Jharkhand High Court
Dr. Arpita Das vs The State Of Jharkhand on 30 January, 2024
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1991 of 2015
Dr. Arpita Das ..... ... Petitioner
Versus
1. The State of Jharkhand.
2. Rahul Keshri ..... ... Opposite Parties
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Indrajit Sinha, Advocate.
: Mr. Rishav Kumar, Advocate.
For the State : Mr. Anup Pawan Topno, A.P.P.
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07/ 30.01.2024 By order dated 30.11.2023, the notice was issued to the O.P.
No. 2 and the same was received by him in person. In spite of that appearance has not been made on behalf of the O.P. No. 2, in view of that this petition is being heard in absence of the O.P. No. 2.
2. Heard Mr. Indrajit Sinha, learned counsel appearing for the petitioner and Mr. Anup Pawan Topno, learned counsel for the State.
3. This petition has been filed for quashing of the entire criminal proceeding including the order taking cognizance dated 22.08.2015, by which, cognizance for the offence under Sections 304- A, 323, 379 and 120-B of the Indian Penal Code has been taken against the petitioner, in connection with Complaint Case No. 891 of 2015, pending in the court of learned Judicial Magistrate, 1st Class, Dhanbad.
4. The complaint was filed alleging therein:-
The wife of the complainant-Mrs. Bharti Keshri was not able to conceive pregnancy after her marriage with the complainant and as such she was under treatment of Accused No.5-Dr. S. K. Das since 23.2.2015.
It has been further alleged that Accused no.5 advised for some medical tests and as such the complainant's wife underwent some medical tests as per advice of Accused no.5, which gave impression of "Bulky Uterus with Thickened Endometrium with Multiple Fibroids" as per report issued by Relief Diagnostic and Imagining Centre, Saraidhela, District Dhanbad.
It has been further alleged that Accused no.5 called complainant's wife for next visit on 25.3.2015 and she after completing her household duty at home was keeping good mental and physical health and was extremely happy as dreams of experiencing the happiness of motherhood like other married -2- women was about to become true.
It has been further alleged that Accused nos.5 to 9 after going through her reports with due care and caution advised her for minor operation at Asharfi Hospital Pvt. Ltd.-Accused no.1 after which she would be able to conceive pregnancy.
It has been further alleged that Accused nos. 5 and 9 after conducting few more medical tests on 25.3.2015 found the reports of complainant's wife normal and as such both the accused persons advised her to undergo minor operation after which she would be released from the hospital within 2-3 hours and would further be able to conceive pregnancy.
It has been further alleged that as per advice/direction, the complainant's wife underwent various tests and after going through the reports of the tests, the complainant was assured that his wife is fit, well health and reports are satisfactory for operation. On assurance and undertaking given by the said accused persons, the complainant believing their version to be true gave them permission to do needful for operation and the wife of the complainant got herself admitted in the said hospital on payment of initial charge Rs.5,000/-.
It is further alleged that Dr. Raj Kumar Singh, Accused No.1, who is Anesthesiologist, was only specialist for giving anesthesia to patients before operation, but without calling him for giving anesthesia to Mrs. Bharti, Accused no.9 gave anesthesia to her without consulting Dr. Raj Kumar Singh and even without consent, permission and knowledge of the complainant.
It is further alleged that Accused no.9 does not have degree and specialization in the field of Anesthesia and she is also not having degree of Laparoscopic Surgery.
It has been further alleged that there was sudden movement, hue and cry in and out of the operation theater among the doctors and nurses as because the teams along with Accused no.5 and 9, who were conducting operation of Mrs. Bharti Keshri found her health deteriorating and Accused no.5 and 9 found themselves guilty for the wrong done by them in operation.
It has been further alleged that taking into account the -3- situation in the hospital the relatives of Mrs. Bharti Keshri enquired about her condition, but neither Accused nos.5 and 9 nor other accused persons gave satisfactory information to the complainant and they assembled in the Chamber and after consultation with each other, wife of the complainant was shifted to ICU without consent, permission and knowledge of the family members and no other formalities were complied with for shift her from operation theater to ICU and she was immediately put on mechanical ventilator and ultimately Bharti Keshri died in between 7:00 to 7:30 p.m. It has been further alleged that no efforts were made by Accused nos.5 and 9 as well as their team to save the life of wife of the complainant.
