Gujarat High Court
Khimjibhai Merambhai Gabu vs State Of Gujarat on 5 December, 2018
Author: Sonia Gokani
Bench: Sonia Gokani
R/SCR.A/8698/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 8698 of 2018
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KHIMJIBHAI MERAMBHAI GABU
Versus
STATE OF GUJARAT
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Appearance:
MR RAJESH O GIDIYA(5222) for the PETITIONER(s) No. 1
MR DEVKI JAMWAN, MR NV GANDHI(1693) for the RESPONDENT(s) No. 2
MR MS MEHTA, PUBLIC PROSECUTOR(2) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 05/12/2018
ORAL ORDER
Rule. Learned APP wavies service of rule for the respondent-State and the learned Advocate, Mr. Gandhi, waives for respondent No.2-the original complainant.
1. This is a petition under Section 482 of the Code of Criminal Procedure, 1973, seeking quashment of the order, Dated: 19.08.2016, passed by the learned Principal Civil Judge and JMFC, Botad, below application Exhibit-33 in Criminal Case No. 388 of 2014 so also the order dated 27.08.2018, passed by the learned 6th Addl. Sessions Judge, Bhavnagar camp at Botad, in Criminal Revision Application No. 16 of 2016, and thereby, to discharge the petitioner from the said case.
2. In connection with the incident in question, an FIR being M. Case No. 1 of 2013, came to be lodged with Botad Police Station for the offence punishable under Sections 304(A), 465, 471, 468, 474, 4l70 and 114 of the Indian Penal Code. 1860, which eventually Page 1 of 34 R/SCR.A/8698/2018 ORDER culminated into Criminal Case No. 388 of 2014.
2.1 It is to be noted that the present petitioner has already questioned the very FIR by filing Criminal Misc. Application No. 8225 of 2014 and this Court (Coram: J.B. Pardiwala, J.) permitted to withdraw the same on the ground that the petitioner desired to move an application for discharge before the competent Court in wake of the filing of the charge-sheet.
2.2 This petition questions the rejection of application for discharge by the trial Court concerned.
2.3 The learned JMFC, Botad, in his order dated 19.08.2016, has taken note of the decision of the Apex Court in 'UNION OF INDIA VS. PRAFULL KUMAR SAMAL', 1979 (3) SCC 4, so also the decision of this Court (Coram: D.H. Waghela, J.) in 'SUDHABEN KANTILAL SHAH VS. STATE OF GUJARAT', 2008 JX(Guj.) 443, and other decisions to reject the request of the petitioner of discharge.
2.4 This when came to be challenged before the learned 6th Addl. Sessions Judge, Botad, by way of Criminal Revision Application No. 16 of 2016, it also rejected the same vide order dated 27.08.2018. Hence, the aggrieved petitioner is before this Court.
3. Learned Advocate, Mr. Gidia, appearing for Page 2 of 34 R/SCR.A/8698/2018 ORDER the petitioner has urged inter alia that this is a maliciously instituted litigation for wrecking vengeance and to cause harassment to the petitioner. This not only would cause hardship to the petitioner but also mental harassment and this cannot be legally sustained for there being no report of the panel doctors. It is urged that there was no negligence on the part of the petitioner and he not only was present during the entire time with the deceased patient but also had done whatever was needed to be done, and thus, he has been wrongly roped-in. This petition, it is urged, therefore, deserves to be allowed by quashing and setting aside the impugned orders.
4. The complaint in question arises from the incident of death of one Induben, i.e. the wife of the original complainant-respondent No.2, herein. Before about two years of the alleged incident, respondent No.2 got married with Induben and when she conceived, the couple started consulting the present petitioner, who runs a hospital in the name and style of Akshar Hospital.
