Punjab-Haryana High Court
Dr.Poonam Bawa & Anr vs State Of Haryana on 29 January, 2013
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
CRM No. M -12533 of 2012 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM No. M-12533 of 2012 (O&M)
Date of Decision: 29.1.2013
Dr.Poonam Bawa & Anr. ...Petitioners
Versus
State of Haryana ...Respondent
CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR
Argued by: Mr.J.S.Bedi, Ms.Manjari Nehru and
Mr.Naveen Sharma, Advocates for the petitioners.
Mr.Gaurav Verma, AAG Haryana for the State.
Mehinder Singh Sullar, J. (Oral)
The matrix of the facts & material, which needs a necessary mention, for the limited purpose of deciding the core controversy, involved in the instant petition and emanating from the record, is that, Geeta, daughter of complainant Rupal son of Badlu Ram (for brevity "the complainant") was in an advance stage of pregnancy of eight months. On 19.4.2006, she had severe pain and her husband Rohtas took her for checking to the Nursing Home of Dr.Anju Dhankhar, where she started medical treatment by giving injection to her (Geeta). As a result thereof, she became unconscious. She was referred to private Nursing Home of petitioner No.1 Dr. Poonam Bawa at Bhiwani for further treatment.
2. The complainant claimed that Dr. Poonam Bawa projected that Geeta has to be immediately operated upon, otherwise, the lives of mother & child would be unsafe and in danger. Dr. Poonam Bawa demanded an amount of ` 15,000/- as operation fee. She assured/guaranteed that if they would deposit the operation fees, then, the lives of mother and child would be secured and saved, otherwise, their CRM No. M -12533 of 2012 (O&M) 2 lives may be in danger. Under these compelling circumstances, an amount of `15000/- was deposited in the account of Dr. Poonam Bawa, where she along with her husband Dr. K.L.Bawa and Dr. O.P.Yadav (petitioner No.2) performed the operation of Geeta on 20.4.2006 and one male child was delivered by her. Thereafter, the child was admitted in the private Nursing Home of Dr. O.P.Yadav (petitioner No.2), who assured that the child will be kept for a period of one or two days in machine. Thereafter, he will become fine. On the assurance/guarantee of Dr. O.P.Yadav, the child was got admitted in his hospital and he charged ` 5000/- as treatment fees.
3. The case of the prosecution further proceeds that on 22.4.2006, Dr. O.P.Yadav (petitioner No.2) asked the complainant to take the child to PGI MS Rohtak, within one hour, otherwise the child would die. Thereafter, immediately Geeta and newly born son were removed to PGIMS Rohtak, where it was told by the doctor that since the delivery of Geeta was premature, so, the life of child could not be saved. He was admitted in the hospital, but he died on 23.4.2006.
4. Leveling a variety of allegations and narrating the sequence of events in detail in the complaint, which formed the basis of FIR, in all, the complainant claimed that both the petitioners have performed premature operation. They charged ` 15000+5000/-. Due to their rashness and negligence, son of Geeta had died. In the background of these allegations and in the wake of complaint of the complainant, a criminal case was registered against the accused, vide FIR No.180 dated 4.9.2006 (Annexure P1), on accusation of having committed an offence punishable CRM No. M -12533 of 2012 (O&M) 3 u/s 304-A IPC by the police of Police Station City Dadri, District Bhiwani in the manner depicted here-in-above.
5. After completion of the investigation, the police did not challan petitioners Dr. Poonam Bawa and Dr. O.P.Yadav and only submitted the final police report (challan) against accused Dr. Anju Dhankhar to face the trial for the indicated offence.
6. During the pendency of the criminal case, the complainant moved an application (Annexure P3) to summon Dr. Poonam Bawa, her husband Dr. K.L.Bawa and Dr. O.P.Yadav as additional accused to face the trial along with the main accused u/s 319 Cr.PC.
7. Taking into consideration the evidence on record, the trial Court accepted the application u/s 319 Cr.PC and summoned the petitioners as additional accused to face the trial for the commission of offences punishable u/ss 304-A and 120-B IPC, by virtue of impugned summoning order dated 23.4.2010 (Annexure P4).
8. Aggrieved thereby, the criminal revision petition filed by the petitioners was dismissed as well, by the revisional Court, by way of impugned judgment dated 6.4.2012 (Annexure P5).
9. The petitioners-accused still did not feel satisfied and preferred the present 2nd revision petition (which is otherwise legally barred) in the garb of petition u/s 482 Cr.PC, to challenge the impugned order and judgment (Annexures P4 & P5). That is how, I am seized of the matter.
