Punjab-Haryana High Court
Dr.Gurdeep Singh Kochhar And Another vs U.T. Chandigarh And Another on 3 February, 2010
Author: Ranjit Singh
Bench: Ranjit Singh
CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: FEBRUARY 03, 2010
Dr.Gurdeep Singh Kochhar and another
.....Petitioners
VERSUS
U.T. Chandigarh and another
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr. K. S. Nalwa, Advocate,
for the petitioners.
Mr. N. S. Shekhawat, Advocate,
for U.T., Chandigarh.
Mr. U. S. Dhaliwal, Advocate,
for the complainant.
****
RANJIT SINGH, J.
Essential conditions and requirement to make a doctor liable for criminal negligence has been fairly settled by the Hon'ble Supreme Court in the case of Jacob Mathew Vs. State of Punjab and another, (2005) 6 Supreme Court Cases 1. There should not be any scope of any controversy to proceed against a doctor if the parameters as laid down in Jacob Mathew's case (supra) are satisfied. Still, the ratio of law as laid down by the Supreme Court CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 2 }:
apparently was not followed in the present case while registering FIR against the petitioners. The petitioners, therefore, are before this Court to seek quashing of this FIR, not only on the ground that the same has been registered in complete violation of the law laid down by the Supreme Court but also on the ground that this FIR is outcome of an undue influence of a highly placed authority in the State of Punjab. The incidental question, thus, may arise for consideration about the role of police and their frequent failure to act independently to discharge their duties on being put under pressure by highly placed political and other authorities yielding powerful position. First a few facts.
The petitioners are husband and wife doctors, who have set up a Nursing Home named "Deep" in Sector 21, Chandigarh. The petitioners would claim that the Nursing Home is very well equipped and is established with state of art facilities. It is also equipped for conducting major surgeries like close heart surgery, brain surgery, hip replacement surgery and such like other specialized surgeries. The Nursing Home is having equipments like ventilator, defibrillator,diathermy, pulse oxymeter, Suction Apparatus, Boyle's machine, Central Oxygen supply, big oxygen cylinder and all other necessary equipments essential for running admission facilities.
Coming to the facts, leading to FIR, it may be noticed that Mrs.Charanpreet Kaur, aged 32 years and wife of complainant, Sh.Manmeet Singh Mattewal visited petitioner No.2 on 10.11.2005 while she was in eighth month of her pregnancy. Mrs.Charanpreet Kaur expressed her desire to avail the facilities of Nursing Home for delivery of the child, which was expected around 2.1.2006. After CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 3 }:
necessary advice for intake of iron and calcium, she was told to approach the Nursing Home in case of any problem. She was also advised to consult a Cardiologist as she was having problem of breathlessness. Dr.Pawal Kansal was the Cardiologist recommended for consultation.
Mrs.Charanpreet Kaur again visited the Nursing Home on 10.11.2005. She was going to deliver a second child but as per the averments, had not disclosed or shared any problem, if any, she would have faced during the first delivery. As per the petitioners, they later learnt that the earlier child of the patient was an autostic child, which is a genetic disorder of nervous system. She also carried history of abortion of one earlier pregnancy. Subsequently, she came for check up on 29.11.2005 and 9.12.2005. On the last referred date, she told petitioner No.2 that she had consulted Dr.Suneet, Cardiologist, as Dr.Pawal Kansal was not available. As per the petitioners, everything was found normal during the check up. Patient again visited the Nursing Home on 16.12.2005, was given a routine check up and advised to continue with the earlier medicine.
On 19.12.2005, Mr.Charanpreet Kaur was brought to the Nursing Home with history of pain. On examination, it was found to be non-labour pain. Some course was recommended, which was not accepted by the family of the patient and she was taken away from the Nursing Home after half an hour stay. She was again brought back to the Nursing Home on 21.12.2005 with continued history of pain. This was again diagnosed to be non-labour pain. At that stage, petitioner No.2 suggested two alternatives either to suppress the pain or to induce labour pain through medication as the fetus was mature.
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It was in this background that the procedure for inducing labour pain was started around 12 O'Clock on 21.12.2005.
There is no need to mention in detail the action taken by the petitioners. However, the patient delivered a baby boy at 2.40 A.M. Petitioner No.2 states to have remained throughout with the patient. The baby did not cry but gasped. The baby was handed over to Pediatrician for resuscitation. The details of the efforts made thereafter are mentioned in the petition but despite this the baby failed to revive and was declared dead at 3.10 A.M. Mother was not informed about the death but mother-in-law and other relatives were so told about it. They were also advised to get the autopsy done to find out the cause of death, but they refused.