4.1 On 13.06.2013, on experiencing labour pain by the deceased at around 10:30 p.m., respondent No.2 got her admitted in the hospital of the petitioner. On 14.06.2013, at around 07:00 a.m., Induben gave birth to a female child. It is alleged in the FIR that, at that point of time, the petitioner was not present, and therefore, original accused Nos. 3 and Page 3 of 34 R/SCR.A/8698/2018 ORDER 4, who are the medical attendants, put a cut on the uterus of Induben for the purpose of enlarging it, which was witnessed by the sister-in-law of the complainant. It is also alleged that the cut was much larger than the required, and therefore, even after the birth of the child, the bleeding did not stop and Induben suffered profuse external bleeding, which did not stop. The petitioner was, therefore, called and all attempts were made for stopping the blood, which did not happen. Even after the stitches were taken, the bleeding did not stop, and therefore, the petitioner requisitioned for blood and infused the same in the body of Induben. The first bottle of blood was given on 14.06.2013 at around 11:15 a.m., whereas, the other bottle of blood was infused on 15.06.2013. It is alleged that, since, the bleeding did not stop, the condition of Induben started deteriorating. On 16.06.2013, certain tests of Induben were done and without informing the complainant- respondent No.2, the petitioner discharged Induben and asked respondent No.2 to take her to Sharnam Hospital of Dr. Mori.
4.2 It is alleged that the discharge from the hospital was unilateral, without the patient asking for it. It is, further, alleged that before so doing the petitioner had removed all objectionable reports of Askhar Pathology Laboratory from the file of the patient-Induben and upon the say of the petitioner, original accused No.2 had prepared false blood report, wherein, it has been mentioned that the Page 4 of 34 R/SCR.A/8698/2018 ORDER patient has long history of kidney disease, which the patient-Induben, in fact, did not have. This was an obvious attempt to suppress the negligence of medical staff of petitioners establishment and that of his own by remaining absent at the time of delivery of Induben. The loss of blood resulted into multiple organ failures. On the night of 16.06.2013, the patient-Induben was shifted to Civil Hospital, Ahmedabad, where she succumbed on 25.06.2018.
4.3 The original complainant-respondent No.2 gave a complaint, which was not converted into FIR. Eventually, on 17.08.2013, a private complaint being M. Case No. 1 of 2013 came to be lodged with Botad Police Station.
4.4 The petitioner has been enlarged on anticipatory bail vide order dated 25.01.2014.
4.5 The investigation culminated in to the filing of the charge-sheet. In wake of the rejection of his application for discharge by both the Courts concerned with concurrent findings of there being prima facie case to take cognizance, he is before this Court.
5. This Court has heard the learned Advocate, Mr. Gedia, for the petitioner, who is banking upon the report of the Panel Doctors, to urge that there is no negligence. He also urged that the panel doctors also confirm that in case of 'Postpartum Page 5 of 34 R/SCR.A/8698/2018 ORDER Hemorrhage', the treatment, which was needed to be accorded, had already been given by the present petitioner and therefore, there is no negligence. If, a particular school of thought is followed by the petitioner that would not constitute negligence on the part of the petitioner. In support of his say, he has placed reliance on the decision of the Apex Court in 'JACOB MATHEW VS. STATE OF PUNJAB AND ANOTHER', (2005) 6 SCC 1, which is based on the decision in the case of 'BOLAM VS. FRIERN HOSPITAL MANAGEMENT COMMITTEE', 1 WLR 582.
5.1 He also has pressed into service various other decisions in support of his submissions, which are as under:
(1) 'UNION OF INDIA VS. PRAFULL KUMAR SAMAL' (Supra);
(2) 'JACOB MATHEW' (Supra);
(3) 'MARTIN F. D'SOUZA VS. MOHD. ISHFAQ', (2009) 3 SCC 1;
(4) 'KUSUM SHARMA AND OTHERS VS. BATRA HOSPITAL AND MEDICAL RESEARCH CENTRE AND OTHERS', (2010) 3 SCC 480;
(5) 'P.B. DESAI VS. STATE OF MAHARASHTRA AND ANOTHER', (2013) 15 SCC 481; (6) 'MANOJ KUMAR SHARMA AND OTHERS VS.