10. Having heard the learned counsel for the parties, having gone through the record with their valuable assistance and after bestowal CRM No. M -12533 of 2012 (O&M) 4 of thoughts over the entire matter, to my mind, there is no merit in the instant petition in this context.
11. Ex facie the arguments of learned counsel that since as per the medical/inquiry reports (Annexures P2 & P2/1), the petitioners were not negligent and they were exonerated by the police, so, the Courts below committed a legal mistake in summoning them as additional accused u/s 319 Cr.PC, are neither tenable nor the observations of Hon'ble Apex Court in cases Mohd. Shafi v. Mohd. Rafiq and another 2007(2) RCR (Criminal) 762, Kailash v. State of Rajasthan & Anr. 2008 (2) RCR (Criminal) 200 and Lal Suraj @ Suraj Singh & Anr. v. State of Jharkhand 2009(1) RCR (Criminal) 504 are at all applicable to the facts of the present case, wherein it was observed that "before a Court exercises its discretionary jurisdiction in terms of Section 319 Cr.PC, it must arrive at the satisfaction that there exists a possibility that the accused so summoned is in all likelihood would be convicted, such satisfaction can be arrived at, inter-alia, upon completion of the cross- examination of the said witness and a person cannot be summoned to face trial on the basis of strong suspicion unless there was possibility of his conviction."
12. Sequelly, in cases Jacob Mathew v. State of Punjab & Anr. 2005(3) RCR (Criminal) 836 and Martin F.D'Souza v. Mohd. Ishfaq 2009(2) RCR (Criminal) 64, the Hon'ble Supreme Court ruled that 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 CRM No. M -12533 of 2012 (O&M) 5 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. 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.
13. Likewise, it was also observed that "a private complaint should 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 and the Investigating Officer should, before proceeding against the doctor accused of rash or negligent act or CRM No. M -12533 of 2012 (O&M) 6 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 important opinion applying the Bolam test."
14. At the same time, it was ruled as well that it may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient.
15. Possibly, no one can dare to dispute the aforesaid observations of Hon'ble Apex Court, but to me, the same would not come to the rescue of petitioners-accused in the present controversy at this initial stage of summoning them for hatching a criminal conspiracy and to cause the death of a child by their rash & negligent acts, punishable u/ss 304-A and 120-B IPC, particularly when the trial Court as well as revisional Court have arrived at a conclusion based on the relevant evidence that there is sufficient material/evidence to summon them in this relevant connection.
16. As is evident from the record that inter-alia, there are direct allegations in the complaint of the complainant, which formed the basis of FIR (Annexure P1) that accused Dr. Anju Dhankhar referred and Geeta was admitted in the private hospital of Dr. Poonam Bawa (petitioner No.1) for further treatment on 20.4.2006. After check up, she (Dr. Poonam Bawa) projected that Geeta has to be immediately operated upon, otherwise, the lives of child and mother may be in danger. She demanded an amount of ` 15000/- as operation fee. The complainant has told petitioner No.1 that Geeta was carrying only eight months' child and she CRM No. M -12533 of 2012 (O&M) 7 had not completed nine months of pregnancy. However, Dr. Poonam Bawa still asked her to deposit a sum of ` 15000/- and she guaranteed the lives of Geeta and her child. It has specifically been claimed by the complainant that Dr. Poonam Bawa further stated that if the operation is not performed and the pointed operation fee is not deposited, then the lives of Geeta and her child in the womb would be in danger. Under the aforesaid compelling circumstances, they deposited the indicated amount in the account of petitioner No.1 Dr. Poonam Bawa, who performed pre- mature operation with the concurrence of petitioner No.2 Dr. O.P.Yadav. According to the complainant that even Dr. O.P.Yadav received an amount of ` 5000/- and admitted the child in his hospital. Again, on 22.4.2006, Dr. O.P.Yadav (petitioner No.2) told them to take the child to PGIMS Rohtak, otherwise, he might die within one hour. Thereafter, they took the newly born child at PGIMS Rohtak, where the doctor, after carrying out his check up, informed them (complainant) that since the premature operation/delivery was performed, so, the child could not be saved.