Detailed mention has also been made to the treatment given to the mother and child. It is also disclosed that two more doctors were contacted and were requested to reach the operation theatre considering the complication as the patient was found to be excessively bleeding. The relatives were asked to arrange blood. Dr.Umesh Jindal, Sr. Gynecologist and Dr.N.S.Sandhu reached the Nursing Home at 4 A.M. They both conducted the necessary examination. When it was found by all the doctors that the patient was suffering from Uterine Interia PPH, it was decided to refer her to P.G.I for Uterine Artery Embolization. The patient was accordingly shifted with running blood transfusion. She was accompanied by the Staff Nurses of the Nursing Home. Despite best efforts, she could not be revived and breathed her last. Dr.Parmod Kumar, who was on duty at P.G.I., has recorded a note reading "patient brought dead to S.L.R ....... patient's attendance and husband not willing for autopsy.
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We do not want the case to be made medico-legal."
On 22.12.2005, Manmeet Singh Mattewal, respondent No.2 and husband of the deceased lady, gave a written complaint to SSP Chandigarh and S.H.O., Police Station, Sector 19, Chandigarh, alleging negligent treatment by the petitioners, which led to loss of two precious lives. The copy of the complaint is annexed as Annexure P-3. The police accordingly got into motion and took custody of the original medical record from the Nursing Home. Petitioner No.2 gave a detailed reply to the complaint and submitted the same to the office of S.S.P., Chandigarh. Copy of the same is at Annexure P-4. The police accordingly initiated enquiry in regard to the medical treatment given to the deceased. A team of four doctors, namely, Dr.Rupinder Kaur, S.M.O., Dr.Vidhu Bhasin, S.M.O., Dr.N.K.Kaushal, S.M.O and Dr.Satinder Wadia, S.M.O., was constituted. This Board came to a conclusion that the patient had died because of severe atonic PPH which did not respond to the treatment given at the Nursing Home. The treatment given was found as recommended. The relevant extract of the finding ruling out the possibility of any gross negligence on the part of the petitioners is as under:-
"Baby had severe birth asphyxia. As mentioned in the records "male baby born at 2.39 A.M. On 22.12.05 with no respiration, Heart-occasional heart beat APGAR-0/10. Resuscitation done in form of endotracheal intubation, assisted ventilation and Adrenalin in 1:10 given through the endotracheal tube but baby could not be revived." If there was occasional heart beat than APGAR has to be CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 6 }:
1/10. In my view this therapy given to the baby in form of intubation, cardiac massage and endotracbheal Adrenalin are the standard procedures for the treatment of severely birth asphyxia is indeterminate, it could have been due to events occurring in intrapartum period or there could have been other etiology which cannot be commented upon in the absence of autopsy-which was not done.
It is concluded that the patient has died because of severe atonic PPH which did not respond to the treatment given at Nursing Home. The treatment given for atonic PPH was as recommended. Blood is not arranged before hand for normal deliveries. The patient went into shock at 3.45 AM as per the record as the BP was 80/P and pulse was 96 per minute (Tachycardia). Blood samples sent for cross matching at 3.15 AM and blood was brought from Rotary and Blood Bank Society Resource Centre, Dakshin Marg, Sec.37, Chandigarh. The last BP recorded at time of referral 4.20 AM was 70/P and pulse 98 per minute. The Blood was started at 4.15 AM on both sides and referred to PGI at 4.45 AM."
Not satisfied with the above finding, the complainant approached the authorities and prayed for getting expert medical report. Secretary, Medical Education and Research, Chandigarh, constituted a Board of Professors to look into the complaint of respondent No.2. The Board headed by Dr.Harsh Mohan, Medical Superintendent-cum-Chairman, GMCH, Chandigarh, was constituted with the following Members:-
CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 7 }:
"1. Prof Veena Parmar, Member, Head, Deptt. Of Pediatrics.
2. Prof. K.K.Gomar, Head Deptt. Of Anesthesia, Member.
3. Prof. Anju Huria, Head, Deptt. Of Gynae, Member.
4. Prof. A.K.Attri, Head, Department of Surgery, Member." This Board submitted its detailed report on 20.3.2006 and recorded the following conclusion:-
"Conclusion No.1- From the above notes and sequence, it emerges that the baby had severe birth asphyxia with APGAR score of 1/10. The resuscitation measures taken by attending pediatrician are according to standard protocol/guidelines and were carried out for sufficient time as per recommendations. (Reference: International Guidelines for Neonatal Resuscitation, 2000. An excerpt from the Guidelines 2000 for Cardio-pulmonary Resuscitation and Emergency Cardiovascular Care:
International Consensus on Science. Pediatrics 2000; 106:29).
