Gujarat High Court
Jadeja Jaydeepsinh Arjunsinh vs State Of Gujarat on 27 June, 2023
R/SCR.A/12886/2021 ORDER DATED: 27/06/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 12886 of 2021
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JADEJA JAYDEEPSINH ARJUNSINH
Versus
STATE OF GUJARAT
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Appearance:
MR VICKY B MEHTA(5422) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3,4
MR. DHAVAN JAISWAL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 27/06/2023
ORAL ORDER
1. The present petition is filed for seeking following prayers:
"A) Your Lordships may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction by quashing and setting aside the impugned communication dated
2.9.2019 sent with forwarding letter dated 3.9.2019 passed by the respondent No.4 and further be pleased to direct the respondent No.4 to form a penal of expert Medical Officers and to examine the medical case papers of the sister of the petitioner and to send an opinion/report with regard to the same within time bound schedule;
Page 1 of 13 Downloaded on : Wed Jun 28 20:44:03 IST 2023 R/SCR.A/12886/2021 ORDER DATED: 27/06/2023 B) any other and further relief/s which may be deemed fit by this Honourable Court be granted." 2.1 Brief facts as per case of the petitioner in the present petition are that the sister of the petitioner - Mittalben was married with Ashoksinh Jhala at village Jhanjhorka of Dhandhuka Taluka. The said village is interior and remote and no proper medical facility is available there. In the year 2017, the sister of the petitioner - Mittalben suffered from severe stomach pain. As stated earlier, since no proper medical facilities are available at village Jhanjharka, the being brother had called Mittalben for proper treatment. On 1.7.2017, test was carried out whereby stone in the kidney of the sister of the petitioner was found. It is further the case of the petitioner in the present petition that on 3.7.2017, the sister of the petitioner again suffered from unbearable stomach pain on account of the stone and therefore, pursuant to the medical advice of Dr. Tushar P. Shah (M.S. FMAS and FIAGES), on 3.7.2017, sister of the petitioner was admitted in the Hospital of Dr. Tushar P. Shah. Further reports were carried out pursuant to the medical advice of Dr. Tushar P.Shah Page 2 of 13 Downloaded on : Wed Jun 28 20:44:03 IST 2023 R/SCR.A/12886/2021 ORDER DATED: 27/06/2023 and it was informed to the petitioner and his sister that a surgery was required to be carried out to cure the same. Therefore, on 12.7.2017, operation was fixed to be carried out in the hospital of Dr. Tushar P. Shah. since sister of the petitioner did not come out of unconsciousness for a long period of time, the petitioner had called Dr. Tushar P. Shah. He had medically checked the sister of the petitioner and informed the petitioner that the dose of anesthesia seems to have been given more than required, on account of which the patient is still unconscious. The petitioner was also informed that further treatment is required to be taken in Ahmedabad Medilink Hospital, wherein the patient would be kept for nearly 24 hours on 13.7.2017 and on 14.7.2017, certain reports were carried out in Medilink Hospital.
2.2 It is further the case of the petitioner in the present petition that on 13.7.2017, Dr. Tushar P. Shah had also advised to carry out M.R.I. of the patient. Therefore, M.R.I. was carried out on 13.7.2017 at Suryam. The expert had also examined the reports and informed that one of the vain of the brain of Mittalben Page 3 of 13 Downloaded on : Wed Jun 28 20:44:03 IST 2023 R/SCR.A/12886/2021 ORDER DATED: 27/06/2023 is damaged and it was informed that if over dose of anesthesia is given then such type of Medical complication can take place. The petitioner was very shocked to hear the above. It was also informed to the petitioner anything can happen to his sister and there are 80% chances that anything can happen. The petitioner was also informed by Dr. Tushar P. Shah that the patient is required to be kept for 3-4 months for proper treatment since entire body after the neck of Mittalben was paralyzed. The petitioner was also informed that in this treatment, nearly Rs.4-5 lacs expenditure would be incurred. At that time itself, hot exchange of words took place between the petitioner and Dr. Tushar P. Shah and at that time family members were also present. During the above exchange of hot words, Dr. Tushar P. Shah admitted that the present situation was on account of Medical negligence and he owes the responsibility of this situation and therefore, he showed ready and willingness to bear the expenditure on a confirmation and assurance from the petitioner that no police complaint would be filed by the petitioner for the negligence.
