Jammu & Kashmir High Court - Srinagar Bench
Ghulam Ahmad Wani vs State Of Jk & Ors. on 15 November, 2017
Author: M. K. Hanjura
Bench: M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
OWP No. 1729/2014 c/w
561-A No. 02/2015
Date of Order: 15th November, 2017.
Ghulam Ahmad Wani Vs. State of JK & Ors.
Dr. Mufti Mehmood Ahmad Farooqi Vs. State of JK & Anr.
Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge.
Appearance:
For the Petitioner(s): Mr Bhat Fayaz Ahmad, Advocate in OWP No. 1729/2014;
Mr Altaf Haqani, Advocate in 561-A No. 02/2015.
For the Respondent(s): Mr B. A. Dar,Sr. AAG for R-5 to 8 in OWP No. 1729/2015
And for R-1 in 561-A No. 02/2015;
Mr Altaf Haqani, Advocate for R-8 in OWP No. 1729/2014;
Mr Bhat Fayaz Ahmad, Advocate for R-2 in 561-A No.02/2015.
i) Whether approved for reporting in Yes/No
Law Journals etc.:
ii) Whether approved for publication
in Press: Yes/No
01. This order shall dispose of two petitions, one bearing OWP No. 1729/2014 and the other, filed under Section 561-A Cr. PC bearing No. 02/2015.
02. In OWP No. 1729/2014, the petitioner, Shri Ghulam Ahmad Wani, has craved the indulgence of this Court in granting him the following reliefs:
"A) Writ of Mandamus, commanding upon the respondents to initiate a full dressed impartial inquiry into the matter and punish OWP No. 1729 of 2014 c/w 561-A No. 02/2015 Page 1 of 19 the guilty doctors for negligence which resulted into death of patient namely Mehmooda Parveen who left behind two minor kids.
B) Writ of Mandamus, commanding upon the respondents to compensate the petitioner to the tune of Rs. 80.00 lacs for unfortunate death of his daughter due to medical negligence and also book the culprits to justice.
C) Writ of Mandamus, commanding the Respondent No.5 to monitor the investigation of the case personally and speedup the investigation and complete the same within some reasonable promptitude.
D) This Hon'ble Court may pass any other order or direction which it deems just and proper under the facts and circumstances of the case in favour of the petitioner and against the respondents."
03. The facts, as these stem out from the petition bearing OWP No. 1729/2014, are that, on the 24th of October, 2014, a young lady, namely, Smt. Mehmooda Parveen, aged 36 years, was admitted in SMHS Hospital, Srinagar. She was diagnosed as a case of Renal Calculus (Kidney Stone), for which she had to undergo many tests that ended on the 28th of October, 2014 and, on the same day, the patient was laparoscopically operated by Dr. Syed Mufti Mehmood, HOD Urology, SMHS, Hospital, Srinagar. The post-operative condition of the patient was a bit stable, but, in the evening, she developed some complications and, the doctors, present on duty, could neither diagnose the reason for the continuous decrease of her blood pressure nor did they inform the Consultant doctor. The attendants/ petitioner were directed to arrange six packets of PRPs (Platelets) and one fresh O+ blood point. However, PRPs, were not available in the Blood Bank of the SMHS Hospital, Srinagar, and only two packets could be arranged by the petitioner/ attendants on their own from SKIMS, Hospital, Soura. On the 29th of October, 2014, the Consultant doctor did not visit the patient to monitor her condition despite repeated requests of the OWP No. 1729 of 2014 c/w 561-A No. 02/2015 Page 2 of 19 attendants and the petitioner extended to the Medical Superintendent. This continued upto 31st of October, 2014, when Smt. Mehmooda Parveen lost the battle of her life leaving behind two minor children in the age of 4 and 9 years. The patient was in a sound state of health when she was admitted in the Hospital. She lost her life due to the negligence of the doctors for which an FIR has also been registered, but no action has been taken on it so far, leaving the petitioner with no other option but to seek the indulgence of this Court through the medium of this petition.
