Kamal Kishor Mishra Counsel for Opposite Party :- G.A.,Anil Kumar Mishra,Om Prakash Pandey,Rajesh Kumar Dubey Hon'ble Harsh Kumar,J.
Rejoinder affidavit filed by learned counsel for applicant, is taken on record.
Heard Sri Kamal Kishor Mishra, learned counsel for applicant, Sri Anil Kumar Mishra, learned counsel for opposite party no.2, learned A.G.A. for State and perused the record.
This application under Section 482 Cr.P.C. has been filed for quashing the entire proceedings of Criminal Case No.2136 of 2018 (State Vs. Dr. Sushil Kumar Gupta), relating to Case Crime No.338 of 2017, under sections 419, 420, 338, 504, 506 and 201 IPC, P.S. Sidharth Nagar, District Sidharth Nagar pending in the Court of C.J.M., Sidharth Nagar as well as for quashing the impugned charge sheet dated 21.3.2018.
Learned counsel for applicant contends that applicant has been falsely implicated in the F.I.R. lodged by opposite party no.2 on account of unsuccessful surgery; that as per averments made in F.I.R. lodged against applicant and Dr. Skand Mishra, "opposite party no.2 was admitted in Aryan Hospital, Tharauli, Siddharth Nagar for operation of stone in gallbladder and during surgery applicant and Dr. Skand Mishra together, opposite party no.2 got a cut over her nerve of liver on 8.1.2016, causing further complications and in order to save her life, she had to rush to Gorakhpur and undergone further surgery at Gorakhnath Hospital, Gorakhpur and S.G.P.G.I. Centre, Lucknow and upon getting of bit well informed District Magistrate, Siddharth Nagar, on whose direction C.M.O. recorded her statement while applicant on getting knowledge of above complaint allegedly threatened her for life and the doctors on the pretext of operation usurped a sum of Rs.14,000/- by cheating her".
He submitted that the entire prosecution story is absolutely false and incorrect; that father of applicant Dr. J.P. Gupta, M.B.B.S. retired from the post of Chief Medical Officer in 2014 established and run Aryan Hospital and unfortunately died on 12.11.2016, after about 10 months of surgery of opposite party no.2; that applicant is M.B.B.S. Doctor and at the time of alleged surgery on 8.1.2016, was posted as Medical Officer at C.H.C., Brijmanganj and was on his duty and neither conducted surgery of opposite party no.2 nor was at all present or working in Aryan Hospital at the time of surgery of opposite party no.2; that in any case, according to statements of opposite party no.2 and her witnesses, applicant allegedly played role of an Anesthetist and administered dose of anesthesia to opposite party no.2 during operation; that the surgery of gallbladder is technical one and since the internal organs are connected with each other, possibility of cut over the adjoining nerve, may not be ruled out, despite due care and caution by expert doctor; that Dr. Skand Mishra is an expert surgeon; that though surgery of opposite party no.2 with regard to gallbladder was successfully conducted but since complaint of pain sustained for considerable time, so opposite party no.2 sought premature discharge and preferred treatment at Gorakhnath Hospital, Gorakhpur and thereafter at S.G.P.G.I., Lucknow and is alleged to have been further operated at Gorakhnath Hospital, Gorakhpur as well as at S.G.P.G.I., Lucknow; that on the complaint made by opposite party no.2, an inquiry was ordered by C.M.O., Siddharth Nagar and the committee submitted it's report to C.M.O.(Annexure No.9) with the conclusion that surgery of gallbladder was performed by expert doctor and since she (opposite party no.2) did not get relief, she was again operated by expert at Gorakhpur and, thereafter, in super specialty hospital S.G.P.G.I., Lucknow which took enough time in complete recovery and that such complications are part of surgery and it will not be correct to say that doctor did not conduct the operation sincerely; that the report of S.G.P.G.I., Lucknow at Annexure No.10 also does not indicate any negligence on the part of applicant; that even if the allegations made by opposite party no.2 and her witnesses are taken to be correct, for the sake of arguments, since applicant was assigned only with the role of anesthetist and had nothing to do with surgery of gallbladder, resulting in cut over nerve of her liver, during removal of gallbladder, (providing anesthesia is a pre-surgery stage and nothing beyond it); that medical negligence, if any, could have been occurred only by the person, who applied knives etc. during surgery for removal of gallbladder; that no case of medical negligence is or can be made out against applicant; that applicant neither usurped any money nor committed any offence of cheating and no offence under sections 419 and 420 IPC is made out against him; that Rs.14,000/- or any amount was admittedly deposited by opposite party no.2 was towards operation charges and since admittedly operation of her gallbladder was conducted, no case of cheating or usurping her money can be made out; that the case of applicant is distinguishable from co-accused Dr. Skand Mishra, who is an expert surgeon and conducted surgery very sincerely and correctly; that applicant never abused opposite party no.2 or her family members and never threatened them of life; that under wrong impression of opposite party no.2 about alleged medical negligence, the applicant may not be held responsible; that applicant did not do anything to make the evidence disappear; that in view of the material on record even if the evidence remains same, there is no possibility of conviction of applicant; that applicant either intentionally or otherwise did not cause any grievous hurt to opposite party no.2 rashly or negligently to endanger her life; that the prosecution of applicant is noting but abuse of process of Court and in order to secure the ends of justice, charge sheet as well as proceedings of criminal case are liable to be quashed.