The cause of death of baby is severe birth asphyxia and resuscitation failure. The cause of severe birth asphyxia cannot be determined without autopsy of the baby. Conclusion No.2:- From the above sequence of events, it appears that this patient had atonic PPH which was managed conservatively but without success...PPH is a known complication of delivery and accounts for 8% of maternal mortality in developed countries.
As such, it cannot be said with certainty from the records CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 8 }:
whether this patient had anemia at term or hypotension and shock before delivery or not. However, in the presence of either or both of these conditions, atonic PPH is more likely to be worse and catastrophic."
Yet another Board was constituted by Home Secretary- cum-Secretary, Medical Education, consisting of seven Members with Chairman. This seven Members Board again gave a report that there is no diversion in the conclusion drawn from both the reports of the Experts at General Hospital, Sector 16 and Board of Doctors of G.M.C.H., Sector 32, Chandigarh. Copy of this report is at Annexure P-7.
This could have brought this controversy to a fair end once report after report given by the doctors in sufficient number ruled out gross negligence but the matter was still not closed. S.S.P., Chandigarh, without much purpose, wrote another letter dated 15.6.2006 and another Committee of doctors was constituted under the Chairmanship of Director, Health, Chandigarh. The Committee consisted of the following doctors:-
"1. Dr.Manjit Singh Bains, Chairman, Director Health Services, General Hospital, Sector 16, Chandigarh.
2. Dr.Usha Bishnoi, Medical Superintendent, General Hospital, Sector 16, Chandigarh- Member.
3. Prof.Harsh Mohan, Medical Superintendent, GMCH-32, Chd., Member.
4. Prof. K.K.Gomar, Head Deptt. Of Anesthesia, Member.
5. Prof Veena Parmar, Member, Head, Deptt. Of Pediatrics.
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6. Prof. Anju Huria, Head, Deptt. Of Gynae, Member.
7. Prof. A.K.Attri, Head, Department of Surgery, Member."
Yet again, this Committee came to form an opinion that it was not a case of any gross medical negligence in management of the said patient by the treating doctors. It will be relevant to reproduce the relevant portion of the opinion of this Board, which is as under:-
"The committee deliberated on the issue addressed in the above-mentioned letter of SSP Chandigarh took into consideration the record of deceased mother and child provided by the Police Department earlier. The Committee also discussed the inquiry reports submitted previously by the team of doctors from General Hospital, Chandigarh, and team of experts from the Govt. Medical College, Sector 32, Chandigarh.
Taking into consideration the above-mentioned medical records and inquiry reports, the Committee is of opinion that there does not appear to be any gross medical negligence in the management of patients by treating doctors."
Thus, no criminal case was made out to proceed against the petitioners. It may be essential to notice here that in Jacob Mathew's case (supra), the Supreme Court has issued certain guidelines for criminal prosecution of doctors pending issuance of such guidelines for future, if any, by the Central or the State Government, which may govern the prosecution of doctor for offences for criminal rashness or criminal negligence. It is CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 10 }:
accordingly urged that a private complaint may not be entertained unless the complainant produced prima-facie evidence before the Court in the form of credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of accused doctor. The Court also held that 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 the bolam test to the facts collected in the investigation. That being the standard set down by the Hon'ble Supreme Court to prosecute a doctor for a charge of criminal negligence and criminal rashness, it would be hard to notice that the police went ahead to register the first information report and that too after an expiry of a period of more than 1 year from the date this complaint was first made.
In between, the complainant Manmeet Singh Mattewal also approached the State Consumer Disputes Redressal Commission under the Consumer Protection Act, seeking claim for Rs.95 lacs as compensation. The State Commission ordered compensation of Rs.20,26,000/- to be paid by the Nursing Home and petitioner No.2 against which, the petitioners had filed an appeal before the National Consumer Disputes Redressal Commission and operation of the order has been stayed.
Still, another complaint was made on 10.2.2007, alleging gross medical negligence, which was enquired into by S.I Udey Pal Singh, who while ignoring the opinion of various Board of Doctors, CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 11 }:
ruling out the possibility of any negligence, registered an FIR on 1.3.2007 under Sections 304-A, 193 and 34 IPC. This FIR is alleged to be an example of malicious prosecution, which was registered with a delay of more than one year without any justification.
