Punjab-Haryana High Court
Ram Chander vs Monika Chaudhary And Others on 20 August, 2013
Author: Daya Chaudhary
Bench: Daya Chaudhary
Criminal Misc. No. M-31 of 2011 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Misc. No. M-31 of 2011 (O&M)
Date of decision: 20.08.2013
Ram Chander ..Petitioner
Versus
Monika Chaudhary and others ..Respondents
CORAM: HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Present: Mr. Naveen Bhardwaj, Advocate,
for the petitioner.
Mr. N.S. Shekhawat, Advocate
for respondents No.1 and 2.
Mr. Pradeep Virk, D.A.G., Haryana
for respondent No.3 - State.
Daya Chaudhary, J.
The present petition has been filed under Section 482 Cr.P.C. for setting aside the order dated 15.11.2010 whereby learned Sessions Judge, Bhiwani has allowed the revision petition filed by respondents No.1 and 2.
Briefly, the facts of the case as mentioned in the petition are that a complaint was filed by the petitioner-Ram Chander on 31.03.2009 alleging that his wife-Kamlesh was admitted in Maternity Home of accused-respondents No.1 and 2 on 31.03.2006 and an assurance was given by the doctors of the Maternity Home that all facilities are there. The wife of the complainant gave birth to a son and during delivery, the condition of the wife became critical and Rani Neetu 2013.08.22 10:58 I attest to the accuracy and integrity of this document Chandigarh Criminal Misc. No. M-31 of 2011 (O&M) 2 complainant was asked to shift his wife as well as the child to a bigger hospital. Both were admitted in Government hospital at Bhiwani, which was about 2 kms from the Maternity Home, where the wife of the complainant was declared dead. The allegations in the complaint was that due to negligence of doctor his wife died. Even the postmortem could not be conducted because of intervention of the accused.
Complainant examined himself and other witnesses and the accused were summoned by the Trial Court vide order dated 13.02.2010.
Said summoning order was challenged by way of filing revision before learned Sessions Judge, Bhiwani by the accused- respondents No.1 and 2 and summoning order was set aside vide order dated 15.11.2010 and accordingly, accused were discharged.
The present petition has been filed to challenge the order passed by the Revisional Court whereby order of summoning passed by the trial Court has been set aside.
Learned counsel for the petitioner has challenged the order of Revisional Court mainly on the ground that the circumstances and facts involved in a case could not be examined at the stage of revision. The well-reasoned summoning order has been set aside. Certain facts and documents which were matter of evidence, were to be proved during trial. Learned counsel for the petitioner also submits that the Revisional Court has acted like a Rani Neetu 2013.08.22 10:58 I attest to the accuracy and integrity of this document Chandigarh Criminal Misc. No. M-31 of 2011 (O&M) 3 Court of appeal and has substituted its opinion, which is not permissible under law. The Revisional Court can interfere in case, only if there is a patent illegality or perversity in the order passed by the trial Court. The order passed by the trial Court cannot be set aside only on the ground that other view is possible. Learned counsel for the petitioner also submits that the judgment relied upon by the Revisional court was not applicable keeping in view the facts and circumstances of the case. The averments made by respondents No.1 and 2 were in their defence and those could not have been taken into consideration during the course of revisional jurisdiction. Learned counsel for the petitioner also submits that the Revisional Court has taken into consideration the allegations in the FIR to be under Sections 498-A and 304-B IPC, which are different from the complaint whereas the complaint was filed under Section 304-A IPC.
Learned counsel for respondents No.1 and 2 submits that the judgment passed by the Revisional Court is well reasoned and detailed. At the most it can be a case of medical negligence as per ratio of judgment in Jacob Mathew vs. State of Punjab & Anr., 2005(3) RCR (Criminal) 836 and Dr. Sosamma Kurian and another vs. State of Kerala and another, 2009 (5) RCR (Criminal)
238. The private complaint cannot be entertained unless a prima facie evidence in form of a credible opinion given by board of doctors to support the charge of rashness and negligence is there.
Heard argument of learned counsel for the parties and Rani Neetu 2013.08.22 10:58 I attest to the accuracy and integrity of this document Chandigarh Criminal Misc. No. M-31 of 2011 (O&M) 4 have also perused the complaint, summoning order as well as the order passed by the Revisional Court.