04. The sum and substance of the reply of the Respondent Nos. 2 and 3 is that on 3rd November, 2014, the petitioner, namely, Ghulam Ahmad Wani S/o Mohammad Khalil Wani R/o Panzgam Kupwara, moved an application in Police Station, Karan Nagar, alleging therein, that his daughter, namely, Smt. Mehmooda Parveen, was admitted in SMHS, Hospital, vide MRD No. 1228 and she was diagnosed as a case of Renal Calculus (Kidney Stone) for which she was operated on 28th of October, 2014.After the surgery, the said lady was referred to the General Ward and, in the evening, she developed some complications. The junior doctors on duty informed their higher ups about the state of the health of the deceased, as a consequence of which, the patient was referred to post-operative Intensive Care Unit (ICU). The patient was put on life support system. The operation was conducted to remove the stone from the Kidney, but, surprisingly, the stone was not removed during operation. This got revealed during the course of an enquiry conducted by the attendants. The patient breathed her last on the 31st of October, 2014, in the wee hours of the morning. The laparoscopic surgery, was performed by some un-skilled Doctors under the supervision of Dr. Mufti Mehmood, i.e. the Respondent No.8 herein, and the post-operative care of the patient was winded with negligence and OWP No. 1729 of 2014 c/w 561-A No. 02/2015 Page 3 of 19 carelessness on the part of the doctors, as a result of which, the patient died.On receipt of this complaint,a case FIR No. 42/2014 U/S 304-A- RPC was registered in Police Station Karan Nagar, and the investigation was taken up. During the course of the investigation, all the legal formalities were completed. The documents, as these related to the case of the deceased, were collected from SMHS, Hospital. The statements of the witnesses conversant with the facts of the case were recorded. The Hospital authorities were directed to constitute a team of doctors to ascertain the cause of the death of the deceased. Their report has not been received so far, and, therefore, the case could not be brought to the logical conclusion. The investigation of the case is in progress. However, a complaint was also lodged by the petitioner, Shri Ghulam Ahmad Wani, the father of the deceased Mehmooda Parveen, before the Principal/ Dean Government Medical College/ Medical Superintendent SMHS Hospital, Srinagar, for which a Departmental Enquiry has been directed.
05. In his reply, the Respondent No.8 has pleaded that he, being a qualifiedDoctor, has successfully passed MBBS as also the Masters' degree in Surgery (MS). He has also been awarded MCH Degree Course in the Super Specialty of Urology. He is substantively holding the post of Associate Professor in the Department of Surgery at the Government Medical College, Srinagar. The relevant testimonials evidencing the above facts are attached to the petition and are collectively marked as Annexure-P1.A case bearing FIR No. 42/2014 has been registered against him at Police Station Karan Nagar on 3rd November, 2014,for the commission of an offence under Section 304-A RPC. The FIR is a sequel to the fact that it has been registered on an application made by the petitioner, alleging commission of an act of deliberate medical negligence against him, resulting in the death of his daughter, Smt. Mahmooda OWP No. 1729 of 2014 c/w 561-A No. 02/2015 Page 4 of 19 Parveen. In the said application, it has been asserted by the petitioner that the patient, namely, Smt. Mahmooda Parveen, aged 37 years, on admission at SMHS Hospital under MRD No. 1228 and having been diagnosed a case of Renal Calculus (Kidney Stone) was operated on 28th of October, 2014, and the procedure was completed at 1.00 PM successfully. The complaint also states that during post operation, the patient developed some complications, in the evening and the junior doctors, on duty, intimated this to their higher ups, who referred the patient to post-operative Intensive Care Unit. It is also alleged that the patient was put on life support system and, on enquiry, the attendants of the patient were told that the stone had not been removed. It is also alleged that the blood pressure of the patient regularly decreased and that the same, as per the doctors, was due to internal bleeding which could not be detected or cured. It is also stated that, on 29th of October, 2014, the surgeon,under whose supervision some unskilled doctors performed the surgery, did not come to see the patient,as a result of which, she went into Coma. This necessitated her placement on ventilator support on the 30th of October, 2014 at 8.00 AM. The concerned doctor is alleged of having not visited the patient, causing her attendants to raise a hue and cry. The complaint also specifies that the concerned doctor visited the patient at 11.00 AM, but till then, she