Allahabad High Court
Surendra Nath Mishra & Another vs State Of U.P. & Others on 23 December, 2010
Bench: Imtiyaz Murtaza, Jayashree Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD (Delivered by Hon Imtiyaz Murtaza) Present petition has been preferred for the relief of issuance of a writ of mandamus commanding the respondents to arrest the accused persons attended with submission to properly investigate the case crime No 179 of 2009 under section 302, 323, 504 IPC PS Kydganj District Allahabad.
The petitioner no.2 who happens to be the brother of deceased Laxmikant Mishra, a practising Advocate of this Court, it would appear, had lodged a First Information Report at Police Station Kydganj District Allahabad which was registered at case crime No 179 of 2009 under section 302, 323, 504 IPC alleging that the deceased who was concussed in a road accident had to be rushed to Jeevan Jyoti Hospital on 28.2.2009 where he was admitted and was under treatment of a team of doctors headed by Dr. A.K.Bansal. On 21.4.2009, after assessing the condition of the patient, Dr. A.K. Bansal had opined that the patient was convalescing very fast and it was likely that he might be discharged within 3 days. On 25.4.2009, it is alleged that Dr. Bansal demanded immediate deposit of a sum of Rs.1 lac from the petitioners in the hospital failing which it is further alleged, the patient would relapse and thereafter, it is also alleged, he asked the Ward Boy to stop administering medicines and following directions, the ward boy stopped giving medicines. The stoppage of medicines had its immediate impact on the patient whose condition began to deteriorate and as a result, the complainant rushed to Dr Bansal and entreated him to continue the treatment assuring at the same time that he would arrange for money and deposit the same by 27.4.2009. The complainant, it is further alleged, also solicited Dr Bansal to discharge his patient so that he could be taken elsewhere for treatment but Dr. Bansal turned down his entreaties and reiterated ostensibly veiled threat that in case the demanded amount was not deposited, the patient might not survive. On 26.4.2009, it is further alleged, the condition of deceased deteriorated all of a sudden and he immediately rushed to Dr. Bansal and informed him about difficult breathing problem upon which Dr Bansal got up and walked upto the bed of the patient menacingly observing that he would discharge the patient for ever, and saying this, he pulled out the tube which had been inserted at the time of operation through the mouth and as soon as the tube was pulled out, the deceased started disgorging blood from his mouth mixed with pieces of flesh and the blood which had sprouted out, had also stained the cloths of Dr. Bansal and in no time, the deceased breathed his last. It is further alleged that when he remonstrated with Dr. Bansal, he commanded his gunner to throw the complainant out of the hospital. Thereafter, the gunner and other class 4 servants employed in hospital pinned him down to the ground and showered blows as a result of which he suffered serious injuries.
The injuries reports of Surendra Nath Mishra, Rakesh Pandey and Sushil Shukla who at that time happened to be at the hospital and were manhandled by the staff of the hospital at the behest of Dr Bansal have been annexed to the petition.
Sri Surendra Nath Mishra who was examined by Dr.K.L Pandey Medical Officer T.B Sapru Hospital Allahabad is stated to have suffered following injuries.
1. Contusion size 6 cm x 2 cm on right arm outer and back side, 12 cm above elbow. Colour red.
2. Contusion size 78 cm x 1 cm on outer side of right leg 15 cm below knee colour red.
3. Abraded contusion size 1 cm x 1 cm on right sole 1,1/2 cm from 5th toe. Colour red.
4. Complained of pain over neck back side . No mark of injuries seen .
5. complained of pain over right hip no Mark of injury seen
6. Complained of pain over right side face no mark of injury seen.
All injuries are said to be simple caused by hard and blunt object.
Sri Rakesh Kumar Pandey is stated to have suffered following injuries.
1. Contusion size 4 cm x 1 cm on back of left side chest lower part 17 cm below scapula bone. Colour red.
2. Contusion sized 3 cm x 1 cm on back of left side chest. 3 Cm below scapula bone colour red
3. Contusion size 4 cm x 2 cm on back of right side chest 16 cm below scapula bone Colour red.
4. contusion size 3 cm x 1 cm on outer-side of left arm 6 cm above elbow colour red.
5. Contusion size 1 cm x 1 cm on inner side of left leg 7 cm below knee. Colour red.
6. complained of pain over left foot No mark of injuries seen
7. Complained of pain over left side abdomen no mark of injury seen All injuries are stated to be simple caused by hard and blunt object.
Sri Sushil Kumar Shukla is stated to have suffered following injuries.
1. Contusion size 8 cm x 3 cm on right side back of abdomen 16 cm above right hip bone Colour red.
2. Contusion size 3 cm x 1 cm on back of left forearm 8 cm above wrist colour red.
3. complained of pain over right side abdomen middle part. No mark of injury seen
4. complained of pain over neck no Mark of injury seen.
