Gauhati High Court
Marwari Maternity Hospital And Ors vs Sri Praveen Jain on 19 July, 2012
Author: I A Ansari
Bench: I A Ansari
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM; NAGALAND; MEGHALAYA;
MANIPUR; TRIPURA; MIZOAM & ARUNACHAL PRADESH)
Criminal Revision No. 606 of 2004
1.Marwari Maternity Hospital, Through Secretary, Sri Om Prakash Choudhary, Son of Late Keshardeo Choudhary, Resident of GS Road, Ulubari, Guwahati-781007
2. Sri Karuna Kanta Goswami, Son of Late Chandra Kanta Goswami, Resident of Kumarpara, Police Station Bharalumukh, Dist. Kamrup, Guwahati-9, Assam.
3. Sri Dinesh Agarwal, Son of Sri Vasudeo Agarwal, Resident of TR Phukan Road, Fancy Bazar, Police Station Bharalumukh, Dist. Kamrup, Guwahati, Assam.
----- Accused-Petitioners
- Versus -
Sri Praveen Jain, Son of Sri Gajanand Jain, R/O Chinmoy Apartment, 3rd Floor, Kali Mandir Lane, Tokobari, Guwahati-8, Bharalamukh Police Station, District-Kamrup, Assam.
----- Complainant-opposite party PRESENT THE HON'BLE MR. JUSTICE I A ANSARI For the petitioners : Mr. BM Choudhury, Advocate.
For the Opp. Party : Mr. AK Bhattacharya, Sr. Advocate.
Date of hearing : 01-06-2012.
Date of judgment : 19-07-2012
JUDGMENT & ORDER
With the help of this application, made under Section 482 Cr.P.C., the petitioner, who are accused, in Complaint Case No. 1998C/2004, have sought for quashing of the complaint, in question, as well as the order, Page 2 of 26 dated 03-08-2004, whereby cognizance of offence, under Section 304-A IPC, has been taken by the learned Additional Chief Judicial Magistrate, Kamrup, Guwahati, who has also directed issuance of processes, amongst others, against the petitioner No. 1, namely, Om Prakash Choudhury, stands impleaded as accused in his capacity as the Secretary of Marwari Maternity Hospital, Guwahati, which is being run by a charitable trust, namely, Marwari Databya Aushadhalaya, and which is one of the accused in the complaint, in question, the petitioner No. 2, namely, Dr. Karuna Kanta Goswami, who was an anesthetist, who stood impleaded as one of the accused, is no longer alive, and the petitioner No. 3, namely, Dr. Dinesh Agarwal, being a medicine specialist, stood impleaded as one of the accused.
2. I have heard Mr. BM Choudhury, learned counsel, appearing on behalf of the accused-petitioners, and Mr. AK Bhattacharyya, learned Senior counsel, appearing for the complainant-opposite party.
3. The case of the complainant may, in brief, be set out as under :
(i) The accused No. 1, namely, Sri Om Prakash Choudhury is the Secretary of the Marwari Maternity Hospital and accused Nos. 2, 3 and 4, namely, Dr. RP Hansari (i.e., the petitioner herein), Dr. Dinesh Agarwal and Dr. KK Goswami (since deceased) respectively are doctors practising in the said hospital and also in other parts of the city of Guwahati.
(ii) The complainant admitted his wife, Smti. Namita Jain, on 31-
03-2004, at about 9.30 am, as a delivery case. At the time of her admission, Namita Jain was examined by the present petitioner, who found that the patient‟s all the parameters, such as, blood test, x-ray, ECG, etc, were as per requirements and she was quite normal and fit. On 01-04-2004, at about 9.00 am, Dr. RP Hansaria, one of the accused came, Criminal Revision No. 581 of 2004 Page 3 of 26 suddenly, to the complainant and told him that the patient was required to undergo some operation and surgery and that the complainant was required to give his consent thereto by putting his signatures on requisite papers. The complainant accordingly signed the necessary consent papers on 01-04-2004, whereupon Dr. RP Hansaria aforementioned conducted necessary operation on 01-04-2004 itself and the complainant‟s wife delivered a male child on that very day at about 11.45 am and, thereafter, she was shifted from Operation Theater (OT) to the Observation Room.
