Madhya Pradesh High Court
Dr. Rajiv Jain vs The State Of Madhya Pradesh on 22 December, 2023
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA
PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 22 nd OF DECEMBER, 2023
MISC. CRIMINAL CASE No. 34597 of 2022
BETWEEN:-
DR. RAJIV JAIN S/O SHRI R.K. JAIN, AGED ABOUT
42 YEARS, OCCUPATION: DOCTOR R/O FLAT
NO.401 PRESTIGE POONAM ARCADE GOL BAZAR
JABALPUR MP (MADHYA PRADESH)
.....APPLICANT
(BY SHRI ANIL KHARE - SENIOR ADVOCATE WITH SHRI
SATYENDRA JAIN - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THANA
KHAMARIYA DISTRICT JABALPUR (M.P.)
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI B.K.UPDHYAY - DY.GOVERNMENT ADVOCATE)
(BY SHRI SANKALP KOCHAR - ADVOCATE)
(BY SHRI NIKHIL TIWARI - ADVOCATE)
Reserved on:21/11/2023
Pronounced on: 22/12/2023
This petition having been heard and reserved for orders, coming
on for pronouncement this day, the Court pronounced the following:
ORDER
The petitioner by the instant petition filed under Section 482 of Cr.P.C. is seeking to quash FIR registered against him vide Crime No.783/2021 for the offence punishable under Section 304-A, 417, 465 Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 12/23/2023 4:04:59 PM 2 and 468 of IPC at Police Station Khamariya, District Jabalpur as also all subsequent criminal proceedings arising out of registration of said FIR.
3. To answer the question raised before this Court by counsel for the parties by submitting their rival contentions, it is required to adumbrate the facts of the case.
4. As per the prosecution story the mother of the deceased (Khushi Tiwari 13 years) Dr. Sunita Tiwari the SSO FSL officer in District Scene of Crime Unit Mobile, Jabalpur made a complaint by way of application dated 01/06/2022 to police station Lord ganj and to Superintendent of Police, Jabalpur that her only daughter died in Star Hospital due to medical negligence on the part of the doctors and hospital management. On 13/06/2021 complaint was also made to Chief Medical and Health Officer, District Hospital Jabalpur on the basis of which FIR was registered at Police Station Lordganj vide Crime No.783/2021 under Section 304-A, 417, 465 and 468 of IPC. The child of the complainant was brought in the hospital on 09/05/2021 and this was the time when second wave of COVID-19 was in full force. The child was suffering from some illness and as such advised hospitalization and prescribed IV medicines. Although, the complainant was not ready for hospitalization and as such she took the child home and present petitioner prescribed oral medicines.
5 The child was again brought to the hospital on 17/05/2021(at about 11:30 P.M.) and she was in a very serious condition (ARI with septic shock with aspiration Pneumonia) with Covid like symptoms. The child was immediately admitted in the hospital and was kept in PICU and Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 12/23/2023 4:04:59 PM 3 treatment was started considering her medical condition.
6. The child was in circulatory failure and shock therefore she was kept Nil by mouth (NBM) instructions given by doctor. The child was attended with due care and she was under constant observation of the petitioner but on 18/05/2021 and on 19/05/2021 around 8:30 to 10:30 a.m. the child had sudden aspiration and chocking which ultimately caused her death.
7. As per the petitioner and averments made in the petition it was a sudden death inspite of proper treatment given to the child from 17/05/2021 to 19/05/2021 and all immediate CPCR efforts done in person by the petitioner.
8. The father of the deceased child is also a doctor and was present throughout her treatment from 18/05/2021 to 19/05/2021. He did not allege anything against the petitioner and even in the statement of father of the deceased recorded before Additional Superintendent of Police on 19/07/2021 there was nothing against the present petitioner. Although, soon after the death of the child, the parents have refused to send the body of the deceased child for the postmortem.