All injuries are simple caused by hard and blunt object.
Sri Shri kant Mishra suffered following injuries.
1.Contusion size 4 cm x 1.5 cm on back of left side chest lower part 16 cm below lat scapula bone colour red.
2. Contusion size 9 cm x 1 cm on back of right side chest 1 cm elbow right scapula bone. Colour red.
3. Contusion size 1/2 cm x 1/2 cm on right side neck 6 cm below right ear colour red.
4. complained of pain over both side front of chest No mark of external injury seen Advise x ray chest.
5. Complained of pain over front of abdomen upper part back side No mark of injury.
6. Complained of pain over right leg no mark of injury seen.
7. Complained of pain over left forearm No mark of injury seen.
In the petition it is alleged that though the case was registered, acting on the complaint made at the police station but the investigating officer and other police officials had relaxed attitude towards Dr Bansal and had not conducted the investigation properly and their action so far has suggested that they were hell-bent to protect the accused. It is further alleged that Dr Bansal is a very resourceful person who has been exerting pressure on the police hierarchy and he also wields clout in the corridor of powers. It is further alleged that this incident is not the solitary instance but in the past he has defrauded various persons by overcharging and those who were unable to pay the demanded amount, their patients were not properly attended or maltreated and as a result of which the patients either met the fate of death or they were thrown out of hospital. It is also alleged that Dr. A.K Bansal has several criminal cases to his discredit but he has managed to wriggle out of gray area due to his political clout and also on account of his affluence.
Thereafter, the matter lingered and from the weight of file it would transpire that the matter is hotly contested and various affidavits have changed hands and brought on record. The criminal litigation had assumed proportion against Dr Bansal in the meanwhile and tension brewed up between medical staff and the lawyers and both the parties fought pitched battle on the road giving rise to baton charge and resultant injuries to various people. It is in this perspective that the Division Bench of this Court called upon respondents 2,3,4 and 5 to file their respective affidavits enumerating therein their own version of the incident who were then posted as District Magistrate, at Allahabad, I.G Police Allahabad Range Allahabad, D.IG Allahabad and Station officer PS Kydganj Allahabad respectively vide order dated 5.5.2009. On 7.5.2009 the Division Bench passed the order mentioning therein that since aforesaid respondents had filed short counter affidavit, they ought to have filed a detailed counter affidavit looking to the fact that the matter was of serious nature and both the lawyers and doctors were agitating and were outfacing each other. The contention on behalf of the counsel for lawyers was that the district administration was supporting the cause of doctors and had allowed the procession to outface the agitating lawyers. It was also alleged that the district Administration has also not taken any concrete action either in arresting or in prosecuting Doctor Bansal. After hearing, the Division Bench allowed the District Administration to file detailed counter affidavit explaining how the procession of medical fraternity was allowed to enter the collectorate compound when provisions of section 144 Cr.P.C had already been promulgated to be imposed. The district authorities were also required to explain the circumstances in which the baton charge on lawyers was ordered and also the action taken by the district authorities thereafter against erring officials or persons. The court also demanded information how the police posse was deployed at the Jeevan Jyoti Hospital and the progress of action taken pursuant to FIR lodged against Dr. Bansal. On 8.5.2009, the Government Advocate brought on record affidavits of Sri Rajesh Kumar Circle officer City 3rd, and Sri Pradeep Kumar Tiwari Addl District Magistrate (City) Allahabad. The counsel for the petitioner also filed supplementary affidavit to which the Court allowed 3 days time to learned Government Advocate to file counter affidavit to the aforesaid affidavit alongwith direction to him to ensure filing of affidavits of IG/DIG/SSP and District Magistrate. The Government Advocate was also asked to produce case diaries in respect of cases shown against Dr A.K.Bansal in the affidavit filed By Sri Rajesh Kumar C.O City 3rd Allahabad. The matter was ordered to be put up on 12.5.2009. On 12.5.2009, the learned Government Advocate brought on record counter affidavits of the District Magistrate, DIG/SSP Allahabad and IG Police. On this date, Sri J.S.Sengar entered appearance for the respondent Dr. A.K.Bansal and he prayed for adjournment. The case was ordered to be put up on 13.5.2009 alongwith direction to the counsel to file memo of appearance alongwith impleadment application on behalf of Dr. A.K.Bansal. On 13.5.2009, Sri J.S.Sengar did not put in appearance and therefore the court proceeded further scanning the affidavits filed on behalf of District Authorities. The Court observed that it was essential to hear the authorities aforesaid personally on the issue of mala-fides and therefore, it was directed that the authorities aforesaid would appear in person on 18.5.2009 at 2 pm. On 18.5.2009, the authorities were present in Court. It is borne out from the order that during the course of arguments, the office of this Court produced fax copy of the order passed by the Apex Court in which further proceedings in the writ petition were stayed alongwith stay of arrest of the petitioner pursuant to the FIR. In view of the said order, the proceedings in the writ petition were postponed until further orders by the Apex Court. It would also appear that the Apex Court, in ultimate analysis, dismissed the S.L.P and this led to resumption of proceeding in this Court. On 3.4.2010, the matter which was being heard by the Division consisting of Hon Amar Saran and Hon S.S Tiwari JJ was assigned to the Bench presided over by one of us (Hon Imtiyaz Murtaza). On 9.8.2010, the AGA was directed to intimate this Court about the progress of investigation alongwith directions to produce relevant papers including copy of the case diary with the avowed objecting of ascertaining whether the investigation was progressing well. On 11.8.2010, the AGA made a statement before the Court that the investigation is on the verge of completion and the charge sheet would be submitted within two weeks and therefore the the case was ordered to be listed on 27th August 2010. On 27.8.2010, the AGA informed that the investigation could not be concluded due to some unavoidable circumstances. The case was directed to be listed on 31.8.2010. On 31.8.2010 the AGA was directed to produce copy of statements on the basis of which police report has been submitted alongwith medical report and bed head ticket of the deceased. In the meanwhile, it was directed that if the police report had not been submitted, the same would not be submitted till further orders of this Court. On 29.9.2010, the case was heard at prolix length and judgment was reserved.