17. Meaning thereby, the direct and very serious allegations of negligence after taking the amount of ` 15000 + 5000 are assigned to the petitioners by the complainant. Moreover, the urge to earn money by illegal means by the doctors of private nursing homes cannot possibly be ruled out at this initial stage. There are direct allegations reiterated by the complainant that after check-up, the doctors of PGIMS Rohtak have informed him that child had died on account of pre-mature operation/delivery. Similarly, no implicit reliance can be placed on the CRM No. M -12533 of 2012 (O&M) 8 unproved medical/inquiry reports (Annexures P2 & P2/1), wherein it was only mentioned that there is no obvious negligence of obstetrician treating the patient at Bhiwani and the diagnosis was borderline Term (36 + 2 weeks) appropriate for gestation with severe birth asphyxia ischemic encephyalopathy stage-II, giving clean chit to the petitioners-accused at this initial stage.
18. Moreover, it is now well settled principle of law that a person not already an accused in a case can be proceeded against if in the course of any inquiry into or trial of an offence it appears from the evidence that such person has also committed any offence and deserves to be tried with other accused. There is nothing in the language of Section 319(1) Cr.PC from which it can be inferred that a person who is named in the FIR or complaint but against whom charge-sheet is not filed by the police, cannot be proceeded against even though in the course of any inquiry or trial of any offence the court finds that such person has committed any offence for which he could be tried together with the other accused. It is also well recognized proposition of law that at the time of summoning the accused u/s 319 Cr.PC, the Magistrate is not required to enter into detailed discussions on the merits or demerits of the case, that is to say whether or not the allegations contained in the complaint, if proved, would ultimately end in conviction of the accused. He is only to see whether there exists sufficient ground for proceeding against the accused and the process issued u/s 319 Cr.PC could not be quashed u/s 482 Cr.PC on the ground that the police did not file the charge-sheet against the accused, as contrary urged on behalf of petitioners-accused. CRM No. M -12533 of 2012 (O&M) 9 The reliance in this connection can be placed on the judgment of Hon'ble Supreme Court in case Suman v. State of Rajasthan and another (2010) 1 Supreme Court Cases 250. Therefore, to me, the trial Court has considered the substantive evidence and summoned them as additional accused to face the trial along with the main accused, by way of impugned summoning order (Annexure P4).
19. Not only that, the matter was again rightly examined by the revisional Court, in view of the ratio of law laid down by Hon'ble Apex Court in Martin F.D'Souza's case (supra) and the revision petition filed by the petitioners-accused was dismissed as well, by means of impugned order (Annexure P5), inter-alia, which, in substance, is as under (para
9) :-
"From the facts of the case, it is apparent on the record that firstly, Geeta had gone to Nursing Home of Doctor Anju Dhankar, Charkhi Dadri, where, injection was given to her. Geeta became unconscious and her condition was serious. She was referred to Dr. Poonam Bawa, Bawa Maternity Nursing Home, Bhiwani. The family members of Smt.Geeta were given this impression that life of Smt.Geeta and her child was in danger and surgery delivery was to be performed. A sum of Rs.15000/- was charged by Dr.Poonam Bawa. Smt. Geeta was pregnant by eight months and allegation of complainant is that there was no need to premature deliver the child. After birth of child, the child was admitted in hospital of Dr.O.P.Yadav where he had died. At this stage, without evidence on the record, it cannot be said with certainly as to what would be fate of the case, yet prima facie evidence is there to summon both the petitioners to face trial under Sections 304- A and 120-B IPC. There is no illegality in the order dated 23.04.2010 passed by the learned Trial Court."
20. All other arguments, now sought to be urged by the learned counsel for the petitioners-accused relatable to the appreciation of evidence, were duly considered and negated by the Courts below in the impugned orders.
CRM No. M -12533 of 2012 (O&M) 10
21. Meaning thereby, both the Courts below have examined the matter in the right perspective, arrived at the required satisfaction, summoned the petitioners as additional accused and recorded the cogent grounds in this relevant connection. Such well-articulated impugned order & judgment, containing valid reasons, cannot possibly be interfered with by this Court, in the present 2nd revision petition (which is otherwise legally barred under section 397(3) Cr.PC), in the garb of petition under section 482 Cr.PC, unless and until, the same are illegal, perverse and without jurisdiction. Since no such patent illegality or legal infirmity has been pointed out by the learned counsel for the petitioners-accused, so, the impugned order & judgment (Annexures P4 & P5) deserve to be and are hereby maintained in the obtaining circumstances of the case.
22. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties.
23. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of trial of main case, as there is no merit, therefore, the instant petition is hereby dismissed as such.
24. Needless to mention that nothing observed, here-in-above, would reflect, in any manner, on the merits of the main case, during the course of trial, as the same has been so recorded for a limited purpose of deciding the present petition.
29.1.2013 (Mehinder Singh Sullar)
AS Judge
Whether to be referred to reporter? Yes/No