Jharkhand High Court
Dr.D.Mohan & Anr vs State Of Jharkhand & Anr on 19 June, 2012
Author: H.C.Mishra
Bench: H.C.Mishra
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P (Cr.). No. 172 of 2004
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Dr. D. Mohan & Anr. .... Petitioners
-Versus-
The State of Jharkhand & Anr. ..... Respondents
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For the Petitioners : Mr.Pandey Neeraj Rai, Advocate.
For the State : Mr.Vijayant Verma, J.C to G.P.II.
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PRESENT
HON'BLE MR. JUSTICE H.C.MISHRA
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CAV On 19.06.2012 Pronounced On 02/07/2012
H. C. Mishra, J. Heard learned counsel for the petitioners as also learned counsel for
the State. No one appeared for the complainant respondent No.2 in spite of repeated calls, even though, the respondent No.2 has appeared through advocate. The case was earlier heard on 18.6.2012 in part, but as no one appeared for the respondent No.2 in spite of repeated calls, the case was adjourned. On 19.6.2012 also, no one appeared for the respondent No.2 in spite of repeated calls and accordingly, the case was heard.
2. The petitioner No.1 Dr. D. Mohan and petitioner No.2 Jogesh Gambhir, who is the Director of Raj Hospital, Ranchi, have filed this writ application for quashing the charges framed against them on 6.1.2004 in S.T. No. 564 of 2003, including the order dated 6.1.2004 for framing the charge for offences under Sections 304, 420 and 384 of the I.P.C. against them in the said S.T. No.564 of 2003, passed by Sri R. N. Tiwary, learned Additional Judicial Commissioner, Ranchi, and also for quashing the entire criminal proceeding against the petitioners in the said Sessions trial.
3. The complaint case was filed in the Court of the learned Chief Judicial Magistrate, Ranchi, by the respondent No.2 Premchand Singh, in which, the Raj Hospital, the petitioner No.2 Jogesh Gambhir being the Director of Raj Hospital and the petitioner No.1 Dr. D. Mohan being the Chief Medical Officer, were made accused, on the allegation that on 17.12.1998, the son of the complainant namely, Saket Saurabh who was suffering from blood cancer since the year 1997 and undergoing treatment for the said ailment at Tata Memorial Hospital, Mumbai, was taken to Raj Hospital, as he developed breathlessness and low pulse rate. The complainant informed the authorities of the hospital that his son was a patient of blood cancer and at the time of admission, handed over 2 the entire papers relating to the treatment of his son at Tata Memorial Hospital and he repeatedly asked the authorities of the hospital for transfusion of blood to his son to minimize the breathlessness. It is alleged that the doctors at the hospital did not take care and they insisted upon to deposit Rs.1000/- and only thereafter, the treatment was to be started, which took some time. Ultimately, the child was admitted in Room No.105 where the doctor visited the patient and subsequently, the petitioner Dr. D. Mohan also visited him. All the papers relating to the treatment of the patient was submitted to the petitioner Dr. D. Mohan and the complainant on account of his past experience requested the doctor for immediate blood transfusion, but the doctor did not give any medication till 2 P.M. The contention of the complainant was found correct when the blood report showed that the Haemoglobin was very low. It is stated in the complaint petition that though the complainant is not a doctor but he was aware of the fact that the blood cancer causes anemia and during severe anemia, a person complains breathlessness. Saket Saurabh was also complaining breathlessness and low pulse rate, so the doctor ought to have got Haemoglobin tested immediately and blood transfusion ought to have done at once. It is further alleged that the doctor was also informed that the child had not taken anything for the last 24 hours and as such, the doctor ought to have administered N.S or Dextrose. However, at 2 P.M. the child was given one tablet of Claribid and RezQ 300, which is anti malarial and a Quinine derivative which should not have been given to the patient of blood cancer, because the biggest side effect of Quinine derivative is that it may cause blood dyscrasis, hepatitis and anemia. As the patient Saket Saurabh was already anemic, the said medicine should never have been given to Saket Saurabh. At about 6 P.M. the blood transfusion was started and from the same needle, Gentamycin and Ampllos 500 vails were pushed. The complainant has mentioned the side effects of Gentamycin in the complaint petition and has stated that it should never have been mixed with another medicine. On account of administration of these medicines blood transfusion actually started at about 7 P.M., and the patient Saket Saurabh died at about 7.35 P.M. Alleging that the treatment was not started immediately as the accused were inducing the complainant fraudulently and dishonestly to deposit Rs.1000/- for immediately starting the treatment, the accused persons had committed offences under Sections 304, 420, 384 of the Indian Penal Code. With these allegations, the complaint case was filed before the learned Chief Judicial Magistrate, Ranchi, which was registered as Complaint Case No. 31 of 1999.