(iii) Subsequent to the surgery, the patient was, however, lying unconscious. This apart, when the patient was brought out from the Operation Theater, the complainant noticed that there was continuous bleeding at the point of saline‟s needle and his wife‟s bed was full of blood. Seeing this abnormal condition, the complainant raised the matter before the attending doctor, namely, Dr. RP Hansaria, who failed to take the matter seriously and did not take remedial medical steps and, as a result thereof, her condition went on deteriorating from bad to worse. The patient was, therefore, again, shifted to Operation Theater. Thereafter, at about 7.30 pm, the patient was brought back to the Observation Room with general oxygen, whereupon the complainant asked the doctors, namely, accused Nos. 2 and 3 (i.e., Dr. RP Hansaria and Dr. Dinesh Agarwal respectively), about the condition of the patient. Both the said doctors replied by saying that due to excess dose of anesthesia, some problems had arisen, but there was no need to worry inasmuch as necessary treatment was in progress. On being so informed by the said two doctors, the complainant remained silent and waited for recovery of his patient; but he was quite upset with the condition of the patient, Criminal Revision No. 581 of 2004 Page 4 of 26 because the patient remained in unconscious state till 6.30 pm, though such a patient, under normal circumstances, ought to have regained sense within an hour of surgery from the influence of anesthesia. The complainant also observed that due to negligence, on the part of the accused Nos. 2, 3 and 4, namely, Dr. R. K. Hansaria, Dr. Dinesh Agarwal and Dr. K. K. Goswami (since deceased), his wife‟s condition had become serious and he (complainant) also found that there was no provision for Intensive Care Unit (ICU), in the said hospital, to provide better treatment to such type of serious patients.
(iv) The complainant, therefore, decided and, consequently, tried to shift his patient to some other hospital; but the doctors, attending on his patient, including the present petitioners, did not allow him to take away the patient and to shift her to any other hospital. The attending doctor, namely, accused No. 2, Dr. RP Hansaria, again and again, tried to convince the attendants of the said patient, particularly, the complainant, that the patient was alright so far as gynecological aspect was concerned, but she had been having problem, because of excess dose of anesthesia.
(v) On 02-04-2004, at about 3.30 am, some attending doctor rang up the complainant to inform him that his patient‟s condition was very serious and that he should come, immediately, to the Observation Room. On receiving the phone call, the complainant and his brother, Satish Jain, came to the Observation Room and found that 2/3 doctors, along with some nurses, searching for some electrical wires in the Observation Room and 2/3 doctors were pumping the chest of the patient. From what the complainant observed, it was clear to him that due to non-availability of ICU and other facilities in the said hospital, the Criminal Revision No. 581 of 2004 Page 5 of 26 condition of the patient was very much serious. When the condition of the patient deteriorated further, then, the attending doctors/medical authorities concerned started taking steps to shift the patient to Guwahati Neurological Research Centre (GNRC) at about 5 am, but it took about 15 minutes to carry the patient from the Observation Room, situated on the 1st Floor of the said hospital, to the ambulance and in this 15 minutes of total process, the patient was not provided with oxygen and life saving support.
(vi) The patient was, thus, shifted to GNRC and taken to the ICU there at about 5.30 am. The staff, on duty, put the patient on cardiac monitors and artificial ventilation; but after 6.15 am, the patient was declared dead. The complainant approached the GNRC authorities to issue requisite Death Certificate of his wife; but the GNRC refused to issue any such certificate, for, according to them, the death of the patient had occurred during the transit in the ambulance itself.
(vii) In order to know the cause of untimely death of the complainant‟s wife, the complainant sent a letter, on 10-04-2004, to the Secretary, Marwari Maternity Hospital, requesting him to provide the complainant with all the documents pertaining to the treatment of his patient. The complainant repeated the request by another letters, dated 13-04-2004. Thereafter, in response to the complainant‟s letters, dated 10- 04-2004 and 13-04-2004, the General Secretary, Marwari Maternity Hospital, Sri OP Chaudhury (i.e., accused No. 1), sent one letter, dated 17- 04-2004, to the complainant along with some relevant papers relating to the complainant‟s wife and, at the same time, he also mentioned in the letter that the whole matter, pertaining to the death of Smti Namita Jain, was under a process of enquiry. Thereafter, the Joint Secretary of Marwari Criminal Revision No. 581 of 2004 Page 6 of 26 Maternity Hospital sent another letter, dated 30-04-2004, to the complainant along with an inquiry report as regard the circumstances leading to the death of the complainant‟s wife. The inquiry report is, however, contradictory in the sense that the said letter claims that the doctors themselves had decided to shift the patient to GNRC at about 5 am on 02-04-2004. By the letter of the authorities concerned, it was also admitted that on reaching GNRC, the staff, on duty, immediately, resorted to necessary treatment, but the patient was declared dead and, in the same report, the enquiring authority also admitted the fact that the patient went into deep coma during transfer and as per report from GNRC, the death had occurred, in the ambulance, during transmit period from Marwari Maternity Hospital to GNRC.
