Madhya Pradesh High Court
Dr. Manoj Bansal vs The State Of Madhya Pradesh on 2 February, 2017
Author: N.K. Gupta
Bench: N.K. Gupta
(M.Cr.C.No.10789/2013, Dr. Ramavtar Goyal Vs. State of M.P. And others) and
(M.Cr.C.No.3295/2015, Dr. Manoj Bansal Vs. State of M.P. And others) 1
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH:
PRESENT :
HON'BLE SHRI JUSTICE N.K. GUPTA
M.Cr.C.No.10789/2013
Dr. Ramavtar Goyal
-Vs-
State of Madhya Pradesh and another
______________________________________________________
Shri Sanjay Gupta, learned counsel for the applicant.
Dr. Anjali Gyanani, learned Public Prosecutor for the respondent
no.1/State.
Respondent no.2 Mr. Manoj Upadhyay, Advocate is present in
person.
&
M.Cr.C.No.3295/2015
Dr. Manoj Bansal
-Vs-
State of Madhya Pradesh and another
______________________________________________________
Shri R.K. Goyal, learned counsel for the applicant.
Dr. Anjali Gyanani, learned Public Prosecutor for the respondent
no.1/State.
Respondent no.2 Mr. Manoj Upadhyay, Advocate is present in
person.
(M.Cr.C.No.10789/2013, Dr. Ramavtar Goyal Vs. State of M.P. And others) and
(M.Cr.C.No.3295/2015, Dr. Manoj Bansal Vs. State of M.P. And others) 2
ORDER
(__/02/2017 ) Per N.K. Gupta, J Both the petitions under section 482 of Cr.P.C are filed against the FIR lodged by the respondent no.2-Manoj Upadhyay at Police Station, University, Gwalior registered at Crime No.85/2013, hence, both the petitions are hereby disposed off by the present common order.
2. The applicants have challenged the registration of Crime No.85/2013 registered by S.H.O. Police Station, University, Gwalior for the offences under sections 420, 465, 467, 468, 471, 304-A, 120-B and 201 of IPC.
3. The facts of the case, in short, are that on 9.2.2013 the respondent no.2-Manoj Upadhyay, Advocate had filed a complaint before the S.H.O. Police Station, University, Gwalior that his daughter Ku. Gargi, aged 2 years and 9 months was suffering from cold, cough and fever. On 24.1.2013 at about 9:00 PM, she was shown to Dr. V.K. Sharma, Child Specialist having clinic at Gola Ka Mandir, Gwalior. When the child suffered with breathing problem, on 25.1.2013 at about 9:30 AM, the child was shown to Dr. D.D. Sharma, Child Specialist having clinic at Chauhan Pyau, Gwalior. Dr. D.D.Sharma advised to get nebulization and to take child back to home, but the respondent no.2 insisted upon admitting the child in the hospital then Dr. D.D. Sharma referred the child to the hospital of one Dr. Anshul Mehra. The respondent no.2 admitted his daughter Ku. Gargi in the Hospital of Dr. Anshul Mehra at about 10:30 AM in the morning and Dr. D.D. Sharma gave instructions to Dr. Anshul Mehra for her treatment. She was treated there on 25.1.2013 in between 10:30 AM to 1:30 PM. It was alleged by the respondent no.2 that saline bottle was speedily (M.Cr.C.No.10789/2013, Dr. Ramavtar Goyal Vs. State of M.P. And others) and (M.Cr.C.No.3295/2015, Dr. Manoj Bansal Vs. State of M.P. And others) 3 administered to the child, and therefore, her body became cold and her lips turned blue. On various calls Dr. Anshul Mehra did not come to see the child, thereafter the respondent no.2 and his father-in-law V.K. Chaturvedi themselves went and called Dr. Anshul Mehra, still he did not come. At about 12:15 PM Dr. Anshul Mehra came to the ward and directed to give oxygen to the child Ku. Gargi. However, the child Ku. Gargi did not get any relief. Thereafter, Dr. Anshul Mehra informed that it would be necessary to keep child on ventilator, then the respondent no.2 requested to take the child Ku. Gargi from that hospital to another hospital.
