Madhya Pradesh High Court
Dr. Sandhya vs The State Of Madhya Pradesh on 29 August, 2019
Equivalent citations: AIRONLINE 2019 MP 958
Author: Sunil Kumar Awasthi
Bench: Sunil Kumar Awasthi
M.Cr.C. No. 34067/2018 1 Dr. Sandhya Vs. State of M.P. & Ors.
THE HIGH COURT OF MADHYA PRADESH:BENCH At INDORE
M.Cr.C. No. 34067/2018
Shri Sanjay Sharma, learned counsel for the applicant.
Shri Ankit Khare, learned Public Prosecutor for the
respondent No.1/State.
Shri Vivek Patwa, learned counsel for the respondent Nos.
2 and 3.
ORDER
(Passed on 29/08/2019) The applicant has filed the present petition under Section 482 of the Cr.P.C. for quashment of FIR bearing Crime No. 83/2017 registered at Police-Station-Malharganj, Indore for commission of offence punishable under Section 304(A) of the IPC and subsequent proceedings of Criminal Case No. 2767/2017 pending before the Court of Judicial Magistrate First Class, Indore.
2. The facts of the case, which are relevant to deciding the present petition are that the one Rani Verma W/o Ravi Verma was brought to Arihant Hospital, Chhipa Bakal, Indore by her husband and other relatives for delivery. The said hospital is run by applicant and she admitted Rani Verma for delivery. It is alleged that during delivery, the applicant got cesarean of Rani Verma, due to which she died of excessive hemorrhage. The relatives of the deceased alleged that the applicant was negligent while given treatment and conducting the cesarean of Rani Verma. The police registered Merg No. 35/2014 under Section 174 of the Cr.P.C. regarding unnatural death of Rani Verma. During enquiry police seized the documents regarding treatment M.Cr.C. No. 34067/2018 2 Dr. Sandhya Vs. State of M.P. & Ors.
of Rani Verma and sent the same to medical board. Medical Board enquired into the matter by examining concerned persons and the medical papers so submitted and opined that deceased died due to excessive hemorrhage because of "PLACENTA PREVIA". It is also found that the said surgery is complicated and the deceased was having negative blood group and for that the said hospital was not properly equipped. Hence, inference was drawn by the police that the applicant while conducting the delivery and operation of Rani Verma, despite knowing that the hospital is not so equipped did her delivery, due to which she bleeded excessively and died. Accordingly, offence under Section 304(A) of the IPC has been registered vide Crime No. 83/2017 and after usual investigation, police filed charge-sheet against the applicant under Section 304(A) of the IPC before the Court of Judicial Magistrate First Class, Indore for the aforesaid offence.
3. The trial Court after considering the charge-sheet, read over the substance of accusation for the offence punishable under Section 304(A) of the IPC to the applicant, who abjured her guilt and pleaded for trial. The said order was challenged by the applicant before the Sessions Court by filing Criminal Revision No. 21885/2018 and the same was dismissed by Seventh Additional Sessions Judge, Indore vide, order dated 07/07/2018 upholding the order of the trial Court, therefore, the applicant has filed the present petition before this Court for quashment of the FIR and consequential proceedings relating thereto.
4. The contention of the learned counsel for the applicant is that the deceased came to the applicant's hospital for routine M.Cr.C. No. 34067/2018 3 Dr. Sandhya Vs. State of M.P. & Ors.
check-up in the first week of September, 2014 and as per the applicant's diagnosis, she was carrying 8 months pregnancy with previous LSCS with complete PLACENTA PREVIA. She was also having sonography report, which disclosed complete PLACENTA PREVIA, therefore, applicant advised her for delivery at some higher center so also making arrangement for B-Negative blood group. However, on 11/10/2014 at about 12:10 p.m., she again came with complaint of pain in stomach and when she was examined, it was noticed that she was having 37 weeks pregnancy with labor pain and fetal distress, heart-beat of child was also 138/min, bleeding has started and immediate surgery for saving the patient and her child is necessary. On that the parents gave their written consent of operation as is evidently clear from the documents seized by the police and filed alongwith the charge-sheet.
