Punjab-Haryana High Court
Dr. Anil Marwaha vs State Of Punjab And Another on 12 December, 2013
Author: Rekha Mittal
Bench: Rekha Mittal
CRM No.M-34643 of 2011 -1-
In the High Court of Punjab and Haryana at Chandigarh
CRM No.M-34643 of 2011
Date of Decision:12.12.2013
Dr. Anil Marwaha
---Petitioner
Versus
State of Punjab and another
---Respondents
Coram: Hon'ble Mrs. Justice Rekha Mittal
***
Present:- Mr.Vikram Chaudhari, Advocate,
for the petitioner
Mr. Neeraj Sharma, AAG, Punjab
for respondent-State
Mr. P.S.Hundal, Senior Advocate
with Mr.Dinesh Trehan, Advocate
for respondent No. 2
***
REKHA MITTAL,J.
The petitioner has filed the instant petition under Section 482 of the Code of Criminal Procedure (for Short "the Code") seeking quashing of FIR No. 185 dated 4.7.2005 for offence under Section 304 of the Indian Penal Code (for short "IPC") (challan presented under Section 304-A IPC), registered at Police Station, Civil Lines, District Batala and proceedings emanating therefrom.
Counsel for the petitioner contends that the petitioner is a qualified doctor, holder of degree of MBBS since the year 1991. He joined Punjab Civil Medical Services in the year 1993 and completed his Masters in Surgery (M.S.) in the year 2009.
Saini Paramjit Kaur
Petitioner's wife namely, Manju 2013.12.21 11:14 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-34643 of 2011 -2- Marwaha is a qualified doctor having a degree of MBBS, Diploma in Gynae and Obstetrics and running a hospital by the name of Marwaha Hospital.
On 4.7.2005, Pawan Kumar deceased, father of complainant (respondent No.2) came in the OPD clinic of Dr. Manju Marwaha in a serious condition. The petitioner was on his duty at SHC Jaura Singha (PHC Bhullar). After competition of his duty hours at 2-00 p.m., he reached his house at 2.25 p.m. when the patient was lying in a serious condition in the hospital being run by his wife, on the ground floor of their house. On humanitarian grounds and in consonance with the ethics of medical profession, the petitioner examined the patient at 2.30 p.m., ordered few basic investigations as well as ECG. The investigations revealed that patient was suffering from 'Diabetes Mellitus with Ischaemic heart disease with cellulites left arm with septicemia multi organ failure'. Finding condition of the patient critical, it was suggested that he be shifted to a specialized medical institute where facilities of intensive care unit etc. are available at Amritsar, which is nearest referral centre from Batala. It is further submitted that while the patient was being shifted, conservative treatment was accorded to the patient as per established medical norms and practice, details whereof are given in Annexure P-1. The patient, all of a sudden, started gasping for breath and his respiratory ratio increased to 50/PM, his blood pressure and pulse were unrecordable, he was given injection Efcortin and Soda bicarbonate and cardiac massage was done for over 10 minutes but the patient did not revive.
Counsel has submitted that a false case has been got registered by the son of the deceased to exploit the petitioner being a doctor. The post mortem examination on the dead body of Pawan Kumar was conducted and Saini Paramjit Kaur 2013.12.21 11:14 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-34643 of 2011 -3- the cause of death was kept pending awaiting report of the chemical examiner, Patiala and Pathology Department, Government Medical College, Amritsar.
On receipt of the report of Chemical Examiner (Annexure P6) and report from Dr. Surinder Pal Singh, Assistant Professor, Pathology Department, GMHC. Amritsar, the Board of Doctors consisting of Dr. G.S.Sandhu, Dr. Harbhajan Singh and Dr Gagan Sakhuja gave opinion in regard to cause of death, which reads:-
"According to above finding, the cause of death in this case is due to septicemic shock in our opinion."
Tarlok Singh, Investigating Officer, Police Station Civil Lines, Batala submitted an application to the SMO, Civil Hospital Batala for seeking opinion "whether or not patient can die because of treatment given by the doctor". Kindly give directions to the Board to give their expert opinion. In pursuance to the directions issued by the SMO, Civil Hospital, Batala, the Board of Doctors aforesaid expressed their opinion to the following effect:-
"Any kind of treatment/medicine can not cause septicemia or septicemic shock in such a short period of time in routine cause of nature. So treatment cannot be blamed as a cause of death."