4. Thereafter the respondent no.2 and his father-in-law V.K. Chaturvedi had a talk with one Dr. Maya Ram Sharma of Morena, who advised to take the child Ku. Gargi to MASCOT Hospital, Kampoo, and therefore, at 1:30 PM the child was relieved from the hospital of Dr. Anshul Mehra and at 2:30 PM she was admitted in MASCOT Hospital. One x-ray was taken and it was found that left lung of the deceased child Ku. Gargi was consolidated and she was breathing by one lung only. There was swelling found on the lungs and fluid was found in the lungs. Doctors of MASCOT Hospital tried to save his child Ku. Gargi, but in the night at about 3:00 AM, Ku. Gargi died. The respondent no.2 mentioned various allegations against various doctors that they changed the treatment records of the deceased child Ku. Gargi and thereafter a complaint was filed. The case was registered which is still under investigation and the Single Bench of this Court has directed the S.H.O. University, Gwalior to complete the investigation within reasonable time and to file a final report under section 173 or 169 of Cr.P.C as the case may be.
5. I have heard the learned counsel for the parties at length.
6. So far as the matter of the applicant Dr. Ramavtar Goyal is (M.Cr.C.No.10789/2013, Dr. Ramavtar Goyal Vs. State of M.P. And others) and (M.Cr.C.No.3295/2015, Dr. Manoj Bansal Vs. State of M.P. And others) 4 concerned, he was neither a treating doctor nor he played any material role in the treatment of the deceased child Ku. Gargi. According to the allegations made by the respondent no.2, the applicant-Dr. Ramavtar Goyal, who was Director of Sarvodaya Pathology Lab had issued a pathological report dated 25.1.2013. Initially the time of report was mentioned to be 2:05 PM, but that report was interpolated, thereafter a copy of the report which was found in the record of Dr. Anshul Mehra, time of issuance of report was removed. Hence, the case was also registered against Dr. Ramavtar Goyal. It is submitted by the respondent no.2, who is the learned Advocate that vide order dated 3.5.2013 the Chief Medical and Health Officer, Gwalior directed to close the Pathology Laboratory of Sarvodaya Pathology Lab running at G- 20 Saugat Apartment, University Road, Gwalior. However, if such letter is perused then it would be apparent that Sarvodaya Pathology Lab was registered before the Chief Medical and Health Officer, Gwalior with a particular address and it was found that such Lab was functioning at two different places, and therefore, the place which was not registered with Chief Medical and Health Officer could not be permitted for functioning as a Pathology Lab, and therefore, that order was given only because there was no registration of that lab for a particular place and that order does not give any impression that it was passed due to negligence of the applicant Dr. Ramavtar Goyal. No perversity or doubt was found on merits of the investigation of various samples and preparation of pathological report.
7. In the present case mainly the case is registered for offence under section 304-A of IPC and it is for the police to concentrate upon the main crime. If the respondent no.2 has desired to take action against various doctors whose negligence was responsible for death of his daughter then no such investigation is required to (M.Cr.C.No.10789/2013, Dr. Ramavtar Goyal Vs. State of M.P. And others) and (M.Cr.C.No.3295/2015, Dr. Manoj Bansal Vs. State of M.P. And others) 5 be done only to create pressure upon such doctors. In the present case, it is alleged against the applicant -Dr. Ramavtar Goyal that he interpolated the time of report issued by him, whereas there is no allegation against him that he gave a wrong report. In this connection, the provisions of section 463 of IPC may be considered, in which the definition of "forgery" is given. The forgery depends upon making a false document and definition of "making a false document" is given under section 464 of the IPC. The judgment passed by the Apex Court in the case of "Mohd. Ibrahim Vs. State of Bihar and another, [(2009) 8 SCC 751]" may be referred, in which it is held that when a document is executed by a person claiming a property, which is not his, he is not claiming that he is someone else nor is he claiming that he is authorized by someone else. Therefore, the execution of such document (purporting to convey some property of which he is not the owner) is not an execution of a false document as defined under section 464 of IPC. In the light of aforesaid judgment passed by the Apex Court and provisions of sections 463 and 464 of IPC, if any interpolation was done in the pathological report issued by the applicant-Dr. Ramavtar Goyal then such document was issued by his own signature and seal of the concerned Pathology Laboratory. Hence, that document does not fall within the purview of forgery and no offence under sections 465, 468 or 471 of IPC is made out against the applicant Dr. Ramavtar Goyal.