5. It is also submitted that immediately on receipt of consent, the treatment was started and after inquiring from Nobel Blood Bank, attendant was sent for bringing the blood bottle and Senior Anesthetist Dr. Sunil Garg so also Senior Obstetrician Dr. Bharti Patidar were called on phone. The condition of the patient was not so good that she could be shifted to any other Center and Dr. Patidar has also consented for operation and accordingly operation was done. During operation, it was found that PLACENTA was stick with uterus from lower side and was separated immediately thereafter, severe bleeding started and patient has gone in hemorrhagic shock. Immediately all necessary life saving drugs were provided to her but patient M.Cr.C. No. 34067/2018 4 Dr. Sandhya Vs. State of M.P. & Ors.
could not be revived and at about 2:50 p.m., she was declared dead but the child was saved. However, without considering the aforesaid facts and circumstances, Police has filed the charge- sheet against the applicant for commission of offence punishable under Section 304(A) of the IPC . Learned trial Court as well as revisional Court also failed to consider the fact that no rash or negligent act was done by the applicant in performing the delivery and operation of the deceased, which is essential for saving her life and directed to prosecute the applicant for the commission of offence punishable under Section 304(A) of the IPC. Under these circumstances, learned counsel for the applicant prays for quashment of FIR bearing Crime No. 83/2017 registered at Police-Station-Malharganj, Indore for commission of offence punishable under Section 304(A) of the IPC and subsequent proceedings of Criminal Case No. 2767/2017 pending before the Court of Judicial Magistrate First Class, Indore.
6. On the other hand learned Public Prosecutor as well as learned counsel for the respondent Nos. 2 and 3 opposed the prayer by contending that there is prima facie case is made out against the applicant to show that she was rash and negligent in performing her duty, therefore, there is no ground available for quashment of the FIR and subsequent proceedings pending before the Court of Judicial Magistrate First Class, Indore against the applicant.
7. Having considered the rival contentions made on behalf of the parties and perused the documents placed on record. M.Cr.C. No. 34067/2018 5 Dr. Sandhya Vs. State of M.P. & Ors.
8. From the perusal of the documents, it appears that on 11/10/2014, patient Rani Verma was admitted in Arihant Hospital, Chhipa Bakal, Indore for delivery and applicant did her cesarean, however, during the operation she was died due to excessive bleeding. The husband and other relatives of the deceased made allegation against the applicant that she was negligent while conducting the Cesarean of Rani Verma because of that she was scummed. During the investigation, police seized the treatment sheet and other relevant documents and they were sent to Medical Board for opinion. Medical Board after enquiring opined that the deceased was died due to excessive hemorrhage because of PLACENTA PREVIA and the said surgery was complicated. The deceased was having B-negative blood group and for that the said hospital was not properly equipped. The applicant conducted her cesarean, despite knowing that the hospital is not so equipped to did her delivery, while conducting the operation, she bleeded excessively and as a result of which, she has died.
9. Section 304A was inserted by the Indian Penal Code (Amendment) Act, 1870 (Act XXVII of 1870) and reads thus:
"304A. Causing death by negligence. Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
10. The section deals with homicidal death by rash or negligent M.Cr.C. No. 34067/2018 6 Dr. Sandhya Vs. State of M.P. & Ors.
act. It does not create a new offence. It is directed against the offences outside the range of Sections 299 and 300, IPC and covers those cases where death has been caused without 'intention' or 'knowledge'. The words "not amounting to culpable homicide" in the provision are significant and clearly convey that the section seeks to embrace those cases where there is neither intention to cause death, nor knowledge that the act done will in all probability result into death. It applies to acts which are rash or negligent and are directly the cause of death of another person.
11. In Empress v. Idu Beg, (1881) ILR 3 All 776, Straight, J. made the following pertinent observations which have been quoted with approval by various Courts including the Supreme Court:
"Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted".
M.Cr.C. No. 34067/2018 7 Dr. Sandhya Vs. State of M.P. & Ors.
12. Though the term 'negligence' has not been defined in the Code, it may be stated that negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a reasonable and prudent man would not do. [See Mahadev Prasad Kaushik Vs. State of U.P AIR 2009 SC 125].
13. To constitute an offence under Sec. 304A, it is necessary for the prosecution to establish that the act of the accused is rash or negligent and by such act the death has occurred and that act does not amount to culpable homicide. The question therefore is whether in the facts and circumstances as on record, act of respondent can be said to be rash or negligent.
