Orissa High Court
Saroj Kumar Mohanty And Another vs State Of Odisha .... Opposite Party on 7 February, 2023
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
AFR CRLMC No.2222 of 2016
Saroj Kumar Mohanty and Another .... Petitioners
Mr. Jaydeep Pal, Advocate
-Versus-
State of Odisha .... Opposite party
Mr. Tapas Kumar Praharaj,
Standing Counsel
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF JUDGMENT:07.02.2023
1.The instant petition under Section 482 Cr.P.C. is filed by the petitioners for quashing of the order of cognizance dated 27th April, 2015 (Annexure-2) passed in G.R. Case No.622 of 2014 by the learned S.D.J.M. (Sadar), Cuttack corresponding to Purighat P.S. Case No.49(3) dated 6th April, 2014 registered under Section 304(A) read with 34 IPC on the grounds inter alia that the same is not tenable in law.
2. Petitioner No.2 was a pharmacist whereas petitioner No.2 worked as a nurse in the clinic in question, against whom, with the allegation of negligence, a report was lodged leading to the registration of Purighat P.S. Case No.49(3) of 2014 under the alleged offence. On completion of investigation, the petitioners were chargesheeted whereupon the learned court below took cognizance of the offence under Annexure-2.
3. Heard Mr. Pal, learned counsel for the petitioners and Mr. Praharaj, learned counsel for the State-opposite party.
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4. As per the allegation in the FIR, the wife of the informant was pregnant and had been admitted in the clinic and during her treatment, it is claimed that she was not properly treated at the time of delivery leading to the premature death of her child. The details of the circumstances leading to the lodging of the report have been described in the FIR with the allegation directed against the petitioners who had attended the wife of the informant. As earlier mentioned, the chargesheet (Annexure-1) was filed and thereafter, the learned court below passed the order of cognizance.
5. Mr. Pal, learned counsel for the petitioners submits that the order of cognizance under Annexure-2 is erroneous, illegal and based on no material and therefore, the same is liable to be quashed. It is further submitted that even considering the facts alleged in the FIR at its face value and statements of the witnesses recorded under Section 161 Cr.P.C., a case under Section 304 A IPC is not made out and in so far as the petitioners are concerned, they apparently acted on the advice of the Gynecologist. It is also submitted by Mr. Pal that the informant's wife was suggested for a caesarean delivery as the condition of the baby inside her womb was critical but it was refused and request was received for normal delivery but after the delivery, the child developed complications and could not survive and died. According to Mr. Pal, learned counsel for the petitioners, there was no negligence on the part of the petitioners, so to say and that apart, no post- mortem was conducted after death of the child and hence, in absence of any material to prima facie prove and establish their negligence, they could not have been chargesheeted. It is contended that the essential ingredients of Section 304A IPC are not at all satisfied since the act of rash or negligence is not proved against the petitioners, who were on duty and acting on the CRLMC No.2222 of 2016 Page 2 of 13 Saroj Kumar Mohanty and Another Vrs. State of Odisha advice of the Paediatric doctor. It is also claimed that as the informant was not ready and consented for caesarean delivery, the doctor on duty had suggested his wife to be discharged from the clinic and in that regard, a copy of the report (Annexure-4) is referred to. With the above submission, Mr. Pal, leaned counsel for the petitioners submits that no case of criminal negligence is established and hence, the impugned order under Annexure-2 vis- à-vis the petitioners cannot be sustained in law and thus, liable to be quashed in the interest of justice.
6. Mr. Praharaj, learned counsel for the State, on the other hand, submitted that on the complaint of the informant and later to the receipt of FIR, Purighat P.S. Case No.49(3) of 2014 was registered and after the investigation was concluded, the chargesheet under Annexure-1 was filed on the basis of the evidence received during such investigation proving the fact of negligence of the petitioners and hence, the impugned order under Annexure-2 is in accordance with law.
7. Gone through the contents of the FIR. The negligence of the petitioners has been alleged since the informant's wife overheard the discussion between them and the doctor on duty, while the latter was asking the former as to why they attended the patient as it was a complicated matter. Admittedly, the wife of the informant was admitted in the clinic where the petitioners were engaged as the pharmacist and nurse respectively. The chargesheet is filed not against any of the doctor on duty at the clinic where the informant's wife had been admitted. In the FIR, it is alleged that there was no proper management at the clinic and during that time, the petitioners attended the patient, who had a normal delivery but the child born to her died shortly thereafter. The discussion between the doctor and the petitioners primarily appears to be the basis for lodging of the FIR alleging the latter's CRLMC No.2222 of 2016 Page 3 of 13 Saroj Kumar Mohanty and Another Vrs. State of Odisha negligence as the former was found questioning them as to why they attended her. What is the nature of negligence is not revealed from chargesheet. Whether there was any medical negligence on the part of the petitioners while attending the informant's wife is not discernable from the chargesheet except the evidence of the informant, his wife and other witnesses examined during investigation. The dead child was not subjected to post-mortem examination. It is made to suggest that the informant refused any such post-mortem as by then the child had already been buried. The Court also finds that the body was not exhumed since the informant was not inclined to. So there was no post-mortem held in respect of the dead child. As per Annexure-3, a copy of the bedhead ticket, it is claimed that the informant's wife was advised for caesarean delivery but they had refused and wanted to have a normal delivery for which the patient was suggested to be discharged on 4th April, 2014, however, on the request of the informant, the patient was attended and finally, the child was born but his life could not be saved despite best efforts put in. The question is, in absence of the treating doctor, as to what was the negligence contributed by the petitioners which led to the death of the child, or whether they did perform duty innocently in absence of the doctor on account of emergency is a matter of debate. The chargesheet simply suggested that the petitioners have been alleged of negligence by the informant and his wife. It may be that some oral evidence received during investigation revealed the treatment not up to the mark or the expectation of the aggrieved couple. As earlier mentioned, the body of the child was not subjected to post-mortem examination. It is not made to suggest that the IO at any point of time during investigation called for any such expert opinion in order to satisfy himself as to if there was any negligence in the treatment and further contributed by the petitioners.