4. Based on the above complaint, CR Case No. 1998C/2004 was registered. The complainant‟s initial deposition was recorded under Section 200 Cr.P.C. and, then, processes for commission of offence, under Section 304A IPC, were directed to be issued by the impugned order, dated 03-08-2004, against, amongst others, the present petitioners, one of whom, namely, Dr. K. K. Goswami, Anesthetist, who is no longer alive.
5. While considering the present application made under Section 482 Cr.PC., it needs to be noted that the law, with regard to quashing of criminal complaint, is no longer res integra. A catena of judicial decisions has settled the position of law on this aspect of the matter. I may refer to the case of R. P. Kapur v. State of Punjab (AIR 1960 SC 866), wherein the question, which arose for consideration, was whether a first information report can be quashed under Section 561A of the Code of Criminal Procedure, 1898. The Court held, on the facts before it that no case for quashing of the proceeding was made out. Gajendragadkar, J, speaking Criminal Revision No. 581 of 2004 Page 7 of 26 for the Court, observed that though, ordinarily, criminal proceedings, instituted against an accused, must be tried under the provisions of the Code, there are some categories of cases, where the inherent jurisdiction of the Court can and should be exercised for quashing the proceedings. One such category, according to the Court, in R. P. Kapur (supra), consists of cases, where the allegations in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases, no question of appreciating evidence arises and it is a matter merely of looking at the FIR or the complaint in order to decide whether the offence alleged is disclosed or not. In such cases, said the Court, it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal Court to be issued against the accused. From the case of R.P.Kapoor (Supra), it becomes abundantly clear that when a look into the contents of a complaint shows that the contents of the complaint, even if taken at their face value and accepted to be true in their entirety, do not disclose commission of offence, the complaint shall be quashed. Similarly, where an FIR does not disclose commission of an offence, the FIR has got to be quashed.
6. As a corollary to what has been discussed above, it is also clear that if the contents of the complaint disclose commission of offence, such a complaint cannot be, ordinarily, quashed nor can an FIR be, ordinarily, quashed if the FIR discloses commission of a cognizable offence.
7. Laying down the scope of interference by the High Court in matters of quashing of FIR or complaint, the Supreme Court, in State of Haryana and Ors. V. Bhajanlal and others, reported in 1992 Supp (1) SCC 335, laid down as follows :-
Criminal Revision No. 581 of 2004 Page 8 of 26 "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the inherent powers under section 482 of the Code, which we have extracted and reproduced above, we give the following categories of cases by way of illustration, wherein such power could be exercised either to prevent abuse of the process of the any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines of rigid formulae and to give an exhaustive list of myriad kinds of cases, wherein such power should be exercised :-
(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirely, do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations made in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where the allegation in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned act (under which criminal proceeding is instituted) to the institution and continuance of the Criminal Revision No. 581 of 2004 Page 9 of 26 proceedings and/or where there is a specific provision in the Code or the concerned Act providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance of the accused and with a view to spite him due to private and personal private grudge".
8. In the case of Bhajanlal (supra), the Supreme Court gave a note of caution, on the powers of quashing of criminal proceedings, in the following words :-
"103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extra ordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice."
(Emphasis is added).
9. It is clear from a close reading of the principles laid down, in the case of R.P.Kapoor (supra) and Bhajanlal (supra), that broadly speaking, quashing of a First Information Report or a complaint is possible (a) when the allegations made, in the First Information Report or the complaint, even if taken at their face value and accepted in their entirely as true, do not prima facie constitute any offence or make out a case against the accused; (b) when the uncontroverted allegations, made in the FIR or complaint and evidence collected in support of the same, do not disclose the commission of any offence and/or make out a case against the accused; and (c) when the allegations made in the FIR or complaint are so absurd and inherently improbable that on the basis of such absurd and inherently improbable allegations, no prudent person can ever reach Criminal Revision No. 581 of 2004 Page 10 of 26 a just conclusion that there is sufficient ground for proceeding against the accused.