STATE OF CHHATTISGARH AND ANOTHER', (2016) 9 SCC 1;
(7) 'JAYSHREE UJWAL INGOLE VS. STATE OF MAHARASHTRA AND ANOTHER', (2017) 14 SCC Page 6 of 34 R/SCR.A/8698/2018 ORDER 571;
(8) 'DR. S.K. JHUNJHUNWALA VS. MRS. DHANWANTI KUMAR AND ANOTHER', AIR 2018 SC 4625;
(9) 'DR. SAROJA DHARMAPAL PATIL VS. STATE OF MAHARASHTRA AND ANOTHER', 2011 Cri.L.J. 1060;
(10) 'DR. SOMMATI SIVA KUMAR VS. STATE REP. BY ITS PP, HIGH COURT OF JUDICATURE AT HYDERABAD AND ANOTHER'; 2015 (2) Crimes 207 (A.P.);
(11) 'GIRISHBHAI MAGANLAL PANDYA VS. STATE OF GUJARAT', 2016 (1) GLH 126;
6. Learned Advocate, Ms. Jamwan, appearing for the original complainant-respondent No.2 has resisted this petition. According to her, this is the last desperate attempt by the petitioner, since, the petitioner had already availed remedy before this Court by filing a petition for quashing, which was not entertained by this Court. He also has availed remedy of discharge before the Courts below, which have also been rejected by the Courts concerned.
6.1 She has urged that there is enormous material to indicate the involvement of the present petitioner in the alleged offence, and therefore, this Court may not entertain this petition.
7. Learned APP, Mr. Shah, appearing for the respondent-State has vociferously contended that this Page 7 of 34 R/SCR.A/8698/2018 ORDER Court may not entertain this petition. It is, further, urged that there is no clear opinion of the Panel Doctors of there being absence of any negligence on the part of the petitioner. Over and above that there is sufficient material to indicate the forgery committed by the present petitioner to suppress his negligence. He has urged that, at this stage, the Court may not look into these aspects, as the withdrawal of the quashing petition by the petitioner will not permit this Court to once again enter into the merit part.
7.1 In support of his submissions, he has placed reliance on the decision of this Court (Coram: D.H. Waghela,J) in 'SUDHABEN KANTILAL SHAH'(Supra).
8. Having, thus, heard both the sides, this Court needs to make a mention of the fact at the outset that the petitioner had earlier preferred quashing petition, under Section 482 of the Code, before this Court, which was not entertained by this Court and was permitted to be withdrawn, on a request made by the petitioner to approach the Court concerned, since, the charge-sheet had been filed. The petitioner, then, took the recourse of preferring discharge application before the Court concerned and it is obvious from the record that the Concerned Court, by way of a detailed, reasoned order, supported by the legal authorities, rejected his application for discharge on 19.08.2016.
Page 8 of 34R/SCR.A/8698/2018 ORDER 8.1 It appears that the aggrieved petitioner,
then, had preferred revision before the revisional Court, which also did not entertain the same and by giving its own detailed reasons, rejected the same on 27.08.2018.
8.2 Therefore, the limited question that needs to be addressed by this Court is as to whether, there is any need to interfere with the orders passed by the Courts below. Since, the petition questioning the larger issued under Section 482 of the Code, has already been withdrawn by the petitioner, on earlier occasion.
Assuming that this Court had not entered into the merits of the matter, at that stage, for the charge-sheet having been filed pointing out allegations against the present petitioner, when he has taken recourse to the discharge, as provided under Section 227 of the Code, this Court needs to examine profitably, firstly, the provisions of Sections 227 and 228 of the Code, which read thus:
"227.Discharge. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."
8.3 The above provision is quite clear, which Page 9 of 34 R/SCR.A/8698/2018 ORDER provides that upon consideration of the record of the case and the documents submitted along with it and after hearing the submissions of the accused and the prosecution in this behalf, if, the Presiding Officer thinks that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.
8.4 Section 228 of the Code deserves reproduction at this juncture:
"228. Framing of charge. (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-
(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report ; (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of sub- section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried."
8.5 Section 228 of the Code, which speaks of the framing of the charge states that, if, after such consideration and hearing as aforesaid, the Judge is of the opinion that there exists ground for presuming that the accused has committed an offence, the charge Page 10 of 34 R/SCR.A/8698/2018 ORDER shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.