34. It may be stated that in the said complaint case, at the stage of enquiry the statement of the complainant was recorded on S.A and the statements of five witnesses were recorded by the learned Judicial Magistrate, Ranchi and after taking cognizance, the case was committed to the Court of Session. The order taking cognizance was challenged before this Court by the petitioners in Criminal Misc. No. 3303 of 2001, which was dismissed by order dated 28.6.2001. Subsequently, in the Court of Session, the prosecution and the accused were heard on the point of framing of charge and the charge was framed against the petitioners for the offences under Sections 304, 420, 384 of the I.P.C., by order dated 6.1.2004, which has been challenged in this writ application, praying to quash the entire criminal proceeding against the petitioner in the said S.T. No. 564 of 2003, including the order dated 6.1.2004 passed therein for framing of charge.
5. Learned counsel for the petitioner has submitted that the patient was already suffering from blood cancer and he had already undergone treatment at Tata Memorial Hospital, Mumbai. It is submitted that when the petitioner was brought to the hospital he was suffering from high grade fever with chills and rigours with cough for the last two days which reasonably indicated the probability of Maleria also. On the physical verification of the patient, the prima facie chances of pneumonia due to loss of immunity caused by blood cancer could not be ruled out and accordingly, the dextrose or normal saline could not have been administered to the patient, as the same could have caused excessive congestion of lungs. As the fever with chill reasonably indicated towards probability of Maleria also, proper medication for the same was done and after the report of Haemoglobin Test, the blood transfusion was also done.
6. Learned counsel submitted that the course of treatment given to the patient was not a forbidden course of treatment by any medical parameter and accordingly, it cannot be held that there was gross negligence on the part of the petitioner Dr. D. Mohan, which caused the death of the patient. Learned counsel has brought on record the extracts of Medical Journals to show that the treatment given to the patient was not a forbidden course of treatment and it has also been brought on record that the survival rate in the case of Leukaemia is very low. It is further submitted by the learned counsel that there is no allegation at all in the entire complaint petition against the petitioner No. 2 Jogesh Gambhir, who is the Director of Raj Hospital and whatever allegation of demanding money is there, it is against the staff of the 4 hospital, for which, the petitioner No. 2, only for the reason being the Director, cannot be held to be vicariously liable, as there is no provision for any vicarious liability in the offences under Sections 304, 420 and 384 of the I.P.C.
7. Learned counsel further submitted that the cognizance taken against the petitioners in the case is also hit by Section 202 (2) of the Cr.P.C., which mandates that in the complaint cases, if the offence complained of is triable exclusively by the Court of Session, the complainant is mandatorily required to produce all his witnesses and examine them on oath. Learned counsel submitted that out of seven witnesses named in the complaint petition, only five witnesses were examined by the Magistrate and as such, the cognizance taken against the petitioners is absolutely illegal on this score also. I find no substance in this submission of the learned counsel, as it is a well settled law that non observance of the said provision shall not vitiate the proceeding unless the prejudice caused to the accused is established. {Authotity:- Shivjee Singh Vs. Nagendra Tewary & Ors., (2010) 7 SCC 578}. Moreover, the fact remains that the order taking cognizance was challenged by the petitioners in this Court in Cr. Misc. No. 3303 of 2001, which has already been dismissed by the Court.