14. A rash act is primarily an overhasly act, and is thus opposed to a deliberate act, but it also includes an act which, though it may be said to be deliberate, is yet done without due care and caution. Illegal omission is act under this Section and may constitute an offence if it is negligent. Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of M.Cr.C. No. 34067/2018 8 Dr. Sandhya Vs. State of M.P. & Ors.
which the charge has arisen, it was the imperative duty of the accused person to have adopted. Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him, and that if he had he would have had the consciousness. It is clear, however, that if the words not amounting to culpable homicide are a part of the definition, the offence defined by this section consists of the rash or negligent act not falling under that category, as much as of its fulfilling the positive requirement of being the cause of death. In order to amount to criminal rashness or criminal negligence one must find that the rashness has been of such a degree as to amount to taking hazard knowing that the hazard was of such a degree that injury was most likely to be occasioned thereby. The criminality lies in running the risk or doing such an act with recklessness and indifference to the consequences (See: State of Gujarat Vs. Maltiben Valjibhai Shah, 1993 (2) GLR 1600).
15. In the aforesaid context, from the perusal of the charge- sheet, it appears that the applicant claims that the deceased came M.Cr.C. No. 34067/2018 9 Dr. Sandhya Vs. State of M.P. & Ors.
to applicant's hospital for routine check-up in the first week of September, 2014 and the applicant advised her for delivery at some higher center so also for making arrangement for B- negative blood group, however, there is no documents available on record to substantiate the aforesaid fact. Husband and relatives of the deceased alleged that before conducting the operation the applicant never told them that there will be need of B-negative blood group. She sent them for bringing blood bottle, when the condition of Rani Verma was deteriorated and they were arranging the blood bottle during this period, Rani has died. Looking to these facts of the case, I am of the view that whether the applicant has made proper preparation before conducting the cesarean or not, it is a question of fact and it cannot be decided without taking the evidence lead by the parties. It is also pertinent to note that admission form of the deceased does not reflects that at the time of admission what was the condition of Rani . Consent form also does not disclose that the patient was ever advised by the applicant for getting her delivery at some higher center or the attender of Rani was directed for making arrangement of B-negative blood group. According to the opinion given by Medical board, the applicant had not making any arrangement of B-negative blood group before conducting cesarean of the deceased, therefore, the applicant was found negligent while conducting the cesarean delivery of the deceased. The grounds taken by the applicant for quashment of the FIR are of the nature of defence and it cannot be considered at this stage and same will be available to the applicant during the course of M.Cr.C. No. 34067/2018 10 Dr. Sandhya Vs. State of M.P. & Ors.
trial.
16. This Court in the case of Colgate Palmolive India Ltd. vs. Satish Rohra, 2005 (4) MPLJ 380, has held in the following manner:-
"6. I have heard the learned Counsel of both the parties and carefully perused the evidence and the material on record. Before considering the evidence and the material on record for the limited purpose of finding out whether a prima facie case for issuance of process has been made out or not, it may be mentioned at the very outset that the various documents and the reports filed by the petitioners/Company along with the petition can not be looked into at the stage of taking cognizance or at the stage of framing of the charge. The question whether prima facie case is made out or not has to be decided purely from the point of view of the complainant without at all adverting to any defence that the accused may have. No provision in the Code of Criminal Procedure grants to the accused any right to file any material or document at the stage of taking cognizance or even at the stage of framing of the charge in order to thwart it. That right is granted only at the stage of trial. At this preliminary stage the material produced by the complainant alone is to be considered."
17. Further the Hon'ble Apex Court in the case of Rajiv Thapar vs. Madan Lal Kapoor (2013) 3 SCC 330, has cautioned the High Court while exercising the power under Section 482 CrPC in the following manner:-
"22. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the M.Cr.C. No. 34067/2018 11 Dr. Sandhya Vs. State of M.P. & Ors.
initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well.
The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution's/ complainant's case without allowing the prosecution/ complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/ complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would M.Cr.C. No. 34067/2018 12 Dr. Sandhya Vs. State of M.P. & Ors.
persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice."
18. Having carefully examined the law laid down by the Hon'ble Apex Court in the case of Rajiv Thapar (supra) and consideration of material brought on record by the applicant, it is clear that the interference under Section 482 CrPC is not warranted. Further detailed discussion on the material furnished by the applicant will prejudice his defence before the trial court.
19. Accordingly, this application being devoid of any merits deserves to be and is hereby dismissed, however the trial Court is directed to give consideration to the material brought on record by the applicant without influenced by the observation made in this order.
20. Let a copy of this order be sent to the trial Court for information and necessary compliance.
(S. K. Awasthi) skt Judge Santosh Kumar Tiwari 2019.08.29 16:59:24 +05'30' M.Cr.C. No. 34067/2018 13 Dr. Sandhya Vs. State of M.P. & Ors.