had slipped into Coma with her condition deteriorating slowly and steadily, resulting in her death. The answering respondent has further submitted that the said FIR has been registered by the concerned Police Agency, although, on the face of it, no offence in the nature of causing death by any rash or negligent act is disclosed to have been committed by him, more particularly, when it is the admitted case of the complainant that the surgical procedure in question had been successfully carried out and completed, and, that it was only during the evening hours of 28th of October, OWP No. 1729 of 2014 c/w 561-A No. 02/2015 Page 5 of 19 2014 (post-operative period), that the patient developed some complications, resulting in the shifting of the patient to post-operative Intensive Care Unit, taking into consideration her unstable condition. It is an admitted case of the complainant that the patient had been put to life support system. Being so, it could not be said that he has indulged in any act of medical negligence, much less an act of gross negligence, which, under law, is an essential and indispensable ingredient of an offence under Section 304-A RPC. It is stated that while registering the said FIR, no preliminary enquiry (PE), as required under law, has been conducted by Respondent No. 7. To the contrary, the Respondent No. 7, proceeded to record the FIR in a mechanical manner
06. In the petition, filed under Section 561-A Cr. P.C. bearing No. 02/2015, the petitioner, Dr. Mufti Mohammad Farooq, has stated that heholds the post of Associate Professor at the Government Medical College, Srinagar. Having conducted a surgical procedure in a case of Renal Calculus (Kidney stone) on the 28th of October, 2014, on a lady patient, namely, Smt. Mahmooda Parveen, successfully, the petitioner is alleged to have committed an offence under Section 304-A RPC in terms of FIR No. 42/2014 registered at Police Station, Karan Nagar, Srinagar, merely because after the successful operation at 1.00 PM and her shifting to the General Ward, the patient developed complications in the evening that necessitated shiftingher to the post-operative Intensive Care Unit, where she expired on the 31st of October, 2014. The FIR has been registered without conduct of any preliminary enquiry or obtaining any independent medical advice, as has been held by the Apex Court. The Committee of Experts, however, constituted by the Principal Government Medical College, Srinagar, has ruled out any prima facie evidence of medical negligence on the part of the petitioner.
OWP No. 1729 of 2014 c/w 561-A No. 02/2015 Page 6 of 1907. Heard and considered.
08. The case of the petitioner in OWP No. 1729/2014 rests primarily on the ground that the Respondent No.8 has been remiss, callous and negligent in handling the patient, namely, Smt. Mehmooda Parveen, diagnosed as a case of renal Calculus (Kidney Stone), who was admitted in the SMHS Hospital, Srinagar. She was operated by the Respondent No. 8. She developed post- operative complications, as a result of which, she was shifted to the Intensive Care Unit on the day she was operated upon, i.e. 28th of October, 2014 and fate had it for her that she did not come out of the wriggle of this ailment and, consequently, gave up the ghost on 31st of October, 2014. The petitioner has stated that the Respondent No.8, i.e. Dr. Syed Mehmood Mufti, did not take the care of the deceased at the post-operative stage, although, the Medical Superintendent of the Hospital was repeatedly and rigorously asked to call him to attend the patient. The case of the petitioner further is that on an inquiry, conducted by him and the attendants who attended the deceased, it came to the fore that the Kidney of the deceased had not been removed and she died of internal bleeding. The Respondent No.8, i.e. the petitioner in the petition filed under Section 561-A Cr. PC, has stated that taking into consideration the facts, as spelt out in the FIR in their entirety, no case of criminal negligence is made out against him.
09. The law is that the concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in the criminal law. The element of "mens rea" has to be shown to exist for concluding that the negligence amounted to an offence. To bring an act within the definition of criminal negligence, the degree of negligence has to be of a OWP No. 1729 of 2014 c/w 561-A No. 02/2015 Page 7 of 19 higher order, i.e. it should amount to gross negligence. Negligence, which can neither be rated as gross nor of a higher degree,may give a person the teeth to seek the settlement of his claim in Civil law, but it cannot form the baseline for the prosecution of an accused under Section 304-A RPC. The expression "Rash or Negligent Act", as it occurs in Section 304-A RPC, has to be read to mean "gross negligence" as is the settled position in the Criminal law.