The petitioners would urge that while recording this FIR, the law laid down in the case of Jacob Mathew (supra) was completely ignored and no regard was given to the opinion by four different Medical Boards constituted at different stages, who gave consistent opinion, ruling out the possibility of any gross negligence on the part of the petitioners to allow their criminal prosecution. Rather, the allegations in the FIR totally run contrary to the medical opinion and is based on the view and apprehension expressed by a complainant who was a lay man and not expert in the medical field. The learned counsel for the petitioners, however, would draw my attention to a representation given by Indian Medical Association, copy of which is at Annexure P-19, where it was urged that the Association was shocked to see a clear travesty of justice and the process of law being misused to please influential parties. I think because of some fear, only, the IMA has not dared to name the influential party. The petitioners have filed this petition to quash this FIR on various grounds, primarily on the ground that no case of criminal negligence would be made out unless the requirement laid down by the Hon'ble Supreme Court was satisfied.
Notice of the petition was issued.
Initially, the complainant was not impleaded as a party respondent. However, in an application for impleading Manmeet Singh Mattewal, husband of the deceased, was ordered to be CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 12 }:
impleaded as respondent No.2 on 14.1.2008. Reply on behalf of respondent No.1 was filed on 6.11.2008. It is prayed in the reply that investigation be not stifled. This Court directed the respondent-State to indicate its specific stand. Respondent No.2, however, prayed for some more time to file reply. Reply on behalf of respondent No.2 was ultimately filed on 12.8.2009. On 22.10.2009, the case was again adjourned with a direction to the Union Territory to indicate its specific stand either way. On 25.11.2009, counsel for the Union Territory on instructions from S.I. Sucha Singh stated that legal opinion was to be given by D.D.A, Legal and thereafter action would be taken by the prosecution. The S.H.O. And D.D.A (Legal) were directed to be present on the next date of hearing. They both came present on 30.11.2009 and made a statement that the State wants to present a challan and prosecute the petitioners as during investigation gross negligence was found to have been made out against the petitioner. Challan was presented accordingly. The case for quashing has, thus, been heard.
In reply filed on behalf of U.T. by S.H.O., Police Station, Sector 19, Chandigarh, it is stated that offence under Section 304-A, 193 and 34 IPC is made out from the evidence collected. Primarily, it is only on the basis of allegation made in the FIR that the aspect of negligence has been appreciated and alleged against the petitioner.
Reference is made to the case law to say that while exercising power under Section 482 Cr.P.C., the Court does not function as a court of appeal or revision and this jurisdiction has to be exercised sparingly, carefully, with caution and only when such exercise is justified. It is, thus, urged that inherent powers in this case should not be exercised CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 13 }:
to stifle a legitimate prosecution when the matter is being investigated and the agency is busy in collecting incriminating evidence.
While replying on merit, the factual aspects are not put to much dispute. The enquiry reports that were prepared by various Boards are not denied. It is simply stated that sufficient incriminating evidence has been collected against the petitioners to show that they had committed an offence under Section 304-A etc. In a separate reply filed by respondent No.2, almost identical stand is taken by making reference to the detailed facts as narrated in the first information report. Even respondent No.2 has also not in any manner denied that various Boards were constituted and they had prepared various enquiry reports, which have been referred to and relied upon in the petition. Still, it is stated that the causing of death due to negligence is made out and accordingly provisions of the offence as alleged against the petitioners would be attracted.
There would not be much need to go over the legal position to see the standard needed to direct prosecution of doctors for criminal negligence as this has been fully settled by Hon'ble Supreme Court in Jacob Mathew's case (supra). This Court had an occasion to consider the same question of law while deciding Criminal Misc. No.63512 M of 2005(Dr.Neera Garg Vs. State of Haryana and another) on 10.1.2007. It is observed in this case that the issue has elaborately been considered and adjudicated by the Hon'ble Supreme Court in Jacob Mathew's case (supra), and, thus, would not require any detail analysis of law. What is, thus, required CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 14 }:
to be seen is whether the law laid down by the Supreme Court would rescue the present doctors, petitioners, from criminal liability. This was the precise submission made by Mr.R.S.Cheema, learned Senior counsel to say that case of criminal negligence is not made out as per the standard laid down in Jacob Mathew's case (supra). Detailed reference is made to this judgment to say that it is to regulate now the legal aspect relating to negligence on the part of the doctors to attract provisions of Section 304-A IPC.
