Delhi District Court
Sh. Dinesh Kumar Rawat vs State on 18 September, 2017
Page 1 of 20
IN THE COURT OF MS. NAVITA KUMARI BAGHA, ADDL. SESSIONS
JUDGE 04, WEST DISTRICT, TIS HAZARI COURTS, DELHI
CRIMINAL REVISION No.56425/16
1. Sh. Dinesh Kumar Rawat
S/o Late Sh. Raje Singh Rawat
R/o Flat No.1071, Vikas Kunj,
Vikas Puri, New Delhi
2. Dr. R.C. Madan
S/o Sh. A.C. Madan
R/o C234, Jyoti Nursing Home,
Vikaspuri, New Delhi
............Revisionists
Vs.
State
Through: SHO, P.S. Vikas Puri,
Vikas Puri, New Delhi
........Respondent
Criminal Revision Petition U/Sec.397 Cr.P.C. against the order dated 11.11.2016 passed in criminal case titled as "State Vs. Dinesh Kumar & Anr." bearing FIR No.48/2003 O R D E R
1. This revision petition has been filed by the revisionists against the order CR No.56425/16 Dinesh Kumar Rawat & Anr. Vs. State Page 2 of 20 dated 11.11.2016 passed by Sh. Sushil Kumar, Ld. Metropolitan Magistrate05, West District, THC, Delhi, vide which the Ld. Trial Court held that prima facie a case U/Sec.304A IPC was made out against the revisionists and accordingly notice for the offence U/Sec.304A IPC was framed against the revisionists in case FIR No.48/2003 P.S. Vikas Puri.
2. The brief facts necessary for disposal of the present petition are as follows: 2.1 That on 11.01.2003, a patient namely Ankit Jassal aged about 12½ years was admitted in Jyoti Nursing Home with acute abdominal pain and on examination, he was found suffering from appendicitis and operation of appendicitis was done on 12.01.2003. The anaesthesia before the operation was administered by revisionist no.1 and the operation was performed by a surgeon Dr. R.R. Mohanty. The revisionist no.2 is the owner/Director of the said Nursing Home. After operation, the patient Ankit Jassal did not come to his senses. On 12.01.2003 at about 9.30 p.m., the patient was shifted to Kukreja Hospital, Tagore Garden. On 01.02.2003, the complainant Balbir Singh (father of Ankit Jassal) filed a written complaint in P.S. Vikas Puri wherein he stated that he was told that his son had developed respiratory distress and diagnosed as Acute Pulmonary Edema CR No.56425/16 Dinesh Kumar Rawat & Anr. Vs. State Page 3 of 20 which was not under the control at Jyoti Nursing Home where the ventilator facilities were not available and therefore, he shifted the patient to Kukreja Hospital on 12.01.2003 from where he was shifted to Maharaja Agrasen Hospital, Punjabi Bagh and that at Maharaja Agrasen Hospital, his son was diagnosed a case of Brain Hypoxia which had been caused due to serious negligence on the part of Anesthetist Dr. D.K. Rawat while administering the dose of anaesthesia for operation on 12.01.2003.
2.2 On the basis of said complaint, FIR No.48/2003 dated 01.02.2003 U/Sec.337 IPC P.S. Vikas Puri was registered. On 22.03.2003, the patient Ankit Jassal died in Maharaja Agrasen Hospital. His postmortem was conducted on 22.03.2003 in DDU Hospital and viscera was preserved and sent to CFSL, Hyderabad. As per the report of Chemical Examiner on the viscera, no common poison could be detected. The doctor at DDU Hospital opined the cause of death as "due to Postappendectomy Hypoxic encephalopathy". 2.3 It is stated in the Chargesheet that Hypoxia occurs due to non supply of oxygen to brain either during operation or during reversal of anaesthesia after operation and due to Hypoxia, water starts accumulating in the lungs which is known as Pulmonary Edema and CR No.56425/16 Dinesh Kumar Rawat & Anr. Vs. State Page 4 of 20 the reasons for such nonsupply of oxygen could be - (i) no oxygen in the cylinder, or (ii) oxygen meter not working properly, or (iii) patient already suffering from some heart problem. It is further stated that during the operation, it is the responsibility of Anaesthetist that the oxygen is properly supplied to the patient but in the present case, the oxygen to patient Ankit was not supplied properly on 12.01.2003 due to which he suffered Pulmonary Edema on account of Hypoxia and ultimately died on 22.03.2003 as the revisionist no.1 failed to treat him properly. It is further stated that the Delhi Medical Council (hereinafter referred to as "DMC") had also found him guilty vide its decision dated 10.12.2003. Hence, the revisionist no.1 was chargesheeted for the offence U/Sec.304A IPC. 2.4 Regarding the revisionist no.2, it is stated in the Chargesheet that he is also liable to be prosecuted U/Sec.304A IPC as he had failed to maintain ventilator support system in his hospital due to non availability of which the patient Ankit could not be saved. 