Bombay High Court
Dr. Sachin S/O. Rangrao Chavan vs Chandrashekhar S/O. Namdeorao Birle ... on 4 October, 2018
Author: V. K. Jadhav
Bench: V. K. Jadhav
CriWP-894-2017
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 894 OF 2017
WITH
CRIMINAL APPLICATION NO. 2308 OF 2018
Dr. Sachin s/o Rangrao Chavan
Age 45 years, Occ. Medical Practitioner
R/o. Chavan Hospital, in front of
Datta Mandir, Near Patil Plaza,
Sadbhavana Nagar, Rajeev Gandhi
Chowk, Latur, Tq. and District Latur ...Petitioner
versus
1. Chandrashekhar s/o Namdeorao Birle
Age 45 years, Occ. Business,
R/o. Vijay Colony, Samarth Nagar,
Behind Hanuman Temple, Latur
Tq. and District Latur (Ori. Complainant)
2. The State of Maharashtra,
Through the Secretary in the
Department of Home,
Mantralaya, Mumbai 32. ...Respondents
.....
Mr. A.N. Irpatgire, Advocate for the petitioner
Mr. S.S. Panale, Advocate for respondent No.1
Mr. V.M. Kagne, A.P.P. for respondent No.2-State
.....
CORAM : V. K. JADHAV, J.
Reserved on : 05/09/2018
Pronounced on : 04/10/2018
::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:30:08 :::
CriWP-894-2017
-2-
ORDER:-
1. By way of criminal application no. 2308 of 2018, the petitioner has prayed for taking the enquiry report of joint committee dated 05.08.2017 on record of criminal writ petition no. 894 of 2017. For the reasons stated in the criminal application, the same is allowed in terms of prayer clause "B" and disposed of accordingly.
2. This criminal writ petition is filed by the petitioner, challenging the order dated 20.7.2016 passed by learned Judicial Magistrate First Class, Court No.3, Latur below Exh.1 in S.T.C. No. 2660 of 2015 and the judgment and order dated 21.4.2017 passed by the learned Additional Sessions Judge-2, Latur in Criminal Revision No. 54 of 2016. It is also prayed that the complaint S.T.C. No. 2660 of 2015 pending before the learned J.M.F.C. Latur may kindly be quashed and set aside.
3. Brief facts giving rise to the present writ petition are as follows:-
a) The petitioner is M.D. (Medicine) and is specialized in ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:30:08 ::: CriWP-894-2017 -3- Cardiac, Diabetic and Emergency Medical Treatment and doing medical practice in Chavan Hospital at Latur. On 22.1.2015, respondent No.1-complainant had been to the petitioner for medical treatment having complaint of mouth ulceration. On the same day at about 2.30 pm, the petitioner admitted respondent No.1-complainant in his hospital for treatment. Since it was noticed that the oral ulceration is related to skin diseases, the petitioner had called Skin Specialist Dr. A.P. Kolhe to attend respondent No.1.
The petitioner, in consultation of Dr. Kolhe, administered "Dexamethasone" injection as diagnosed case of drug eruption. Respondent No.1 was treated from 22.1.2015 to 27.1.2015 and was discharged on 27.1.2015. During the course of treatment, respondent No.1 did not disclose to the petitioner as well as to Dr. Kolhe that he is suffering from Mucroprulent Conjunctivitis.
b) After a period of seven months, respondent No.1 had filed complaint in the Consumer Court on 11.8.2015 against the petitioner seeking compensation of Rs.20.00 lacs. The respondent No.1 had also filed criminal complaint S.T.C. No. 2660 of 2015 in the court of Chief Judicial Magistrate, Latur alleging therein that Dexa injunction is a steroid and though the petitioner was well ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:30:08 ::: CriWP-894-2017 -4- acquainted with the fact that the complainant had infection in both of his eyes and was suffering from Mucroprulent Conjunctivitis, the petitioner has prescribed and injected the drug which contain steroid. It has been further alleged in the said complaint that the petitioner has not taken proper precaution while using steroid and even the petitioner has also made sudden discontinuation of use of steroid though it has been strictly prohibited by the pharmacology and manufacturer. Thus, this rash and negligent use of steroid by the petitioner, caused defect in the eyes of the complainant. The complainant is now suffering from dry eyes, irritation, burning of eyes, redness of eyes and eyelids sticking to eyeballs and he has almost lost his vision.