It has been further alleged that the accused persons concealed the fact of death of Mrs. Bharti Keshri from her husband and relatives and when they enquired about the status of deceased Bharti Keshri, the accused persons kept mum and ultimately power of endurance of the complainant broke down and they entered into ICU Ward where they found that the body of Bharti Keshri was lying cold and there was no response from her side, as she was lying dead in the ICU.
It has been further alleged that after the incident the accused persons became violent and the local police was called who after tried to take control over the situation and two persons who happened to be the musclemen of accused persons were caught by local police and were detained in police vehicle. However, local police set them free after sometimes for the reason best known to them.
5. Mr. Indrajit Sinha, learned counsel appearing for the petitioner submits that the petitioner is a qualified surgeon and was working in the hospital at the relevant time in Asarfi Hospital Private Limited, Dhanbad. He submits that allegations are made that the petitioner was not having the qualification and overdose of anesthesia was made to the wife of the complainant and due to that the wife of the O.P. No. 2 has left for her heavenly abode. He further submits that the said allegations are false in nature. He further submits that the complainant -4- along with others came to hospital on 26.05.2015 for making hooliganism in the hospital the hospital management has lodged the FIR, being Dhanbad P.S. Case No. 298 of 2015 corresponding to G.R. No. 1406 of 2015 against the O.P. No. 2. He further submits that thereafter the present complaint case has been filed by the O.P. No. 2 on 04.04.2015. He further submits that the said allegations are not correct, as the petitioner is qualified surgeon and to buttress his argument, he refers to the certificate issued by the Medical Council of India as well as the registration of the petitioner with the Jharkhand Council of Medical Registration and the certificate of the Master of Surgery issued by the Vikram University, Ujjain (M.P.). He further submits that the learned court has not followed the guidelines issued by the Hon'ble Supreme Court in the case of Jacob Mathew Versus State of Punjab, reported in (2005) 6 SCC 1.
6. Learned A.P.P. appearing for the State submits that the learned court on the complaint case, has been pleased to take cognizance against the petitioner.
7. It is an admitted position that the petitioner was working with the Asarfi Hospital Private Limited, Dhanbad. The wife of the O.P. No. 2 was admitted in the hospital for certain treatment and operation was conducted and subsequently, she has left for her heavenly abode. The allegations are made that the petitioner was not having any qualification in the anesthesia and given the overdose of the anesthesia to the wife of the O.P. No. 2. However, the certificate issued by the Medical Council of India clearly suggests that the petitioner is having a certificate pursuant to that the Jharkhand Council of Medical Registration has issued the certificate and further the certificate of the Master Degree of Surgery issued by the Vikram University, Ujjain (M.P.) is also brought on record. In view of that the allegations made therein are false and concocted.
8. Further the learned court in taking the cognizance against the petitioner, who happened to be the doctor has not taken care of the guidelines issued by the Hon'ble Supreme Court in the case of Jacob Mathew Versus State of Punjab, reported in (2005) 6 SCC 1, where in paras-48 to 52, the Hon'ble Supreme Corut held as follows:-
"48. We sum up our conclusions as under:-5-
(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), referred to hereinabove, holds good. Negligence becomes actionable on account of injury 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 the 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 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 -6- 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 case [(1957) 1 WLR 582 : (1957) 2 All ER 118 (QBD)] , WLR at p. 586 [ [Ed.: Also at All ER p. 121 D-F and set out in para 19, p. 19 herein.]] 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 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 304-A 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 304-A IPC has to be read as qualified by the word "grossly". (7) To prosecute a medical professional for -7- 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 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.