8. Learned counsel has placed reliance upon the decision of the Apex Court in Dr.Suresh Gupta Vs. Govt. of NCT of Delhi and Another, reported in 2004 (6) SCC 422, wherein, the standard of negligence required to be proved for fixing the criminal liability on a medical man or surgeon was considered by the Apex Court. In the said case, the patient was operated upon for removing his nasal deformity and the operation was so minor that the patient was not accompanied by anybody, even by his wife, but the patient died. From the post mortem report of the patient, it was apparent that the death was due to asphyxia resulting from blockage of respiratory passage by aspirated blood consequent upon surgically incised margin of nasal septum, which indicated that adequate care was not taken to prevent seepage of blood down the respiratory passage which resulted in asphyxia. In this backdrop, the law has been laid down by the Apex Court as follows:-
"21. Thus, when a patient agrees to go for medical treatment or surgical operation, every careless act of the medical man cannot be termed as "criminal". It can be termed "criminal" only when the medical man exhibits a gross lack of competence or inaction and wanton indifference to his patient's safety and which is found to 5 have arisen from gross ignorance or gross negligence. Where a patient's death results merely from error of judgment or an accident, no criminal liability should be attached to it. Mere inadvertence or some degree of want of adequate care and caution might create civil liability but would not suffice to hold him criminally liable.
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23. 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 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 the 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.
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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 should be proof of recklessness and deliberate wrongdoing 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 the 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.
(Emphasis supplied).6
9. The question was again decided by the Supreme Court in yet another case in Jacob Mathew Vs State of Punjab and Another, reported in 2005 (6) SCC 1, in which also, the Supreme Court had an occasion to consider the question in a case of death of the patient in the hospital due to negligence. In this case, as the correctness of the law laid down in Suresh Gupta's case (supra) was doubted, the matter was referred to a larger bench of three Judges for consideration. The matter was again considered in detail by the Apex Court taking into consideration the different aspects of negligence, namely, Negligence as a tort; Negligence- as a tort and as a crime; Negligence by professionals; and Medical professionals in criminal law and the matter was discussed in detail from different angles and the conclusions were detailed in paragraph 48 of the said Judgment as follows:-
"48. We sum up our conclusions as under:-
1. ---------------- .
2. Negligence in the context of the 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. ------------- .
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 7 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. ------------- .
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 304-A 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 304-A 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. " (Emphasis supplied).
The ratio in Suresh Gupta's case (supra) was thus, upheld by the larger bench of Apex Court in Jacob Mathew's case (supra).
10. Learned counsel has further placed reliance upon the decision of the Supreme Court in Rakesh Ranjan Gupta Vs. State of U.P and Anr., reported in 1999 (1) SCC 188, wherein, there was allegation of the respondent that when her husband was in serious condition, he was taken to the hospital wherein the appellant, the doctor was working as a medical practitioner and the appellant did not attend to the patient immediately and on being insisted by her, the appellant became angry and there was exchange of words between them and ultimately, an injection was administrated to the patient, where after the patient died. It was held that the said allegation did 8 not disclose, prima facie, a case of rash or negligent act on the part of the appellant, so as to attract the penal provision under Section 304-A I.P.C. It was further held in the said case that if there was delay on the part of the doctor to attend the patient, that may at the worst be a case of civil negligence and not of culpable negligence, falling under Section 304-A of the I.P.C. Placing reliance on these decisions, learned counsel submitted that the criminal proceeding against the petitioners in Sessions Trial No. 564 of 2003 cannot be sustained in the eyes of law and the same is fit to be quashed.
11. Learned counsel for the respondent State, on the other hand, has opposed the prayer and had submitted that the allegations made by the complainant in the complaint petition clearly make out the case of negligence and extortion against the petitioners and one witness examined at the enquiry stage was a medical man, who had also deposed that the petitioner had adopted the wrong course of treatment which should not have been adopted. From the record I find that the evidence of the said witness, Dr. Rajendra Prasad Choudhary, shows that the qualification of the said witness was only MBBS and he had admitted that he was not the expert of the said ailment and as such, much reliance cannot be placed on the evidence of this witness.
12. Learned counsel for the respondent further submitted that the petitioners had earlier moved before this Court against the order taking cognizance which was dismissed by this Court and as such, this is the second application filed by the petitioners which is not maintainable.