c) The learned Magistrate by order dated 20.7.2016 passed below exhibit 1 in S.T.C. No. 2660 of 2015 issued process against the petitioner for the offence punishable under Section 284 of IPC. Being aggrieved by the same, the petitioner has preferred Criminal Revision No. 54 of 2016 and the learned Additional Sessions Judge-2, Latur, by order dated 21.4.2017, dismissed the Revision with costs. Hence, this writ petition.
::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:30:08 :::
CriWP-894-2017 -5-
4. Learned counsel for the petitioner submits that the courts below have taken cognizance of the criminal complaint in absence of opinion of medical expert. The courts below have failed to consider the law laid down in the cases of Jacob Mathew vs. State of Punjab and another, reported in AIR 2005 SC 3180 and Martin F. D'Souza vs. Mohd. Ishfaq, reported in AIR 2009 SC 2049 and erroneously passed the impugned orders. The respondent No.1, at any point of time, has not disclosed to the petitioner that he has infection in both of his eyes. Though there are material contradictions and variance in the allegations made in the complaint and the statement recorded during verification and though this itself is sufficient to show that the complaint is filed with a sole motive to cause harassment and mental torture to the petitioner, the courts below have not considered these material aspects and passed the impugned orders. "Dexamethasone" drug is not prohibited or banned in medical science. The observations of the courts below are without any experts evidence and the same are hypothetical and based on assumptions and presumptions. There is also delay in filing the complaint which is not satisfactorily explained by respondent No.1. Learned counsel submits that even if the allegations in the complaint are considered as it is, the ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:30:08 ::: CriWP-894-2017 -6- ingredients of Section 284 of I.P.C. are not attracted against the petitioner. In absence of report of expert committee to be formed in view of the guidelines laid down in the Government Resolution dated 26.3.2010, the trial court has entertained the complaint and passed the impugned order. Learned counsel therefore, submits that the alleged negligence on the part of the petitioner cannot be termed as criminal negligence.
5. Learned counsel for the petitioner further submits that on the complaint dated 25.04.2016 made by the wife of respondent no.1, a committee of competent doctors have carried out inquiry and submitted report on 05.08.2017 that there is no substance in the complaint. Learned counsel submits that the said report is also placed on record by the petitioner. Thereafter, wife of respondent no.1/complainant had made application dated 04.09.2017 to the Deputy Director, Medical Service, Latur Division, Latur, who, without any powers/authority under law, as if he is sitting in appeal, issued letter to the Civil Surgeon, Latur to re-investigate the complaint dated 25.04.2016 made by wife of respondent no.1. Issuance of said letter by the Deputy Director is nothing but abuse of powers. There being no prima facie evidence in support of ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:30:08 ::: CriWP-894-2017 -7- criminal complaint STC No. 2260 of 2016, the respondent no.1 and his wife are trying to collect evidence in support of the allegations made in the said complaint by making false and frivolous allegations causing harassment and mental torture to the petitioner. Learned counsel thus submits that this criminal writ petition may be allowed.
6. Learned counsel for the petitioner, in order to substantiate his contentions, placed reliance on the judgment of the Supreme court in the case of V. Kishan Rao vs. Nikhil Super Speciality Hospital and another, reported in (2010) 5 SCC 513.