8.6 These provisions give ample powers to the Court in assessing the facts, whether, a case for trial has been made out by the prosecution or not. The Judge has powers to shift and weigh the material for the purpose of arriving at a conclusion, whether a prima facie case is made out or not, as held by the Apex Court in the case of 'YOGESH @ SACHIN JAGDISH JOSHI VS. STATE OF MAHARASHTRA', (2008) 10 SCC 394, The test to determine a prima facie case depends on the facts of each case and in this regard it is neither feasible nor desirable to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused.
8.7 Section 227 of the Code, thus, contemplates the circumstances, whereunder there could be a discharge of an accused at a state anterior in point of time to framing of charge under Section 228 of the Code. It will have to be done on the basis of the record of the case, the documents submitted with the police report and after hearing the accused and the prosecution, the Court is expected and bound to Page 11 of 34 R/SCR.A/8698/2018 ORDER decide, whether there is sufficient ground to proceed against the accused and as a consequence thereof either discharge the accused or proceed to frame the charge against him.
8.8 The Apex Court in 'STATE OF T.N. THROUGH INSPECTOR OF POLICE VS. N. SURESH RAJAN & OTHERS', (2014) 11 SCC 709, has held that while considering the powers under Section 228 of the Code, the Court is required to frame the charge, if, it is of the opinion that there is ground for presuming that the accused has committed an offence. For the said purpose, only probative value of the material shall have to be looked into by the Court concerned to cull out, whether, a prima facie case exists against the accused is made out and if yes, it is not a case for discharge. The relevant observations read as under:
"Reference in this connection can be made to a recent decision of this Court in the case of Sheoraj Singh Ahlawat & Ors. vs. State of Uttar Pradesh & Anr., AIR 2013 SC 52, in which, after analyzing various decisions on the point, this Court endorsed the following view taken in Onkar Nath Mishra v. State (NCT of Delhi), (2008) 2 SCC 561:
"11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging there from, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not Page 12 of 34 R/SCR.A/8698/2018 ORDER expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence."
8.9 The Apex Court in 'AJAY SINGH AND ANOTHER VS. STATE OF CHHATTISGARH AND ANOTHER', (2017) 3 SCC 330, where, it observed and held as under:
9. Chapter XVIII of CrPC provides for trial before a court of session. Section 227 empowers the trial judge to discharge the accused after hearing the submissions of the accused and the prosecution and on being satisfied that there is no sufficient ground for proceeding against the accused. The key words of the Section are "not sufficient ground for proceeding against the accused". Interpreting the said provision, the Court in P. Vijayan v. State of Kerala and another[4] has held that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function Page 13 of 34 R/SCR.A/8698/2018 ORDER of the court, after the trial starts. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.
8.10 This Court (Coram: D.H. Waghela, J., as His Lordship then was) in the case of 'SUDHABEN KANTILAL SHAH VS. STATE OF GUJARAT' in Special Criminal Application No. 212 of 2008 considered the very issue and has held that as can be noticed from the order of both the Courts, they have taken into consideration, not only the complaint but also the material, which had been produced by the prosecution, which also contained the opinion of the Panel Doctors.
8.11 Profitable it would be to observations made by this Court in 'SUDHABEN KANTILAL SHAH' (Supra), which read thus:
"3.Learned counsel Mr.Buch relied upon orders and judgments of the Supreme Court in Rakesh Ranjan Gupta v. State of U.P. and Another [(1999) 1 SCC 188] and Dr.Suresh Gupta v. Government of NCT of Delhi and Another [(2004) 6 SCC 422] in support of his argument that it was permissible for this Court to analyze the material appearing against the petitioner, Page 14 of 34 R/SCR.A/8698/2018 ORDER either in exercise of the power under section 482 of the Cr.P.C., 1973 or under Article 226 of the Constitution, to arrive at an appropriate conclusion and relieve the petitioner of the pain of facing trial.