9. The mother of the deceased Dr.Sunita Tiwari on 01/06/2021 that too after 12 days of the incident made a complaint to the Superintendent of police in writing alleging that her child died on 19/05/2021 during the course of treatment in Star Hospital being run by the petitioner due to the negligence of the doctor. She has also alleged that despite repeated call to the doctor (the petitioner) he did not turn up to the hospital, therefore, she requested Superintendent of Police to make an Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 12/23/2023 4:04:59 PM 4 enquiry and to take action against the petitioner and his hospital. Even a complaint was made to the local police station and petitioner was asked to produce all relevant material by the Station House Officer of P.S.Lordganj. The documents and other required details sought by the police were produced by the petitioner before the police with an explanation that the allegation made by the mother of the deceased against the petitioner and hospital were incorrect. The mother of the deceased was making several complaints to the police officers with a changing version. The CCTV footage was also demanded but it could not be produced for the reason that after 15 days the hard disc gets auto formatted and footage was not available, but material produced by the petitioner was sufficient to examine that there was no negligence on the part of the petitioner and the hospital. However, the complainant kept on making fresh and different complaints demands and allegations. A letter was also issued to the petitioner by the Superintendent of Police on 14/07/2021 asking for an explanation.
10. The petitioner submitted reply to the said letter on 19/07/2021 along with the consent letter of the complainant submitted at the time of hospitalization of the deceased and also filed additional reply along with the documents narrating whole story and clarified that it was not negligence on the part of the doctor and the management. A complaint was also made to the higher authorities and then National Medical Commission in view of the direction issued by Hon'ble the Apex Court framed guidelines and constitute a committee for conducting an inquiry to Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 12/23/2023 4:04:59 PM 5 bring the correct picture before the authority and those guidelines were framed with an intention to protect the doctor as there has been incredible increase in the complaints alleging negligence on the part of the doctors to treat their patients. The committee was constituted by District Medical Board headed by Dr.Kamlesh Kumar Verma. Although, the petitioner made a request to the Chief Medical and Health Officer for changing the Inquiry Officer saying that he is biased with the petitioner and also holding the same rank as petitioner holds but his request was not considered and enquiry report was submitted. Enquiry report dated 01/09/2021 has been submitted to CMHO and a final report was prepared on 07/09/2021. The copy of report is also placed on record as Annexure-P-17, in which it is opined that there was no medical negligence in the treatment of deceased child.
11. The hospital of the petitioner was specified as COVID center because during the second wave of COVID-19 it was difficult for the administration to provide proper medical facilities to the patient of COVID and Government hospitals did not have the required infrastructure to face such a situation or to give treatment to the huge number of patients and as such private hospitals had been identified which were able to provide proper medical facilities to the Covid patient and hospital of the petitioner was one of those hospitals and it was identified to be a Covid hospital center.
12. As per the petitioner, after receiving the final report from CMHO no crime could be registered but under influence of the complainant as she was also working in the police department the case has Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 12/23/2023 4:04:59 PM 6 been registered against the petitioner on a completely false foundation, therefore, this petition has been filed seeking quashing of FIR.
13. Shri Anil Khare, senior Advocate appearing for the petitioner has contended that the allegations made by the complainant against the petitioner are absolutely false. He submits that when child was admitted she was in a serious condition because on first occasion i.e on 09/05/2021 child was brought to the hospital and during treatment it was advised to get her hospitalized but the complainant refused to do so and when the condition of the child deteriorated then again she was brought to the hospital and got her hospitalized. The child was already suffering from some ailment and her condition was not good, therefore, hospitalized and as per the treatment provided there was complete restrictions for giving her water but unknowingly the father of the child gave her water which caused accidental chocking and finally became the cause of death. The petitioner though was not present before the child because at the same time he was on a visit to Sudha Nursing Home for treating a newly borne child whose condition was too bad and the life of the child was at risk. Although, the deceased child was completely under his supervision and proper advise was given to the staff of the hospital to provide medication to the child. Shri Khare submits that non presence of doctor in the hospital does not make him responsible for the death of the deceased.
14. Shri Khare submits that as per the report of committee constituted the opinion given therein was very clear that the child was being provided proper treatment and medication by the medical staff of Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 12/23/2023 4:04:59 PM 7 the hospital. It is also opined in the report that deceased was suffering from K/C/O-MRCP with Partial Blindness with shock with ARI and her condition became worst due to infiltration of water in the wind pipe and possible caused her death.
15. Shri Khare submits that there was nothing against the petitioner to make him responsible for the offences registered against him. He submits that the prosecution is nothing but an abuse of process of law and it is malicious prosecution because mother of the deceased/complainant was unhappy with the absence of the doctor in the hospital when her child was fighting against death. Shri Khare also contended that when report is in favour of doctor and experts did not find any negligence on his part no question arises for prosecuting him under the alleged offences. He placed reliance upon a judgment reported in 2021 SCC online SC 1149 (Bombay Hospital and Medical Research Center Vs. Asha Jaiswal and others). 2009(3) SCC 1 (Martin F.D'Souza vs. Mohd Ishfaq) and 2018 (7) SCC 581 (Sheila Sebastian vs. R.Jawaharaj and another).