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R/SCR.A/12886/2021 ORDER DATED: 27/06/2023 2.3 It is further the case of the petitioner in the present petition that later on 13.7.2017, Dr. Tushar P. Shah informed the petitioner that his sister is required to be shifted at Jivraj Mehta Hospital. Therefore, on 14.7.2017, the sister of the petitioner was shifted to Jivraj Mehta Hospital under the supervision of Dr. Tushar P. Shah. It is further the case of the petitioner in the present petition that on 19.7.2017, one surgery was carried out of vain of the sister of the petitioner and pipe was inserted. The sister of the petitioner was kept on ventilator for 60-63 days under the medical supervision of Dr. Tushar P. Shah. However, there was no recovery and therefore, the petitioner had repeatedly talked with Dr. Tushar P. Shah. However, every time, he had conveyed and assured that everything would be fine. It is further the case of the petitioner in the present petition that suddenly on 3.9.2017, the health of the sister of the petitioner deteriorated and blood came out from the urine. After perusing the reports, the petitioner was informed that the urinal vain of the patient was damaged and therefore, another surgery was required to be carried out or else the patient would be in critical condition. Therefore, the petitioner being Page 5 of 13 Downloaded on : Wed Jun 28 20:44:03 IST 2023 R/SCR.A/12886/2021 ORDER DATED: 27/06/2023 dejected had called Dr. Tushar P. Shah, however, it was informed that Dr. Tushar P. Shah was not available. It is further the case of the petitioner in the present petition that on 19.9.2017, the sister of the petitioner was discharged since there was no recovery and there was no hope that the sister of the petitioner will recover from paralysis. The petitioner states that the bill of Rs.7,15,243/- of Dr. Jivraj Mehta was also paid. It is further the case of the petitioner in the present petition that today also, the petitioner has to incur heavy medical expenditure. The petitioner had therefore, lodged a complaint against Dr. Tushar P. Shah, his team and Anesthetist whose name is not revealed to the petitioner on 16.4.2018 before Sanand Police Station asking them to register a complaint and to carry out investigation in this regard.
2.4 It is further the case of the petitioner in the present petition that the petitioner personally inquired with Sanand Police Station regarding the status of his complaint. At that time, the petitioner was informed by Sanand Police Station that a complaint could only be registered if the medical team of civil hospital is formed Page 6 of 13 Downloaded on : Wed Jun 28 20:44:03 IST 2023 R/SCR.A/12886/2021 ORDER DATED: 27/06/2023 and they examine the medical reports and they are of the opinion that this is a case of medical negligence. It was also informed that since no penal is formed by civil hospital FIR is not registered. Since the respondent No.3 did not register the FIR, the petitioner was constrained to approach. this Honourable Court by filing Special Criminal Application No.8386 of 2018. This Honourable Court by order dated 17.10.2018 was pleased to dispose of the said petition by issuing direction moreover in para 3 of the said order. Despite the above order passed by the Honourable Court, the respondent No.3 has failed to comply with the same. The petitioner had learnt that since the opinion for the respondent No.4 has not been received, FIR is not registered. However, this cannot be the reasons for not complying with the order passed by this Honourable Court who had directed to act accordingly within a period of four weeks from the date of order. It is further the case of the petitioner in the present petition that on 6.11.2018, there is internal communication of respondent No.4 which states that the opinion of Neuro surgeon /Neuro Physician as well as urologist Doctor is required and no such specialist doctor is available and therefore, further report from B.J. Page 7 of 13 Downloaded on : Wed Jun 28 20:44:03 IST 2023 R/SCR.A/12886/2021 ORDER DATED: 27/06/2023 Medical College is sought for.
2.5 It is further the case of the petitioner in the present petition that respondent No.4 was required to forward the expert report as soon as possible looking to the seriousness of the case. However, considerable time had passed but no proper steps were taken and the order passed by the Honourable Court was not complied. Thereafter, the petitioner once again approached this Honourable Court by way of filing Special Criminal Applicatino No.4918 of 2019. Earlier, this Honourable Court issue notice by order dated 2.5.2019. Later on, by order dated 7.8.2019, the said petition was withdrawn with a liberty to take appropriate measures under the Code of Criminal Procedure, 1973 before the appropriate competent Court. It is further the case of the petitioner in the present petition that meanwhile unfortunately, on account of Medical ailment and medical negligence, the sister of the petitioner expired on 9.9.2019. Surprisingly, when the respondents came to know that the medical condition of the sister of the petitioner has deteriorated and was admitted in hospital, the respondent No.4 by communication dated 3.9.2019 informed the Police Page 8 of 13 Downloaded on : Wed Jun 28 20:44:03 IST 2023 R/SCR.A/12886/2021 ORDER DATED: 27/06/2023 Inspector of Sanand Police Station that, the committee had examined the case papers of deceased Mittalben and the panel has come to a conclusion that the surgery can be associated with complications like spinal injury and they have concluded that there was no medical negligence. Now, in view of the aforesaid communication dated 2.9.2019 passed by the respondent No.4, the petitioner would not be in a position to even avail alternative remedy. Even otherwise, the committee of respondent No.4 has not at all scrutinized the documents in proper manner and in a casual manner submitted a report stating that there was no medical negligence. It clearly appears that the penal of medical officers of respondent No.4 has tried to save the skin of Dr. Tushar P. Shah and his medical team. Hence, this petition is preferred.