8. As argued by the learned counsel for the applicant that some times in the matter of urgency, the pathological report is informed to the concerned treating doctor orally, and thereafter report is to be issued in writing in routine. Hence, it was for the respondent no.2 and the police to establish that if some time was mentioned on the report issued by the applicant and thereafter the copy of the report which was found with Dr. Anshul Mehra no time was mentioned in (M.Cr.C.No.10789/2013, Dr. Ramavtar Goyal Vs. State of M.P. And others) and (M.Cr.C.No.3295/2015, Dr. Manoj Bansal Vs. State of M.P. And others) 6 the report then it makes not difference. It was for the respondent no.2 to establish that concerned pathological report was received in writing by Dr. Anshul Mehra prior to the transfer of the child Ku. Gargi from his Hospital. When a patient is brought from one doctor to another doctor and both the doctors are in contact with each other then it is for the second doctor to get the case history and instructions of the first doctor and to start treatment on the basis of symptoms. For treatment purpose he cannot wait till any particular report is received by him or not. Hence, if in the copy of the report which was found in the record of Dr. Anshul Mehra, if time of the report was not mentioned then by such interpolation it cannot be said that such interpolation was done for the purpose of cheating or to destroy the evidence. When it is not established prima facie that concerned pathological report was received by Dr. Anshul Mehra prior to the discharge of the child Ku. Gargi from his hospital then interpolation of time in the report has no meaning.
9. The learned counsel for the applicant has also submitted that in particular computers they give the time of print out if print is taken on the same day or on first print and when the reprint is taken then they do not give the time of printing. Hence, such interpolation could be computer generated electronic mistake. By such omission there was no advantage either to Dr. Anshul Mehra or anyone because the treatment of the child Gargi was started on the basis of her symptoms of illness and observations made by Dr. D.D. Sharma. Hence, it cannot be said that time of report was intentionally removed from the copy of the report which was given to Dr. Anshul Mehra. Hence, prima facie no offence under section 420 of IPC is made out against the applicant-Dr. Ramavtar Goyal.
10. When offence is registered mainly for an act which falls within the category of section 304-A of IPC then no conspiracy could be (M.Cr.C.No.10789/2013, Dr. Ramavtar Goyal Vs. State of M.P. And others) and (M.Cr.C.No.3295/2015, Dr. Manoj Bansal Vs. State of M.P. And others) 7 alleged for a negligent act. The conspiracy can be done for a crime which is to be done with intention. When it is found that there was no advantage to Dr. Anshul Mehra if time appended upon the pathological report was removed then by such interpolation/ omission it cannot be said that the applicant-Dr. Ramavtar Goyal was involved in any conspiracy. Under these circumstances, it is apparent that there is no case against Dr. Ram Avtar Goyal for any offence as mentioned by the police in the aforesaid crime. The Apex Court in the case of "State of Haryana and Others Vs. Bhajan Lal and Others[1992 Suppl. (1) SCC 335] has held as under:-
"This Court in the backdrop of interpretation of various relevant provisions of the Cr.P.C under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 of the Constitution of India or the inherent powers under Section 482, Cr.P.C gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the Court or otherwise to secure the ends of justice. Thus, this Court made it clear that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formula and to give an exhaustive list to myriad kinds of cases wherein such power should be exercised:-
(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in (M.Cr.C.No.10789/2013, Dr. Ramavtar Goyal Vs. State of M.P. And others) and (M.Cr.C.No.3295/2015, Dr. Manoj Bansal Vs. State of M.P. And others) 8 support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specified provisions in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
In the light of judgment passed by the Apex Court in the case of Bhajanlal (supra), the applicant Dr. Ramavtar Goyal cannot be held liable to face the trial without any reason. It is a good case in which inherent powers by this Court under section 482 of Cr.P.C may be invoked in favour of Dr. Ramavtar Goyal.