10. In other words, when the allegations, made in an FIR, disclose commission of a cognizable offence, such an FIR cannot, ordinarily, be quashed by relying upon some other materials on which will depend the defence of the accused, for, in such cases, truthfulness or otherwise of the allegations contained in the FIR or the probability of the defence plea can be determined only by effective investigation or at the trial.
11. However, in Harshendra Kumar D. vs. Rebatilata Kiley and others, reported in (2011) 3 SCC 351, the Supreme Court has made it clear that it is not an absolute rule of law that the High Court, while exercising its jurisdiction under Section 482 CrPC, or, while exercising its revisional jurisdiction under Section 397 CrPC, cannot, under any circumstances, look into the nature of public document or such materials, which are beyond suspicion or doubt, in order to ascertain if the criminal prosecution should or should not be allowed to proceed. In fact, the Supreme Court has also made it clear, in Harshendra Kumar D. (supra), that no greater damage can be done to the reputation of a person than dragging him in a criminal case. The Supreme Court has, therefore, held, in Harshendra Kumar D. (supra), that the High Court fell into grave error in not taking into consideration the uncontroverted documents relating to the appellant‟s resignation from the post of director of the company, which, if looked into, would have made it clear that the appellant‟s resignation from the post of director of the company was much before the cheques had been issued by the company. The relevant observations, which appear, in this regard, at paragraph 25 and 26, in Harshendra Kumar D. (supra), read as under:
Criminal Revision No. 581 of 2004 Page 11 of 26 "25. In our judgment, the above observations cannot be read to mean that in a criminal case where trial is yet to take place and the matter is at the stage of issuance of summons or taking cognizance, materials relied upon by the accused, which are in the nature of public documents or the materials which are beyond suspension or doubt, in no circumstance, can be looked into by the High Court in exercise of its jurisdiction under Section 482 or for that matter in exercise of revisional jurisdiction under Section 397 of the Code. It is fairly settled now that while exercising inherent jurisdiction under Section 482 or revisional jurisdiction under Section 397 of the Code in a case where complaint is sought to be quashed, it is not proper for the High Court to consider the defence of the accused or embark upon an inquiry in respect of merits of the accusations.
However, in an appropriate case, if on the face of the documents - which are beyond suspension or doubt - placed by the accused, the accusations against him cannot stand, it would be travesty of justice if the accused is relegated to trial and he is asked to prove his defence before the trial court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials which have significant bearing on the matter at prima facie stage.
26. Criminal prosecution is a serious matter; it affects the liberty of a person. No greater damage can be done to the reputation of a person than dragging him in a criminal case. In our opinion, the High Court fell into grave error in not taking into consideration the uncontroverted documents relating to the appellant‟s resignation from the post of Director of the Company. Had these documents been considered by the High Court, it would have been apparent that the appellant has resigned much before the cheques were issued by the Company."
(Emphasis is supplied)
12. From the law laid down in Harshendra Kumar D. (supra), it becomes clear that when the High Court is approached for quashing of a criminal prosecution in exercise of its extra-ordinary jurisdiction under Section 482 CrPC, or in exercise of its revisional jurisdiction under Section 397 CrPC, the Criminal Revision No. 581 of 2004 Page 12 of 26 High Court has to bear in mind that criminal prosecution affects the liberty of a person and there can be no greater damage done to the reputation of a person than dragging him in a criminal case. There is, therefore, no absolute bar, on the High Court‟s power, to take into consideration any uncontroverted document, which may have come on record, for the purpose of arriving at a decision as to whether a criminal prosecution should or should not be allowed to continue and, if the Court, on the basis of any public or uncontroverted document, comes to the conclusion that allowing the criminal prosecution to proceed, in such a case, would amount to abuse of the process of the Court, the High Court has the duty to quash such a proceeding.
13. It is, no doubt, true that while exercising its inherent jurisdiction under Section 482 CrPC, or its revisional jurisdiction, under Section 397 CrPC, where a complaint or FIR is sought to be quashed, it is not proper, on the part of the High Court, to consider the defence of the accused or enquire into the correctness or veracity of the accusations made against the accused. Nonetheless, in appropriate cases, if, in the face of the documents placed by the accused, which are beyond suspicion or doubt, the accusations against the accused cannot stand, it would be travesty of justice if the accused is asked to face trial, for, if it is so done, it would amount to denial of justice and would be tantamount to preventing justice from being done. This would be nothing short of abuse of the process of the Court.