2.5 Before the framing of Notice U/Sec.251 Cr.P.C., the revisionist moved an application for summoning the record of Medical Council of India (hereinafter referred to as "MCI") by stating that the order dated 10.12.2003 of DMC was setaside by the MCI vide its order CR No.56425/16 Dinesh Kumar Rawat & Anr. Vs. State Page 5 of 20 dated 18.03.2005. On 07.04.2012, the Ld. Trial Court observed that the copy of said order of MCI was already lying on record alongwith the Chargesheet but there was no reference of said document in the list of documents filed with the Chargesheet, Therefore, I.O. was called by the Ld. Trial Court to clarify the same. On 07.05.2012, the I.O. appeared before the Ld. Trial Court and submitted that he had not filed the said document alongwith Chargesheet. Thereafter, two applications were filed by the revisionists before the Ld. Trial Court:
(i) U/Sec.173(8) Cr.P.C. for further investigation in view of order of MCI, and (ii) U/Sec.91 Cr.P.C. r.w. Sec.156(3) Cr.P.C. for summoning the Secretary, MCI for producing the order dated 18.03.2005.
2.6 Vide order dated 26.03.2013, the Ld. Trial Court dismissed both the abovesaid applications of the revisionists being nonmaintainable. 2.7 Then vide impugned order dated 11.11.2016, the Ld. Trial Court held that prima facie case U/Sec.304A IPC was made out against both the revisionists and accordingly framed notice against them.
3. The present revision petition has been filed by the revisionist for setting aside the impugned order dated 11.11.2016 on the ground that the Ld. CR No.56425/16 Dinesh Kumar Rawat & Anr. Vs. State Page 6 of 20 Trial Court has not applied its mind to the fact that the order of the MCI has been filed by the I.O. itself at the time of filing of Chargesheet alongwith the order of DMC and it forms part of the Chargesheet and therefore, the Ld. Trial Court should have considered the said order as well as law laid down by Hon'ble Supreme Court in Dr. Jacob Mathew Vs. State of Punjab which was later on reiterated in Lalita Kumari Vs. State of U.P.
4. I have heard the arguments from counsel Sh. Praveen Suri for the revisionists/accused and Ms. Suchitra Singh Chauhan, Addl. P.P. for respondent/State and carefully perused the record including the Trial Court record in the light of submissions made before me.
5. The counsel for revisionists has vehemently argued that the impugned order is liable to be setaside as the same is not legal whereas the Addl. P.P. has argued that the said order has been passed after considering all the relevant facts and circumstances and there is no need to interfere in the same.
6. The counsel for revisionists has vehemently argued that the revisionists were chargesheeted U/Sec.304A IPC on the basis of decision dated 10.12.2003 of DMC, but since the said decision was setaside by the CR No.56425/16 Dinesh Kumar Rawat & Anr. Vs. State Page 7 of 20 MCI vide its order dated 10.03.2005, so, instead of framing notice against the revisionists, they should have been discharged by the Ld. Trial Court. But the Addl. P.P. for the State has argued that the said order of MCI is not part of the Chargesheet as it was never filed by the I.O. and the same appears to have been filed by the revisionists at the time of filing application for summoning the record of MCI. She has further argued that it is settled law that the accused cannot file any document at the stage of charge and hence, the Ld. Trial Court has rightly not considered the same while framing notice against the revisionists. Though the counsel for revisionists has vehemently denied the filing of said order of MCI by the revisionists and has stated that the same was very much filed by the I.O. alongwith Chargesheet, but even if it is presumed to be filed by the revisionists, yet as per the caselaw of Hon'ble Supreme Court titled as Rukmini Narvekar Vs. Vijaya Satardekar, AIR 2009 SC 1013, the same can be taken into consideration at the time of framing of charge. In the aforesaid caselaw the Hon'ble Apex Court has held that in some rare cases the Court is justified in looking into the material produced by the defence at the time of framing of the charge, if such material convincingly establishes that the whole prosecution version is totally absurd, preposterous or CR No.56425/16 Dinesh Kumar Rawat & Anr. Vs. State Page 8 of 20 concocted. In the present case the cause of death of deceased Ankit is stated to be "due to Postappendectomy Hypoxic encephalopathy". It is the case of the prosecution that the revisionist no.1 being Anaesthetist was responsible for proper supply of oxygen to the patient during operation but he failed to do so. As per the Chargesheet, the deceased had suffered Pulmonary Edema due to Hypoxia and the Hypoxia had occurred due to nonsupply of oxygen which could have been