Delhi District Court
(1) Dr. Nepash Kacker vs (1) The State on 9 November, 2022
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IN THE COURT OF MS. SHEFALI SHARMA,
ADDITTIONAL SESSIONS JUDGE-02, NORTH
DISTRICT, ROHINI COURTS, DELHI
In the matter of:
Criminal Revision No. 81/2019
(1) Dr. Nepash Kacker,
S/o Sh. D.P. Kacker,
R/o C-2/34, Sector - 11,
Rohini, Delhi - 110089.
(2) Dr. Lilly Dahiya
W/o Dr. I. C. Dahiya,
R/o C-1/17-18, Prashant Vihar,
Delhi - 110085. ....Revisionists
Versus
(1) The State
(Govt. of NCT of Delhi)
(2) Mr. Vinayak Dahiya,
S/o Sh. Ramkishan Dahiya,
R/o Flat No. B-54, Laxmi Kunj
Apartment, Sector -13, Rohini,
Delhi 110085. ...Respondents
Date of Institution : 20.04.2019
Date of Arguments : 09.11.2022
Date of Order : 09.11.2022
ORDER
1. Present revision petition is filed against the order dated 24.01.2019 (hereinafter referred to as impugned order) passed by ld. MM, North, whereby revisionists Dr. Nepash CR No. 81/2019 Dr. Nepash Kacker & Ors. Vs. The State & Ors.
Page no. 1 of 16 -2- Kacker and Dr. Lily Dahiya have been summoned as accused to face the trial.
2. Brief facts of the case are that Ms. Manisha Dahiya (deceased), wife of respondent no.2 herein, was on her family way and under medical supervision of Dr.Sonal Dahiya, Gynecologist, Prashant Hospital. On 29.12.2014, the wife of respondent no.2 was informed by Dr. Sonal Dahiya that she would be out of India from 30.12.2014 to 04.01.2015. On 01.01.2015 at about 11.00 a.m. the respondent no.2 and his wife reached the hospital and around 12.00 noon wife of respondent no.2 was taken to OT for surgical procedure done by revisionist Dr. Nepash Kacker. At 12.31 p.m. it was informed that the wife of respondent no.2 had delivered a male child and both the mother and baby were in good health. At around 1.00 p.m. his wife was shifted to the room of the hospital from OT. Around 4.00 p.m., sister of respondent no.2 observed that wife of respondent no.2 was bleeding and revisionist Dr. Lilly Dahiya along with staff started treatment of his wife and she was again taken to OT. It was informed by revisionist Dr. Lilly Dahiya that during the surgical procedure of delivery, some unintentional vein was cut and she has to be operated again. Dr. Nepash Kacker and other doctors were also called. At about 6.45 p.m., one Dr. I.S. Dahiya informed respondent no.2 that his wife was critical and is being shifted to Jaipur Golden Hospital where she CR No. 81/2019 Dr. Nepash Kacker & Ors. Vs. The State & Ors.
Page no. 2 of 16 -3- was shifted in Surgical ICU and at around 11.30 p.m., the doctors of Jaipur Golden Hospital informed that his wife had expired. It was the case of the complainant as mentioned in para 9 of the application under Section 156 (3) Cr.P.C. that the medical negligence of the doctors at Prashant Hospital, led to the death of his wife, as in the absence of a Gynecologist opertation was conducted by Dr. Nepash Kackar under the guidance of Dr. Lilly Dahiya.
Thereafter, respondent no.2 gave a written complaint to SHO PS Prashant Vihar on 02.01.2015 vide DD No.16A but to no avail and he eventually filed an application under Section 156 (3) Cr.P.C. along with present complaint under Section 200 Cr.P.C. before the Court.
Thereafter, the IO seized various medical documents of wife of respondent no.2 from Prashant Hospital and Jaipur Golden Hospital and filed an ATR informing that a postmortem was required to be conducted after constitution of Medical Board. On 07.10.2015, the FSL report had been deposited with the Medical Board of MAMS and LNJP Hospital for opinion. Thereafter, on 06.02.106 ld. Trial court issued directions to department of Heath and Family Welfare, GNCT Delhi to constitute a Medical Borad to conduct inquiry into the alleged medical negligence and eventually on 28.02.2018 police filed the opinion of the Delhi Medical Council bearing no. DMC/DC/F- 14/COMP.2070/2/2017/267087.