3. Heard learned advocate Mr. Vicky B. Mehta for the petitioner and learned APP Mr. Dhavan Jaiswal appearing for the respondent - State.
4. Learned advocate Mr. Vicky B. Mehta for the petitioner has submitted that on earlier occasion, the Page 9 of 13 Downloaded on : Wed Jun 28 20:44:03 IST 2023 R/SCR.A/12886/2021 ORDER DATED: 27/06/2023 Courts have directed respondent - authority to look into the matter and follow the judgment of the Hon'ble Apex Court in the case of Lalitakumari versus Gov. of U.P. reported in (2008) 7 SCC 164, and no F.I.R. is filed. He has further submitted that where there is specific allegation made against the concerned Dr. Tushar P. Shah and his medical team as the patient who is sister of the petitioner, received serious medical complications during her treatment and the petitioner is repeatedly alleging that there is medical negligence and due to that he has lost his sister. He has further submitted in the operation, which is performed for the removal of the stone, the entire complications is occurred due to medical negligence. He has further submitted that he is challenging in the present petition essentially communication dated 2.9.2019 by which it was informed by the concerned authority i.e. R.M.O. No.29/2019 as well as 39 of 2019 to the concerned Police Inspector, Sanand whereby R.M.O. has informed the police authority that there is specially constituted team of the doctors, who have examined the grievance made by the present petitioner thoroughly and had come to the conclusion that there was non-medical negligence and therefore, Page 10 of 13 Downloaded on : Wed Jun 28 20:44:03 IST 2023 R/SCR.A/12886/2021 ORDER DATED: 27/06/2023 being aggrieved by the same, he has preferred the application and therefore, he has prayed to allow this petition.
5. Per contra, learned APP Mr. Dhavan Jaiswal appearing for the respondent - State has drawn my attention towards the opinion given by the specially constituted committee of doctors viz., Dr.Shrenik Shah, who is Head of the Department and Professor Urology Department, Civil Hospital, Ahmedabad, and Dr. Shailesh Shah, HOD of Prof. Anaesthesia, Civil Hospital, Ahmedabad as well as Dr. Kamlesh Upadhyay, HOU and Prof. General Medicine, Civil Hospital, Ahmedabad, who had opined after going through the necessary materials and also examining the case in detail at P.C.N.L Surgery which was performed by the concerned doctor that P.C.N.L. surgery can be associated with complication like spinal injury and above injuries can lead to dissection of vertebral artery. Some of these complications may require intensive care for further management which has been provided in this case. Therefore, it was concluded that there was no medical negligence by the panel of doctors. Pursuant to that, the Police Inspector, Sanand has Page 11 of 13 Downloaded on : Wed Jun 28 20:44:03 IST 2023 R/SCR.A/12886/2021 ORDER DATED: 27/06/2023 received the communication and therefore, the allegation made by the petitioner herein is by and large satisfied by scrutiny which is undertaken by the panel of the doctors - special constituted committee. He has also submitted that otherwise also, if there is no case made out by the petitioner herein which requires further investigation in the matter. He has also submitted that the prayers made in the present petition is also found misconceived in view of the specific opinion given by the medical authority, and therefore, he prayed that no case is made out to exercise powers by this Court either under Article 226/227 of the Constitution of Indian or Section 482 of the Criminal Procedure Code. 6.1 I have considered the rival submissions made at the bar. I have also considered the earlier order passed by this Court. This Court has permitted the present petitioner to withdrawn the present petition and as per last order dated 7.8.2019 of this Court, the petition is withdrawn by the petitioner with a permission to approach the appropriate competent Court to take necessary measures under Section 36, 154, 156(3) and 200 or any other provisions of the Code of Criminal Page 12 of 13 Downloaded on : Wed Jun 28 20:44:03 IST 2023 R/SCR.A/12886/2021 ORDER DATED: 27/06/2023 Procedure, 1973, which was not availed by the petitioner and on receipt of such communication, merely challenging that communication, by asking further investigation with specially constituted committee, is found highly unwarranted and unjustified. The Courts are not meant for satisfying the personal grudges and grievances merely on apprehension and suspicion by ignoring the opinion given and more particularly, the specially constituted team of the experts.
6.2 In view of this, no valid ground or reason is made out by the petitioner to grant any relief. On the contrary, filing of such petition amounts to taking disadvantage of the procedure of law by making such allegation with a view to gain misplaced sympathy in favour of the petitioner.
7. With above observation, the present is disposed of as not entertained.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 13 of 13 Downloaded on : Wed Jun 28 20:44:03 IST 2023