Counsel would argue that in view of the opinion given by the Board of Doctors in regard to cause of death (Annexure P7) and subsequent opinion (Annexure P8), the criminal proceedings lodged by the complainant are nothing but misuse and abuse of process of Court.
Another submission made by counsel is that the complainant in the FIR has not specified the injection administered to the deceased and in Saini Paramjit Kaur 2013.12.21 11:14 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-34643 of 2011 -4- the absence of any medical opinion that an injection can cause swelling of the stomach of a patient suffering from septicemia, no prima facie case is made out against the petitioner in view of the allegations set out by the complainant, which is a good ground for quashing of the proceedings. It is further argued that for lodging criminal proceedings against a medical professional for offence under Section 304-A IPC, the prosecution has to prove that there was gross negligence on the part of the accused. According to counsel, the instant case by no stretch of imagination is a case fit for subjecting the petitioner to rigmarole of criminal proceedings in view of ratio of judgments rendered by Hon'ble the Supreme Court of India in Jacob Mathew vs. State of Punjab and another 2005(3) R.C.R. (Criminal) 836, Martin F. D'Souza vs Mohd. Ishfaq (2009) 3 Supreme Court Cases 1 and Dr. Suresh Gupta vs. Government of N.C.T. of Delhi and another 2004(3) R.C.R.(Criminal) 925.
Counsel for the petitioner would further argue that what may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to constitute offence, the element of mens rea must be shown to exist which is altogether missing in the present case.
It is contended that family members of the deceased filed a petition before the District Consumer Disputes Redressal Forum, Gurdaspur for grant of compensation to the tune of Rs. 19 Lakhs. The complaint was dismissed by the said Fora by holding that nothing was placed on record to prove that there was negligence or carelessness on the part of Dr. Anil Kumar Marwaha in treating Pawan Kumar or he gave any injection which reacted, proved fatal and resulted in his death. No opinion of any expert/doctor was placed on record to prove it. According to Saini Paramjit Kaur 2013.12.21 11:14 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-34643 of 2011 -5- counsel, if the complainant or his family members could not prove negligence on the part of the petitioner in civil proceedings, it goes a long way to show that continuation of criminal proceedings on the basis of vague allegations set out by the complainant would not serve any purpose wherein the prosecution is obliged to prove gross negligence on the part of the petitioner in view of what has been held in Jacob Mathew's case (Supra).
Counsel for respondent No. 2 has fairly conceded that keeping in view the allegations levelled against the petitioner, no offence under Section 304 IPC is made out. He has stressed that offence under Section 304-A IPC is made out and report under Section 173 of the Code has also been submitted for the said offence.
However, while refuting the contentions of the petitioner, he contends that allegations levelled by the complainant needs to be tested/examined during trial, therefore, the prosecution cannot be scuttled at threshold. The complainant has alleged that when the patient became serious, the petitioner ran away from the spot along with medical record in place of attending to the patient which shows negligence on his part.
Counsel has placed reliance upon an article statedly published on 12.8.2010 in regard to 'signs and symptoms of Sepsis'. According to counsel, as per publication, Sepsis is three stages syndrome. It commences with sepsis signs and symptoms, progresses to severe sepsis and finally leads to septic shock. Initial symptoms are frequent chills, fever, lightheadedness, rapid heartbeat, hyperventilation. The severe symptoms are decrease in platelet count, significantly decreased urine output, irregular heart beat, delirium and patches of mottled skin. It is submitted that as the deceased never had initial symptoms, much less sever symptoms at any Saini Paramjit Kaur 2013.12.21 11:14 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-34643 of 2011 -6- point of time, it falsifies the report given by the Board of Doctors that the deceased died due to septicemic shock. It is further submitted that possibility of report being manoeuvered by the petitioner taking benefit of his official position being a government doctor, is not ruled out, therefore, the petitioner cannot take any advantage from the documents Annexures P-7 and P-8.
I have heard counsel for the parties and perused the case file. Before adverting to submissions made by counsel for the parties, it is appropriate to recall the legal position laid down in the judgments cited by counsel for the petitioner.
A relevant extract from paras 29, 51, 53 and 55 in Jacob Mathew's case (supra) is usefully quoted hereinbelow:-
29. A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. 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.
51. 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 Saini Paramjit Kaur 2013.12.21 11:14 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-34643 of 2011 -7- sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.
(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 Saini Paramjit Kaur 2013.12.21 11:14 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-34643 of 2011 -8- 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) xxx xxx xxx (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 Indian Penal Code, 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 Indian Penal Code has to be read as qualified by the word 'grossly'.