4. However, in the facts of the present case, not only that the petitioner expressly invites the Court to re- appreciate the material which may not be evidence in strict sense of the term but it was found that learned Additional Sessions Judge has, in the impugned order, only reversed the perverse order. This Court would not be justified in interfering with the impugned order in exercise of is extraordinary jurisdiction which is required to be only sparingly exercised with circumspection. It would be wholly improper, unwise and premature to come to any definite conclusion by relying upon the statements of several witnesses recorded by the police and find out how inconsistent they were from the version of the original complainant, who is not even a party before this Court. The post mortem report indicating negligence of the petitioner could not be brushed aside and ignored at this stage by relying upon statements of the nurses, who might be subordinate to the petitioner, for discharging the petitioner as urged by learned counsel. The post mortem report clearly stated that:
"Looking to the case paper, over all I am of the opinion that due and reasonable care has not been observed in the treatment of deceased since she became serious till her death."
5. The above facts are clearly distinguishable from the facts in which the Apex Court had, in Rakesh Ranjan Gupta (supra), held that, by no stretch of imagination could it be held that death of Page 15 of 34 R/SCR.A/8698/2018 ORDER the deceased was caused by any act done by the appellant-medical practitioner. In the facts of that case, the deceased was shown to have died due to consuming poison. Similarly, in Dr.Suresh Gupta (supra), it was found after examining all medical papers accompanying the complaint that no case of recklessness of gross negligence was made out against the doctor for being compelled to face trial for offence under section 304-A of the IPC. One of the issues in the facts of the present case, to be examined in light of the evidence that may be led before the trial court, would be whether not attending or even examining a patient in charge of the doctor, while the emergency situation is reported to her, would be an omission amounting to such gross negligence or recklessness or carelessness as would attract criminal liability in the eye of law. In view of express provisions of section 32 of I.P.C., an illegal omission is at par with a culpable act causing the effect which amounts to an offence."
8.12 If, one looks at the allegations against the present petitioner, they are that of being negligent and careless. His absence at the time when the labour pain was suffered by the deceased and when the cut was made by both the medical attendants and not by the doctor concerned, which was the root cause of the excessive bleeding has not been opined by both the doctors to be the absence of any negligence. It has been noted in terms by the Court concerned, that he may not be called negligent for being accorded the treatment to the patient in 'Postpartum Hemorrhage' condition. This Court must not be oblivious of the Page 16 of 34 R/SCR.A/8698/2018 ORDER fact that the material is also indicative of the forging of the documents in the post delivery period, more particularly, when the condition of the patient was getting worse. His giving discharge to the patient unilaterally and directing the patient to be taken to the hospital of Dr. Mori also puts him in questionable position. This aspect having been weighed with the trial Court as well as the revisional Court, his request for discharge was not acceded to by the Courts concerned.
8.13 This Court finds no error is committed by the Courts below in passing the impugned orders.
9. At this stage, various decisions have been pressed into service by the learned Advocate, Mr. Gedia, appearing for the petitioner to point out what consists of medical negligence and since the law on the subject is quite well settled, it would be worth while to refer to the base judgment of the Apex Court in 'JACOB MATHEW'(Supra).
9.1 In the case of 'JACOB MATHEW' (Supra), the first informant's father was admitted in a private ward of CMC Hospital, Ludhiana. Since, he started having difficulty in breathing, the brother of the first informant contacted the duty nurse, who, in turn, called some doctor to attend the patient, who did not attend for about 20 to 25 minutes. Then, Dr. Jacob Mathew and Dr. Allen Joseph went to the room of Page 17 of 34 R/SCR.A/8698/2018 ORDER the father of the first informant. An oxygen cylinder was brought and attached to the mouth of the patient, but, he continued to have difficulty in breathing, as the oxygen cylinder was empty. There was no other gas cylinder available in that room. Brother of the first informant, therefore, went to the adjoining room and brought a gas cylinder therefrom. However, there was no arrangement to make the gas cylinder functional and in-between, 5 to 7 minutes were wasted. By that time, another doctor came who declared that the patient was dead. The first informant, hence, lodged the FIR inter alia alleging that the death of his father had occurred due to the carelessness of doctors and nurses and non-availability of oxygen cylinder. An FIR under Section 304A read with Section 34 of the IPC came to be lodged against the doctors.