7. On the other hand, learned counsel for respondent No.1 submits that while using the steroids, the doctor has to take some special precautions as prescribed by the medical science i.e. use lower dosages as much as possible, avoid sudden discontinuation of the drug, etc., but in the instant case, the petitioner, who is a medical practitioner, has not taken proper precaution while using the steroids. The petitioner has used more steroids than prescribed by pharmacology and manufacturer. Further, the petitioner has made sudden discontinuation of use of the steroids though it is ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:30:08 ::: CriWP-894-2017 -8- strictly prohibited by the pharmacology and manufacturer. The petitioner, without knowing the first and foremost side effect of 'Dexamethasone' to the vision, has made respondent No.1 to suffer loss of vision. Due to said inaction on the part of petitioner, respondent No.1 is suffering from dry eyes, irrigation, burning of eyes, redness of eyes and eyelids sticking to eyeballs. Learned counsel has placed on record the Government resolution in respect of formation of medical board for giving expert opinion.
8. I have also heard the learned A.P.P. for respondent No.2 State.
9. By the impugned order dated 20.07.2016 passed below exhibit 1 in S.C.C. No. 2660 of 2015, the learned J.M.F.C., Court No.3, Latur has issued process against the petitioner for the offence punishable under Section 284 of IPC and the said order is confirmed by the Additional Sessions Judge-2, Latur by the judgment and order dated 21.04.2017 in criminal revision application no. 54 of 20016. In view of the same, Section 284 of IPC needs to be reproduced as below:
::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:30:08 :::
CriWP-894-2017 -9- "284. Negligent conduct with respect to poisonous substance.- Whoever does, with any poisonous substance, any act in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any person, or knowingly or negligently omits to take such order with any poisonous substance in his possession as is sufficient to guard against any probable danger to human life from such poisonous substance, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."
10. In the instant case, the petitioner is M.D. (Medicine) and is a specialist in Cardiac, Diabetic and Emergency Medical Treatment. On 22.01.2015, respondent no.1/complainant had been to the petitioner's hospital for medical treatment for oral ulceration. The petitioner had admitted respondent no.1/complainant in his hospital for treatment. Respondent no.1/complainant was treated there from 22.01.2015 to 27.01.2015 and was discharged on 27.01.2015. The respondent/complainant has alleged in the complaint S.T.C. No.2660 of 2015 that the petitioner has used the steroid even though knowing well that the same cannot be used if the patient is having any kind of infection in his body. It has been ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:30:08 ::: CriWP-894-2017 -10- further alleged that Respondent no.1/complainant was suffering from Mucroprulent Conjunctivitis and the petitioner had used the said steroid. It has also been alleged that it is well prescribed by the medical science about the use of lower dosages of steroid as much as possible and avoid sudden discontinuation of the drug. However, the petitioner has not taken proper care and caution while using the said steroid. He has used excess quantity of steroid than prescribed and also made sudden discontinuation of use of steroid. It has been alleged in the complaint that the complainant has almost lost his vision and is suffering from dry eyes, irritation, burning of eyes, redness of eyes, eyelids sticking to eyeballs etc.
11. The gist of the offence of Section 284 of IPC is a culpable negligence. If a person has custody of any dangerous substance, suffice itself to impose upon him a duty of being careful and he is criminally responsible if he negligently omits to take such order with the substance as is suffice to guard against any public danger from such substance to human life. Thus, what is punishable under Section 284 of IPC is that a person in possession of a poisonous substance should have negligently omitted to take such order with it as is suffice to guard against any probable danger to human life ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:30:08 ::: CriWP-894-2017 -11- from such substance. Admittedly, use of steroid (Dexa Injection) is well recommended by the medical profession and the same has also been approved by the Drug Department. Thus, from any angle, no case has been made out to issue process against the petitioner under Section 284 of IPC. The impugned orders are liable to be quashed on this ground alone, and also the complaint.
12. Even if the case is considered in terms of negligence in context of the medical profession, it appears that both the courts below have utterly failed to follow the law laid down by the Supreme Court in the case of Jacob Mathew (supra). In this case, the Supreme Court has dealt with the issue of indiscriminate prosecution of medical professionals for criminal negligence and in para 49 of the judgment, summed up the conclusion as under:
"49. 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 ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:30:08 ::: CriWP-894-2017 -12- 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'.