Before going into the factual position, let us first notice as to what is negligence or rashness and when it would be criminal negligence etc. to charge doctors. Negligence in law in ordinary case which does not involve any specific skill, as observed by Lord Justice McNair in celebrated case of Bolam Vs. Frien Hospital Management committee, (1957) 1 WLR 582 : (1957) 2 All ER 118, means:-
"Some failure to do some act which a reasonable 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."
Lord Justice went on to observe:-
"How do you test whether this act or failure is negligent? 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 one 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 CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 15 }:
situation which involves the use of some special skill or competent, then the test whether there has been negligence or not is not the test of the man on the top of a Claphm omnibus, because he has not got this man exercising and professing 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 her exercises the ordinary skill of an ordinary competent man exercising that particular Art." Negligence, in Halsbury's law of England on the part of doctor owing duty to patient is defined as:-
"A person who holds himself out as ready to give medical
(a) advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case: a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment (b) A breach of any of these duties will support an action for negligence by the patient(c)."
Thus, a different standard of negligence in an ordinary sense and that in case of involving special skill is maintained.
The famous Bolam test, as noted above, has constantly been applied in England and other countries, including our Country. In Whitehouse V. Jordon and Anr., (1981) 1 All ER 267, House of Lords said:-
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""[W]here 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 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."
Hon'ble Supreme Court also relied upon Bolam test in State of Haryana Vs. Smt.Santra, (2000) 5 SCC 182. In Poonam Verma Vs. Ashwin Patel and Ors., (1996) 4 SCC 332, negligence was observed to be having many manifestations. It may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, willful or reckless negligence or negligence per se.
Negligence per se, as per Dictionary meaning is:-
"Conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of a statute or valid Municipal Ordinance, or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 17 }:
violation of a public duty, enjoined by law for the protection of person or property, so constitutes."
Lord Justice Denning in Roe and Woolley Vs. Minister of Health, (1954) 2 QB 66, very aptly noted that:-
"It is easy to be wise after the event and to condemn as negligence that which was only a misadventure. We ought to be on our guard against it, especially in cases against hospitals and doctors. Medical science has conferred great benefits on mankind but these benefits are attended by unavoidable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking the risks. Every advance in technique is also attended by risks. Doctors, like the rest of us, have to learn by experience; and experience often teaches in a hard way."
It may be noticed that Jacob Mathew's case (supra) was referred to a Larger Bench doubting the earlier view expressed in the case of Dr.Suresh Gupta Vs. Govt. of N.C.T. of Delhi and another, 2004 (3) RCR (Criminal) 925. In Dr.Suresh Gupta's case (supra), the Court had held that "for this act of negligence he may be liable in tort but his carelessness or want of due attention and skill cannot be described to be so reckless or grossly negligent as to make him criminally liable." The referring Bench had, thus, observed that "negligence or recklessness being gross is not a requirement of Section 304A and in case Dr.Suresh Gupta's case (supra) is allowed to rule the field, then word "gross" shall have to be read in Section 304A IPC for fixing criminal liability, an approach, which cannot be CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 18 }:
countenanced. The Reference Bench also observed that different standards for judging the criminal negligence or recklessness could not be applied to doctors and others and if it is so done, it will amount to doing violence to the plain and unambiguous language of Section 304A. It is in this context that the Hon'ble Supreme Court in Jacob Mathew's case (supra) took up the issues and has now finally settled the same, approving the view taken in Dr.Suresh Gupta's case (supra). The Court has referred to the requirement of judging negligence as a tort and then noticed the distinction between the negligence as a tort and as a crime. It is observed that to fasten liability in criminal law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in civil law.
Reference in this regard is also made to the case of R. Vs. Lawrence, 1982 AC 510, where Lord Diplock spoke, reiterating his opinion in R. Vs. Caldwell, 1982 AC 341, and dealt with the concept of recklessness as constituting mens rea in criminal law. The observations are:-
"Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the Section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 19 }:
act is acting `recklessly' if, before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognised that there was such risk, he nevertheless goes on to do it."
Simple lack of care- such as will constitute civil liability is not enough; for purposes of the criminal law, there are degrees of negligence; and a very high degree of negligence is required to be proved before the felony is established. {See Andrews Vs. Director of Public Prosecutions, (1937) AC 576}. Clear distinction is, thus, noted to exist in simple lack of care incurring civil liability and very high degree of negligence, which is required in criminal cases.