13. After having heard the learned counsels for both the sides and upon going through the record, I find that so far as the offences under Sections 420 or 384 of the I.P.C. are concerned, no charge could be framed against the petitioner Dr. D. Mohan on the basis of the allegation made in the complaint, as the allegation against the petitioner Dr. D. Mohan is only of negligence in giving the treatment to the son of the complainant, for which, the charge has been framed for the offence under Section 304 I.P.C. Similarly, no charge could be framed for the offence under Section 304 I.P.C. against the petitioner Jogesh Gambir, who is only a Director of the Raj Hospital, against whom, there is no allegation of giving any treatment to the patient and as such, no offence could be said to be made out against him under Section 304 of the I.P.C. Thus, the order framing charge by the Court below appears to have been passed without any application of judicial mind and absolutely in a mechanical manner. This apart, there is no allegation against the petitioners that they had demanded the money or had committed 9 any forgery or extortion. The fact remains that the Raj Hospital is a private hospital and it is entitled to charge the prescribed fees for admission and treatment of a patient. In that view of the matter, no offence can be said to be made out in making the demand of the fees. The allegation of non admission of the patient for not depositing the prescribed fees, is not specific against these petitioners.
14. From the plain reading of the provisions of Sections 304, 420 and 384 of the IPC, it is apparent that there is no provision for any liability by way of legal fiction of vicarious liability for the offence which might have been committed by other person. In absence of any specific allegation against the petitioners, and in absence of any provision in these sections creating the vicarious liability by legal fiction, the petitioners cannot be held liable vicariously for the offence under Sections 420 and 384 of the I.P.C. Reference may be had to the decision of the Apex Court in Keki Hormusji Gharda v. Mehervan Rustom Irani, reported in (2009) 6 SCC 475, wherein the law has been laid as follows:-
"17. The Penal Code, 1860 save and except in some matters does not contemplate any vicarious liability on the part of a person. Commission of an offence by raising a legal fiction or by creating a vicarious liability in terms of the provisions of a statute must be expressly stated. The Managing Director or the Directors of the Company, thus, cannot be said to have committed an offence only because they are holders of offices. The learned Additional Chief Metropolitan Magistrate, therefore, in our opinion, was not correct in issuing summons without taking into consideration this aspect of the matter. The Managing Director and the Directors of the Company should not have been summoned only because some allegations were made against the Company." (Emphasis supplied).
15. The allegation of professional negligence against the petitioner Dr. D. Mohan only goes to show that he should not have adopted the course of treatment which he actually adopted. There is nothing on the record to show that the course in fact adopted by the Dr. D. Mohan was the one, no medical professional would have taken had he been acting with ordinary care, nor there is anything to show that this petitioner 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.
1016. In my considered view, the case of the petitioner Dr. D. Mohan is fully covered by the decision of the Apex Court in Dr.Suresh Gupta's case (supra), which clearly lays down that the act complained against the doctor must show negligence or rashness of such a highest degree so as to indicate a mental state which can be described as totally apathetic towards the patient and such 'gross' negligence is only punishable, which ratio has been fully approved by the Apex Court in Jacob Mathew's case (supra). One cannot loose sight of the fact that admittedly, the patient was suffering from blood cancer and he might have reached such a terminal stage that he could not be saved with all possible care and treatment. The fact in the present case remains that no post-mortem examination of the deceased was done so as to establish the cause of death, or to establish any negligence on the part of the petitioner in giving the treatment to the accused. The case of the petitioner is also covered by the decision of the Apex Court in Rajesh Ranjan Gupta's case (supra), wherein it has been held that even delay on the part of the doctor to attend the patient is not a case of one of culpable negligence falling under the offence under Section 304 of the I.P.C, though it may be a case of civil negligence.
17. For the foregoing reasons, I am of the considered view that the continuance of the criminal proceeding against the petitioners is absolutely illegal and the same cannot be sustained in the eyes of law. Accordingly, the entire criminal proceeding against the petitioners in Sessions Trial No. 564 of 2003 arising out of Complaint case No. 31 of 1999, then pending in the Court of Sri R. N. Tiwary, learned Additional Judicial Commissioner, Ranchi, including the order dated 6.1.2004 passed therein are, hereby, quashed.
This application is accordingly, allowed.
(H.C.Mishra, J.) Jharkhand High Court, Ranchi.
Date :- 02/07/2012 N.A.F.R/ BS