Punjab-Haryana High Court
Dr. Saroj Sethi & Anr vs State Of Punjab & Anr on 25 September, 2008
Equivalent citations: 2009 CRI. L. J. (NOC) 174 (P. & H.), 2009 (2) AJHAR (NOC) 695 (P. & H.)
Author: Ajai Lamba
Bench: Ajai Lamba
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Criminal Misc.6017-M of 2005
DATE OF DECISION : SEPTEMBER 25, 2008
DR. SAROJ SETHI & ANR. ....... PETITIONER(S)
VERSUS
STATE OF PUNJAB & ANR. .... RESPONDENT(S)
CORAM : HON'BLE MR. JUSTICE AJAI LAMBA
PRESENT: Mr. Gautam Dutt, Advocate, for the petitioner(s).
Mr. HS Brar, DAG, Punjab.
Mr. SS Gill, Advocate, for respondent No.2.
AJAI LAMBA, J. (Oral)
This petition under Section 482, Code of Criminal Procedure, has been filed with a prayer for quashing FIR No.177 dated 21.7.2002 under Sections 304-A, 201, 34, Indian Penal Code, Police Station, Sirhind (Annexure P-1) and subsequent proceedings, including the final report submitted under Section 173, Code of Criminal Procedure.
The FIR was lodged at the instance of Naresh Kumar (respondent No.2) with the allegations that his wife-Veena Rani had complaint of tonsils on account of which she had fever from time to time. Veena Rani was medically checked up at Government Hospital, Fatehgarh Sahib, where Dr.Saroj Sethi (petitioner No.1) advised surgery. Necessary Criminal Misc.6017-M of 2005 2 medical check up was conducted on the person of Veena Rani and she was, accordingly, admitted on 17.7.2002. The surgery was scheduled for 18.7.2002, as per the instructions of the doctor. At about 8.30 a.m., Veena Rani was taken to the Operation Theater. At about 11.45 a.m., a Class-IV official came and stated that the surgery had been conducted successfully. Soon thereafter, however, the complainant found an Ambulance parked outside the Emergency and the driver informed the complainant that the patient had become serious and was being sent to the P.G.I., Chandigarh. The Ambulance had been called by Dr.Saroj Sethi (petitioner No.1). Veena Rani was, accordingly, shifted in the Ambulance. On the way, artificial respiration was given by the accompanying doctors. On reaching P.G.I., Chandigarh, the doctor posted in the Emergency Ward informed that Veena Rani had expired.
Initially, respondent No.2-complainant had stated that he did not want to take any action. Respondent No.2, at that point in time, was perplexed due to shock on account of death of his wife. After having become conscious of the fact, respondent No.2 wanted to see the record of treatment. Dr.Saroj Sethi did not, however, show any document regarding surgery. After receipt of report of post-mortem, all the papers had been seen whereupon respondent No.2 became confident that the death had occurred during the course of treatment given by the petitioners on account of their negligence and, therefore, action be taken.
The main contention of the learned counsel for the petitioners is that the Hon'ble Supreme Court of India in Jacob Mathew v. State of Punjab and another, AIR 2005 Supreme Court 3180, has summed up the Criminal Misc.6017-M of 2005 3 cases of the present nature and has held that negligence in the context of medical profession necessarily calls for a treatment with difference. Reliance has been placed on sub-paras (2), (5) and (7) of para 49, which read as under:-
"(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 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."
"(5) The jurisprudential concept of negligence differs in Criminal Misc.6017-M of 2005 4 civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution."
"(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."
In the context of the judgment, relevant portion of which has been reproduced above, learned counsel for the petitioners has drawn the attention of the court towards three reports received at various points in time, in regard to the quality of treatment given to Veena Rani. In para-9 of the petition, the opinion given by the Board of Doctors of the Department of Forensic Medicine, Government Medical College and Hospital, Patiala, on 8.10.2002, has been reproduced and the same reads as under:-
"From PMR and report of HPE of viscera, the cause of death in our opinion in the case noted above is Asphyxia due to chocking as a result of Aspiration of blood in the Respiratory Passage."
Thereafter, it seems that a specific query was put by the police, during the course of investigation, to the Board of Doctors of Government Medical College and Hospital, Patiala, as to whether there Criminal Misc.6017-M of 2005 5 was any negligence on the part of the doctors or not. The following report was submitted by the Board of Doctors on 13.1.2003:-
"After going through the available record of the above mentioned case, it is not possible to opine about the query asked for."
Since no conclusion was drawn by the Board of Doctors, the authorities in the P.G.I., Chandigarh, were requested to give an opinion. A letter dated 2.6.2003 was received from the P.G.I., Chandigarh, addressed to the Senior Superintendent of Police, Fatehgarh Sahib, relevant portion of which has been reproduced in para-11 of the petition. The same reads as under:-
"Early and delayed haemorrhage is a known complication of tonsillectomy. Based on the available facts the members of the board are unable to comment on the specific question of negligence of concerned doctors as it depends on many factors including facilities available in hospital and technical assistance available at the time of operation. This can best be judged by medical experts working under similar conditions."