Hon'ble Supreme Court has also examined the aspect in detail and drew distinction between the civil and criminal liability in this regard. It is observed that in order to hold the existence of criminal rashness or criminal negligence, it shall have to be found out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The judgment of Riddell Vs. Reid, 1942 (2) All ER 161 was noticed to say that there is a clear distinction between "simple lack of care" incurring civil liability and "very high degree of negligence" which would be required in criminal cases. It was accordingly opined that the factor of grossness or degree does assume significance while drawing distinction in negligence actionable in tort and negligence punishable as a crime. It was further held that to be punishable as a crime, the negligence has to be gross or of a very high degree.
Having so determined, the Supreme Court also went into CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 20 }:
the question of negligence by professionals.
It was noticed that Bolam test has continued to be well received by every shore it has touched as neat, clean and a well- condensed one, which has been widely accepted as decisive of the standard of care required by professional before the courts in India as well. This can be so made out from the following observations:-
"24. The classical statement of law in Bolam 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 the courts in India and applied as a touchstone to 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."
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It is also observed that mere deviation from normal profession practice would not be necessarily an evidence of negligence. An error of judgment on the part of a professional can not be termed as negligence per se. It is also observed that higher the acuteness and emergency and higher the complication, more are chance of error of judgment. As per the Hon'ble Supreme Court, so long as it can be found that a procedure which was in fact adopted was one which was acceptable to medical science as on that day, the medical practitioner can not be held negligence merely because he chose to follow one procedure and not another and the result was a failure.
The predicament that the Medical Practitioner generally faces is also noted by the Hon'ble Supreme Court and it is observed as under:-
"28. 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.
29.If the hands be trembling with the dangling fear of facing a criminal prosecution in the event of failure for CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 22 }:
whatever reason- whether attributable to himself or not, neither can a surgeon successfully wield his life-saving scalpel to perform an essential surgery, nor can a physician successfully administer the life-saving dose of medicine. Discretion being the better part of valour, a medical professional would feel better advised to leave a terminal patient to his own fate in the case of emergency where the chance of success may be 10% (or so) rather than taking the risk of making a last ditch effort towards saving the subject and facing a criminal prosecution if his effort fails. Such timidity forced upon a doctor would be a disservice to society."
On somewhat similar lines was the view of Justice Denning in Roi and Woolley's case (supra), when he said:-
"But we should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more of their own safety than of the good of their patients. Initiative would be stifled and confidence shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure."
Bolam test was again applied by Hon'ble Supreme Court in a recent judgment in Kusum Sharma and others Vs. Batra Hospital and Medical Research Centre and Others, (Civil Appeal CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 23 }:
No.1385 of 2001, decided on 10.2.2010). It would emerge from all this that it is well established law that it is sufficient if a person exercise the ordinary skill of an ordinary competent man exercising that particular Article and a man need not possess the highest expert skill. The Bolam test has been summerised to say that professional man should command a knowledge of ordinary member of his profession. The standard is that of reasonable average professional and law does not require of a professional man that he be a paragon combining, the qualities of poly math and prophet (Charles Worth & Percy).
Halsbury Laws of England talks about degree of skill and care by a Medial practitioner in the following terms:-
"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."
After carrying out review of number of decisions regarding criminal negligence and so also of medical professional in criminal CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 24 }:
law, the Hon'ble Supreme Court finally summed up its conclusion as follows:-
" 48. We sum up our conclusion 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 & 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 the 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 CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 25 }:
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 CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 26 }:
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 case. WLR at p.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 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 act" as to be "gross". The expression "rash or negligent act" as occurring in Section 304-A IPC has to be read as qualified by the word "grossly".
CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 27 }:
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 determing 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."
The Hon'ble Supreme Court also noticed that there is an increase of doctors being subjected to criminal prosecution and that sometime such prosecutions are filed by private complainants, who can not always be supposed to have knowledge of medical science and it leads to serious embarrassment and harassment. Such a professional when proceeded against, has to seek bail to escape arrest. It is also observed that in the end, he may be exonerated but the loss he has suffered to his reputation is not open to be compensated by any standards. The Supreme Court therefore, CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 28 }:
advocated for framing statutory rules or executive instructions incorporating certain guidelines by the Government of India or the State Government in consultation with Medical Council of India. This can be so noticed from the following observations in Jacob Mathew's case (supra):-
"51. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasise the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefer recourse to criminal process as a tool for pressurising the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.
52.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 CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 29 }:
practice who can normally be expected to give an impartial and unbiased opinion applying the Bolam 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 investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld."
