Delhi District Court
State vs Ishtiyaq Ahmad Khan on 25 September, 2008
IN THE COURT OF MS. REENA SINGH NAG , ASJ KKD DELHI Session Case No. 709/06 FIR no. 262/03 PS Kalyan Puri U/s 304 IPC State Vs Ishtiyaq Ahmad Khan ORDER ON CHARGE FIR has been registered on the statement of Pushpa wife of Balam Singh Rawat under section 304 IPC which inter alia mentions that her husband Balam Singh was suffering from sinus and was getting treatment for last one week from LBS Hospital. About 10 days back he had fever and his nose was flowing. On 26.6.03 he went to his duty at 8.30 a.m to Noida and came back at 10a.m and went to Rahim Clinic for private treatment where doctor gave him some oral pill and gave two injections as a result his condition deteriorated. Pushpa was informed at her office by her neighbour on telephone and she accordingly came to home and reached at Rahim Clinic.
In her presence doctor gave her husband Balam Singh third injection. When her husband became wordless doctor Istiyaq Ahmad asked her to remove her husband who on the asking of Dortor was taken to Virmani Hospital by doctor himself but in fact he had expired at Rahim Clinic itself, as at Virmani Hospital he was not given any treatment. After necessary investigation challan was accordingly filed under section 304 IPC agaisnt accused Istiyaq Ahmad and after committal case was allocated to this court.
2 I have heard the arguments on charge from both the sides and gone through the case file. The contention of ld defence counsel is that accused is liable to be discharged as he was given the same treatment by the accused which was earlier being given at LBS Hospital. It may be mentioned that on the application of accused for summoning the record of LBS Hospital and retention thereof in the trial court, the record was accordingly summoned which reflects that he was admitted in LBS Hospital on 3.6.03 at 3.20 a.m with acute bronkil asthma. He was discharged from the hospital on 5.6.03. He was given treatment at LBS Hospital as under:
(1) Salsul Nebulization.
(2) Tab. Prednisolone 20 mg (3) Tab. Deriphyllin ® 300 mg (4) Tab. Rantac ( 150) BD The contention of ld. Defence counsel is also to the effect that in the viscera report of FSL no common poison was detected so it cannot be presumed that any drug harmful to the patient was administered. Ld. Defence counsel also stated that the report of PM which mentions interalia that patient has been handled by unscrupulous medical practitioner, is liable to be rejected as accused is a qualified degree holder holder, B.U.M.S (Bachelor of Unani Medicines and Surgery) and is registered with Delhi Bhartiya Chikitsa Parishad and worked as Resident Medical Officer for about15 years at Blue Bells Hospital Gagan Vihar, New Delhi and with other hospitals and he has working experience of 20 years as a Doctor and as per notification NO.8S/96-AY( MM) dated 30.10.96 doctor is competent to give Allopathic Medicines to the patient and that police relied on the letter of Delhi Medical Association a Private Body, instead of relying upon the notification of 1996.
3 It would be apt to reproduce the notification verbatim:
CENTRAL COUNCIL OF INDIAN MEDICINE INSTITUTIONAL AREA, JANAKPURI NEW DELHI-110058 No. 8-5/96-AY-(MM) Dated 30.10.96 NOTIFICATION As per provision under section 2 (1) of the Indian Medicine Central Council Act,1970 (48 as of 1970) hereby Central Council of Indian Medicine notifies that "Institutionally qualified practitioners of Indian Systems of Medicine ( Ayurved, siddha & Unani) are eligible to practice Indian Systems of Medicine and Modern Medicine including Surgery, Gynaecology and obstetrics based on their training and teaching which are included in the syllabi of via courses of ISM prescribed by Central Council of Indian Medicine after approval of the Govt. of India. The meaning of the word "Modern Medicine"
( Advances) means advances made in various branches of Modern Scientific medicine; Clinical non-clinical bio sciences also technological innovations made from time to time and notify that the courses and curriculum conducted and recognised by the Central Council of Indian Medicine are supplemented with such modern advances. Further it is clarified that the rights of practitioners by Indian systems of Medicine to practice modern scientific system of Medicine ( Allopathic Medicine) are protected under section 17( 3) ( b ) of Indian Medicine Central Council Act 1970.