10. In a case of prosecution of a medical professional for negligence under criminal law, it has to be shown authoritatively that the acts of omission and commission attributed to a person were such that no medical professional in his ordinary senses and prudence would have done or failed to do. The act of the accused doctor should be of such a nature that the injury which resulted was most likely imminent.The law laid down on the subject is beaming and clear. In "Dr. Suresh Gupta v. Govt. of N.C. T. of Delhi", reported in "AIR 2004 Supreme Court 4091", it has been held as under:
"24. No doubt in the present case, the patient was a young man with no history of any heart ailment. The operation to be performed for nasal deformity was not so complicated or serious. He was not accompanied even by his own wife during the operation. From the medical opinions produced by the prosecution, the cause of death is stated to be 'not introducing a cuffed endo-tracheal tube of proper size as to prevent aspiration of blood from the wound in the respiratory passage'. This act attributed to the doctor, even if accepted to be true, can be described as negligent act as there was lack of due care and precaution. For this act of negligence he may be liable in tort but his carelessness or want of due attention and skill cannot be described to be so reckless or grossly negligent as to make him criminally liable.
25. Between civil and criminal liability of a doctor causing death of his patient the court has a difficult task of weighing the degree of carelessness and negligence alleged on the part of the doctor. For conviction of a doctor for alleged criminal offence, the standard OWP No. 1729 of 2014 c/w 561-A No. 02/2015 Page 8 of 19 should be proof of recklessness and deliberate wrong doing i.e. a higher degree of morally blameworthy conduct.
26. To convict, therefore, a doctor, the prosecution has to come out with a case of high degree of negligence on the part of the doctor. Mere lack of proper care, precaution and attention or inadvertence might create civil liability but not a criminal one. The courts have, therefore, always insisted in the case of alleged criminal offence against doctor causing death of his patient during treatment, that the act complained against the doctor must show negligence or rashness of such a higher degree as to indicate a mental state which can be described as totally apathetic towards the patient. Such gross negligence alone is punishable.
27. See the following concluding observations of the learned authors in their book on medical negligence under the title 'Errors, Medicine and the Law' [by Alan Merry and Alexander McCall Smith at pg. 247-248]. The observations are apt on the subject and a useful guide to the courts in dealing with the doctors guilty of negligence leading to death of their patients :-
"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 wrong doing, levels four and five are classification of blame, are normally blameworthy but any conduct falling short of that should not be the subject of criminal liability. Common-law 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 OWP No. 1729 of 2014 c/w 561-A No. 02/2015 Page 9 of 19 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."
28. After examining all the medical papers accompanying the complaint, we find that no case of recklessness or gross negligence has been made out against the doctor to compel him to face the trial for offence under section 304A of the IPC. As a result of the discussion aforesaid on the factual and legal aspect, we allow this appeal and by setting aside the impugned orders of the Magistrate and of the High Court, quash the criminal proceedings pending against the present doctor who is accused and appellant before us."
11. In the case of "Jacob Mathew v. State of Punjab & Anr.", reported in "AIR 2005 Supreme Court 3180", the legal principles and the law laid down in Dr. Suresh Gupta's case have been re-affirmed. The relevant excerpts of the judgment germane in the context of the issues raised here in these petitions are detailed as under:
"49. We sum up our conclusions as under:-
(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'.OWP No. 1729 of 2014 c/w 561-A No. 02/2015 Page 10 of 19
(2) 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. 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 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.OWP No. 1729 of 2014 c/w 561-A No. 02/2015 Page 11 of 19
(4) The test for determining medical negligence as laid down in Bolam's case [1957] 1 W.L.R. 582, 586 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 304A of 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 304A of the IPC has to be read as qualified by the word 'grossly'.
(7) To prosecute a medical professional for 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.
50. 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's case (2004) 6 SCC 422 and re-affirm the same. Ex abundant cautela, we clarify that what we are affirming are the legal principles laid down and the law as stated in Dr. Suresh Gupta's case. We may not be understood as having OWP No. 1729 of 2014 c/w 561-A No. 02/2015 Page 12 of 19 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 from Errors, Medicine and the Law by Alan Merry and Alexander McCall Smith which has been cited with approval in Dr. Suresh Gupta's case (noted vide para 27 of the report).