The ratio that would emerge from various judgments noticed above to judge criminal negligence or rashness noticed in brief can be summed up to say that a different standard of negligence in ordinary sense and that in cases of involving special skill is required to be maintained. To judge the negligence, test of a ordinary man is not essential as he would not have any special skill and test is the standard of a ordinary skilled man exercising and professing to have that special skill. While testing the criminal negligence on the part of professionals like doctors, one has to appreciate that it is easy to be wise after the event and that every surgical operation would involve various risks, which are unavoidable. It has also been viewed that for act of negligence one may be liable in tort and for criminal negligence carelessness or want of due attention has to be so reckless or gross to make one criminally liable. In other words, a simple lack of care will constitute civil liability, which is not enough for the purpose of criminal liability. The view of the Courts has also been that any unfair intervention to charge a doctor with criminal liability may amount to doing disservice CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 30 }:
to the community at large. If doctors are to be made answerable in routine, they would think more for their own safety than good of their patients. It was rightly observed that one must insist on due care for the patient at every point but must not condemn as negligence, which is only a misadventure. It would be rather unsafe to have a doctor, who would be timid in treating a patient fearing that he may be held criminally liable in case of any misadventure. The test to judge negligence has also to be of a skilled person and not by a man who, as aptly put, is one on the top of `clapham omnibus'. These then would be the parameters to test whether the petitioners could be held criminally liable in this case.
The Supreme Court itself has gone ahead to provide certain guidelines for future till the Governments frame such guidelines, which are to govern the prosecution of the doctors for offences of which criminal rashness and criminal negligence are the ingredients. It is held that 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. Investigating Officer, before proceeding against a doctor, has to obtain a complete independent opinion of doctor in Government service. Thus, Investigating Officer was under an obligation to obtain an independent and a competent medical opinion preferably from a doctor in Government service before proceeding against doctor-petitioners for rash or negligent act or omission. The opinion is also to be obtained from a doctor who is impartial and unbiased. This was legally essential need before the CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 31 }:
FIR in this case could be registered against the petitioners or atleast before the challan was presented against them. This mandate is clearly violated.
Once the Hon'ble Supreme Court has laid down guidelines for launching criminal prosecution against a doctor for negligence in Jacob Mathew's case (supra), these are required to be followed as a mandate and law. Investigating agency acting contrary to these guidelines may invite accusation for contempt. It is a law to be followed.
Investigating agency was conscious of this requirement and as such, more than one attempt was made by the police to obtain the opinion of not one but number of doctors by constituting five different Boards. Still none of Boards viewed that this was a case where criminal negligence or rashness could be made out. Detailed reference is made to the opinion expressed by various Boards constituted from time to time and all taking an identical view that there was no criminal rashness or negligence seen in this case. What was then the basis for the investigating agency to either register FIR and then to present a challan. It was to ascertain this act on the part of investigating agency that the State counsel was asked to have instructions if the investigating agency would wish to comply with the mandate. Even liberty was given to the State to still have an opinion of some expert to show that this could be a case of criminal negligence or rashness to justify the presentation of the challan. What emerged is nothing but another set back for the prosecution. It transpires that during the pendency of this case, matter was again referred to another Board, which again gave the same opinion that CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 32 }: no case of criminal negligence or rashness was made out.
It is, thus, clear that the standard as laid down by the Hon'ble Supreme Court to prosecute a doctor for criminal negligence and rashness is certainly not made out in this case. Still, the investigation agency has insisted on presentation of challan, violating the mandate of law laid down by the Hon'ble Supreme Court. This is bagging an explanation. It is not a case where the investigating agency is not conscious of the requirement of law. It has not been urged before me that the directions issued by the Supreme Court are not to be followed or can be violated.
Only explanation, thus, is that as per the allegation, even the FIR was also registered due to the pressure of referred named influential persons in this case. The FIR was registered on the basis of a complaint which was made over a year prior to registration of the FIR. The FIR is closely related to the formation of change in Government in the State of Punjab. The officer, working as Senior Superintendent of Police in Union Territory, Chandigarh is stated to be from Punjab Cadre and it is urged that the FIR was registered due to influence of relative of the complainant, who came to occupy a high position in the State of Punjab after change of Government in the year 2007. If this apprehension/allegation has some substance, then it will reflect very poorly on the functioning of the police.