Sd/-
( R. K. JAIN) Registrar-cum-Secretary Central Council of Indian Medicine"
Initially arguments on charge were addressed by Sh. S K Ahaluwalia but subsequently Sh. G P Thareja counsel for accused appeared and addressed arguments and also placed on record the written briefs which have been gone through. Ld. Counsel has referred to the principles governing the framing of charge as mentioned in written brief. There cannot be any dispute with regard to the preposition of law enunciated therein, however, in my considered view there cannot be any straight jacket formula, to meet all the situations and every case has to be appreciated in the back ground of its own peculiar facts and circumstances.
4 As regards section 304 IPC the contention of Sh.Thareja is that from the statement of PW Harinder, no intention on the part of accused is inferred to show that accused wanted to cause death of Balam Singh; that no injury has been caused to the deceased as is likely to cause death nor any motive has been attributed to the doctor to cause death of Balam Singh. It is also submitted that doctor made every efforts to save Balam Singh from ailment and he provided the patient with the medicines suited for his care from allergy and when the medicine did not show its effect, he took the patient alongwith his wife to hospital where he was declared brought dead, so the intention to cause death is not at all there. Ld. Counsel wanted to emphasis the point that all suitable steps were taken to give relief to the patient from acute Bronchial asthma with which he was suffering and if this view is possible that accused provided medicines for the cure of patient then he is liable to be discharged. My attention has been invited to various provisions of Delhi Bhartiya Chikitsa Parishad Act, Indian Medicine Central Council Act 1970 to bring home the point that accused could practice Indian Medicine system with modern scientific medicine and that the Bachelor of Unani Medicine and Surgery awarded by Delhi University is included in the schedule to the Act( The Indian Medicine Central Council Act 1970). As regards the court query with regard to question mark appearing on the prescription slip given by accused for the victim against the word meningitis, Counsel states that nothing has come in the post mortem report about the meningitis and mere suspicion cannot lead to the inference to attract section 304 IPC. Reference has also been made to authority reported in AIR 1999 SC Dr. Mukhtiar Chand's case, 1999 Cr L J 3484 titled Rakesh Ranjan Gupta Vs State of UP. Ld. APP on the other hand has supported the State case on the ground that allopathic doctor cannot prescribe Unani medicine, on the same analogy that Unani doctor cannot prescribe allopathic medicine.
I have given my thoughtful consideration to the rival submissions in the light of available material on record. In the case of Dr. Mukhtiar Chand Hon'ble Supreme Court traversed the arena of laws covering medical practice in Indian System and modern scientific system besides dealing with Drugs & Cosmetic Act 1940. While upholding the validity of section 33 of Drugs & Cosmetic Act Hon'ble Supreme Court drew the harmonious construction between the provisions of Indian Medical Council Act 1956 and the Indian Medicine Central Council Act 1970. In para 42 of the judgment it was observed that after sub section (2) of section 15 was inserted in 1956 Act w.e.f. 15.9.64 which interalia provides that no person other than a Medical Practitioner enrolled on a State Medical Register shall practise modern scientific medicine in any State, the right of non allopathic doctors to prescribe drugs by virtue of the declaration issued under Drugs Rules by implication got obliterated. However, this does not debar from prescribing of administering allopathic drugs sold across the counter for common ailment. In Para 48 of the Judgment Hon'ble Apex Court categorically observed that a harmonious reading of section 15 of 1956 Act and section 17 of 1970 act leads to the conclusion that there is no scope of a person enrolled on the State Register of Indian Medicine or Central Register of Indian Medicine to practice Modern Scientific medicine in any of its branches unless that person is also enrolled on a State Register within the meaning of 1956 Act. In this case accused is not registered with State Register within the meaning of 1956 Act. In para 49 Hon'ble Supreme Court observed that in broader sense the right to prescribe drugs of a system of medicine would be synonymous with the right to practise that system of medicine.
`In view of the foregoing discussion in my considered view accused is not entitled to practise allopathic medicine unless he shows that he has been registered in the State Medical Register within the meaning of 1956 Act and not only under 1970 Act. It may be mentioned that 1956 Act governs the practice of modern scientific medicine and it refers to the maintenance of Indian Medical Register and State Medical Register as defined in section 2, whereas Indian Medicine Central Council Act 1970 deals with the system of Indian Medicine commonly known as ashtang Ayurveda, siddhi or Unani tibb, whether supplemented or not by such modern advances as the Central Council may declare by notification from time to time, it also refers to maintenance of Central Register of Indian Medicine to be maintained by Central Council and State register on Indian Medicine maintained by State Council.
