Calcutta High Court (Appellete Side)
Dr. Shamina Yasmin vs The State Of West Bengal & Anr on 25 August, 2021
Author: Tirthankar Ghosh
Bench: Tirthankar Ghosh
25.08.2021 IN THE HIGH COURT AT CALCUTTA Item No.35 CRIMINAL REVISIONAL JURISDICTION Ct.No.34 dc.
C.R.R. 3396 of 2017 (Via Video Conference) Dr. Shamina Yasmin versus The State of West Bengal & Anr.
In Re: An Application under Section 482 of the Code of Criminal Procedure, 1973.
Mr. Danish Haque, Mr. Sharequl Haque ... For the Petitioner.
Mr. Arijit Ganguly,
Mr. Avik Ghatak ... For the State.
This revisional application has been preferred
challenging the proceedings arising out of Tiljala Police Station Case No. 182 of 2011 dated 07.05.2011 under Sections 304A/34 of the Indian Penal Code (corresponding to A.C.G.R. Case No. 1989/2011) pending before learned Additional Chief Judicial Magistrate, Alipore, South 24- Parganas.
The fact of the case in brief is that on 07.05.2011 on receipt of written complaint of one Amin Baksh alleging that his wife, namely, Sashita Amin was admitted on 06.05.2011 at Dolphin Nursing Home on the advice of the present petitioner, who is a doctor, for operation of pregnancy. It is further alleged that at the operation theatre suddenly there was loadshedding and as there was no arrangement of generator in the said nursing home, in that critical condition the patient had to be shifted to East Land Nursing Home by 2 the unit of Dolphin Nursing Home along with doctor and the owner, namely, Md. Sayeed without the consent of patient party. Due to such negligence, the patient died and as such, prayer was advanced for registration of criminal case. On receipt of such complaint, Tiljala Police Station Case No. 182 of 2011 was registered under Sections 304A/34 of the Indian Penal Code and on completion of investigation, police authority submitted charge-sheet.
Mr. Haque, learned advocate appearing for the petitioner submits that the instant case has been initiated against a medical practitioner without following the law and the norms laid down by the Hon'ble Apex Court in Jacob Mathew Vs. State of Punjab & Anr. reported in (2005) 6 SCC 1. In the said decision the Hon'ble Supreme Court, inter alia, held as follows :
"48.... (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 from the basis for prosecution.
(6) The word 'gross' has not been used in Section 304-A 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 3 act' as occurring in Section 304-A IPC has to be read as qualified by the word 'grossly'."
The consistent view of the Hon'ble Apex Court as also the High Courts are that in order to implicate a medical practitioner in a criminal case while the said medical practitioner is acting in discharge of his or her duty, an independent medical opinion which may include a Board of Doctors should be taken first prior to registration of FIR.
Mr. Ghatak, learned advocate appearing for the State has produced the case diary and on perusal of the same, I do not find such medical opinion of doctors was taken by the investigating officer prior to registration of the FIR. Further, a medical practitioner can be held to be responsible for negligence of act and/or omission in respect of the duty entrusted to such medical practitioner. In this case, there were unforeseen circumstances due to electricity not being available, there was loadshedding and no generator was available at the nursing home. Availability or non-availability of generator cannot be attributed to negligence of a medical practitioner. The act of the petitioner at that stage was spontaneous and to the best of her abilities which a person of ordinary prudence would have done at the given set of circumstances.
Having regard to the aforesaid, I am of the view that further continuance of the proceedings arising out of Tiljala Police Station Case No. 182 of 2011 dated 07.05.2011 under Sections 304A/34 of the Indian Penal Code including all the 4 orders passed therein as also the charge-sheet filed in connection with the said case, if allowed to continue, would degenerate itself into a weapon of harassment and would obviously be an abuse of process of the court. Consequently the said criminal proceedings are quashed so far as the present petitioner is concerned.
Needless to state that the same principle may not apply to the owner of the nursing home and the learned Magistrate would proceed with the case so far as the other accused person is concerned. Accordingly, the revisional application being CRR 3396 of 2017 is allowed.
Interim order is hereby made absolute.
All pending applications, if any, are consequently disposed of.
All parties shall act on the server copy of this order duly downloaded from the official website of this Court.
(Tirthankar Ghosh, J.)