In the context of what had been stated in letter dated 2.6.2003 viz. the facts can be best judged by medical experts working under similar conditions, it seems that a report from the panel of doctors of Civil Hospital, Fatehgarh Sahib, was sought. The report was submitted on 23.3.2004, which reads as under:-
"On reviewing the abovesaid record the board is of the opinion that the probable sequence of events leading to death were secondary or reactionary haemorrhage after operation leading to asphyxia due to chocking as result of aspiration of blood in the respiratory passage and then cardiac arrest.
Therefore, the board is of the opinion that there Criminal Misc.6017-M of 2005 6 may have been negligence on the part of both the doctors in the abovesaid case."
The contention of the learned counsel for the petitioners is that in the context of the judgment rendered by the the Hon'ble Supreme Court of India in Jacob Mathew's case (supra), the case does not spell out negligence on the part of the petitioners.
Learned counsel for the respondent-State has argued that there is material available on the record to indicate that death of Veena Rani was a result of negligence. Veena Rani was a young lady of 38 years and had gone for a minor surgery, such as removal of tonsils. Report dated 23.3.2004, reproduced above, indicates negligence and, therefore, it would be a question of evidence to be determined by the trial Court. The earlier reports were inconclusive in regard to the opinion whether there was negligence on the part of the petitioners or not. A perusal of report dated 23.3.2004 does not leave any measure of doubt that the petitioners were negligent.
What is required to be considered in these proceedings is whether the petitioners have been able to make out a case for quashing under Section 482, Code of Criminal Procedure.
Reports dated 8.10.2002 and 23.3.2004 are consistent in regard to the cause of death viz. Asphyxia due to chocking as a result of aspiration of blood in the respiratory tract. Report dated 23.3.2004 has clarified, on consideration of the entire record, that the probable sequence of events leading to death were secondary or reactionary haemorrhage (escape of blood from the vessels which naturally contain it) after operation leading to asphyxia (a condition arising when body is deprived Criminal Misc.6017-M of 2005 7 of oxygen) due to chocking as a result of aspiration of blood in the respiratory passage and then cardiac arrest. The Board of Doctors have further clarified that the cause of death may have been due to negligence on the part of both the doctors (petitioners).
So, what is to be considered is as to whether this court can take affidavits and counter affidavits and conclude that the petitioners were not negligent.
Surely, in proceedings under Section 482, Code of Criminal Procedure, this Court cannot record a finding that the petitioners were not negligent or that there was simple lack of care, an error of judgment or an accident. It would only be after leading evidence that the trial court would be in a position to record that the petitioners had followed a practice acceptable to medical profession on that day and, therefore, cannot be held liable for negligence. In these proceedings, it cannot be held that the hazard taken by the accused-doctors was of such a nature that the injury which resulted was most likely imminent.
I have taken into account the fact that the surgery on the person of Veena Rani was elective surgery and not under emergency conditions. The petitioners claim themselves to be competent doctors. The facilities required for such surgery were available at the hospital where Veena Rani was operated upon. Post surgery, the bleeding was required to be arrested or controlled. After operation, blood was allowed to flow causing asphyxia and the body was deprived of oxygen as is indicated by report dated 23.3.2004, reproduced above. Whether the doctors had taken proper preventive measures to avoid the situation, or the Criminal Misc.6017-M of 2005 8 condition was not attended to during post-operative period, resulting in gross negligence, is an issue that can only be addressed by the trial court after taking evidence.
Notice is required to be taken of para-53 of the judgment in Jacob Mathew's case (supra), which reads as under:-
"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 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."
I have taken note of the fact that the post-mortem Criminal Misc.6017-M of 2005 9 examination was conducted. The entire record has been perused and considered in the same condition as the patient was treated and, thereafter, the cause of death, the sequence of events and negligence on the part of the petitioners has been observed. There is, thus, sufficient evidence, although prima facie, in view of the stage of the case, to indicate commission of offence, to allow the trial Court to proceed. The opinion has been given by the Board of Expert Doctors and, therefore, at this stage it cannot be ignored. The Board of Doctors is an independent body, who have given an independent,impartial and unbiased opinion indicating negligence. The opinion forms the basis for submission of final report under Section 173, Code of Criminal Procedure. The court is already seized of the matter.
In view of the above, the petition is dismissed.
In view of the delay already caused, the trial court is required to proceed with the trial expeditiously.
Learned counsel for the petitioners has prayed for exemption from personal appearance of the petitioners.
Having regard to the nature of proceedings, the prayer is allowed. Personal appearance of the petitioners shall remain exempt, however, on the conditions to be imposed by the trial Court.
September 25, 2008 ( AJAI LAMBA ) Kang JUDGE