11. In the case of Dr. Manoj Bansal, it is alleged against him that he being a Child Specialist, he treated the child Ku. Gargi in the MASCOT Hospital where she had died. The learned counsel for the applicant-Dr. Manoj Bansal has submitted that a false case has been lodged against the applicant. The conduct of the respondent no.2 is visible that he did not take any steps for better treatment of the deceased child Ku. Gargi for two days. There were clear symptoms of pneumonia and thereafter in two days he changed four to five doctors within a short span of time. Every (M.Cr.C.No.10789/2013, Dr. Ramavtar Goyal Vs. State of M.P. And others) and (M.Cr.C.No.3295/2015, Dr. Manoj Bansal Vs. State of M.P. And others) 9 doctor has to treat the patient on the basis of symptoms unless pathological report is received to indicate about any other symptoms or complications of the patient. Initially the child Ku. Gargi was shown to Dr. V.K. Sharma in the night of 24.1.2013. Thereafter on 25.1.2013 child was shown to Dr. D.D. Sharma at about 9:30 AM. Again the child was referred to Dr. Anshul Mehra, who treated the child up to 10:30 AM to 1:30 PM and thereafter she was shifted to MASCOT Hospital. Learned counsel for the applicant has also submitted that the matter cannot be decided on the basis of oral evidence of respondent no.2 and his father-in-law who were advised by their relative Dr. Maya Ram Sharma, who was neither a Child Specialist nor an expert in the field. The child died on 26.1.2013 and no FIR was lodged within reasonable time. No postmortem of the deceased was performed so that a reason could be obtained as to how she died, then in that case doctor can be blamed for ill treatment. When a patient was treated by a particular doctor for few hours when her condition was already deteriorated then the applicant cannot be blamed for the death of the deceased Ku. Gargi, and therefore, it is submitted that the registration of the case against the applicant-Dr. Manoj Bansal be quashed. It is also submitted that in the FIR the respondent no.2 did not blame the doctors of MASCOT Hospital relating to treatment of child Ku. Gargi. He concentrated upon the treatment done by Dr. Anshul Mehra.
12. On the other hand the respondent no.2 has submitted that her child Ku. Gargi had expired due to ill treatment given by the doctors and it is for the police to investigate and decide that by whose fault the child Gargi had died. In the present case initially the respondent no.2 did not know that there could be negligence of the applicant-Dr. Manoj Bansal, but after lodging of the FIR he could understand that negligence could have been done by the (M.Cr.C.No.10789/2013, Dr. Ramavtar Goyal Vs. State of M.P. And others) and (M.Cr.C.No.3295/2015, Dr. Manoj Bansal Vs. State of M.P. And others) 10 applicant-Dr. Manoj Bansal also, and therefore, before the investigation is completed, no inherent powers of this Court under section 482 of Cr.P.C may be invoked in favour of the applicant-Dr. Manoj Bansal.