Influence by person holding influential position is at play. Police apparently is seen abdicating its duty to act independently. Police must realise that biased investigation leads to violation of constitutionally guaranteed right of a citizen. Despite four reports by different Medical Boards ruling out negligence or rashness to attract CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 33 }: offence against the petitioners, the police for some undisclosed reasons made yet another effort to get favourable opinion, by getting another Medical Board constituted. What for and where was this need? What was wrong with opinion of earlier four Boards? In fact, where was the need, at the first instance, to constitute one Board after another unless it was being done on account of any unfair and uncalled for influence over the police administration. It can be said to credit of medicos that they have not succumbed to the influence of powerful functionaries. Police appears to have made yet another efforts to oblige the power that be. Having failed in earlier attempt, police sought another opinion from Board in 2009. There is no justification forthcoming as to why this was needed and so also regarding earlier attempts one after another. This could not be but for influence exerted by the identifiable authority yielding influential position. This Board constituted pursuant to request dated 2.7.2009 again reiterated the earlier opinion on 29.8.2009 that there is no gross medical negligence in the management of the said patient. This opinion, which was placed before me during the course of arguments, is by Dr.A.K.Attri, Dr.Satinder Gombar, Dr.Anju Huria and Dr.Suksham Jain. If this Board had opined in any different manner, the police would have not only booked the petitioners well and proper but would have also obliged influential authority exerting influence over police. The bias on the part of police would be further seen from the fact that this report is not made part of challan. Police is, thus, not seen in good light.
The police and the police officers need to be reminded of their responsibility to act independently without any influence, be it CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 34 }: political or any other highly officials. They must know that "be you even so high, the law is above you". The holder of the public offices are entrusted with certain powers to be exercised in public interest alone and, therefore, the office is held by them in trust for the people. Any deviation from the path of rectitude by any of them amounts to breach of trust and has to be severely dealt with instead of being pushed under the carpet. Police is duty bound to conduct a fair honest and expeditious investigation into every reasonable accusations against each and every person reasonably suspected of involvement in offences and, this has to be made strictly in accordance with law. { See Union of India Vs. Sushil Kumar Modi, 1997 (4) SCC 770}.
One may recollect here the caution administered by Lord.Denning in regard to the duty of the Commissioner Police. In R. V. Metropolitan Police Commr., (1968) (1) All. ER 763, it is observed as under:-
"I have no hesitation, however, in holding that, like every constable in the land, he should be, and is, independent of the executive. He is not subject to the orders of the Secretary of State,..... I hold it to be the duty of the commissioner of Police, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought; but in all these things he is not the CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 35 }:
servant of anyone, save of the law itself. No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone."
The duty on the part of the police to act as per law can not be put in any better manner than the wise words of Lord Denning. The S.S.P, Police, who apparently has acted on the dictates of the highly placed authority is required to acquaint himself of his duties as police officer to act independently and not to get influenced by any person, howsoever high he may be. The police officer need to be apprised that misfeasance i.e. Deliberate excess of authority by a crown servant will normally be outside the course of his employment. (See Weldon Vs. Home Office [1992] 1 AC 58. Any motivated action may make the officer responsible for malicious prosecution.
No expert opinion support the allegation of criminal rashness or negligence on the part of the petitioners. Not only that the opinion of various Boards constituted rule out the possibility of any criminal negligence or rashness but even the doctors who were summoned during the treatment of the patient concerned have said so in their affidavits which are also placed on record. Dr.N.S.Sandhu, Dr.(Mrs.)Umesh Jindal, Dr.R.P.Bansal, Dr.(Mrs.) Kamna Nagpal, Dr.Parduman Singh, Prof.S.K.Khanna and Dr.J.S.Gujral have given affidavits to say what all they did when called, showing that everything possible from the standard of ordinary CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 36 }: skill and rather more then that was done. The registration of FIR in the manner it has come about and the filing of challan in this case does not appear to be an independent act of the police and apparently is actuated due to influence as noted and, thus, is an abuse of power. FIR has been registered on the basis of view of ordinary man referred to as man in Clapham omnibus. The FIR and the subsequent proceedings initiated against the petitioners, thus, apparently is nothing but an abuse of process of Court. The case for exercise of inherent jurisdiction under Section 482 Cr.P.C., thus, is made out. The investigating agency is bound to realise that there is a clear distinction between criminal rashness and negligence and rashness and negligence to invoke civil liability. The different standards in this regard have also been noted above while referring to various cases, including, Jacob Mathew's case (supra) and accordingly, the finding of the Consumer Forum, which in any event has been stayed, would be of no help in this regard.
Let copy of this order be sent to the Home Secretary, Union Territory, Chandigarh and so also to the Inspector General of Police and matter be placed before the Administrator of Union Territory to see if the police officers have acted in an unfair manner under the influence of any person, as alleged.
Accordingly, the petition is allowed. The FIR and all subsequent proceedings are hereby quashed.
February 3, 2010 ( RANJIT SINGH ) khurmi JUDGE