CR No. 81/2019Dr. Nepash Kacker & Ors. Vs. The State & Ors.
Page no. 3 of 16 -4- That as per orders dated 28.02.2018, the complainant withdrew his application under Section 156 (3) Cr.P.C. and the his case was fixed for pre summoning evidence.
3. In the complainant's pre summoning evidence seven witnesses i.e. CW-1 Smt. Saroj Dahiya (mother of respondent no.2), CW-2 Sh. Sultan Singh (Record clerk from DMRC), CW-3 Smt. Raj Kumari Dahiya (mother of deceased), CW-4 Ms.Suman (sister of respondent no.2), CW-5 Dr. Adesh Kumar (Chemical Examiner), CW-6 SI Sandeep (IO) and CW7 respondent no.2 himself were examined.
CW3, CW4 and CW7 deposed on similar lines alleging gross negligence on the part of revisionists Dr. Lily Dahiya and Dr.Nepash Kacker. All the testimonies adduced have been duly considered and are not being repeated herein for the sake of brevity.
4. Thereafter, upon hearing the arguments vide the impugned order dated 24.01.2019, the revisionists Dr.Nepash Kacker and Dr. Lily Dahiya had been summoned along with Dr. Sonal Dahiya.
GROUNDS FOR REVISION
5. It is submitted by ld. Counsel for revisionists that the ld. MM without appreciating facts has passed the impugned CR No. 81/2019 Dr. Nepash Kacker & Ors. Vs. The State & Ors.
Page no. 4 of 16 -5- order dated which is illegal, incorrect, improper and abuse of the process of law. It is further submitted that the impugned order is not sustainable in the eyes of law and has been passed without appreciating the relevant materials on record. Hence, the present revision petition.
6. Heard. Perused.
7. As regards the powers of Revision U/s 397 Cr.P.C the Ho'ble Supre Court in the latest judgment dated 17.02.2022 in the case of Directorate of enforcement Vs. Gagandeep Singh 2022 SCC online Delhi 514 has reiterated the law that:
"the provision of revision in Cr.P.C. suggests that the court shall limit itself to the findings sentence or order pass by the subordinate court, against which the revisionists is seeking relief before the court concerned and shall not go beyond the analysis and observations made by the subordinate court."
8. Section 397 Cr.P.C. unequivocally states that the High Court and Sessions Courts which is exercising its revisional jurisdiction shall apprise itself solely of the question of correctness, legality and properity of the order of the subordinate court.
The Hon'ble Supreme Court in Directorate of enforcement Vs. Gagandeep Singh (supra) again emphasised that :
CR No. 81/2019Dr. Nepash Kacker & Ors. Vs. The State & Ors.
Page no. 5 of 16 -6- "in its revisional jurisdiction court will not proceed into the enquiry of the records, documents and other evidence in consideration before the Trial Court but shall constrain itself to the findings of the lower court in the impuged order and to the question whether there is any patent, illegality, error apparant on record or incorectness."
9. At this stage, it would be imperative to analyse the law relating to medical negligence.
10. The basic principle relating to medical negligence is known as the BOLAM Rule. This was laid down in the judgment of Justice McNair in Bolam vs. Friern Hospital Management Committee (1957) 1 WLR 582 as follows :
"Where 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."
In Halsbury's Laws of England the degree of skill and care required by a medical practitioner is stated as follows :
CR No. 81/2019Dr. Nepash Kacker & Ors. Vs. The State & Ors.
Page no. 6 of 16 -7- "The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care."
11. Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the accused has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care.
Eckersley vs. Binnie (1988) 18 Con LR 1 summarized the Bolam test in the following words :
"From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent members of his profession in the knowledge of new advances, discoveries and developments in his field. He should have such an awareness as an ordinarily competent would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of a polymath and prophet."CR No. 81/2019
Dr. Nepash Kacker & Ors. Vs. The State & Ors.
