Punjab-Haryana High Court
Ajaya Chakravarty vs State Of U.T. Chandigarh on 24 January, 2013
Author: Ranjit Singh
Bench: Ranjit Singh
Criminal Misc.-M No. 37223 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Criminal Misc.-M No. 37223 of 2012
Date of decision : 24.01.2013
Ajaya Chakravarty
.....Petitioner
VERSUS
State of U.T. Chandigarh
....Respondent
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. P.S. Ahluwalia, Advocate
for the petitioner
Mr. Rajiv Sharma, Advocate
for the respondent
****
RANJIT SINGH, J.
This order shall dispose of two Criminal Misc.-M No. 37223 of 2012 (Ajaya Chakravarty vs. State of U.T. Chandigarh) and Criminal Misc.-M No. 38045 of 2012 titled as Mohinder Kaushal vs. State of U.T. Chandigarh.. The facts are being taken from Criminal Misc.-M No. 37223 of 2012.
The petitioner who is a doctor is alleged to have given an injection on 09.07.2011 to three years old child named Vikas. Said Vikas had suffered a grievous injury for which he was brought to the petitioner doctor. The child died on the same day. A complaint was filed to allege that the child died on account of this injection and thus the petitioner was liable for rash or negligent act which caused the death of the child. FIR No. 165 dated 09.07.2011 was registered against the petitioner under Section 304-A IPC at Police Station, Criminal Misc.-M No. 37223 of 2012 2 Sector 19-C, Chandigarh.
The petitioner has now approached this Court through the present petition for quashing of this FIR on the ground that police had registered this FIR without obtaining opinion of expert Doctors as is required in terms of the law laid down by Hon'ble Supreme Court in the cases Jacob Mathew vs. State of Punjab and another, 2005(3) RCR(Criminal) 836 and Martin F. D'Souza vs. Mohd. Ishfaq, 2009 (2) RCR(Criminal) 64.
The legal position in this regard is well settled by Hon'ble Supreme Court. For registering an FIR against a doctor, it is essential for investigating officer to obtain independent and competent medical opinion preferably from a doctor in the Government service qualified in the branch. In Martin F. D'Souza case (supra) it is observed as under:-
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 concerned doctor/hospital. 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 Criminal Misc.-M No. 37223 of 2012 3 (supra), otherwise the policemen will themselves have to face legal action."
No reply in this case has been filed. The conceded position is that this FIR has been registered without obtaining any opinion of Doctor in the field concerned. The challan has also been presented which does not contain any opinion of the expert doctor.
In Jacob Mathew's case (supra), the Court observed as under:-
"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 Criminal Misc.-M No. 37223 of 2012 4 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 order to further prosecute the petitioner this requirement was essential as otherwise it will lead to a futile trial which would call for interference and ultimate lead to failure of justice. I would, therefore, deem it appropriate to issue some corrective measure at this stage. This is a fit case for trial to consider directing the investigating agency to conduct further investigation and obtain the opinion of expert doctor in terms of the law laid down by the Hon'ble Supreme Court. Further proceedings before the trial Court shall remain stayed till the receipt of the opinion of the expert doctor. If the Board or the expert doctor opines that there was negligence on the part of doctor which had caused the death, then further action would follow. Even otherwise the trial Court would be at liberty to act on the opinion of the Board or expert in accordance with law as laid down in Jacob Mathew and Martin F. D'Souza's case (supra). Let this process be completed within one month from the date of receipt of copy of this order.
With the above observations, present petition is disposed of.
January 24, 2013 ( RANJIT SINGH ) reena JUDGE