Rajasthan High Court - Jodhpur
Dr.Vikram Tanwar & Anr vs State on 1 March, 2013
S.B.Cr.Misc. Pet. No. 1296/2009.
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
ORDER
Dr. Vikram Tanwar vs. The State of Rajasthan.
& anr.
S.B.Criminal Misc. Petition No. 1296/2009
under Section 482, Cr.P.C. against the order dated
6.7.2009 passed by the learned Addl. Sessions
Judge No.2, Bikaner in Criminal Revision
No.29/2007.
Date of Order : 1.3.13
PRESENT
HON'BLE MR. ATUL KUMAR JAIN, J.
Mr. Vineet Jain for the petitioners.
Mr. Ashok Prajapat,Public Prosecutor for the State.
BY THE COURT:
This misc. petition under Section 482, Cr.P.C. has been filed by the accused-petitioners Dr. Vikram Tanwar and his wife Dr.(Smt.) Pushpa Tanwar. Both the accused-petitioners were charged under Section 304-A of I.P.C. in a police challan case in the court of learned Addl. Chief Judicial Magistrate, Bikaner in Criminal Regular Case No. 509/2007 for the offence of causing death by negligence during operation/treatment of a patient.
The petitioners had challenged the order of the trial court before the learned Addl. Sessions Judge No.2, Bikaner also, but that court has dismissed the revision petition of the petitioners.
It has been argued on behalf of the petitioners that the revisional court has observed in its judgment that orders which are passed by the Hon'ble High Court or the Hon'ble Supreme Court S.B.Cr.Misc. Pet. No. 1296/2009.
2 under Section 482, Cr.P.C. are as such not applicable on the lower courts because the lower courts have not been given the inherent powers under Section 482, Cr.P.C. The petitioners have argued that on this count alone, the judgment of the learned Addl. Sessions Judge No.2, Bikaner is perverse and so they have come under Section 482, Cr.P.C. to get the charge of Section 304-A IPC quashed.
The petitioners have placed reliance on the following judgments:-
(1) Jacob Mathew v. State of Punjab and another , 2005 SCC (Cri) 1369 dediced on 6.8.2005 and (2) Martin F. D'souza v. Mohd. Ishfaq, (2009) 1 SCC (Cri) 958) decided on 17.2.2009.
Two more rulings on this point have come to my notice which are as follows:-
(1) Nizam's Institute of Medical Science v. Prasanth S. Dhananka & ors., (2009) 6 SCC 1 decided on 14.5.2009, and (2) V. Kishan Rao v. Nikhil Super Speciality Hospital and anr, (2010) 5 SCC 513 decided on 8.3.2010 With respect, I have gone though all the above rulings.
In the present case, statement of Dr. M.M. Bagdi has been recorded under Section 161, Cr.P.C. by the police, who has stated that he is a retired Senior Surgeon of P.B.M. Hospital, Bikaner and now he runs his own clinic. He states that on 14.7.2007 at about 7 a.m. Anesthetist Dr. R.M. Vijay had informed and told him that S.B.Cr.Misc. Pet. No. 1296/2009.
3 during operation of a patient at Pratap Prasuti Grah, some problem has occurred so he was asked to reach to Pratap Prasuti Grah. Dr. Bagdi stated that on this message, he immediately reached Pratap Prasuti Grah where he found one lady patient in the operation theatre. In-charge of Pratap Prasuti Grah, Dr. Vikram Tanwar and Dr. Pushpa Tanwar told him that cause of infertility of the patient was being laparoscopically examined by them and suddenly the patient started bleeding. Dr. Bagdi further stated that then he went into the operation theatre and saw that the patient was on the operation table and her stomach was wide open which was bleeding and it appeared that laparoscopical needle had caused the injury to the intestine of the lady which caused the bleeding. Dr. Bagdi further stated that he immediately repaired the puncture of intestine with the help of a sponge and then the lady stopped bleeding. Dr. Bagdi further states that due to excessive bleeding the patient later succumbed. He has stated that the laparoscopical needle which is inserted in the stomach for laparoscopical examination happens to be blunt from the front side and during the procedure its blunt side comes on the back and pointed side comes in front and some times it may cause accident because, though blunt side generally does not damage any part of the body but if spring attached with the laparoscopical needle is wrongly handled, then the pointed blade of the needle may cause injury inside the stomach. Dr. Bagdi has further stated that if needle stops proper functioning, then only pointed side of needle remains outside the stomach and that too may cause bleeding.