We have heard learned counsel for the petitioners namely Sri V.C Mishra, Senior Advocate who was assisted by bevy of lawyers some of whom are the office bearers of Bar Association at prolix length. We have also heard Sri D.R Chaudhary learned Government Advocate who was assisted by other Additional Government Advocate. We have also traversed upon the copy of the case diary. From a scrutiny of the case diary, it would transpire that the investigating officer initially booked the accused under section 302 IPC and the case was subsequently altered from section 302 IPC to section 304 A IPC by the predecessor of the present Investigating officer. It would further transpire that the Investigating officer also obtained opinion of the Medical Board dated 2.5.2009 whereby medical board gave its opinion to the effect that there was no negligence (not to speak of culpable negligence) in the treatment administered to the deceased. In the light of this opinion, section 304 A was expunged during investigating stage. In ultimate analysis, the police converged to the conclusion that only offences under section 323, 504, 506 IPC are made out.
The learned counsel appearing for the petitioners began his argument submitting that Dr A.K Bansal is a very resourceful person and he wields clout in the corridor of power. It is also submitted that the aforesaid doctor has got to his discredit, iliad of criminal cases but owing to his political clout and monetary influence, local police has wilted under pressure and is not in a position to take any action against him. He stated across the bar that petitioners have no faith in the investigation being conducted by the local police. It is further submitted that in order to screen Dr A.K Bansal, the offence has been deliberately mellowed down. To prop his submission, decision of Apex Court was cited across the bar. The first decision cited is State of Maharashtra v Farooq Mohd Kasib Makkar and others (JT 2010 (8) SC 151) followed by decision in Kedar Narayan Parida and others v State of Orissa (2010 (1) SCC (Crl) 36).
Per contra, learned A.G.A contended vehemently supported the fairness of the investigation attended with submission that the investigating officer has merely expressed his opinion in the matter about the offences followed by submission that the law is well enunciated that when the police report is submitted, the Magistrate has following option.
(1) to accept the final form (2) in the event of protest petition is filed, to treat the same as complaint petition and if a prima facie case is made, to issue process (3) to take cognizance of the offence against a person although final form has been filed by the police in the event he comes to the opinion that sufficient material exist in the case diary itself therefor, (4) to direct further investigation in the matter.
In the instant case, police has found that offences under section 323, 504, 506 IPC is made out. The grievance of the petitioner is that even section 304 A IPC has been expunged by the police. A perusal of the case diary shows that police had expunged section 304 A IPC on the basis of opinion of Medical report. The Apex Court in the case of Jacob Mathew v State of Punjab AIR 2005 SSC 3180, has laid down certain guidelines for prosecuting medical professional.
"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 and Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three : 'duty','breach' and 'resulting damage'.
(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.
(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 WLR 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 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.
In view of the principles laid down hereinabove and the preceding discussion, we agree with the principles of law laid down in Dr. Suresh Gupta's case (2004) 6 SCC 422 and re-affirm the same. Ex abundanti cautela, we clarify that what we are affirming are the legal principles laid down and the law as stated in Dr. Suresh Gupta's case. We may not be understood as having expressed any opinion on the question whether on the facts of that case the accused could or could not have been held guilty of criminal negligence as that question is not before us. We also approve of the passage from Errors, Medicine and the Law by Alan Merry and Alexander McCall Smith which has been cited with approval in Dr. Suresh Gupta's case (noted vide para 27 of the report). 2004 AIR SCW 4422 : AIR 2004 SC 4091 : 2004 Cri LJ 3870
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."