13. On the basis of the aforesaid submissions, it is apparent that the deceased child Ku. Gargi was treated by four to five doctors in last two days and a very small period was given to each of the doctor for her treatment. It is apparent from the symptoms as shown by the respondent no.2 in the FIR that child Ku. Gargi was suffering from chronic pneumonia since last two to three days and she was shown to Dr. V.K. Sharma for the first time on 24.1.2013 at about 9:00 PM. Possibility cannot be ruled out that one lung of the child Ku. Gargi was consolidated due to pneumonia. It is yet to be examined by the investigating officer as to whether such lung could be consolidated only because saline was given in excess or with speed. If the symptoms as shown by the respondent no.2 were caused to the deceased child Gargi then as to how she survived in the MASCOT Hospital for approximately 13 hours. Possibility cannot be ruled out that the blood pressure and other symptoms of the child Gargi were such that her position was already deteriorated when she was shown to Dr. D.D. Sharma for the first time on 25.1.2013 at about 9:30 AM. It is also pertinent to note here that Dr. D.D. Sharma treated the deceased child Gargi for only one hour. Dr. Anshul Mehra treated the child Gargi for three to four hours and the applicant Dr. Manoj Bansal treated her for 13 hours. It is for the police to consider various aspects and report of experts in absence of postmortem report that whether any of the doctor was negligent and due to his negligence the death of the deceased child Gargi was caused. At present when investigation is incomplete and coordinate Bench of this Court has directed the police to complete investigation within a reasonable time and to (M.Cr.C.No.10789/2013, Dr. Ramavtar Goyal Vs. State of M.P. And others) and (M.Cr.C.No.3295/2015, Dr. Manoj Bansal Vs. State of M.P. And others) 11 file a final report then it would be premature to quash the crime registered against the applicant-Dr. Manoj Bansal.
14. In this connection the judgment passed by the Apex Court in the case of "Mosiruddin Munshi Vs. Md. Siraj and another, [2014 CRI.L.J.4180]" may be referred in which it is held that at the preliminary stage of investigation where nothing can be said definitely it would not be appropriate to invoke the inherent powers of this Court under section 482 of Cr.P.C and to quash the registration of crime.
15. On the basis of aforesaid discussion, the petition under section 482 of the Cr.P.C filed by Dr. Ramavtar Goyal is hereby allowed. The Crime No.85/2013 registered against Dr. Ramavtar Goyal is hereby quashed. The police is directed to drop the proceedings against Dr. Ramavtar Goyal. However, the petition under section 482 of Cr.P.C filed by Dr. Manoj Bansal is premature, and therefore, it is hereby dismissed. However, the applicant-Dr. Manoj Bansal would be free to file a repeat petition under section 482 of the Cr.P.C after filing of the final report, if it is filed against the applicant-Dr. Manoj Bansal or after the time period which is fixed by the Co-ordinate Bench for filling of the final report.
16. Before parting with this order, I feel my duty to advise the investigating officer that every investigating officer is required to investigate the matter fairly and a clear opinion is to be obtained from the medical experts about the negligence of each particular doctor. In the present case, when the patient was treated by four to five doctors in two days and the complainant remained silent for more than three weeks, thereafter the FIR was lodged and no postmortem of the deceased Ku. Gargi was performed then it would be for the investigating officer to examine the oral evidence of the witnesses cautiously. Only by the oral evidence no pressure (M.Cr.C.No.10789/2013, Dr. Ramavtar Goyal Vs. State of M.P. And others) and (M.Cr.C.No.3295/2015, Dr. Manoj Bansal Vs. State of M.P. And others) 12 is required to be created on any proposed accused, when a case is mainly registered for offence under section 304-A of IPC then it is for the investigating officer to concentrate against the actual accused of that offence. When doctor has changed any document which was prepared by his own signature then it is not an offence of forgery as defined under sections 463 and 464 of IPC, and therefore, the investigating officer should not deviate his investigation. His prime object is whether any offence under section 304-A of IPC is made out or not. An advise be obtained from medical experts as to whether one lung of the deceased Ku. Gargi could be consolidated only because a saline was administered speedily or in excess and also that the treatment given by the doctors was contrary to the symptoms of the deceased Ku. Gargi when no pathological or radio-logical report was available. Hence, finally the Investigating Officer is advised not to do one sided or tainted investigation.
(N.K. Gupta) Judge __/02/2017 Pawar/-