16. Per contra, Shri Sankalp Kochar appearing for the complainant opposed the submissions made by counsel for the petitioner and submitted that the petition is without any substance for the reason that offence has rightly been registered against the petitioner. He submits that from the statement of witnesses those are staff of the hospital of the petitioner it is clear that the hospital was being run with untrained staff. The child of the deceased was being treated and was in the hands of untrained person not familiar with the medical field and were not Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 12/23/2023 4:04:59 PM 8 competent to provide medication to the child.
17. Shri Kochar has submitted that there is ample evidence available with the prosecution showing fabrication in the documents. According to Shri Kochar from the documents filed along with charge sheet it is clear that petitioner has rightly been made accused. He has drawn attention of this Court towards the document i.e copy of report of Inquiry Committee which reveals that the committee has opined that the petitioner unnecessarily signed the documents where his signature was not required. The said report further provides that the petitioner at the relevant point of time when he should remain present in the hospital to provide and to take care of the child of the complainant visited another hospital i.e Sudha Nursing Home. The petitioner was not present in the hospital on 19/05/2021 from 8:00 am to 10:00 am and child was being treated as per the telephonic instruction given by the petitioner to his staff. The committee has also opined that there was manipulation in the OPD receipts. Shri Kochar has also pointed out that the admission slip dated 17/05/2021 contained the medication given to the patient and another slip prepared on 17/05/2021 which was manipulated slip containing some additional fact showing the child was in a serious condition and also the other parameters of the body and it was deliberately entered into the said fabricated slip just to get rid of the situation so as to show that the condition of the child was very bad. There are two documents at page 90 & 91 of the charge sheet issued on the same day i.e 09/05/2021 and supplied by the complainant to the police saying that the original document Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 12/23/2023 4:04:59 PM 9 contained treatment different than that of manipulated prescription.
18. Shri Kochar also pointed out that statement of Dr. C.B.Arora who was one of the members of the enquiry committee has stated that as per the echo report heart condition of the child had improved and even thereafter manipulation has been made in the documents.
19. Shri Kochar has pointed out that the statement of Bhagwan Singh Thakur in which he has admitted that he was working in the hospital as a Technician but he was also engaged in providing medication. Likewise Ku.Rekha Thakur was working as a staff nurse, she was also not a trained nurse and has admitted in her statement that when the petitioner was called as the condition of the child of the complainant was deteriorating, he did not come and there was no other doctor in the hospital to give proper treatment to the child. Shri Kochar submits that no trained staff was there in the hospital and petitioner was also not attending the patient and was moving and visiting the other hospitals to treat the patient of the other hospital and according to Shri Kochar the petitioner was totally negligent in discharging his obligations and not only this, but to hide his negligence he has manipulated the documents so as to show that the condition of the patient was not proper and death occurred due to the said condition. He submits that offence has rightly been registered against him and this is not a case in which FIR can be quashed. He placed reliance upon the judgment reported in 2004(6) SCC 422 (Dr.Suresh Gupta Vs. Government of NCT of Delhi and another), 2005(6) SCC 1 (Jacob Mathew Vs. State of Punjab and another), 2008(14) SCC 479 (Mahadev Prasad Kaushik Vs. State of U.P.) and 2023 SCC online Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 12/23/2023 4:04:59 PM 10 5433 (Dr.Biswa Mohan Mishra Vs. State of Orrissa).
20. Shri B.K.Upadhyay, counsel for State has supported the submission made by counsel for complainant.
21. I have considered the rival contentions of counsel for the parties. I am of the opinion that basic allegations made against the petitioner that he was negligent to discharge his obligation towards his patient and was not available at the relevant point of time when deceased, patient of the petitioner required his presence and proper medical assistance are correct. It is also alleged against him that he did not have trained medical staff and all other requisite medical facilities which were mandatory to run a hospital. It is also against the petitioner that death of the deceased occurred due to negligence on the part of the petitioner and to hide his negligence, he has manipulated the documents relating to provide medication to the deceased.