(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of 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 ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:30:08 ::: CriWP-894-2017 -13- 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 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's case [1957] 1 W.L.R. 582, 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 ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:30:08 ::: CriWP-894-2017 -14- 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 304A of 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 304A of the 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."::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:30:08 :::
CriWP-894-2017 -15- In para nos. 51, 52 and 53 of the above said judgment in Jacob Mathew's case, the Supreme Court has made the following observations:
"51. As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by police on an FIR being lodged and cognizance taken. The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to rash or negligent act within the domain of criminal law under Section 304-A of IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered in his reputation cannot be compensated by any standards.
52. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:30:08 ::: CriWP-894-2017 -16- of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.
53. 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 Bolam's test to the facts collected in the investigation. A doctor accused of rashness ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:30:08 ::: CriWP-894-2017 -17- 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 investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld."
13. In the case of Martin F. D'Souza (supra), the Supreme Court by referring the directions given in Jacob Mathew's case (supra), in para 106 of the judgment, has made the following observations:
"106. 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 ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:30:08 ::: CriWP-894-2017 -18- within the parameters laid down in Jacob Mathew case, otherwise the policemen will themselves have to face legal action"
14. In the case of V. Kishan Rao (supra), relied upon by learned counsel for the petitioner, the Supreme Court, by referring the case of Indian Medical Association vs. V.P. Shantha [(1995) 6 SCC 651], and further referring the case of J.J. Merchant (Dr.) vs. Shrinath Chaturvedi [(2002) 6 SCC 635], has made the following observations in para 53 of the judgment:
"53. With great respect to the Bench which decided D'souza this Court is of the opinion that the directions in D'souza are contrary to
(a) the law laid down in paragraph 37 of Indian Medical Association,
(b) and paragraph 19 in J.J. Merchant (Dr.),
(c) those directions in paragraph 106 of D'souza equate medical negligence in criminal trial and negligence fastening civil liability whereas the earlier larger Bench in Mathew elaborately differentiated between the two concepts,
(d) Those directions in D'souza are contrary to the said Act which is the governing statute,
(d) those directions are also contrary to the avowed purpose of the Act, which is to provide a speedy and efficacious remedy to the consumer. If those general ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:30:08 ::: CriWP-894-2017 -19- directions are followed then in many cases the remedy under the said Act will become illusory,
(f) those directions run contrary to principle of `Res ipsa loquitur' which has matured into a rule of law in some cases of medical negligence where negligence is evident and obvious."
15. It is thus clear that so far as the directions given in Martin F. D'Souza's case in conformity with the directions given in Jacob Mathew's case in respect of criminal complaint before the court or if any crime is to be registered in the police station, the Supreme Court, in the aforesaid case of V. Kishan Rao has not commented on the said directions.
16. In the backdrop of this, the Public Health Department of the State of Maharashtra has issued a Government Resolution dated 26.03.2010 thereby constituted a committee with the direction that if any complaint is received against a Doctor/hospital, the same be referred to the said committee established at District level in the State of Maharashtra and the police department shall proceed further on the basis of the opinion given by such an expert committee.
::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:30:08 :::
CriWP-894-2017 -20-
17. In the instant case, on the basis of the complaint filed by the wife of respondent no.1/original complainant, the committee established under the said Government Resolution dated 26.03.2010 has carried out inquiry and submitted a report on 05.08.2017. In the said report of the committee of Latur District, headed by Civil Surgeon, it has been unequivocally opined that long term use of steroid may cause cataract. However, the petitioner herein, by way of injection Dexamethasone, treated respondent no.1/complainant only for the period from 22.01.2015 to 27.01.2015 (five days) and as such, in absence of any long term use of steroid, the committee is of a firm opinion that there is absolutely no possibility of any complications in the eye sight of respondent no.1/complainant, nor there is any substance in the allegations made in respect of the same. The wife of respondent no.1 appears to have made an application to the Deputy Director of Medical Service, Latur Division, Latur on 04.09.2017 and the said authority, as if sitting over an appeal, has issued a letter to the Civil Surgeon, Latur to re-investigate into the complaint filed by the wife of respondent no.1 dated 25.04.2016. Thus, the entire process adopted after the committee has tendered its report tantamount to defeat the very directions given by the Supreme Court in Jacob ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:30:08 ::: CriWP-894-2017 -21- Mathew's case (supra).