9.2 The Apex Court in 'JACOB MATHEW' (Supra), discussed at length, the law on medical negligence and held that while negligence is an omission to do something which a reasonable man, guided upon 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; criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have Page 18 of 34 R/SCR.A/8698/2018 ORDER adopted. It, further, held that 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 later, the negligence has to be gross or of a very high degree. The relevant observations read thus:
"Negligence by professionals
19. In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of Page 19 of 34 R/SCR.A/8698/2018 ORDER profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of two findings:
either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices. In Michael Hyde and Associates v. J.D. Williams & Co. Ltd., [2001] P.N.L.R. 233, CA, Sedley L.J. said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable. (Charlesworth & Percy, ibid, Para 8.03)
20. Oft'quoted 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, [1957] 1 W.L.R. 582, 586 in the following words:
"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 Page 20 of 34 R/SCR.A/8698/2018 ORDER 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)
21. 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 well- condensed one. After a review of various authorities Bingham L.J. in his speech in Eckersley v.
Binnie, [1988] 18 Con.L.R. 1, 79
summarised the Bolam test in the
following words:- "From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent members of his profession in knowledge of new advances, discoveries and developments in his field. He should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his Page 21 of 34 R/SCR.A/8698/2018 ORDER profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet." (Charlesworth & Percy, ibid, Para 8.04).
22. The degree of skill and care required by a medical practitioner is so stated in Halsbury's Laws of England (Fourth Edition, Vol.30, Para 35):-
"The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.
Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care."Page 22 of 34
R/SCR.A/8698/2018 ORDER Above said three tests have also been stated as determinative of negligence in professional practice by Charlesworth & Percy in their celebrated work on Negligence (ibid, para 8.110).
23. In the opinion of Lord Denning, as expressed in Hucks v. Cole, [1968] 118 New LJ 469, a medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
24. The decision of House of Lords in Maynard v. West Midlands Regional Health Authority, [1985] 1 All ER 635 (HL) by a Bench consisting of five Law Lords has been accepted as having settled the law on the point by holding that it is not enough to show that there is a body of competent professional opinion which considers that decision of the defendant professional was a wrong decision, if there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances. It is not enough to show that subsequent events show that the operation need never have been performed, if at the time the decision to operate was taken, it was reasonable, in the sense that a responsible body of medical opinion would have accepted it as proper. Lord Scarman who recorded the leading speech with which other four Lords agreed Page 23 of 34 R/SCR.A/8698/2018 ORDER quoted the following words of Lord President (Clyde) in Hunter v. Hanley 1955 SLT 213 at 217, observing that the words cannot be bettered "In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional menThe true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care". Lord Scarman added "a doctor who professes to exercise a special skill must exercise the ordinary skill of his speciality. Differences of opinion and practice exist, and will always exist, in the medical as in other professions. There is seldom any one answer exclusive of all others to problems of professional judgment. A court may prefer one body of opinion to the other, but that is no basis for a conclusion of negligence." His Lordship further added "that a judge's 'preference' for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed, honestly held, were not preferred."
25. The classical statement of law in Bolam's case has been widely accepted as decisive of the standard of care required both of professional men generally and medical practitioners in particular. It has been invariably cited with approval before Courts in India and applied to as touchstone to Page 24 of 34 R/SCR.A/8698/2018 ORDER test the pleas of medical negligence. In tort, it is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that a defendant charged with negligence acted in accord with the general and approved practice is enough to clear him of the charge. Two things are pertinent to be noted. Firstly, the standard of care, when 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. Secondly, 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 point of time on which it is suggested as should have been used.
26. A mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence. So also an error of judgment on the part of a professional is not negligence per se. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would Page 25 of 34 R/SCR.A/8698/2018 ORDER depend on the facts and circumstances of a given case. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person incharge of the patient if the patient is not be in a position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure.
27. 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. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitur is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors. Else it would be counter productive.
Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur.