Page no. 7 of 16 -8-
12. A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. For instance, he would be liable if he leaves a surgical gauze inside the patient after an operation (as held in Achutrao Haribhau Khodwa & others vs. State of Maharashtra & others, AIR 1996 SC 2377) or operates on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade.
13. In the landmark judgment of Jacob Mathew vs State Of Punjab & Anr Appeal (crl.) 144-145 of 2004 decided on 05/08/2005 decided by Hon'ble Supreme Court summed up the postulates of medical negligence 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), holds good. Negligence becomes actionable on account of injury CR No. 81/2019 Dr. Nepash Kacker & Ors. Vs. The State & Ors.
Page no. 8 of 16 -9- resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.
(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the CR No. 81/2019 Dr. Nepash Kacker & Ors. Vs. The State & Ors.
Page no. 9 of 16 -10- incident, and not at the date of trial.
Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.
(3) A professional may be held liable for negligence on one of the two findings:
either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
(4) The test for determining medical negligence as laid down in Bolam's case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India.
(5) The jurisprudential concept of negligence differs in civil and criminal law.
What may be negligence in civil law may CR No. 81/2019 Dr. Nepash Kacker & Ors. Vs. The State & Ors.
Page no. 10 of 16 -11- not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.
(6) The word 'gross' has not been used in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be 'gross'. The expression 'rash or negligent act' as occurring in Section 304A of the IPC has to be read as qualified by the word 'grossly'.
(7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent. (8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se CR No. 81/2019 Dr. Nepash Kacker & Ors. Vs. The State & Ors.
Page no. 11 of 16 -12- 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.
14. In the case of Martin F. D' Souza vs Mohd. Ishfaq on 17 February, 2009 Civil Appeal No. 3541 of 2002, decided by Hon'ble Supreme Court reiterated the judgement of Jacob Mathew vs. State of Punjab and Anr. (supra). What can be deduced from the above law is 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.
15. In Surendra Chauhan vs. State of M.P. (2000) 4 SCC 110, the appellant was having a degree of Bachelor of Medicine in Electrohomoeopathy from the Board of Electrohomoeopathy Systems of Medicines, Jabalpur (M.P.). He did not possess any recognized medical qualification as defined CR No. 81/2019 Dr. Nepash Kacker & Ors. Vs. The State & Ors.
Page no. 12 of 16 -13- in the Indian Medical Council Act, 1956. Yet he performed an operation to terminate the three month pregnancy in a woman, who died in the clinic due to shock due to non application of anesthesia. The Supreme Court confirmed his sentence but reduced it to one and a half years rigorous imprisonment.
16. Coming to the present case, in the final ATR dated 06.02.2016 the final opinion from MAMC regarding the cause of death was obtained and it was opined that death occurred as a result of disseminated intravascular coagulation consequent upon lower segment cesarean section which was performed by Dr.Nepash Kacker under the guidance of Dr.Lily Dahiya.
17. At this stage, it would also be important to note the Report of Delhi Medical Council in the present case. Relevant portion of the same is reproduced herein:
"It is the decision of Disciplinary Committee that both Dr.Nepash Kacker and Dr. Lily Dahiya did not exercise reasonable degree of skill, care and knowledge in the treatment of late Manisha Dahiya, which was expected of reasonably prudent doctor. In fact Dr.Nepash Kacker who is post-graduate in surgery, transgressed into field of a gynaecology by conducting LSCS which was not an emergency; similarly, Dr.Lily Dahiya was neither qualified nor competent to undertake LSCS procedure albeit assist.
The Disciplinary Committee, therefore, recommends that name of Dr.Nepash Kacker (Delhi Medical Council Registration No. 12288) and Dr. Lily Dahiya (Delhi Medical Council Registration No. 9573) be removed from State Medical Register of Delhi Medical Council for period of 30 days and they are directed to refrain in future from venturing into field of medicine which is beyond their competence.
Matter stands disposed CR No. 81/2019 Dr. Nepash Kacker & Ors. Vs. The State & Ors.