S.B.Cr.Misc. Pet. No. 1296/2009.
4 Witness Mukesh Nahta is husband of deceased lady Smt. Anupama Nahta. He says that both the accused persons have admitted before him to have committed mistake during the check up of the patient causing fatal injury in the stomach of the patient due to which excessive bleeding started and his wife died.
Witness Mool Chand Nahta is father-in-law of deceased who supports the prosecution story in the matter. Witness Dharm Veer Nahta also states that he was present at the time of mis-happening in the Pratap Prasuti Grah. Witness Vijay Singh Baid is father of deceased lady and he also states that during check up of her daughter, the accused-petitioner mishandled the laparoscopy machine(needle) and only due to negligence of the doctors, her young daughter died within four years of her marriage.
In these circumstances, the lower court has framed charges under Section 304-A, IPC against both the accused-petitioners and that order has been upheld by the revisional court.
The post-mortem of the lady was conduced by a Medical Board of three doctors and the Medical Board has also supported the statement of Dr. Bagdi relating to the cause of death of the patient. The Medical Board was consisting of three doters, (1) Priyanka Tanwar, (2) Ved Prakash and (3) P.K. Saini.
I do not know what more is needed to frame a charge of negligence under Section 304-A IPC against the concerned doctors, who nowhere have tried to explain the cause of death. The petitioners have simpliciter stated in their petition that there is no material on record to show that they had acted in a rash and S.B.Cr.Misc. Pet. No. 1296/2009.
5 negligent manner so as to cause death of Smt. Anupama. The petitioners have alleged that even if it is presumed for a minute that Verse Needle which was inserted for performing diagnostic laparoscopy, had caused internal injury during the procedure and as a result of which Smt. Anupama started bleeding and ultimately succumbed to death, but the petitioners allege that soon after the complication started, they had summoned a specialist surgeon who also tried his best to save the life of Smt. Anupama but unfortunately could not succeed. The petitioners state that this goes to show that they had made all the best possible efforts to save the life of Smt. Anupama and, therefore, their action cannot be termed as rash and negligent so as to warrant criminal prosecution under Section 304-A IPC.
It has been argued by the petitioners that performing of operation, diagnostic procedure is always attended by a risk of complication which can be for various reasons including error in judgment and it may not be called rash or negligent action so as to criminally prosecute them. This is pertinent to note here that the husband and the father of deceased Smt. Anupama have not filed any civil case for damages in any civil court or the consumer forum. The prosecution has relied upon the criminal forum only to seek justice because suitable compensation can be awarded to the victim's legal representative if rash or negligent act of accused- petitioners is proved in criminal court also.
In the circumstances of the case and particularly looking to S.B.Cr.Misc. Pet. No. 1296/2009.
6 the later judgment of the Hon'ble Supreme Court in Nizam's Institution of Medical Science vs. Prasanth S. Dhananka (supra), I do not want to exercise inherent powers of this Court to cause injustice to the soul of the deceased.
Hence, the petition under Section 482, Cr.P.C. deserves dismissal which is hereby dismissed but a concession is given to the accused-petitioners that their presence in the criminal court will generally not be necessary unless ordered otherwise if their Advocate appears on each date of hearing in the lower court.
The petition under Section 482, Cr.P.C. is disposed of accordingly. Consequently, the stay petition also stands dismissed. Copy of this order be sent to the lower court immediately within seven days.
[ATUL KUMAR JAIN],J mlt/