28. Res ipsa loquitur is a rule of evidence which in reality belongs to the law of torts. Inference as to negligence may be drawn from proved circumstances by applying the rule if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. In criminal proceedings, the Page 26 of 34 R/SCR.A/8698/2018 ORDER burden of proving negligence as an essential ingredient of the offence lies on the prosecution. Such ingredient cannot be said to have been proved or made out by resorting to the said rule (See Syad Kabar v. State of Karnataka (1980) 1 SCC 30).
Incidentally, it may be noted that in Krishnan and Anr. v. State of Kerala (1996) 10 SCC 508 the Court has observed that there may be a case where the proved facts would themselves speak of sharing of common intention and while making such observation one of the learned judges constituting the Bench has in his concurring opinion merely stated "res ipsa loquitur'. Nowhere it has been stated that the rule has applicability in a criminal case and an inference as to an essential ingredient of an offence can be found proved by resorting to the said rule. In our opinion, a case under Section 304A IPC cannot be decided solely by applying the rule of res ipsa loquitur.
29. 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 end-dose of medicine to his patient."
9.3 Every time, when there is question of liability of the doctors and the death is caused due Page 27 of 34 R/SCR.A/8698/2018 ORDER to criminal medical negligence, the test to be applied is taken from the parameters set out in the case of case of 'BOLAM V FRIERN HOSPITAL MANAGEMENT COMMITTEE', 1 WLR 582, which is an English tort law case that lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals, i.e. doctors.
9.4 Mr Bolam was a voluntary patient at Friern Hospital, a mental health institution run by the Friern Hospital Management Committee. He agreed to undergo electro-convulsive therapy. He was not given any muscle relaxant, and his body was not restrained during the procedure. He flung about violently before the procedure was stopped, and he suffered some serious injuries, including fractures of the acetabula. He sued the Committee for compensation. He argued they were negligent for (1) not issuing relaxants (2) not restraining him (3) not warning him about the risks involved. Hon'ble Justice McNair noted from the evidence that expert witnesses had confirmed, that medical opinion was opposed to the use of relaxant drugs, and that manual restraints could sometimes increase the risk of fracture. Moreover, it was the common practice of the profession to not warn patients of the risk of treatment (when it is small) unless they are asked. Bolam's test, which holds field in India, establishes that holds that a professional is not negligent, if, he or she acts in accordance with the Page 28 of 34 R/SCR.A/8698/2018 ORDER practice accepted at the time, as appropriate by a responsible body of medical union, even though, some other practitioners adopt a different practice. Relevant findings and observations would deserve reproduction at this stage, which read thus:
"Before I turn to that, I must explain what we mean by "negligence". In the ordinary case which does not involve any special skill, negligence in law means this: some failure to do some act which a responsible man in the circumstances would do, or doing some act which a reasonable man in the circumstances would not do; and if that failure or doing of that act results in injury, then there is a cause of action. Howe do you test whether this act or failure is negligence? In an ordinary case it is generally said, that you judge that by the action of the man in the street. He is the ordinary man. In once case it has been said that you judge it by the conduct of the man on the top of a Clapham omnibus. He is the ordinary man. But where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the man on the top of a Clapham monibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professional to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. I do not think that I quarrel much with any of the submissions in law which have Page 29 of 34 R/SCR.A/8698/2018 ORDER been put before you by counsel. Counsel for the plaintiff put it in this way, that in the case of a medical man negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. That is a perfectly accurate statement, as long as it is remembered that there may be one or more perfectly proper standards: and if a medical man confirms with one of those proper standards then he is not negligent. Counsel for the plaintiff was also right, in my judgment, in saying that a mere personal belief that ap articular technique is best is no defence unless that belief is based on reasonable grounds. That again is unexceptionable. But the emphasis which is laid by counsel for the defendants is no defence unless that belief is based on this aspect of negligence.: He submitted to you that the real question on which you have to make up your mind on each of the three major points to be considered is whether the defendants, in acting in the way in which they did, were acting in accordance with a practice of competent respected professional opinion. Counsel for the defendants submitted that if you are satisfied that they were acting in accordance with a practice of competent body of professional opinion, then, it would be wrong for you to hold that negligence was established. I referred, before I started these observations, to a statement which is contained in a recent Scottish Case, Hunter V. Hanley (1)([1955] S.L.T. 213 at P.217), which dealt with medical matters, where the Lord President (Lord Clyde) said this:
"In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion, and one man clearly is not negligent Page 30 of 34 R/SCR.A/8698/2018 ORDER merely because his conclusion differs from that of other professional men, nor because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctors I whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care."