Admittedly the petitioner filed a complaint under section 304-A IPC alleging negligence on the part of respondents No.1 and 2 as wife of the petitioner was admitted in the private hospital of respondents No.1 and 2 for delivery. Some complications arose during delivery of the child and she was referred to Government Hospital at Bhiwani where she was declared dead. Statements of complainant and other witnesses were recorded and respondents No.1 and 2 were summoned by the trial Court vide order dated 13.02.2010 on the ground that the allegations in the complaint are sufficient to proceed against accused persons for offence punishable under Section 304-A IPC. Said order was challenged by way of filing revision petition before Sessions Judge, Bhiwani and summoning order was set aside. The order of Revisional Court has been challenged by the petitioner on the ground that it was a case of total negligence on the part of the accused-respondents as an assurance was given that there are proper arrangements and all facilities available in the maternity home, however the wife of complainant died on account of negligence on the part of doctors there. The case of respondents No.1 and 2 is that a proper care was taken while treating the wife of the petitioner and a Board of Medical experts was constituted to look into the complaint and respondents No.1 and 2 were found innocent. This fact was not mentioned in the complaint Rani Neetu 2013.08.22 10:58 I attest to the accuracy and integrity of this document Chandigarh Criminal Misc. No. M-31 of 2011 (O&M) 5 by the petitioner. It is also the argument of learned counsel for the petitioner that at the stage of summoning, the Court is to see whether prima facie case is made out against accused persons or not on the basis of statements of witnesses but the Revisional Court has discussed not only some documentary evidence but also some of the documents, which were matter of evidence and the revision has been allowed only on the basis of finding recorded based upon those documents.
The issue of negligence on the part of the doctor was discussed by Hon'ble the Supreme Court in Jacob Mathew's case (supra) wherein it was held that a private complaint cannot be entertained unless the complainant produced prima facie evidence in form of a credible opinion given by another doctor to support the charge of rashness and negligence.
Similarly the question of medical negligence was also subject matter of challenge in Martin F. D'souza vs. Mohd. Ishfaq, 2009(2) RCR (Criminal) 64 wherein it was held that a private complaint should not be entertained unless there is enough evidence.
In the present case, the summoning order has been passed only on the basis of oral statements of witnesses without considering the opinion given by Board of Doctors as this fact was not mentioned in the complaint. There was delay also in filing of the complaint as the incident occurred on 01.04.2006 and wife of the Rani Neetu 2013.08.22 10:58 I attest to the accuracy and integrity of this document Chandigarh Criminal Misc. No. M-31 of 2011 (O&M) 6 complainant was admitted in Maternity Home of respondents No.1 and 2 on 31.03.2006 and thereafter, she was shifted to Government Hospital at Bhiwani. The complaint was filed on 31.03.2009 after delay of more than 3 years and the delay has also not been explained.
In case of Jacob Methew's case (supra), the guidelines have been issued, which are reproduced as under: -
"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 Section 304-A of Indian Penal Code. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He Rani Neetu 2013.08.22 10:58 I attest to the accuracy and integrity of this document Chandigarh Criminal Misc. No. M-31 of 2011 (O&M) 7 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."
The conclusion in that judgment was sum up, which is 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'. (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 Rani Neetu 2013.08.22 10:58 I attest to the accuracy and integrity of this document Chandigarh Criminal Misc. No. M-31 of 2011 (O&M) 8 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 Rani Neetu 2013.08.22 10:58 I attest to the accuracy and integrity of this document Chandigarh Criminal Misc. No. M-31 of 2011 (O&M) 9 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.
(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 Rani Neetu 2013.08.22 10:58 I attest to the accuracy and integrity of this document Chandigarh Criminal Misc. No. M-31 of 2011 (O&M) 10 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.
Rani Neetu2013.08.22 10:58 I attest to the accuracy and integrity of this document Chandigarh Criminal Misc. No. M-31 of 2011 (O&M) 11
(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.
As per opinion of the doctor about the death of deceased- Kamlesh, it was not a case of medical negligence.
Keeping in view the facts and law position as mentioned above, there is no merit in the contentions raised by learned counsel for the petitioner and the petition being devoid of any merit is hereby dismissed.
20.08.2013 (DAYA CHAUDHARY)
neetu JUDGE
Rani Neetu
2013.08.22 10:58
I attest to the accuracy and
integrity of this document
Chandigarh