either due to no oxygen in the cylinder, or due to oxygen meter not working properly or due to the reasons the patient already suffering from some heart problem. But no material has been placed on record in support of any such suppositions. It is also not the case of the prosecution that the patient was already suffering from some heart problem. There are only some statements of the doctors of Maharaja Agrasen Hospital recorded U/Sec.161 Cr.P.C. wherein they have given general statements and stated that the Hypoxia may occur when the brain does not get oxygen in three minutes during the reversal of anaesthesia. But there is nothing on record from which it could be established that the revisionist no.1 had not provided the patient with oxygen within the reasonable time. Rather as per the Anaesthesia Notes dated 12.01.2003 placed on Trial Court record, 100% oxygen was supplied to the patient. The main reliance of CR No.56425/16 Dinesh Kumar Rawat & Anr. Vs. State Page 9 of 20 prosecution for filing Chargesheet against the revisionists is the decision dated 10.12.2003 of DMC vide which the revisionist no.1 was held guilty of negligence. Thus, the decision of the MCI dated 18.03.2005, vide which the said decision of DMC has been setaside, is very significant document, which even if not relied upon by the prosecution, could be taken into consideration in view of the abovesaid case of Rukmini Narvekar (supra), as the same can tilt the prosecution case completely. The MCI has passed the said order after seeking opinion of three Head of the Department (HODs) of Anaesthesia of AIIMS, GTB Hospital and Lady Harding Medical College, New Delhi who gave the report that no negligence could be substantiated against the revisionist no.1.
7. It is pertinent to mention here that for holding a doctor guilty of rash and negligent act U/Sec.304A IPC, the degree of negligence has to be higher and it must be culpable or gross and not the negligence merely based upon an error of judgment. In law of tort, the amount of damages incurred is the determinative factor of the extent of liability, but in criminal law it is not the amount of damages but the amount and degree of negligence that is determinative of liability. Criminal negligence is the gross and culpable neglect or failure to exercise the reasonable and proper care and precaution to guard against injury. It has been held by CR No.56425/16 Dinesh Kumar Rawat & Anr. Vs. State Page 10 of 20 the Hon'ble Supreme Court in Jacob Mathew Vs. State of Punjab, AIR 2005 SC 3180 "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.
The word 'gross' has not been used in Section 304A of Indian Penal Code, 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 Indian Penal Code has to be read as qualified by the word 'grossly'."
8. Thus, while framing charge of criminal negligence, the negligence must be gross or culpable and the essential ingredient of mens rea cannot be CR No.56425/16 Dinesh Kumar Rawat & Anr. Vs. State Page 11 of 20 excluded from consideration at that stage. In Jacob Mathew's case (supra) the Hon'ble Apex Court has observed that no sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. It has been held in the said case, "A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. A surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the enddose of medicine to his patient."
9. Thus, for charging a doctor for the offence U/Sec.304A IPC, a clear case of gross negligence has to be established by the prosecution. A mere accident or error of judgment is not evidence of negligence as required for the offence U/Sec.304A IPC. If the doctors are started being chargesheeted U/Sec.304A IPC even for error of judgment or simple CR No.56425/16 Dinesh Kumar Rawat & Anr. Vs. State Page 12 of 20 lack of care, then no doctor would dare to admit any serious patient in his hospital for treatment, fearing criminal prosecution in case of death of said patient. It has been held by Hon'ble Supreme Court in Dr. Suresh Gupta Vs. Govt. of N.C.T. of Delhi, AIR 2004 SC 4091, "When a patient agrees to go for medical treatment or surgical operation, every careless act of the medical man cannot be termed as 'criminal.' It can be termed 'criminal' only when the medical man exhibits a gross lack of competence or inaction and wanton indifference to his patient's safety and which is found to have arisen from gross ignorance or gross negligence. Where a patient's death results merely from error of judgment or an accident, no criminal liability should be attached to it. Mere inadvertence or some degree of want of adequate care and caution might create civil liability but would not suffice to hold him criminally liable."