49. In view of the principles laid down hereinabove and the preceding discussion, we agree with the principles of law laid down in Dr. Suresh Gupta case [(2004) 6 SCC 422 : 2004 SCC (Cri) 1785] and reaffirm the same. Ex abundanti cautela, we clarify that what we are affirming are the legal principles laid down and the law as stated in Dr. Suresh Gupta case [(2004) 6 SCC 422 : 2004 SCC (Cri) 1785] . We may not be understood as having expressed any opinion on the question whether on the facts of that case the accused could or could not have been held guilty of criminal negligence as that question is not before us. We also approve of the passage [ [Ed.: The following is the said extract from Merry and McCall Smith: Errors, Medicine and the Law, cited with approval in Dr. Suresh Gupta case, (2004) 6 SCC 422 (at pp. 247-48 of the book):"Criminal punishment carries substantial moral overtones. The doctrine of strict liability allows for criminal conviction in the absence of moral blameworthiness only in very limited circumstances. Conviction of any substantial criminal offence requires that the accused person should have acted with a morally blameworthy state of mind. Recklessness and deliberate wrongdoing, levels four and five are classification of blame, are normally -8- blameworthy but any conduct falling short of that should not be the subject of criminal liability. Commonlaw systems have traditionally only made negligence the subject of criminal sanction when the level of negligence has been high -- a standard traditionally described as gross negligence.***Blame is a powerful weapon. When used appropriately and according to morally defensible criteria, it has an indispensable role in human affairs. Its inappropriate use, however, distorts tolerant and constructive relations between people. Some of life's misfortunes are accidents for which nobody is morally responsible. Others are wrongs for which responsibility is diffuse. Yet others are instances of culpable conduct, and constitute grounds for compensation and at times, for punishment. Distinguishing between these various categories requires careful, morally sensitive and scientifically informed analysis."]] from Errors, Medicine and the Law by Alan Merry and Alexander McCall Smith which has been cited with approval in Dr. Suresh Gupta case [(2004) 6 SCC 422 : 2004 SCC (Cri) 1785] (noted vide para 27 of the Report).
50. As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by the police on an FIR being lodged and cognizance taken. The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to a rash or negligent act within the domain of criminal law under Section 304-A IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered to his reputation cannot be compensated by any standards.
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51. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasise the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefer recourse to criminal process as a tool for pressurising the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.
52. Statutory rules or executive instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may 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. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or 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 impartial and unbiased opinion applying the Bolam [(1957) 1 WLR 582 : (1957) 2 All ER 118 (QBD)] test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded -10- against would not make himself available to face the prosecution unless arrested, the arrest may be withheld."
9. The above judgment was further referred in the series of judgments of different High Courts including the Jharkhand High Court and further in the case of Martin F. D' Souza Versus Md. Ishfaq, reported in (2009) 3 SCC 1, where in para-106 of the said judgment, it has been held as follows:-
"106. We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer Fora (whether District, State or National) or by the criminal court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or the criminal court should first refer the matter to a competent doctor or committee of doctors, specialised in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the doctor/hospital concerned. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew case [(2005) 6 SCC 1 : 2005 SCC (Cri) 1369] , otherwise the policemen will themselves have to face legal action."
10. In view of the above facts and looking to the judgment of the Hon'ble Supreme Court, it is crystal clear that a private complaint may not be entertained unless the complainant has produced prima facie evidence in the form of credible opinion given by another doctor to support the charge of rashness or negligence on the part of the accused doctor. It appears that to allow the proceeding will amount to abuse of the process of law. Further the FIR was registered by the hospital administration against the O.P. No. 2 on 26.03.2015 being Dhanbad P.S. Case No. 298 of 2015 corresponding to G.R. No. 1406 of 2015 and thereafter the present complaint case has been filed by the O.P. No. 2 on 04.04.2015.
-11-11. In view of the above facts, reasons and analysis, the entire criminal proceeding including the order taking cognizance dated 22.08.2015, by which, cognizance for the offence under Sections 304- A, 323, 379 and 120-B of the Indian Penal Code has been taken against the petitioner, in connection with Complaint Case No. 891 of 2015, pending in the court of learned Judicial Magistrate, 1 st Class, Dhanbad, are hereby, quashed.
12. This petition is allowed and disposed of.
(Sanjay Kumar Dwivedi, J.) Amitesh/-