Madhya Pradesh High Court
Dr.A.G.Vinchurkar vs The State Of Madhya Pradesh on 18 September, 2012
(1)
HIGH COURT OF MADHYA PRADESH : AT JABALPUR
M.Cr.C. No. 10289/2007
Dr. A.G.Vinchurkar
Vs.
State of M.P.
As Per : G.S.Solanki, J.
Shri Sameer Seth, Advocate for the petitioner.
Shri Vinod Faujdar, PL for the State.
ORDER
(18.9.2012)
1. This petition has been filed by the petitioner invoking the extraordinary jurisdiction of this Court under section 482 of the Cr.P.C. for quashing the FIR of Crime No. 299/2007 registered at P.S. Kotwali, District Panna and further proceedings thereto.
2. The facts, in short, giving rise to this petition are that the petitioner is working as Assistant Surgeon at District Hospital, Panna. On 23.8.2006, Smt. Preeti Raizada w/o Chandrakant Raizada was admitted in the District Hospital for delivery. She died during the treatment, thereafter on 6.9.2006, a representation was made by District Bar Association to the Collector, on the basis of which the Collector constituted a committee for enquiry. Additional Collector was appointed as Enquiry Officer, during enquiry, he found that the applicant had administered anesthesia to Preeti Raizada, due to which her condition had deteriorated and she died. It was further found that thereafter the applicant went away from the operation theater without informing the Police. On the basis of aforesaid enquiry, an offence under section 304-A, 201 of the IPC has been registered against the petitioner vide Cr. No. 299/2007.
3. After usual investigation, the police applied for prosecution sanction to Government of M.P., which still pending, therefore, the Challan could not be filed before CJM, Panna. (2)
4. Learned counsel for the petitioner has submitted that the petitioner has been falsely implicated in this case. He was performing his duties. The patient died due to the complications. The petitioner and his companion Doctors tried their level best to save the deceased and her child, therefore, no case under section 304-A, 201 of the IPC is made out against the applicant, therefore, the FIR of Crime No. 299/2007 and further proceedings thereto be set aside. He has placed reliance on the decisions of the Apex Court in Dr. Suresh Gupta Vs. Govt. of NCT of Delhi and another - AIR 2004 SC 4091; Jacob Mathew Vs. State of Punjab and another - AIR 2005 SC 3180 and Martin F. D'Souza Vs. Mohd. Ishfaq - AIR 2009 SC 2049.
5. Learned Panel Lawyer for the State has submitted that there is prima facie evidence against the petitioner under section 304-A, 201 of the IPC, therefore, this petition deserves to be dismissed.
6. I have heard the learned counsel for the parties at length and gone through the material on record. It is undisputed on record that deceased Preeti had admitted for delivery of a child in the District Hospital, Panna on 23.8.2006 and she died on the same day. No report was made to the Police on 23.8.2006 and autopsy of the body of the deceased was also not performed. Thereafter, till 6.9.2006, no action was taken by the husband of the deceased Chandrakant Raizada, who is a practicing lawyer and on 6.9.2006, a letter was written by the President of District Bar Association, Panna to the Collector to make enquiry regarding death of Preeti Raizada. An enquiry was conducted and it was opined that it was the duty of the applicant and Dr. Smt. Meena Namdeo to report the matter to the Police and make (3) the request for post mortem examination of the body of the deceased but they failed to do so, thus, its a case of sheer negligence on the part of the applicant. Thereafter, a report was lodged under section 304-A of the IPC against the applicant. The matter was investigated and as per the prosecution, the matter is still pending seeking permission for prosecution against the applicant.
7. I have gone through the statements of the witnesses, who were present in the Operation Theater on the date of incident like Smt. Sapna Sahu, Staff Nurse, Durga Prasad, Ward Boy, Dr. Smt. Meena Namdeo, Dr. S.K.Tripathi and Dr. Arun Jain. All of them stated that Preeti Raizada was admitted in the hospital for delivery and her cesarean was to be performed. The applicant administered anesthesia through injection, thereafter she became serious. All the Doctors present at Operation Theater tried to save her by administering the emergency medicines.
8. Though it is contended that the matter was not reported by the concerned Doctors to the Police, however, at the same time Dr. Smt. Meena Namdeo, Dr. S.K. Tripathi and Dr. Arun Jain have specifically stated that they told the relatives of the deceased to make report to the Police and for post mortem examination of the body of the deceased, but they refused to perform the post mortem. Chandrakant Raizada, husband of the deceased stated that the Doctors present in the Operation Theater did not report the matter to the police and the post mortem was also not performed of the body of the deceased, thereafter, he suspected that his wife died due to negligence of the Doctors. The husband of the deceased is a Practicing Lawyer, he could have reported the matter on the same day to the Police or may give consent for the post-mortem of the body of the (4) deceased, but neither he reported the matter to the police nor permitted for post mortem of the body of the deceased and after 13 days on 6.9.2006, a letter was written by the President of Bar Association, Panna to the Collector to inquire into the matter.
9. Normally, it is seen that in the event of death in the hospital, the atmosphere gets charged and tensed and in such atmosphere, it cannot be expected from the treating Doctors to send the body of the deceased for post mortem without the consent of the relatives of the deceased. In the instant case, all the Doctors and other witnesses present at the time of incident unanimously stated that they intimated the relatives of the deceased to make report to the police and to send the body of the deceased for post mortem, but they did not agree and ultimately the last rites were performed. Thus, it cannot be said to be a case of medical negligence on the part of the applicant.
10. The Apex Court in Jacob Mathew Vs. State of Punjab and another (supra) has held that 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. In the instant case it is apparent from the record that the applicant is having the sufficient experience of administering the anesthesia to the patients. Its not a case that the applicant is not possessing the requisite skill, which he professed to have possessed, however, whether he has exercised the aforesaid skill with reasonable competence or not, cannot be said without the post mortem report. It is not possible to ascertain without the post-mortem report whether the applicant administered anesthesia to the deceased with competence? Whether she reacted otherwise or excessive amount of anesthesia was administered to her? The death may (5) be due to hypertension as a result of spinal anesthesia or may be a shock due to operation itself.
11. In view of the aforesaid discussion made, in my opinion, no prima facie case is made out against the applicant under section 304-A, 201 of the IPC.
12. Consequently, the petition is allowed. The FIR of Crime No. 299/2007 registered at P.S. Kotwali, District Panna and further investigation/proceedings thereto, are hereby quashed.
(G.S.Solanki) Judge PB