10. It has been held by the Hon'ble Apex Court in Jacob Mathew's case (supra) that the human body and medical science both are too complex to be easily understood and to hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires an indepth understanding of the working of a professional as also the CR No.56425/16 Dinesh Kumar Rawat & Anr. Vs. State Page 13 of 20 nature of the job and of errors committed by chance. In the present case, the MCI had sought opinion of three highly qualified medical professionals i.e. Head of the Department (HODs) of Anaesthesia of AIIMS, GTB Hospital and Lady Harding Medical College, New Delhi who had the indepth understanding of the working of medical professional, nature of such job and the errors committed by chance. The said HODs gave the report that no negligence could be substantiated against the revisionist no.1. On the basis of their report, the MCI has exonerated the revisionist no.1 meaning thereby that he has not been found guilty of negligence in the present case.
11. It has been further held in Jacob Mathew's case (supra) that a simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional and 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. Since, MCI in the present case, after analyzing the entire situation, has exonerated the revisionist no.1, so, it could be safely assumed that the practice followed by him in the present case was acceptable to the medical profession. Hence, in view of the Jacob Mathew's case (supra) he could not held CR No.56425/16 Dinesh Kumar Rawat & Anr. Vs. State Page 14 of 20 guilty of negligence as required for the offence U/Sec.304A IPC.
12. Now even if all the averments made in the chargesheet are held to be proved, the same would not make out a case of criminal rashness or negligence on the part of revisionist no.1. For chargesheeting a doctor, the prosecution has to come out with a case of high degree of negligence on the part of the doctor. Mere lack of proper care, precaution and attention or inadvertence might create civil liability but not a criminal one. The act attributed to the revisionist no.1, even if accepted to be true, can be described either as an error of judgment or at the most with negligence for which he may be liable in tort but the same cannot be described to be so reckless or grossly negligent as to make him criminally liable.
13. So far as the revisionist no.2 is concerned, the only allegation against him is that he failed to keep the ventilator support system in his hospital due to which the patient Ankit died as had he been provided with the said support system after developing pulmonary edema, he would have been saved. But it is not the case of the prosecution that it was mandatory for the hospital to keep the said system and the hospital has failed to comply with the mandate. When it was not mandatory to keep the said system, CR No.56425/16 Dinesh Kumar Rawat & Anr. Vs. State Page 15 of 20 then how the revisionist no.2 could be made liable for the same! As held earlier, for charging a person for the offence U/Sec.304A IPC, the degree of negligence must be culpable, gross and of very high degree. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'. When there was no duty on the part of revisionist no.2 to keep the ventilator system in his hospital as it was not the mandatory requirement, then how there could be any breach of the said duty, for which he could be prosecuted under Sec.304A IPC? Since, there is no case made out against revisionist no.2 for the offence punishable U/Sec.304A IPC, so, he is required to be discharged in the present case.
14. In view of the above discussion, I am of the view that no case of committing a rash and negligent act as contemplated U/Sec.304A IPC is made out against any of the revisionists and therefore, they deserve to be discharged in this case.
15. Now the question arises that whether an accused could be discharged in summonscases at the stage of framing Notice U/Sec.251 Cr.P.C. as the power to discharge accused U/Sec.239 Cr.P.C. applies only to warrant cases. The answer to this question has been given in affirmative by the CR No.56425/16 Dinesh Kumar Rawat & Anr. Vs. State Page 16 of 20 Hon'ble Courts in a catena of judgments. The Hon'ble Supreme Court in Bhushan Kumar Vs. State (NCT of Delhi), AIR 2012 SC 1747 has held that in summonscases the Magistrate is bound to discharge the accused as per Sec.239 Cr.P.C. if no offence is disclosed in the Chargesheet against him. The Hon'ble Apex Court has held as follows in the abovesaid case, "It is inherent in Section 251 of the Code that when an accused appears before the trial Court pursuant to summons issued under Section 204 of the Code in a summons trial case, it is the bounden duty of the trial Court to carefully go through the allegations made in the charge sheet or complaint and consider the evidence to come to a conclusion whether or not, commission of any offence is disclosed and if the answer is in the affirmative, the Magistrate shall explain the substance of the accusation to the accused and ask him whether he pleads guilty otherwise, he is bound to discharge the accused as per Section 239 of the Code."