22. There is no dispute that the deceased was first brought for medical treatment on 09/05/2021 to the hospital of the petitioner and was provided some medication and thereafter again on 17/05/2021 she was brought to the hospital and got hospitalized where on 19/05/2021 she died. The deceased was suffering from K/C/O-CHD with MRCP with shock with ARI partial blindness and period when she was hospitalized the second wave of Pandamic COVID-19 was in force. Everybody is aware of that period especially during COVID-19 in the second wave there was incredible increase in number of patients and hospitals were full with patients and only few doctors were providing treatment to the COVID Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 12/23/2023 4:04:59 PM 11 patients, each and every hospital was suffering from paucity of staff. Government hospitals were not in a position to give admission to the patients or to provide them proper treatment and medication due to insufficient infrastructure. Several private hospitals were identified to be a COVID center and treatment was being provided only in those hospitals. It is also undisputed that the Star hospital where deceased was hospitalized is also one of the hospitals identified as a Covid center. The main grievance and allegation as has been shown in the present case is that when patient's condition became serious the petitioner was not available in the hospital and even after repeated calls he did not reach the hospital and was giving treatment to the patient through telephonic instructions that too to the staff which was not very much trained and qualified.
23. Although, no postmortem was conducted of the deceased, but undisputably the death occurred due to heart failure. The deceased was suffering from several ailments and her heart was also very weak because there was some abnormality in the heart of the deceased. It has pointed out by the petitioner in the reply submitted to the police that four perforations were there in the heart of deceased. It was also disclosed that due to her ailment, the maximum age limit is normally up to 6-7 years but if extra efforts are made and proper care is taken then it could be extended up to 10-11 years. The position of the child at the time of admission was also written in the admission slip and at that time her heart was not functioning properly.
24. Moreover, the allegation made against the petitioner is that he being a doctor was not available in the hospital to take care of the Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 12/23/2023 4:04:59 PM 12 deceased and he was visiting the other hospitals to treat the patients admitted in those hospitals. The petitioner was informed about the deteriorating condition of the child but he did not turn up and only on telephonic instructions provided the medication that too with the help of untrained staff.
25. Counsel for the complainant has pointed out that the hospital has no trained staff and the staff nurse was also not qualified, she was only B.A.Graduate. It is alleged that death occurred due to negligence on the part of the petitioner as he did not treated his patient when his assistance was required.
26 Though, it was expected by the family members of the patient that doctor should be along with the patient and whenever patient needed medical assistance the same be provided by the doctor himself, but during the Covid period it was difficult for the hospital to provide assistance to each and every patient because all hospitals were suffering from paucity of their staff. Not only this, but there was shortage of doctors also.
Everybody knows that doctor sitting in the hospital can not be available all the time with patients but as and when they get an opportunity to provide medical assistance to a particular patient, they also remain there or in their absence they instruct their staff to do so. In the Covid period there were shortage of doctors and it is a normal practice that doctor visits the patients even in other hospitals. Shri Kochar has placed reliance upon several judgments i.e Dr.Suresh Gupta (supra) in which with regard to liability upon the doctor and registration of case under Section 304-A of Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 12/23/2023 4:04:59 PM 13 IPC the Supreme Court has observed as under:-
20. For fixing criminal liability on a doctor or surgeon, the standard of negligence required to be proved should be so high as can be described as "gross negligence" or "recklessness". It is not merely lack of necessary care, attention and skill. The decision of the House of Lords in R. v. Adomako [(1994) 3 All ER 79 (HL)] relied upon on behalf of the doctor elucidates the said legal position and contains the following observations:Thus a doctor cannot be held criminally responsible for patient's death unless his negligence or incompetence showed such disregard for life and safety of his patient as to amount to a crime against the State."
27 Further in case of Jacob Mathew(supra) the Supreme Court in paragraphs 18, 41, 48, 48(1), 48(7) has held as under :-
18. In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally.
Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 12/23/2023 4:04:59 PM 14 recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of 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 necessary for every professional to possess the highest level of expertise in that branch which he practises. In Michael Hyde and Associates v. J.D. Williams & Co. Ltd. [2001 PNLR 233 (CA)] Sedley, L.J. said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable. (Charlesworth & Percy, ibid., para 8.03.)
41.Laxman Balkrishna Joshi v. Trimbak Bapu Godbole [(1969) 1 SCR 206 : AIR 1969 SC 128] was a case under the Fatal Accidents Act, 1855. It does not make a reference to any other decided case. The duties which a doctor owes to his Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 12/23/2023 4:04:59 PM 15 patients came up for consideration. The Court held that a person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for that purpose. Such a person when consulted by a patient owes him certain duties viz. a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to be given or a duty of care in the administration of that treatment.