14. Coupled with the above, there is no doubt that an FIR or a complaint may be quashed if the same is found to be actuated by mala fide (See. Hira Lal and others -vs- State of Uttar Pradesh, reported in (2009) 11 SCC 89) or if the FIR or the complaint makes accusations, which are so Criminal Revision No. 581 of 2004 Page 13 of 26 absurd or inherently improbable that no reasonable man would accept the allegations, made in the FIR or the complaint, as the case may be, as true and/or in a case, where the FIR and/or the complaint, as the case may be, is lodged as a counterblast. (See. MN Ojha & others -vs- Alok Kumar Srivastav & others, reported in (2009) 9 SCC 682). The FIR or a complaint may even be quashed, when the same is used as a weapon of harassment or persecution (See. State of Karnataka -vs- L. Muniswamy, (AIR 1977 SC 1489); but an FIR or a complaint shall be quashed, as held in Bhajanlal (supra), very sparingly and with great circumspection and that too, in the rarest of rare cases.
15. In the light of the law as regards quashing of a complaint or an FIR by taking resort to Section 482 Cr.P.C., let me, now, revert to the case at hand. As far as the processes, issued as against the present petitioner, are concerned, what needs to be bear in mind is that while accused- petitioner No. 1 is the Secretary of the said charitable hospital, the accused-petitioner No. 2, namely, Dr. Dinesh Agarwal, is a medicine specialist and accused-petitioner No. 4, namely, Dr. K. K. Goswami, anesthetist, is already dead. While considering the present application, made under Section 482 Cr.P.C., what needs to be noted, is that there is nothing, in the complaint, to show, nor is there anything, in the complainant‟s statement, recorded under Section 200 Cr.P.C., to indicate that there was any negligence or rashness on the part of the present petitioner No. 3, namely, Dr. Dinesh Agarwal, in providing medical advice and treatment.
16. In fact, not even an iota of allegation has been made as regards any negligence or rashness on the part of the petitioner No. 3, namely, Dr. Dinesh Agarwal. The complainant also claims that according to the Criminal Revision No. 581 of 2004 Page 14 of 26 information given to him, his patient did not recover due to excess dose of anesthesia.
17. Thus, the admitted case of the complainant is that it was due to excessive dose of anesthesia that the complication arose. Though the complainant has also alleged that it took about 15 minutes to bring the patient from the Observation Room to the ambulance and, during this period, she was not provided with oxygen, which the patient ought to have been provided with, and it is also alleged by the complainant that though he himself not only suggested, but wanted to shift his patient to a better hospital, where necessary care of his wife could have been taken, the attending doctors, including the present petitioner, prevailed upon him by saying that whatever was necessary was being done, the complainant made the anesthetist, namely, Dr. KK Goswami, as accused No. 4. However, Dr. KK Goswami is no longer alive.
18. Apart from the fact that there is, strictly speaking, nothing in the complaint, in question, alleging that in administering anesthesia, there was rashness or negligence on the part of Dr. KK Goswami, the fact remains that even if the administration of excessive dose of anesthesia was in itself an act of such rashness or negligence, which would fall within the ambit of Section 304A IPC, what can be, at best, said is that a case, if any, had been made out by the complainant against the said anesthetist and, in the absence of any specific allegation that it was due to incorrect advice, opinion or treatment given by the petitioner No. 3, namely, Dr. Dinesh Agarwal, that the complainant‟s patient had developed complications and, eventually, went to coma and died, no case of rashness or negligence, attracting application of offence, under Section Criminal Revision No. 581 of 2004 Page 15 of 26 304A IPC, can be said to have been made out against the present petitioner No. 3, namely, Dr. Dinesh Agarwal.
19. In no way, therefore, the direction for issuance of summons, as against the present petitioner No. 3, namely, Dr. Dinesh Agarwal, could have been passed, when the complaint, in question, and the complainant‟s statement, recorded under Section 200 Cr.P.C., did not make out any case of rashness or negligence, on the part of the present petitioner No. 3, namely, Dr. Dinesh Agarwal, as a medicine specialist, even if the contents of the complaint and the complainant‟s statement, recorded under Section 200 Cr.P.C, were assumed to be true and correct.
