Jharkhand High Court
Dr. Om Prakash Anand vs The State Of Jharkhand on 20 July, 2022
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1 Cr.M.P. No. 1914 of 2021
IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No. 1914 of 2021
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Dr. Om Prakash Anand, aged 44 years, son of Sri Yogendra Prasad, resident of Vill.Gayatri Bhawan, Adityapur-2, PO Adityapur, PS R.I.T., District Seraikella, PIN-831013, Jharkhand ..... Petitioner
-- Versus --
1.The State of Jharkhand
2.Jyotsna Jha, daughter of late Sunil Kumar Jha, resident of H.N.20, Rain Basera Colony, PO and PS Adityapur, Dist-Seraikella KLharswan ...... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner :- Ms. Pinky Anand, Sr. Advocate Mr. Rajesh Ranjan, Advocate Mr. Nilesh Kumar, Advocate Ms. Alka Kumari, Advocate Miss Sonal Sodhani, Advocate For the State :- Mr. Suraj Verma, Advocate
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5/20.07.2022 Heard Ms. Pinky Anand, the learned Senior counsel assisted by Mr. Rajesh Ranjan, the learned counsel for the petitioner and Mr. Suraj Verma, the learned counsel appearing on behalf of the respondent State.
Ms. Pinky Anand, the learned counsel appearing on behalf of the petitioner had concluded her argument yesterday and the matter adjourned to be put up today for argument of Mr. Suraj Verma, the learned counsel appearing on behalf of the respondent State.
Today Mr. Suraj Verma, the learned counsel appearing for the respondent State has completed his argument and the same has been replied by Mr. Rajesh Ranjan, the learned counsel appearing on behalf of the petitioner.
This petition has been filed for quashing the entire criminal proceeding including order taking cognizance dated 2 Cr.M.P. No. 1914 of 2021 22.07.2021 by which cognizance has been taken for the offence under sections 420, 304, 386, 354(C), 120B/34 I.P.C in connection with R.I.T. P.S. Case No.71/2021, corresponding to G.R.Case No.606/2021, pending in the court of learned Chief Judicial Magistrate, at Seraikella.
On the written report dated 21.05.2021 of Jyotsna Jha, who is informant, the F.I.R was registered alleging therein that she admitted her father in the 111 Save Life Hospital on 26.4.2021. At the time of admission some amount was paid by her but her father was not properly treated. Even on 29.04.2021 condition of her father deteriorated. He was put on ventilator. The reason was also not disclosed to her. On 01.05.2021 she further alleged that her father felt well but again the mode of the ventilator was changed. On her request again the mode was changed, at about 10.35 P.M. her brother had disclosed that oxygen level of her father came down to level 30. She has further been informed that ventilator was removed by the ward boy and oxygen level of her father reduced to level 8 and on the same day her father died. It has been informed to the informant or her family members with 95% lungs was damaged. She further alleged that no proper treatment was provided to her father though on several dates she deposited other amounts i.e. Rs.35,000/-, Rs.60,000/- and Rs.5,000/- respectively. It has been stated that the accused persons named in the first information report took money from her i.e. on pressure. Accordingly she prayed to lodge the case.
