Punjab-Haryana High Court
Phool Singh vs Dr.Ranjit Ahlawat on 21 August, 2012
Author: Sabina
Bench: Sabina
Crl.Rev.No. 2931 of 2011 1
In the High Court of Punjab and Haryana at Chandigarh
Crl.Rev.No. 2931 of 2011
Date of decision: 21.8.2012
Phool Singh ......Petitioner
Versus
Dr.Ranjit Ahlawat .......Respondent
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr.P.S.Ahluwalia, Advocate,
for the petitioner.
Mr.H.S.Gill, Sr.Advocate with
Mr.Vivek Goel, Advocate
for the respondent.
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SABINA, J.
This petition has been filed under Section 401 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short) challenging order dated 2.11.2011, passed by the Court of revision, whereby summoning order dated 16.3.2010 (Annexure P-1), passed by the trial Court, was set aside.
Learned counsel for the petitioner has submitted that the court of revision had erred in allowing the revision petition. The petitioner had led sufficient evidence by way of his preliminary evidence for proceeding against the respondent under Section 304-A of the Indian Penal Code, 1860.
Learned senior counsel for the respondent, on the other hand, has submitted that the medical board had opined that it was not a case of medical negligence. Hence, the court of revision had Crl.Rev.No. 2931 of 2011 2 rightly set aside the summoning order. In support of his arguments, learned senior counsel has placed reliance on Martin F.D'Souza vs. Mohd. Ishfaq 2009 (2) RCR (Criminal) 64, wherein, in para 117, it was held as under:-
"We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer Fora (whether District, State or National) or by the Criminal Court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or Criminal Court should first refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the concerned doctor/hospital. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew's case (supra), otherwise the policemen will themselves have to face legal action."
After hearing learned counsel for the parties, I am of the opinion that the present petition deserves to be dismissed.
In the present case, Dalbir Singh, son of the complainant, had suffered a fracture of his left leg in an accident. Crl.Rev.No. 2931 of 2011 3 Dalbir Singh was rushed to Bharat Hospital, Kaithal, where he was treated by the respondent. The case of the complainant was that due to negligence of the respondent, the vein of the leg of Dalbir Singh had been cut due to which his condition became critical and he was referred to Rajindra Hospital, Patiala. Due to this reason, Dalbir Singh suffered heavy loss of blood. He was given treatment in Rajindra Hospital, Patiala but he was advised to be shifted to P.G.I. Chandigarh. Complainant took his son from Rajindra Hospital, Patiala to Kaithal but he died at Kaithal. Hence, the complaint was filed.
In support of his case, complainant led his preliminary evidence. During the pendency of the complaint, report under Section 202 Cr.P.C. was sought. A medical board was constituted and it opined as under:-
"It is a case of medical complication which is not uncommonly encountered in day-to-day surgical practice. The complainant failed to prove any evident negligence on the part of Dr.Ahlawat, he performed the operation with reasonable care as per accepted medical standard procedure. He performed the operation to the best of his knowledge and competence. Patient was duly referred to Rajindra Hospital, Patiala on 20.5.2006 at 7.00 P.M. where he was given medical aid, then he was referred to PGI Chandigarh on 21.5.2006 at 11.00 A.M. and he died at 1.00 P.M. i.e. After two hours after referral from Rajindra Hospital, Patiala and after 16 hours after referral Crl.Rev.No. 2931 of 2011 4 from Dr.Ahalwat's hospital i.e. Bharat Nursing Home, Kaithal. Though there was no anesthetist available at the time of operation. Still it is desirable to call anesthetist in such type of surgery as far as possible however, the aforesaid complication in this case does not seem to be due to anesthesia. With postmortem report the opinion would have been definitive and more clear if postmortem was done on the dead body of the deceased.
It is mandatory to mention here that patient can only be taken for surgery in operation theatre after taking consent from relative of the patient."
Thus, the medical board opined that there was no negligence on the part of the respondent. In the absence of the postmortem report, the allegations levelled by the complainant stood unsubstantiated. As per Martin F.D'Souza's case (supra), private complaint against the doctor qua negligence in performance of his duty should not be entertained unless there was opinion from a committee of doctors specialized in the field relating to which the medical negligence was attributed that the doctor was guilty of medical negligence. In these circumstances, the impugned order does not suffer from the vice of illegality and calls for no interference.
Accordingly, this petition is dismissed.
(SABINA) JUDGE August 21, 2012 anita Crl.Rev.No. 2931 of 2011 5