20. Coupled with the above, the term „negligence‟ may be used for the purpose of imposing civil liability on a defendant and, at times, to impose criminal liability. In order to enable a Court to hold that there was existence of criminal rashness or criminal negligence, there must be material to show that the rashness was of such a degree as to amount to taking a hazard knowing that hazard was of such a degree that injury was most likely imminent. Similarly, the negligence, in order to have criminality, has to have such a degree of negligence that the care, which was required to be taken, had not been taken at all. The element of criminality gets attracted, when the accused had run the risk of doing an act with recklessness and indifference to the consequences despite knowing that the hazard, involved in his act, was of such a degree that injury was most likely imminent. In his speech, in Andrews v. Director of Public Prosecutions, reported in (1937) 2 All ER 552 (HL). Lord Atkin observed, "Simple lack of care such as will constitute civil liability is not enough. For purposes of the criminal law, there are degrees of negligence, and a very high degree of negligence is required to be proved before the felony is established." Criminal Revision No. 581 of 2004 Page 16 of 26
21. Clearly, therefore, distinction exists between "simple lack of care"
incurring civil liability and "very high degree of negligence or rashness", which is required in criminal cases.
22. Lord Porter, in Riddell v. Reid, reported in (1942) 2 All ER 161, said in his speech, "A higher degree of negligence has always been demanded in order to establish a criminal offence than is sufficient to create civil liability."
23. In fact, following the decision, in Andrew's case (supra), the Supreme Court, in Syad Akbar v. State of Karnataka, reported in (1980) 1 SCC 30, point out, at para 28, thus, "...................................... Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment." As pointed out by Lord Atkin in Andrews v. Director of Public Prosecutions, "simple lack of care such as will constitute civil liability, is not enough"; for liability under the criminal law "a very high degree of negligence is required to be proved. Probably, of all the epithets that can be applied „reckless‟ most nearly covers the case". (Emphasis added)
24. Having taken note of, amongst others, the decisions, in Andrews (supra) and Riddell (supra), on the above aspect of law, the Supreme Court, in Jacob Mathew -vs- State of Punjab and another, reported in (2005) 6 SCC 1, concluded, "17. In our opinion, the factor of grossness or degree does assume significance, while drawing distinction in negligence actionable in tort and negligence punishable as a crime. To be latter, the negligence has to be gross or of a very high degree."
25. Observed further, the Supreme Court, in Jacob Mathew (supra), as under:
Criminal Revision No. 581 of 2004 Page 17 of 26 "19. An oftquoted passage defining negligence by professionals, generally and not necessarily confined to doctors, is to be found in the opinion of McNair, J., in Bolam v. Friern Hospital Management Committee, WLR at p. 586, in the following words: (All ER p. 121 D-F) Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill.
A man need not possess the highest expert skill ... It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art." (Charlesworth & Percy, ibid., para 8.02)
20. The water of Bolam test has ever since flown and passed under several bridges, having been cited and dealt with in several judicial pronouncements, one after the other and has continued to be well received by every shore it has touched as neat, clean and a well- condensed one."
(Emphasis added)
26. The Supreme Court has summed up, in Jacob Mathew (supra), at para 48, the law, on rashness or negligence, involving medical professionals, for the purpose of their prosecution under Section 304A IPC, as under:
"48. We sum up our conclusions as under:
(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 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".
Criminal Revision No. 581 of 2004 Page 18 of 26 (2) Negligence in the context of the 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 a 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. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.
(3) A professional may be held liable for negligence on one of the 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 possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot Criminal Revision No. 581 of 2004 Page 19 of 26 be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
(4) The test for determining medical negligence as laid down in Bolam case, WLR at p. 586 holds good in its applicability in India.
(5) 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.
(6) The word "gross" has not been used in Section 304-A IPC, 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 304-A IPC has to be read as qualified by the word "grossly".
(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.
(8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law, specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence."
(Emphasis is added).
27. From what have been summed up at para 48, in Jacob Mathew (supra), it is abundantly clear that though the word „gross‟ has not been Criminal Revision No. 581 of 2004 Page 20 of 26 used in Section 304A IPC, yet in order to hold a person criminally liable for negligence or rashness within the meaning of Section 304 IPC, the expression „rash or negligent act‟ has to be read as qualified by the word „grossly‟. For an act to amount to criminal negligence, the degree of negligence must be much higher, that is, gross or of a very high degree.
28. The Supreme Court, in Jacob Mathew (supra), has issued, in the following words, some instructions, at para 52, to be followed by all Courts and investigating agencies if accusations of rashness or negligence against professions, particularly, in the context of medical professions, are made in order to attract the application of Section 304A IPC:
"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 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 Criminal Revision No. 581 of 2004 Page 21 of 26 against would not make himself available to face the prosecution unless arrested, the arrest may be withheld."