A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires. The doctor no doubt has a discretion in choosing the treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency. In this case, the death of the patient was caused due to shock resulting from reduction of the fracture attempted by doctor without taking the elementary caution of giving anaesthesia to the patient. The doctor was held guilty of negligence and liability for damages in civil law. We hasten to add that criminal negligence or liability under criminal law was not an issue before the Court, as it did not arise and hence was not considered.(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 Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 12/23/2023 4:04:59 PM 16 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".
(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.
52. 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 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 [(1957) 1 Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 12/23/2023 4:04:59 PM 17 WLR 582 : (1957) 2 All ER 118 (QBD)] 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.
28 In case of Mahadev Prasad Kaushik Vs. State of U.P. , 2008(14) SCC 478, the Supreme Court has observed as under :-
32. The standard to be applied for judging whether a person charged has been negligent or not would be that of an ordinary competent person exercising ordinary skill in that profession. It was further observed that mere deviation from normal professional practices is not necessarily evidence of negligence. An error of judgment on the part of the professional is also not negligence per se.
Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil.
Medical profession is often called upon to adopt a procedure which involves higher element of risk, but which a doctor honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow would depend on the facts and circumstances of a given case. It was, therefore, held that the prosecution of the doctor Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 12/23/2023 4:04:59 PM 18 was ill founded and accordingly, it was quashed.
35. In the circumstances, in our opinion, though on the facts and in the circumstances of the case, no summons could have been issued by the trial court against the appellant for an offence punishable under Section 304 IPC, summons for an offence under Section 304-A IPC ought to have been issued. The decisions on which strong reliance has been placed by the learned counsel for the appellant expressly allow such a step in certain circumstances, such as absence of possession of requisite skill or failure to exercise reasonable care by a professional. Nothing has been stated by the appellant about his qualifications or of "requisite skill" in the profession he was practising. There was also nothing to show that before administering injections, he had undertaken reasonable care ought to have been taken by a professional.
36. In this connection, we may refer to a decision of the High Court of Madhya Pradesh in Khusaldas Pammandas (Dr.) v. State of M.P. [AIR 1960 MP 50] In that case, the appellant hakim examined M, who was "tired" and "exhausted". The hakim found that M had no temperature. The hakim, however, advised M to take a procaine penicillin injection. Injection was then given to M, who perspired profusely, started vomiting and died. The hakim was prosecuted for commission of an offence punishable under Section 304-A IPC and was convicted. Upholding the conviction, the High Court observed that a person totally ignorant of science of medicine or practice of surgery cannot undertake a treatment or perform operation. If he does so, it is a material circumstance to show his gross rashness and negligence in undertaking the treatment so as to attract Section 304-A IPC.
Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 12/23/2023 4:04:59 PM 1937. On the facts of the case, ailment of Buddha Ram prima facie could not be said to be of such a serious nature which would result in death during his treatment. The allegation of the complainant which has been corroborated by statements of other eyewitnesses is that immediately after administration of three injections, the colour of the body of Buddha Ram turned into blue and within half an hour he died. If in the light of the above facts and circumstances, proceedings have been initiated against the appellant for an offence punishable under Section 304-A IPC (though not under Section 304 IPC), it cannot be said that no such action could be taken. We are, therefore, of the view that submission on behalf of the learned counsel for the complainant deserves to be accepted to the above extent.
38. For the foregoing reasons, in our judgment, the appeal deserves to be partly allowed. So far as issuance of process for the offences punishable under Sections 504 and 506 IPC is concerned, it is liable to be quashed and is hereby quashed.
Likewise, process for an offence punishable under Section 304 IPC is ill conceived on the facts of the case and the process could only be issued by the learned Magistrate to the appellant-accused for an offence punishable under Section 304-A IPC. The appeal is accordingly allowed to the extent indicated above.
29 As per Shri Kochar doctor should have immediately come back to the hospital when he was telephonically informed about the serious condition of the child, but instead of doing so he issued instruction and proper treatment could not be provided to the deceased which culminated her death, therefore, police has rightly registered the offence of Section Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 12/23/2023 4:04:59 PM 20 304-A of IPC.