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Sd/: Sd/:
(Dr. Subodh Kumar) (Dr. Vijay Kumar Malhotra)
Chairman, Delhi Medical Association
Disciplinary Committee Member,
Disciplinary Committee
Sd/: Sd/:
(Sh. Bharat Gupta) (Dr. Reva Tripathi)
Legal Expert, Expert Member,
Member Disciplinary Committee
Disciplinary Committee
The order of the Disciplinary Committee dated 11th September, 2017 was confirmed by the Delhi Medical Council in its meeting held on 12th October, 2017.
The Council also confirmed the punishment of removal of name awarded to Dr.Nepash Kacker (Delhi Medical Registration No. 12288) and Dr. Lily Dahiya (Delhi Medical Registration No. 9573) by the Disciplinary Committee.
The Council further observed that the Order directing the removal of name from the State Medical Register of Delhi Medical Council shall come into effect after 30 days from the date of the order.
The Order of Disciplinary Committee stands modified to this extent and the modified Order is confirmed.
By the order & in the name of Delhi Medical Council (Dr. Girish Tyagi) Secretary"
18. The said order was upheld by the National Medical Commission vide order dated 10.05.2022. After obtaining all the requisite documents, opinion of experts and statements, the Ethics and Medical Registration Board heard the parties and categorically observed that no opinion of Gynecologist was taken by the concerned Dr.Nepash Kacker and Dr. Lily Dahiya before or after performing the cesearan CR No. 81/2019 Dr. Nepash Kacker & Ors. Vs. The State & Ors.
Page no. 14 of 16 -15- operation. That Dr. Nepash Kacker admitted the patient to Jaipur Golden Hospital but even then no opinion of any Gynecologist was taken. The patient was shifted without proper transportation and without intubation which was the responsibility of the treating doctors and the hospital and based on all the documents before the National Medical Commission, it upheld the decision of Delhi Medical Council. Dr. Nepash Kacker, who is the Post Graduate in Surgery transgressed into the field of Gynecology by conducting the LSCS which was not an emergency and also Dr. Lily Dahiya was neither qualified nor competent to undertake LSCS procedure albeit assist the same and both of them did not exercise the reasonable degree of skill, care and knowledge in the treatment of Late Manisha Dahiya which was expected of a reasonably prudent doctor. Owing to their gross negligence, the names of aforesaid doctors had been removed from the State Medical Register. Thus, there was sufficient material available with the Ld. Trial Court to summon the aforesaid revisionists.
19. In view of the aforesaid discussion, the impugned order dated 24.01.2019 passed by Ld. MM qua the point of summoning the revisionists Dr. Nepash Kacker and Dr. Lily Dahiya is upheld to this extent and the revision petition is accordingly dismissed.
Also before parting with this order, as already discussed there was sufficient material for summoning the CR No. 81/2019 Dr. Nepash Kacker & Ors. Vs. The State & Ors.
Page no. 15 of 16 -16- revisionists Dr. Nepash Kacker and Dr. Lily Dahiya before the Ld. Trial Court as already discussed above, it would not be out of place to mention that it is impressed upon that the ld. Trial court should have mentioned the specific sections/provisions under which the accused Dr. Nepash Kacker and Dr. Lily Dahiya have been summoned. Be as it may, from the substance and tenor of the order, it transpires that the revisionists namely Dr. Nepash Kacker and Dr. Lily Dahiya have been summoned for their gross medical negligence as can be prima facie discerned from the report of the Delhi Medical Council and other material available on record. It is clarified that nothing stated herein shall tantamount to an expression of opinion on the merits of the case and it shall be open to both the parties to put forth their arguments at the stage of charge before the ld. Trial court which may consider the same in accordance with law.
(Further, since, there was no sufficient material at all prima facie to summon Dr.Sonal Dahiya, her separate revision petition bearing no. CR No. 78/2019 is allowed vide a separate detailed order of an even date running into 15 pages and order impugned dated 24.01.2019 is set aside to that extent).
21. Revision file be consigned to record room.
22. TCR, if any be sent back to the concerned court with copy of this order.
Announced in the open Court on 09.11.2022 (SHEFALI SHARMA) ADDITIONAL SESSIONS JUDGE-02, NORTH DISTRICT, ROHINI COURTS, DELHI CR No. 81/2019 Dr. Nepash Kacker & Ors. Vs. The State & Ors.
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