(Emphasis added)
29. From what have been laid down at Para 52, in Jacob Mathew (supra), it becomes clear that in a complaint case, a complaint cannot be entertained, since after the decision, in Jacob Mathew‟s case (supra), rendered by the Supreme Court on 5th August, 2005, against a medical practitioner for an offence allegedly committed under Section 304A IPC, while performing surgery or administering anesthesia or in taking necessary post-operative care unless the complainant has produced prima facie material before the Court, in the form of credible opinion, given by another competent doctor to support the accusation of rashness or negligence on the part of the accused doctor. In a case of this nature, when police investigate the case, the investigating officer should, before proceeding against the doctor on accusation of rash or negligent act or omission, obtain independent and competent medical opinion, preferably, from a doctor in Government service.
30. In the case at hand, there was, admittedly, no opinion of any doctor laid before the learned Court below showing that there was rashness or negligence on the part of the accused-petitioner, Dr. RP Hansaria. In such circumstances, whether the learned Court below, in the light of the law, laid down in Jacob Mathew (supra), could have at all, in the present case, entertained the complaint, when there was no medical opinion furnished by the complainant as regards gross rashness or negligence on the part of the present accused-petitioner ? It needs to be carefully noted that the instructions, issued by the Supreme Court, at paragraph 52, in Jacob Mathew‟s case (supra), are meant to be resorted to, in future, so long as the statutory rules, or executive instructions, Criminal Revision No. 581 of 2004 Page 22 of 26 incorporating necessary guidelines, are not issued by the Government of India or the State Government in consultation with the Medical Council of India. As the decision, in Jacob Mathew‟s case (supra), was rendered after the present complaint had been entertained by the learned Court below, the fact, that the learned Court below had entertained the complaint, in the absence of any medical opinion of the nature, as has been directed, in Jacob Mathew‟s case (supra), to be placed on record by the complainant, would not make the complaint ipso facto bad in law.
31. Mr. Bhattacharyya, learned Senior counsel, has, however, pointed out that the complaint, in the present case, was lodged, on 03-08-2004, for an offence, which was committed, on 31-03-2004, under Section 304A IPC; whereas the decision, in Jacob Mathew (supra), was rendered on 05- 08-2005 and, hence, the principle, laid down in Jacob Mathew (supra), that rashness or negligence, as envisaged by Section 304A IPC, must be taken to mean gross rashness or negligence, when rashness or negligence is attributed to a person from medical profession for the purpose of prosecuting him under Section 304A IPC, is not applicable. Suffice it to point out, in this regard, that when a Court interprets an existing law, which had been in force, then, the interpretation would relate back to the date of the law itself and cannot be prospective from the date of the decision given by the Court. Reference, in this regard, made by Mr. Hansaria, learned Senior counsel, to the case of Lily Thomas v. Union of India, (2000) 6 SCC 224, is not misplaced inasmuch as the Supreme court has, in no uncertain words, clarified, in Lily Thomas (supra), that when an existing law is interpreted by Court on a date later than the date of enforcement of the law, then, the interpretation of the provisions of the law would relate back to the date of the law itself meaning thereby that Criminal Revision No. 581 of 2004 Page 23 of 26 the law, under Section 304A IPC, must be deemed to have always been that in the case of medical negligence or rashness, mere rashness or negligence, on the part of a medical practitioner, would not attract Section 304A IPC and, in order to attract Section 304A IPC, in a case of medical negligence or rashness, the rashness or negligence must mean gross rashness or negligence on the part of the medical practitioner. The relevant observations, made, in this regard, at para 59, in Lily Thomas (supra), read as under:
"59. We are not impressed by the arguments to accept the contention that the law declared in Sarla Mudgal case cannot be applied to persons who have solemnised marriages in violation of the mandate of law prior to the date of judgment. This Court had not laid down any new law but only interpreted the existing law which was in force. It is a settled principle that the interpretation of a provision of law relates back to the date of the law itself and cannot be prospective from the date of the judgment because concededly the court does not legislate but only gives an interpretation to an existing law. We do not agree with the arguments that the second marriage by a convert male Muslim has been made an offence only by judicial pronouncement. The judgment has only interpreted the existing law after taking into consideration various aspects argued at length before the Bench which pronounced the judgment. The review petition alleging violation of Article 20(1) of the Constitution is without any substance and is liable to be dismissed on this ground alone."
(Emphasis is added).