In support of his arguments, learned counsel for applicant has paid reliance on the law laid down by the Apex Court in the case of Jacob Mathew Vs. State of Punjab and another, 2005 (3) JIC 320 (SC), Per contra, learned AGA and learned counsel for opposite party no.2 vehemently opposed the application for quashing of charge sheet and proceedings against applicant and contended that it is clear from the material on record that applicant was present at the time of surgery of opposite party no.2 at Aryan Hospital and the allegations that he was on duty in Medical Hospital at CHC, Brijmanganj indicates that his presence in Aryan Hospital was unauthorized; that if the applicant was posted at C.H.C. Brijmanganj, he had no business to provide anesthesia to opposite party no.2, which indicates that he is not loyal to his duties also; that since the applicant has played active role in surgery of gallbladder of opposite party no.2, he is equally liable for negligence in unsuccessful surgery and cut over her liver nerve; that the matter of negligence, is a matter to be decided upon evidence and mere reports of the committee constituted by C.M.O. at Annexure No.9 or of S.G.P.G.I. at Annexure No.10, are not sufficient to hold the applicant not guilty for medical negligence; that it is wrong to say that no offence under sections 419, 420, 338, 504, 506 and 201 IPC is made out against applicant; that application has been moved with false allegations and malafide intention and is liable to be dismissed.
Upon hearing parties counsel and perusal of record, I find that cheating has been defined under section 415 IPC as under :-
"415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat"."
In the case of Jacob Mathew (supra), where a patient with acute breathing problem brought to hospital and admitted and died due to immediate non-availability of oxygen cylinder, quashing prosecution of accused doctor under section 304A/34 IPC, the 03 Judges Bench of Apex Court held that "(i) Medical Negligence
(ii) Since patient died due to non-availability of Oxygen in time, hence no case of criminal negligence is made out against doctor - Hospital may be liable under civil law but doctors cannot be prosecuted under Section 304-A IPC.
(iii) To prosecute a doctor for negligence under criminal law it must be shown that he did something or failed to do something which no doctor in his ordinary senses and prudence would have done or failed to do so.
(iv) 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.
(v) 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 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."
In the instant case, opposite party no.2 is alleged to have been operated for stone in gallbladder at Aryan Hospital, Tharauli, Siddharth Nagar after depositing Rs.14,000/-. The case of opposite party no.2 is that her surgery was done by applicant and Dr. Skand Mishra, which was not successful on account of their medical negligence. There is no case that after getting the money deposited, her surgery was not conducted and money was usurped and thus any fraud was played on her by applicant, or anybody else. Hence from averments made in F.I.R., I find that there is no prima facie evidence of offence under sections 419 and 420 IPC.
As far as offence under section 338 IPC is concerned according to opposite party no.2 during surgery of her gallbladder, applicant allegedly given her dose of anesthesia and he is not alleged to have conducted any operation by cutting any part of her body, internally or externally. There is no whisper that dose of anesthesia given by applicant was excessive or caused any problem or damage to opposite party no.2. So if applicant, the Anesthetist, who was posted at C.H.C. Brijmanganj and was not present on duty in C.H.C. or was unauthorizedly present at Aryan Hospital even then he may not be considered to be negligent for alleged cut of liver nerve of opposite party no.2 or of causing any grievous hurt to her. The averments with regard to offences under sections 504 and 506 IPC are ornamental in nature in absence of any specific allegations in F.I.R. or in statement of opposite party no.2. It is also pertinent to mention that F.I.R. does not speak of disappearance of any evidence by applicant and so there is no prima facie evidence of offence under section 201 IPC against applicant.
In view of discussions made above and the law laid down by Apex Court in the case of Jacob Mathew (supra) since applicant even if provided anesthesia to opposite party no.2, prior to her surgery of removal of gallbladder stone at Aryan Hospital, Tharauli, Siddharth Nagar, he is not alleged to have committed any breach of duty in providing inadequate dose of anesthesia and there is no whisper of any lack of care on his part or of cutting the nerve of liver of opposite party no.2 endangering her life, he may not be considered to be negligent in performing his duties. Even if for any negligence at the Aryan Hospital, Siddharth Nagar, the same may be liable under civil law, but applicant Dr. S.K. Gupta may not be held liable for negligence and endangering life of opposite party no.2 constituting any offence under section 338 IPC against applicant. The averments made in F.I.R. with regard to deposit of Rs.14,000/- towards operation charges do not constitute any offence under sections 419, 420 IPC and there are no specific averments with regard to offences under sections 504, 506 and 201 IPC. Hence I am in full agreement with the arguments advanced on behalf of applicant that his prosecution for offences under sections 419, 420, 338, 504, 506 and 201 IPC is unwarranted and amounts to abuse of process of Court and if permitted to continue will cause unnecessary harassment of a M.B.B.S. Doctor. There is sufficient ground for quashing the proceedings of criminal case for preventing abuse of process of Court and to secure the ends of justice. Therefore, the application is liable to be allowed and proceedings of Criminal Case No.2136 of 2018 (State Vs. Dr. Sushil Kumar Gupta), relating to Case Crime No.338 of 2017, under sections 419, 420, 338, 504, 506 and 201 IPC as well as charge sheet dated 21.3.2018, are liable to be quashed as against applicant.
The application U/s 482 Cr.P.C. is allowed and the proceedings of Criminal Case No.2136 of 2018 (State Vs. Dr. Sushil Kumar Gupta), relating to Case Crime No.338 of 2017, under sections 419, 420, 338, 504, 506 and 201 IPC as well as charge sheet dated 21.3.2018 are quashed, accordingly.
However, it is made clear that any observation made in the body of judgment will not prejudice the rights of opposite party no.2 in the case pending as against co-accused person or in civil proceedings, if any, filed by her.
Order Date :- 21.1.2020 Tamang