18. The learned Magistrate, without referring the principles laid down by the Supreme Court in Jacob Mathew's case and other cases as discussed above, mechanically issued process against the petitioner for the offence punishable under Section 284 of IPC. The learned Additional Sessions Judge-2, Latur, in the impugned order dated 21.04.2017, while disposing of criminal revision no. 54 of 2016, though referred the principles laid down by the Supreme Court in Jacob Mathew's case (supra) and in Martin F. D'Souza's case (supra), in para 19 of the impugned order, has made the following ridiculous observations:
"19. I have gone through the two decisions on which the learned counsel for the petitioner has relied upon. The decision in the case of Martin F. D'souza vs. Mohd. Ishfaq (Civil Appeal No.3541/2002). In the said decision of the Hon'ble Apex court has held that unless there is some strong evidence to suggest that there is negligence on the part of accused which resulted into the death of the patient, the doctor though has taken the best effort cannot be held guilty. It means, the court has to see the evidence before it and then it has to appreciate the same. In the same manner in the case of Jacob Mathew, Appellant V. ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:30:08 ::: CriWP-894-2017 -22- State of Punjab, and aonther, Respondent (AIR 2005 SUPREME COURT 3180) the Apex court has very categorically considered the circumstances and the standard of degree required for establishing the offence against the accused in case of negligence. In this case the offence was registered under Section 304-A of the I.P.C. where mens rea or ill-intention on the part of accused is the important ingredient required to be established the offence. However, while establishing the offence under Section 284 of the I.P.C. the criteria is totally different and absence of mens rea will not come in the way if the knowledge or negligence to omit to take such order with any poisonous substance in the possession of the accused and to take sufficient guard against any probable endanger to human life is require. In order to establish these ingredients certainly the petitioner shall get opportunity in the trial court. Prima facie there is no evidence to show that as stated by the petitioner he has taken precautions to use Dexamethasone, when the respondent was suffering from eye infection. Prima facie there is substance in the allegations. It is appearing from the order of the trial court that it has considered the above aspects. I do not find any illegality, perversity or impropriety in the order passed by the trial court. Hence I hold the point in negative and proceed to pass the order as under........"
::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:30:08 :::
CriWP-894-2017 -23-
19. In view of the above discussion, the impugned orders are liable to be quashed and set aside and the complaint is also liable to be dismissed. The learned Magistrate has not followed the mandate of the Supreme Court in Jacob Mathew's case and Martin F. D'Souza's case while issuing process against the present petitioner. The revisional court has confirmed the said order by making observations which have been reproduced as above. Even though the committee of experts established at District level by the State of Maharashtra in terms of the Government Resolution dated 26.03.2010 has expressed an opinion in favour of the petitioner, the further interference by the Deputy Director of Medical Service in the matter is nothing but harassment of the petitioner. In any manner and from any angle, the ingredients of Section 284 of IPC are not attracted. Furthermore, even if the case is considered from the angle of criminal negligence on the part of the petitioner while treating respondent no.1/complainant, the petitioner needs to be protected in terms of the report submitted by the experts committee. In view of the same, the impugned orders are liable to be quashed and set aside, so also the complaint. Hence the following order:
::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:30:08 :::
CriWP-894-2017 -24- ORDER I. The criminal writ petition is hereby allowed.
II. The order dated 20.07.2016 passed below exhibit 1 in S.T.C. No.2660 of 2015 by the Judicial Magistrate First Class, Court no.3, Latur and the order dated 21.04.2017 passed by the Additional Sessions Judge-2, Latur in Criminal Revision No. 54 of 2016 are hereby quashed and set aside.
III. The complaint filed by respondent no.1 bearing S.T.C. No. 2660 of 2015 before the Judicial Magistrate First Class, Court no.3, Latur is hereby dismissed.
IV. The criminal writ petition is accordingly disposed of.
( V. K. JADHAV, J.) vre/ ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:30:08 :::