Ms. Pinky Anand, the learned Senior counsel appearing on behalf of the petitioner submitted that the case is arising out of a medical treatment provided to the father of the 3 Cr.M.P. No. 1914 of 2021 informant and in absence of any preliminary enquiry the F.I.R has been registered which is against the mandate of law of Hon'ble Supreme Court in the case of Lalita Kumari v. Govt. of U.P., (2014) 2 SCC 1. She submitted that father of the informant was admitted on 26.04.2021 and he left for his heavenly abode on 01.05.2021 and this fact has been disclosed in the F.I.R. She further submitted that this petitioner who is a practicing doctor is being harassed by the administration as he has raised certain voice against the functioning of the Government Health Department in the State of Jharkhand. She submitted that this petitioner has been implicated in four cases. She submitted that even after institution of two cases i.e. R.I.T. P.S.Case No.68/2021 and the present case i.e. R.I.T. P.S.Case 17/2021 and R.I.T. P.S.Case No.129/2021 have been instituted against this petitioner. She submitted that all these happened only when the petitioner has raised voice against the medical department of Government of Jharkhand. She further submitted that the case in hand, the death occurred due to cardiac arrest and infection in the lungs and certificate to that has been issued by the hospital, the cremation was also done on 01.05.2021 without any protest. Since it was the natural death, when there were no protest the question of the post mortem did not arise and the cremation was allowed to be done by the O.P.no.2. She submitted that father of the petitioner has also been infected with covid-19. She took the Court to the contents of the F.I.R and submitted that it was in the knowledge of the informant that oxygen level of her father was fluctuating and her father was put on ventilator and inspite of best efforts, the team of doctors have not be able to save the life of her father and death occurred after five days of treatment. She submitted 4 Cr.M.P. No. 1914 of 2021 that after 21 days of cremation the said FIR has been lodged which is an afterthought or may be at the instigation of somebody. She submitted that even without any 41A Cr.P.C notice in the case in hand the petitioner was put behind bars and remained in jail custody for more than four months. She further submitted that in a case of medical negligence the preliminary enquiry with regard to said negligence is a must as has been held by the Hon'ble Supreme Court in the case of "Jacob Mathew v. State of Punjab" reported in (2005) 6 SCC 1. Paragraph nos. 48, 49, 50, 51 and 52 of the said judgment are quoted hereinbelow:
"48. 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 & 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 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 5 Cr.M.P. No. 1914 of 2021 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 case, 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 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 occurring in Section 304-A 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 6 Cr.M.P. No. 1914 of 2021 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.
49. 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 case and reaffirm 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 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 case1 (noted vide para 27 of the Report).
Guidelines -- Re: prosecuting medical professionals
50. 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 the 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 a rash or negligent act within the domain of criminal law under Section 304-A 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 to his reputation cannot be compensated by any standards.
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 7 Cr.M.P. No. 1914 of 2021 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 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."
Relying on this judgment, it is submitted that in a case of medical negligence competent medical opinion with regard to the negligent act or omission by an independent doctor is necessary as has been held by the Hon'ble Supreme Court in the case of "Jacob Mathew v. State of Punjab"(supra) at paragraph no.52 of the said judgment. She further submitted that this judgment has been followed in series of judgments by the different High Courts including the Jharkhand High Court and she referred the judgment of Bombay High Court(Nagpur Bench) in the case of Bhushan v. State of Maharashtra and Ors, 8 Cr.M.P. No. 1914 of 2021 MANU/MH/0777/2021. She also relied in the judgment of this Court in the case of Biswajith Bandopadyay and Ors v. The State of Jharkhand and Ors, MANU/JH/1662/2019, and she also relied in the case of Martin F.D'Souza v. Mohd. Ishfaq, (2009) 3 SCC 1. Paragraph no.106 of the said judgment is quoted below:
"106. We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer Fora (whether District, State or National) or by the criminal court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or the criminal court should first refer the matter to a competent doctor or committee of doctors, specialised in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the doctor/hospital concerned. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew case, otherwise the policemen will themselves have to face legal action."
Relying on this judgment, and placing the case of the petitioner, she submitted that entire proceeding including the order taking cognizance is bad in law which is required to be quashed by this Court.
Per contra, Mr. Suraj Verma, the learned counsel appearing on behalf of the respondent State took the Court to the order taking cognizance and submits that after perusing the F.I.R., charge sheet, case diary and the entire materials on record the court has taken cognizance. It appears that the informant paid Rs.70,000/- for treatment of her father who was kept at 3rd floor of the hospital. The treatment was not provided properly that has been disclosed in the cognizance order and the prima facie materials are there that is why the learned court has rightly taken cognizance.
9 Cr.M.P. No. 1914 of 2021
Mr. Rajesh Ranjan, the learned counsel appearing on behalf of the petitioner replied to the argument of Mr. Verma, the learned counsel for the respondent State and submits that in the light of paragraph 52 of "Jacob Mathew v. State of Punjab"(supra), the Hon'ble Supreme Court has requested the Central Government to frame some guidelines with regard to medical negligence cases and till for framing of the guidelines directions were issued by the Hon'ble Supreme Court to be followed which is lacking in the case in hand.