Reverting to the facts of the case, it is worth noticing that the charge sheet includes names of Sri Kant Mishra, Mithlesh Kumar and Mukesh Kumar as the witnesses out of whom Mithilesh Kumar and Mukesh Kumar are the sons of the deceased.
In connection with the controversy raked up before us, in order to make the point clearer, we also feel called to refer to decision of the Apex Court in Bhagwant Singh v Commissioner of Police 1985 (2) SCC 537 in which the Apex Court observed that the injured person or any relative of the deceased though not entitled to notice from the Magistrate, has locus to appear before the Magistrate at the time of consideration of the report, if he otherwise comes to know that report is gong to be considered by the Magistrate and if he wants to make his submission in regard to report, the Magistrate is bound to hear him.
In view of the ratio flowing from the said decision, the necessary corollary is that it would be but proper for the complainant or any person aggrieved, to appear and raise objection in this regard at the time of consideration of police report filed by the Investigating officer against Dr A.K Bansal.
Again reverting to the facts of the case, we feel compelled to say that the petitioners never agitated any ground that the statements of witnesses were not properly recorded or that witnesses had not been examined in the case. The main brunt of contention during argument was that the police is attempting to screen Dr A.K Bansal by expunging section 302 and then section 304 A IPC. Section 323 Cr.P.C being relevant is abstracted below.
"323. Procedure when, after commencement of inquiry or trial, Magistrate finds case should be committed :- If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing the judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions herein before contained and thereupon the provisions of Chapter XVIII shall apply to the commitment so made."
The crux flowing from the above is that if from a scrutiny of evidence on record, the Magistrate comes to the conclusion that some offences which are triable by Sessions Judge are made out it is open for him to commit the case to the court of Sessions.
So far as expunging of section 304 A IPC is concerned, it is borne out from the record that police had expunged section 304 A IPC on the basis of report of Medical Board and if the complainant is at all aggrieved by the said report, it has to be taken as tentative, and it would be open to the complainants to raise the objections at the time of argument criticizing the report of Medical Board also.
Two decisions have been cited across the bar by learned counsel for the Petitioner as referred to above. The first case cited is The state of Maharashtra v Farook Mohammed Kasim Mapkar and others JT 2010 (8) SC 151. In this case one of the prayers was to take action against police officers. Accused filed complaint in 2006 for registration of FIR against police officers. The matter thereafter travelled to the High Court and the High Court held as under:
"If any person is aggrieved by the inaction on part of the police or not getting proper response there are adequate remedies provided under the Code and it is for such person to seek relief with the aid of these provisions. However, we have already adverted to the specific allegation in the complaint of the respondent No 1, how the Special Task Force conducted investigation, as seen from the report of Srikrishna Commission. Further, in the case on hand, the Respondent No 1 has asserted at many places which were supported by the Commission's report, more particularly, the information that the State Police did not examine the injured witnesses who were available at the spot and suffered a lot. In view of the demolition of Babri Masjid on 6.12.1992 and riots in various places all over India including Mumbai on 10.1.1993, specific assertion by the Respondent no. 1 who is an affected person coupled with the findings of Srikrishna Commission accepted by the State, we are of the view that it is an extraordinary case and we hold that the Respondent No 1 herein is fully justified in approaching the High Court seeking extraordinary jurisdiction for direction for entrusting the investigation to independent and special agency like CBI..........."
As observed in the aforesaid decision itself, it was an extraordinary case and therefore, the Apex Court justified the stand of Respondent no 1 in approaching the High Court for direction to independent and special agency like CBI. In this backdrop, we are of the view that this decision cannot be taken aid of in support of his contention by the learned counsel for the petitioner.
The next decision of the Apex Court is Kedar Narayan Parida and others v State of Orissa and another (2010) 1 SCC (Crl) 36. In this case Senior Police officers at intervention of MLA discarded a supervision report and had implicated all accused persons and making a new report on the basis of polygraph test and alibi provided by MLA and it is in this perspective that the Apex Court justified interference by the High Court with investigation in order to do justice to the parties. In our considered view, this decision also cannot be taken aid of for applicability to the facts of the present case.
In the above perspective, we are of the view that it is not a preeminently fit case for interference by this Court under Article 226 of the Constitution of India. before bidding adieu to the case, we would like to quip here that in case the petitioners have any grievance in the matter, they can very well agitate the issue before the Magistrate concerned who, we have no hesitation to say, is bound by law and well enunciated decisions of the Apex Court and this Court to look into the the contentions from all pros and cons and pass appropriate orders according to law.
As a result of foregoing discussion, the petition does not call for any interference.
The petition shall stand disposed of in terms of the above directions. It needs hardly be said that the police would be at liberty to file police report before the Magistrate. Interim order if any, shall stand vacated.
MH Dec 23, 2010