(underlining added)
16. The same was held by the Hon'ble High Court of Delhi in S.K. Bhalla Vs. State, 180 (2011) DLT 219. In Urrshila Kerkar Vs. Make My Trip CR No.56425/16 Dinesh Kumar Rawat & Anr. Vs. State Page 17 of 20 (India) Private Ltd., CRL.M.C.2598/2012 & Crl.M.A.13279/2012, DOD 18.11.2013 also the Hon'ble Delhi High Court held, "In any case, the appropriate stage at which these aspects are required to be considered is the stage of framing of Notice under Section 251 of Cr.P.C. Such a view is taken as trial court is not expected to mechanically frame Notice under Section 251 of Cr.P.C. and has to apply its mind to find out as to whether a prima facie case is made out or not and in the event of finding that no case is made out for proceeding against a particular accused, trial court would be well within its right to drop the proceedings qua such an accused."
17. In Urrshila Kerkar's case (supra), the Hon'ble High Court also clarified that while discharging accused at the stage of Notice U/Sec.251 Cr.P.C., the Apex Court's decision in Adalat Prasad Vs. Rooplal Jindal, (2004) 7 SCC 338, would not stand in the way of Trial Court. It has held, "It is no doubt true that Apex Court in Adalat Prasad v. Rooplal Jindal and Ors., (2004) 7 SCC 338, has ruled that there cannot be recalling of summoning order, but seen in the backdrop of decisions of Apex Court in Bhushan Kumar and Krishan Kumar (supra), aforesaid decision CR No.56425/16 Dinesh Kumar Rawat & Anr. Vs. State Page 18 of 20 cannot be misconstrued to mean that once summoning order has been issued, then trial must follow. If it was to be so, then what is the purpose of hearing accused at the stage of framing Notice under Section 251 of Cr.P.C. In the considered opinion of this Court, Apex Court's decision in Adalat Prasad (supra) cannot possibly be misread to mean that proceedings in a summons complaint case cannot be dropped against an accused at the stage of framing of Notice under Section 251 of Cr.P.C. even if a prima facie case is not made out."
18. It is pertinent to mention here that in the case of Arvind Kejriwal & Ors.
Vs. Amit Sibal & Anr., 2014(212) DLT 489, the Hon'ble High Court of Delhi has issued directions under Sec.482 r.w. Sec.483 Cr.P.C. and Art.227 of the Constitution to enable the Magistrate to discharge the accused at the stage of notice under Sec.251 Cr.P.C. if no prima facie offence is made out. The Hon'ble High Court held, "In view of the authoritative pronouncements of the Supreme Court in Bhushan Kumar (supra), Krishna Kumar Variar (supra) and Maneka Gandhi (supra) and of this Court in Raujeev Taneja (supra), Urrshila Kerkar (supra) and S.K. Bhalla (supra), the accused are entitled to hearing before the learned Metropolitan Magistrate at the CR No.56425/16 Dinesh Kumar Rawat & Anr. Vs. State Page 19 of 20 stage of framing of notice under Section 251 Cr.P.C in all summons cases arising out of complaints and the Magistrate has to frame the notice under Section 251 Cr.P.C. only upon satisfaction that a prima facie case is made out against the accused. However, in the event of the learned Magistrate not finding a prima facie case against the accused, the Magistrate shall discharge/drop the proceedings against the accused. Since there is no express provision or prohibition in this regard in the Code of Criminal Procedure, these directions are being issued in exercise of power under Section 482 read with Section 483 Cr.P.C. and Article 227 of the Constitution to secure the ends of justice; to avoid needless multiplicity of procedures, unnecessary delay in trial/protraction of proceedings; to keep the path of justice clear of obstructions and to give effect to the principles laid down by the Supreme Court in Bhushan Kumar (supra), Krishna Kumar Variar (supra) and Maneka Gandhi (supra)."
(underlining added)
19. Thus, it is ample clear that even in summonscases the accused could be discharged at the stage of notice U/Sec.251 Cr.P.C. if no case is found against him. As already held above, in the present case, no case is CR No.56425/16 Dinesh Kumar Rawat & Anr. Vs. State Page 20 of 20 made out against both the revisionists U/Sec.304A IPC. Therefore, the present revision petition is allowed and both the revisionists are discharged.
20. TCR be sent back alongwith copy of this Order.
21. File of the revision petition be consigned to Record Room.
(Announced in open
Court on 18.09.2017) (Navita Kumari Bagha)
ASJ04, West District,
Tis Hazari Court, Delhi
CR No.56425/16
Dinesh Kumar Rawat & Anr. Vs. State