On the above submissions of the learned counsel for the parties the Court has gone through the materials on record. Looking to the FIR it appears that the father of the petitioner who was an aged person was being treated in the hospital. In the FIR it has been disclosed itself that the father of the informant was infected with covid-19. In the FIR it has also been disclosed that the oxygen level was being fluctuated which has been brought into the knowledge of the informant by the concerned hospital. It is an admitted position that in five days the treatment was done in the hospital and it has been disclosed that 95% of the lungs was damaged. After death the informant received the body. The certificate was issued by the hospital to the informant and body was cremated and after 21 days the FIR in question was instituted before the police. This was in haste to take action against this petitioner which is apparent from the order dated 21.5.2021 passed by the learned court in another case whereby the prayer for warrant of arrest has been rejected and warrant has not been issued by the concerned court on the ground that section 41A Cr.P.C was not complied with since the warrant has not been issued. This FIR has been instituted on the 10 Cr.M.P. No. 1914 of 2021 same day on 21.05.2021 which shows that how the police was adamant to harass. On 23.05.2021 the FIR in question was produced in the court along with the accused and the court doubted which has been recorded by the concerned court in order dated 24.05.2021 and the Investigating Officer was also show caused by the court. The doctor who was treating the patient in a pandemic has been dragged in four cases. How this case has been lodged is apparent from the order dated 21.05.2021 passed in R.I.T P.S. Case No.68/2021 and on the same day this FIR has been lodged and this FIR dated 21.05.2021 produced to the court along with arrested accused who is the petitioner on 23.05.2021, this fact shows that the prosecution was lodged against the petitioner maliciously. If, the malicious prosecution case is found and proved before the court and the court comes to the conclusion that the prosecution was malicious even the F.I.R can be quashed in light of the judgment of Hon'ble Supreme Court in the case of 'State of Haryana v. Bhajan Lal", 1992 Supp (1) SCC 335. Paragraph no.102 of the said judgment is quoted below:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face 11 Cr.M.P. No. 1914 of 2021 value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
The court can quash the entire proceeding, even the FIR. Summoning the person is a serious thing which has been held by the Hon'ble Supreme Court in the case of 'Pepsi Foods Ltd. v. Special Judicial Magistrate', (1998) 5 SCC 749 in paragraph no.28 of the said judgment as under:
28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The 12 Cr.M.P. No. 1914 of 2021 order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.
The hospital in question was taken over under section 65 of the Disaster Management Act in view of the fact that the hospital was discharging the government duty. From paragraph no.52 of the judgment in the case of "Jacob Mathew v. State of Punjab"(supra), it is crystal clear that 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. It is also clear that the investigating officer should be very cautious in proceeding with the investigation and should strictly follow the directions of the Hon'ble Supreme Court made at paragraph no.52 of the said judgment. The case of Martin F.D'Souza v. Mohd. Ishfaq(supra), the Hon'ble Supreme Court has even held that even in the consumer cases against the doctor notice is not required to be issued at the threshold and only after obtaining the opinion of the expert, notice may be issued for medical negligence against the doctor. The totality of the entire facts and the documents on the record cast shadow on the role of the police.
13 Cr.M.P. No. 1914 of 2021
As a cumulative effect of the above discussion, reasons and the analysis, the action taken by the police in haste suggest that it is malicious in nature. Moreover, in spite of valid service of notice, the informant has chosen not to come forward before this Court which also suggest that the case was filed casually and it cannot be left out of fact that it was on instigation of somebody.
Accordingly, the entire criminal proceeding including order taking cognizance dated 22.07.2021 by which cognizance has been taken in connection with R.I.T. P.S. Case No.71/2021, corresponding to G.R.Case No.606/2021, pending in the court of learned Chief Judicial Magistrate, at Seraikella is hereby quashed.
Cr.M.P.No.1914 of 2021 stands allowed and
disposed of.
I.A. if any also stands disposed of.
( Sanjay Kumar Dwivedi, J.)
SI/;