In para 47 of Mukhtiar Singh's case Supra Hon'ble Supreme Court while referring to the notification which is worded identically as notification relied on by the accused of 1996, observed that definition of Indian medicine and the clarifications issued by the Central Council enable such practitioners of indian medicine to make use of modern advances in various sciences such as radiological report ( X ray) complete blood picture report lipid report, E C G etc. for purposes of practising in their own system. In view of foregoing discussion in my considered view accused is not entitled to practise allopathic medicine except for common ailments as referred in para 42 of the Judgment Supra.
However, to some extent I agree with the contention of ld. Defence counsel that accused had no idea that some complication would develope by administering the drugs and that he administered the same under the belief that it will bring relief to the victim. Admittedly no medical practitioner will have any intention to kill the patient under his treatment. As such no offence under section 304 IPC is disclosed against the accused.
7 However on the prescription slip accused has also mentioned word meningitis with a question mark and in the case of even doubt of meningitis accused should have immediately referred the patient to the hospital where he could have been managed as in the meningitis brain is affected due to fever. Patient came to him after about 10 a.m and he was removed from the clinic of the accused after he collapsed and became non responsive. As per accused he died at 1.30 noon. Had victim been taken to hospital immediately on assessing his ailment as meningitis, he could have been properly managed there. Victim was suffering from bronchial problem and there is a mention in the ruqqa that there was absence of resuscitative measures to control the allergic reaction. The cause of death has been shown as Asphyxia consequent to acute laryngeal edema as a result of allergic reaction. The statement of Suraj Yadav Assistant at clinic of accused, recorded under section 161 Cr P C reflects that there was no life saving equipments at the clinic; that what particular injection was given by doctor is within the knowledge of doctor only; that no details of patient was kept nor any office record was kept; that even the disposal of injections were removed by cleaner Sharda while cleaning the clinic. He went to the extent of stating that accused had no knowledge to control the drug reaction nor he ( Suraj Yadav ) was a skilled person.
It is noted that in brief facts by the IO, he has mentioned that as patient died, doctor closed his clinic and left the place and after six hours he returned and gave prescriptions of treatment duly prepared by him. In the prescription slip thus furnished accused mentioned as under:
C/o Hyper Pyrexia ? meningitis Advised Inj Dexona 8 mg 1/MS) Inj Dariphyline 1 AMP 1/MF) Inj Efcor bin 1 Vial day ) ( The above contents are not fully legible) Tab Crocin 1 SOS.
In the certificate dated 24.6.03 he has mentioned that patient has expired on 24.6.03 at 1.30 noon due to hyper pyrixia; ? meningitis since no contemporaneous record was kept by doctor and he produced the prescription slip after six hours, it is within his knowledge only whether prescription thus furnished is manipulated one or genuine.
If doctor from the very beginning considered it as a case of meningitis, he was from the facts and circumstances certainly rash in starting the treatment at his clinic without having any adequate infrastructure in case of complication. The statement of Harinder shows that after administering of drugs, the condition of patient deteriorated. Accused being not empowered to administer allopathic drugs gave the same to patient thereby playing with his life which ultimately proved fatal. Accused being a unani doctor, it is not know whether he had while pursuing his studies taught pharma copy and whether he was aware of the measure to control drug reaction in specific case. His assistant has stated on the basis of his work experience with doctor that doctor had no knowledge to control drug reaction.
The facts and circumstances do indicate that accused acted rashly. He is liable to be prosecuted under section 304A and is discharged under section 304 IPC. At the stage of charge, if a view is favourable to prosecution it has to be accepted for the purposes of framing of charge so that in the course of trial the prosecution may come out with its explanations in regard to its draw back and weakness if any pointed out by accused, since the existence of a prima facie case may be found even on the basis of strong suspicion against an accused. The assessment evaluation and weighing of the prosecution evidence in a criminal case at the initial stage is entirely on different footing then it is at the stage of framing of charge. If at the final stage two views are possible one favourable to accused it has to be accepted but no at the stage of framing of charge.
Since offence under section 304A IPC is triable by Metropolitan Magistrate, hence case is remanded to ld. ACMM KKD to try the case himself or assign it to ld MM of competent jurisdiction.
Accused is directed to appear before ld ACMM on 31.10.08. Ahlmad to send the file there on or before date fixed.
Announced in open court. (Reena Singh Nag) Dt:25.9.08 ASJ/KKD 25.9.08