Guidelines re: prosecuting medical professionals
51. 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 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 rash or negligent act within the domain of criminal law under Section 304-A of 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 in his reputation cannot be compensated by any standards.
52. 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 emphasize 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 prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.
53. 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 OWP No. 1729 of 2014 c/w 561-A No. 02/2015 Page 13 of 19 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 Bolam's 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 investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.
Case at hand
54. Reverting back to the facts of the case before us, we are satisfied that all the averments made in the complaint, even if held to be proved, do not make out a case of criminal rashness or negligence on the part of the accused appellant. It is not the case of the complainant that the accused-appellant was not a doctor qualified to treat the patient whom he agreed to treat. It is a case of non- availability of oxygen cylinder either because of the hospital having failed to keep available a gas cylinder or because of the gas cylinder being found empty. Then, probably the hospital may be liable in civil law (or may not be we express no opinion thereon) but the accused appellant cannot be proceeded against under Section 304A IPC on the parameters of Bolam's test.
Result
55. The appeals are allowed. The prosecution of the accused appellant under Section 304A/34 IPC is quashed.
56. All the interlocutory applications be treated as disposed of."
OWP No. 1729 of 2014 c/w 561-A No. 02/2015 Page 14 of 1912. Applying the ratio of law laid down above to the facts of the instant case, the act attributed to the accused here in this case, even if stretched to unreasonable lengths, can,at the most, be stated to be an act performed with lack of due care and precaution. The allegation levelled against the petitioner is that, although, the operation was successful, but the complications that arose during the post-operative period led to the death of the deceased. It is also brought to the fore that the doctors who attended the deceased admitted her in the Intensive Care Unit where she was kept on a ventilator and the platelets which were directed to be arranged for the deceased were not available in the Blood Bank of the SMHS Hospital, Srinagar, as stated by the petitioner in OWP No. 1729/2014. It is not the case of the petitioner in the said OWP that these platelets were available, but were not given to the deceased. A simple lack of care, an error of judgment or an accident is not proof of negligence on the part of a medical professional. In a case, where a medical professional is accused of gross negligence, the Investigating Officer and the private complainants cannot be supposed to have the knowledge of medical science which will give them the stick to determine whether the act attributed to the accused (medical professional), does or does not amount to rash or negligent act under the provisions of Section 304(A) RPC. It will hover before their eyes like the mirage of an oasis. By taking resort to the practice, of registering cases against a medical professional for an offence under Section 304(A) of RPC on the mere asking of the Investigating Officer and the private complainants, the medical professionals will shirk from their work. The threat of criminal prosecution will always loom large on their heads and, as a consequence of this, the patients will be left in the lurch.
OWP No. 1729 of 2014 c/w 561-A No. 02/2015 Page 15 of 1913. The law laid down in Civil Appeal No. 368/2013 arising out of the SLP (C) No. 26043/2010 highlights this aspect. It provides that a Surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient if the hands be trembling with the dangling fear of facing a criminal prosecution in the event of failure for whatever reason/ whether attributable to him or not, neither can a surgeon successfully wield his life-saving scalpel to perform an essential surgery, nor can a physician successfully administer the life-saving dose of medicine. Discretion being the better part of valour, a medical professional would feel better advised to leave a terminal patient to his own fate in the case of emergency where the chances of success may be 10 percent (or so), rather than taking a risk of making a last ditch effort towards saving the subject and facing a criminal prosecution if his effort fails. Such timidity forced upon a doctor would be disservice to the Society.
14. Taking the above aspect into consideration, the Apex Court of the country in Jacob Mathew's case felt the need to incorporate certain guidelines in the Statutory Rules and Executive Instructions by the Government of India and/ or the State Governments in consultation with the medical Council of India. It directed further that till such time this is not done, certain guidelines which should govern the future prosecution of the doctors for offences of which criminal rashness or criminal negligence is an ingredient, require to be regulated. In the guidelines incorporated by the Apex Court, the Court ordained that the private complaint may not be entertained unless the complainant has produced, prima facie, evidence before the Court in the form a credible opinion given by another competent Doctor to support the charge of rashness or negligence on the part of the accused Doctor. The Supreme Court commanded OWP No. 1729 of 2014 c/w 561-A No. 02/2015 Page 16 of 19 that the investigating Officer should before proceeding against the Doctor accused of a rash or negligent act, obtain an independent and competent medical opinion preferably from a Doctor in Government service in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying the Bolam's test to the facts collected in the investigation. The Supreme Court further held that 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 against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.