32. Referring to the case of Lily Thomas (supra), the Supreme Court has, once again, pointed out, in Sarwan Kumar v. Madan Lal Aggarwal, (2003) 4 SCC 147, that interpretation of a provision relates back to the date of the law itself. The relevant observations, appearing in Sarwan Kumar (supra), read as under:
Criminal Revision No. 581 of 2004 Page 24 of 26 "..................... Since the jurisdiction of the civil court was barred, the decree passed by it was a nullity and the judgment-debtors could successfully raise objection regarding the executability of such a decree. The executing court erred in holding that the judgment-debtors could not raise the objection to the executability of the decree being a nullity having been passed by a court lacking inherent jurisdiction to do so. This Court in Gian Devi Anand case did not lay down any new law but only interpreted the existing law which was in force. As was observed by this Court in Lily Thomas case the interpretation of a provision relates back to the date of the law itself and cannot be prospective of the judgment. When the court decides that the interpretation given to a particular provision earlier was not legal, it declares the law as it stood right from the beginning as per its decision. In Gian Devi case the interpretation given by the Delhi High Court that commercial tenancies were not heritable was overruled being erroneous. Interpretation given by the Delhi High Court was not legal. The interpretation given by this Court declaring that the commercial tenancies heritable would be the law as it stood from the beginning as per the interpretation put by this Court. It would be deemed that the law was never otherwise. Jurisdiction of the civil court has not been taken away by the interpretation given by this Court. This Court declared that the civil court had no jurisdiction to pass such a decree. It was not a question of taking away the jurisdiction; it was the declaration of law by this Court to that effect. The civil court assumed the jurisdiction on the basis of the interpretation given by the High Court in Gian Devi case which was set aside by this Court."
(Emphasis is supplied).
33. In the light of the law, as discussed above, particularly, the position of law that rashness or negligence, on the part of the doctor, has to be gross in nature in order to attract the penal provisions of Section 304A IPC, when I come to the case of petitioner No. 3, namely, Dr. Dinesh Agarwal, it deserves to be pointed out that there is no specific, clear, precise or pointed allegation made against the accused No. 3 showing that he had, Criminal Revision No. 581 of 2004 Page 25 of 26 in any manner, failed to give necessary treatment as a medicine specialist to Smti Namita Jain following her gynaecological surgery. In the absence of any such accusation, no case of rash or negligence, on the part of the petitioner No. 3, in providing necessary medical advise or treatment to Smti Namita Jain (since deceased), can be said to have been made out.
There is, thus, no case as against the petitioner No. 3, namely, Dr. Dinesh Agarwal, under Section 304A IPC. The case of the complainant must, therefore, fail as against the petitioner No. 3, namely, Dr. Dinesh Agarwal, is concerned.
34. So far as accused No. 1, namely, Marwari Maternity Hospital, is concerned, there is allegation of the complainant that the patient was kept without supply of oxygen for about 15 minutes when she was being shifted from the Observation Room to the ambulance. The complainant has also alleged that the hospital, in question, did not have materials, even electrical wires, ready for providing treatment, at a critical stage, to Smti. Namita Jain, it would be inappropriate, at this stage, to interfere with the complaint, so far as taking of cognizance of an offence, under Section 304A IPC and issuance of process against the accused No. 1 are concerned. I may, however, make it clear that Sri Om Prakash Choudhury, who stands impleaded as the Secretary of Marwari Maternity Hospital, may not be personally liable for the offence under Section 304A, it is, at this stage, not proper, fair and/or legal to quash the entire complaint and issuance of process against the accused No. 1, when the complaint has made sufficient allegations of gross negligence, on the part of the authorities of the said hospital, in providing treatment to a patient, whose condition became critical following administration of excessive dose of anesthesia while doing operation by a Gynecologist, at the said hospital, Criminal Revision No. 581 of 2004 Page 26 of 26 and when the death certificate of the said patient, namely, Namita Jain, shows that she died due to sudden cardiac arrest and pulmonary embolism.
35. Because of what have been discussed and pointed out above, this application, made under Section 482 Cr.P.C. is partly allowed. The impugned order, dated 03-08-2004, is hereby set aside and quashed to the extent that the same relates to issuance of process against the petitioner No. 3, namely, Dr. Dinesh Agarwal, as accused.
36. With the above observations and directions, this application shall stand disposed of.
37. Send back the LCR.
JUDGE Paul/rk Criminal Revision No. 581 of 2004