If that statement of the true test is qualified by the words "In all the circumstances", counsel for the plaintiff would not seek to say that that expression of opinion does not accord with English law. It is just a question of expression. I myself would prefer to put it this way: A doctor is not guilty of negligence if he has acted in accordance with practice accepted as proper by a responsible body of medical men skilled in that particular art. I do not think there is much difference in sense. It is just a different way of expressing the same thought. Putting it the other way round, a doctor is not negligent if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view. At the same time, that does not mean that a medical man can obstinately and pigheadedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion. Otherwise, you might get men today saying: "I don't believe in anesthetics. I don't believe in antiseptics. I am going to continue to do my surgery in the way it was done in the eighteenth century ". That clearly would be wrong."
Page 31 of 34R/SCR.A/8698/2018 ORDER 9.5 In case of 'WHITEHOUSE VS. JORDON', (1981) 1 All England Reporter, Page 267, a baby, who suffered
severe brain damage, during birth. After the birth, compensation was claimed against Sr. Hospital Registrar, who, supervised the delivery in a high risk pregnancy. The mother had been in labour room for about 22 hours and there was use of forcep to assist delivery. It was held by the Court that the doctor's standard did not fall below that of the reasonable doctor in the circumstances, and therefore, there can be no compensation for the baby. Thus, the test for determining the negligence of a medical professional, as laid down in Bolam's Case, is that the "standard of the ordinary skilled man exercising and professing to have that special skill," and not of "the highest expert skill."
9.6 Thus, from the above decisions, it is clear that the prosecution is required to show that the accused did something or did not do something, which, in the given facts and circumstances of the case, an ordinary man would have done and these are the factual aspects to be dealt with at an appropriate state of trial.
10. In the facts of the present case, according to the complainant, the victim when had excessive labour pain, she was taken to the operation theatre, where, the cesarean was done by the medical attendants and it was only after that the excessive bleeding, which did not stop even after the delivery Page 32 of 34 R/SCR.A/8698/2018 ORDER of the child, commenced, and therefore, the petitioner had been called. Apart from that there are serious charges of permitting the medical attendants to carry out cesarean so also the serious charges of interpolation of the medical record and forging of some of the medical papers to indicate that the patient had chronic kidney disease, which, according to the prosecution, was due to excessive bleeding. All these aspects have been carefully looked into by the Courts concerned to prima facie arrive at a conclusion that this is a case fit for framing of the charges.
10.1 At this stage, this Court has been asked to exercise its extraordinary jurisdiction, which is to be exercised sparingly with circumspection and this hardly is a case for so doing, more particularly, when it is against the order of discharge and there exists sufficient material or record to frame the charges as rightly concluded by the trial Court.
11. Resultantly, this petition fails and is DISMISSED.
11.1 This Court notices that the application for discharge had been moved in the year 2016 and the revision application was also preferred in the year 2016, which came to be rejected and now, the case has been numbered as Criminal Case No. 388 of 2014. Since, the incident is of the year 2013, let the Page 33 of 34 R/SCR.A/8698/2018 ORDER trial be proceeded on EXPEDITIOUS basis. The prosecution shall make best of the endeavors to try the same on day-to-day basis, following the provisions of Section 209 of the Code.
11.2 None of the observations made herein above, which are of prima facie nature, shall come in the way of the petitioner or for that matter against the prosecution and the Court concerned shall, without being influenced by the same, decide the matter on the strength of the evidence that may be adduced before it by the prosecution. Rule is discharged.
(SONIA GOKANI, J) UMESH/-
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