15. Reverting back to the facts of the petitions before me, pursuant to the complaint dated 3rd November, 2014, endorsed by the petitioner to Medical Superintendent, SMHS Hospital, Srinagar, the Principal/ Dean GMC, Srinagar, constituted an enquiry Committee comprising the following:
1. Head of the Department, Surgery, GMC, Srinagar;
2. Head of the Department, (Medicine), GMC, Srinagar;
3. Head of the Department (Anesthesiology), GMC, Srinagar;
4. Medical Superintendent, SMHS Hospital, Srinagar; and
5. Administrator, Associated Hospitals, Srinagar.
16. The said Committee, besides having conducted its proceedings, obtained the reply of the petitioner (Dr. Mufti Mehmood Ahmad Farooqi) to the complaint. In terms of the reply, the petitioner denied the commission of any act of negligence in the conduct of surgery of the patient and explained his conduct also. The Enquiry Committee, on examination of the entire records, finally ruled out the existence of any prima facie evidence of negligence on the part of the treating doctors including the petitioner in the matter vide their report dated 9 th OWP No. 1729 of 2014 c/w 561-A No. 02/2015 Page 17 of 19 of December, 2014, which is attached to the file bearing 561-A No. 02/2015 as Annexure-P4. The operative portion of the said report reads as under:
"Keeping in view aforementioned facts, following is the considered opinion of the enquiry committee:
"Patient with (L) Proximal Ureteric calculus with Grade-2 hydronephrosis was subjected to requisite surgical procedure and during postoperative period patient developed urosepsis with multiorgan dysfunction syndrome".
The treating doctors have judiciously and professionally managed the patient as per standard protocol mentioned in the literature. There is no prima facie evidence of any negligence on the part of treating doctors including the urologist who was involved in management of this case."
17. The authorities of SMHS Hospital, Srinagar, have examined the case of the deceased in compliance with the mandate of the guidelines laid down by the Supreme Court. The Committee of the Experts, which comprised of three Heads of the Departments of Surgery, Medicine and Anesthesiology, including the Medical Superintendent and the Administrator,after giving a complete background of the case,opined that the patient was managed judiciously, professionallyand as per the standard protocol mentioned in the literature. No prima facie evidence of any negligence on the part of the treating Doctors, including the Urologist, who was involved in the management of the case, was found by them. On the face of this report of the team of Experts, constituted on the subject on which they alone could delve, that is whether the act attributed to the doctor, did or did not, constitute gross negligence on his part, the proceedings initiated against the petitioner on the basis of FIR No. 42/2014 registered against him at Police Station Karan Nagar, Srinagar, cannot survive. The surgery having been conducted on a day when neither the blood nor PRPs were available, as alleged by the complainant in his complaint, and the patient OWP No. 1729 of 2014 c/w 561-A No. 02/2015 Page 18 of 19 having developed post-operative complications after a successful surgery, as contended in the FIR, the conduct of the doctor cannot be brought within the range of gross negligence nor can it be stated that it was due to the lack of necessary care, attention or skill in treating the patient, which has been ruled out by the Committee of the Experts.
18. Viewed in the context of what has been said and done above, the writ petition bearing OWP No. 1729/2014 is devoid of any merit and, as such, the same is dismissed alongwith all connected MP(s). The petition, under Section 561-A Cr. P.C. filed by the petitioner, Dr. Mufti Mehmood Ahmad Farooqi, is allowed on the analogy of the law cited above, as a sequel to which, the FIR bearing FIR No. 42 of the year 2014 registered against the petitioner at Police Station Karan Nagar and the proceedings emanating therefrom are ordered to be quashed.
19. Registry to place a copy of this order on both the files.
(M. K. Hanjura) Judge SRINAGAR November 15th, 2017 "TAHIR"
OWP No. 1729 of 2014 c/w 561-A No. 02/2015 Page 19 of 19