30 The submissions of Shri Khare is also taken note of and according him the allegations of medication by untrained staff, fabrication of document and absence of doctor at the time of serious condition of patient do not constitute the reason for registering the offence under Section 304 of IPC. He has placed reliance upon the judgment of Supreme Court i.e Bombay Hospital (supra) wherein in paragraph 26 the Supreme Court has held as under:-
26. It is a case where the patient was in serious condition impending gangrene even before admission to the Hospital but even after surgery and re-exploration, if the patient does not survive, the fault cannot be fastened on the doctors as a case of medical negligence. It is too much to expect from a doctor to remain on the bed side of the patient throughout his stay in the hospital which was being expected by the complainant here. A doctor is expected to provide reasonable care which is not proved to be lacking in any manner in the present case.
28. Furthermore, the Supreme Court in Sheila Sebastian(supra), in paragraph 17 is held as under:-
17. At this juncture, it is pertinent to have a look at the definition of "forgery" and the precedents on this aspect.
"463. Forgery.--Whoever makes any false documents [or false electronic record] or part of a document [or electronic record], with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 12/23/2023 4:04:59 PM 21 enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."
31. There is nothing available on record to indicate that death occurred because of negligence of the petitioner. From the report of committee of doctors and opinion given by them, it is clear that though the petitioner was not available in the hospital but from perusal of case file it is found that deceased was being provided appropriate treatment. The committee has also found that the child was suffering from K/C/O-MRCP with Partial Blindness with shock with ARI (Accute Respiratory Infection) and her condition became worst due to infiltration of water in the wind pipe. It is also clear from the record that despite restriction father had given water to the child for drinking.
32 Counsel for complainant has also placed reliance on Jacob Mathew(supra) in which the term negligence and its applicability has been scrutinized. In the said case Supreme Court has also observed as to what ingredients should be available to determine the criminal negligence and as per the Supreme Court the essential ingredient was mensrea but in the present case the ingredients of mensrea are not available. Neither complainant nor prosecution has produced any material to show that ingredients of mensrea is available in the present case.
33 In case of Kalyani Rajan(supra), the Supreme Court has observed that it is a general tendency of the family members of victim with whom any unfortunate event occurs to make allegation against the doctor with an intention to punish him. The Supreme Court has observed that Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 12/23/2023 4:04:59 PM 22 professionals deserve total protection. It is also observed that Section 88, 92 and 370 of Penal Code give adequate protection to the professionals and particularly medical professionals.
34 Further, the Supreme Court in case of Martin F D'Souza(supra) in paragraphs 42 and 43 has held as under:-
42. When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this.
Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalised for losing a case provided he appeared in it and made his submissions.
43. To fasten liability in criminal proceedings e.g. 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. Thus for civil liability it may be enough for the complainant to prove that the doctor did not exercise reasonable care in accordance with the principles mentioned above, but for convicting a doctor in a criminal case, it must also be proved that this negligence was gross amounting to recklessness.
35. From the overall facts and circumstances of the case it is clear that in the present case there is no ingredients for prosecuting offence of Section 304-A of IPC. Though, it is alleged that there was some manipulation in the prescription written by the petitioner and overwriting in the admission slip, but his intention was not to cause any damage or any Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 12/23/2023 4:04:59 PM 23 injury to anyone. As such, requirement of forgery is also not fulfilled.
36. Considering the submissions made by counsel for parties and the cases on which counsel for complainant has placed reliance, this Court has no hesitation to say that suffering of the parents of the deceased undoubtedly cannot be evaluated but it does not mean that at the same time a person who is not the cause for giving that suffering should be held responsible and be allowed to face the prosecution which is otherwise an abuse of process of law. No doctor thinks to cause any loss to his patients because ultimately it goes against him and his reputation. For the professionals success is their earning and failure in their attempt push them back. If such type of practice is appreciated and allowed to be continued that would shake the moral of the doctors. It is known to everybody that death is the only truth in this Universe and it is inevitable. There are so many reasons to face the death but without knowing actual cause on only apprehension anybody cannot be held responsible for the same. There must be strong evidence available so as to form an offence against a doctor when he was treating his patient and making efforts to save the life.
37. Thus, on the basis of material available and in absence of required ingredients no case under Section 304-A, 417, 465 and 468 is made out against the petitioner.
38. Under such a circumstance, the petitioner cannot be permitted to continue to face such criminal prosecution which is purely abuse of process of law and otherwise liable to be quashed. Therefore, FIR No. 783/2021 registered at Police Station Khamariya, District Jabalpur, is hereby quashed and further proceedings based thereon are also quashed.
Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 12/23/2023 4:04:59 PM 2439. The petition is accordingly allowed. No order as to costs.
(SANJAY DWIVEDI) JUDGE sushma Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 12/23/2023 4:04:59 PM