(7) xxx xxx xxx
(8) xxx xxx xxx.
53.Guidelines re: prosecuting medical professionals 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 Saini Paramjit Kaur 2013.12.21 11:14 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-34643 of 2011 -9- Section 304-A of Indian Penal Code. 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.
55.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 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."
In Martin F.D'Souza's case(Supra) wherein reliance has been Saini Paramjit Kaur 2013.12.21 11:14 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-34643 of 2011 -10- placed upon Jacob Mathew's case (supra) and various other decisions rendered from time to time, the Hon'ble Court in para 106 has held to the following effect:-
"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 Criminal Court should first refer the matter to a competent doctor or committee of doctors, specialized 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's case (supra), otherwise the policemen will themselves have to face legal action."
In Dr. Suresh Gupta's case (supra) a relevant extract from para 20 reads as follows:-
"For every mishap or death during medical treatment, the medical man cannot be proceeded against for punishment. Criminal prosecutions of doctors without adequate medical opinion pointing to their guilt would be doing great disservice to the community at large because if the courts were to impose Saini Paramjit Kaur 2013.12.21 11:14 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-34643 of 2011 -11- criminal liability on hospitals and doctors for everything that goes wrong, the doctors would be more worried about their own safety than giving all best treatment to their patients. This would lead to shaking the mutual confidence between the doctor and patient. Every mishap or misfortune in the hospital or clinic of a doctor is not a gross act of negligence to try him for an offence of culpable negligence."
This brings the Court to examine the facts of the case in hand, in the light of submissions made by counsel.
The material averments in the first information report reads as follows:-
"The doctor conducted ECG, blood test, urine test and administered some injections to the father. Thereafter stomach of my father swell and he felt problem in breathing. When I told the doctor about this, he said to take him to Amritsar. He ran away from the spot along with record and file regarding injections etc. At about 3.30/4.00 P.M., my father died due to administering of wrong injections by Dr. Anil Kumar Marwaha. He was in the knowledge about this that due to any reaction caused by the injection death could occur."
Perusal of Annexure P-1, a document in regard to diagnosis/ treatment given to the patient would reveal that as per diagnosis, it was 'Diabetes Mellitus with cellulites left arm with hypertension with Ischaemic heart disease with septicemic shock'. Admittedly, the doctor conducted ECG, blood test, urine test and certain other investigations. Counsel for the petitioner has not challenged findings of investigation and Saini Paramjit Kaur 2013.12.21 11:14 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-34643 of 2011 -12- the facts noted in the history of the patient as well as on his physical examination. As per the history, there was injury over left elbow, fever for last three days, difficulty in breathing, pain epigastia with discomfort since morning and history of vomiting since morning. TLC count was 20600. The diagnosis that the patient had cellulites, injury over left elbow and TLC being 20600 are indicators that the patient was suffering from infection. Keeping in view the observations recorded in the medical report Annexure P-1, coupled with the opinion given by the Medical Board in regard to cause of death and later opinion in response to request made by the Investigating Officer, it is difficult to accept the contention of the respondent that opinions Annexures P-7 and P-8 cannot be relied upon or the deceased died for a reason other than septicemic shock.
The case of the prosecution in regard to negligence on the part of the petitioner does not find support from any medical opinion. The allegation of the complainant that injection(s) given by the doctor worsened the condition of Pawan Kumar does not get substantiated by any material much less to show that there was gross negligence on the part of the doctor. The allegations that the doctor ran away with the record is not sufficient to prove gross negligence. It appears that these allegations have been raised by the complainant to create a ground for lodging criminal proceedings taking advantage of the fact that the deceased happened to be one of the officials of police. The facts and circumstances of the present case when examined in the light of principles culled out by Hon'ble the Supreme Court of India, I do not think it to be a fit case wherein the petitioner should be subject to rigmarole of criminal proceedings, just to satisfy the ego of the complainant due to unfortunate death of Pawan Kumar. Saini Paramjit Kaur 2013.12.21 11:14 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-34643 of 2011 -13-
In view of what has been discussed hereinabove, the petition is allowed and FIR No. 185 dated 4.7.2005 for offence under Section 304 IPC registered at Police Station, Civil Lines, District Batala and proceedings emanating therefrom are ordered to be quashed.
( Rekha Mittal ) Judge 12.12.2013 Paramjit Saini Paramjit Kaur 2013.12.21 11:14 I attest to the accuracy and integrity of this document Chandigarh