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8. While dealing with medical negligence, the Apex Court in Jacob Mathew Vrs. State of Punjab and others reported in AIR 2005 SC 3180 elaborately discussed as to what should be the basis to criminally prosecute a doctor/professional. In fact, the Supreme Court in the aforesaid decision laid down the guidelines vis-à-vis medical negligence excerpt of which is reproduced below:
"Negligence by professionals in the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him, he would be exercising his skill with reasonable CRLMC No.2222 of 2016 Page 5 of 13 Saroj Kumar Mohanty and Another Vrs. State of Odisha competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of 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 necessary for every professional to possess the highest level of expertise in that branch which he practices. In Michael Hyde and Associates v. J.D. Williams & Co. Ltd., [2001] P.N.L.R. 233, CA, Sedley L.J. said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable. (Charlesworth & Percy, ibid, Para 8.03) Oft quoted passage defining negligence by professionals, generally and not necessarily confined to doctors, is to be found in the opinion of McNair J. in Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582, 586 in the following words: "Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham Omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill...A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an CRLMC No.2222 of 2016 Page 6 of 13 Saroj Kumar Mohanty and Another Vrs. State of Odisha ordinary competent man exercising that particular art."
(Charlesworth & Percy, ibid, Para 8.02) The water of Bolam test has ever since flown and passed under several bridges, having been cited and dealt with in several judicial pronouncements, one after the other and has continued to be well received by every shore it has touched as neat, clean and well-condensed one. After a review of various authorities Bingham L.J. in his speech in Eckersley v. Binnie [1988] 18 Con.L.R. 1, 79 summarized the Bolam test in the following words: "From these general statements, it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent members of his profession in knowledge of new advances, discoveries and developments in his field. He should have such awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet." (Charlesworth & Percy, ibid, Para 8.04) The degree of skill and care required by a medical practitioner is so CRLMC No.2222 of 2016 Page 7 of 13 Saroj Kumar Mohanty and Another Vrs. State of Odisha stated in Halsbury's Laws of England (Fourth Edition, Vol.30, Para 35)."
9. The Apex Court in the aforesaid decision concluded as following:
(i) 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'.
(ii) 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 CRLMC No.2222 of 2016 Page 8 of 13 Saroj Kumar Mohanty and Another Vrs. State of Odisha 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.
(iii) 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.
(iv)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.
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(v) 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.
(vi) 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'.
(vii) 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.
(viii) 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, CRLMC No.2222 of 2016 Page 10 of 13 Saroj Kumar Mohanty and Another Vrs. State of Odisha if at all, a limited application in trial on a charge of criminal negligence.
10. Having discussed the settled position of law with regard to professionals and the conditions necessary to criminally prosecute them, the Court is to apply the same standard to the petitioners who though not doctors but attended the informant's wife as pharmacist and nurse. Before alleging medical negligence or any kind of negligence on the part of such professionals, so as to initiate a criminal prosecution, it must be based on evidence proving such negligence to be gross. In the instant case, what was the nature of negligence of the petitioners in real sense is not revealed from the chargesheet. If a professionals attend a patient in an emergency situation and some negligence results thereby, question is, whether, for such negligence, a criminal prosecution should lie or not. If as per the protocol, a patient is not attended and gross negligence is alleged during treatment, it could lead to a situation where either the doctor or such other professionals may be subjected to prosecution but before that reasonable evidence should be gathered to show 'gross negligence'. It has, therefore, been suggested that in case of medical negligence, expert opinion is always counted for which has to be ensured in order to confirm any such negligence to have taken place with an independent examination of all the materials. In the instant case, as it appears on the complaint of the informant and his wife who overheard the discussion/conversation between the doctors and the petitioners that the entire foundation of the prosecution is built upon without any independent view or examination of the matter duly enquired into by an expert. Unfortunately, the body of the child who was declared clinically dead was received by the informant and later on buried and its disinterment was declined. Under such circumstances, would it still be justified to sustain the CRLMC No.2222 of 2016 Page 11 of 13 Saroj Kumar Mohanty and Another Vrs. State of Odisha criminal prosecution against the petitioners and in the considered view of the Court, the reply is not in the affirmative. Merely for the reason that the petitioners attended the patient in the absence of the doctor on duty for which they were questioned by the doctor on his arrival by itself cannot be a ground to conclude that there was negligence on their part. The defence is that the patient was suggested for caesarean delivery which was not heeded to but for that, also the informant cannot be put to blame. What is relevant is whether on account of normal delivery there was complication and the same resulted in the death of the child which could have been proved through an independent expert enquiry. There has been no expert opinion which was to be insisted upon even without the post-mortem examination of the child. In any case, no doctor is chargesheeted and no any case of normal medical protocol not being followed is made out either. Then in that case, the only issue, which is left for consideration is, what was the kind of negligence, the petitioners can be handed down. In absence of any such independent view attributing gross negligence vis-à-vis the petitioners merely by basing on the statements of the informant and the other witnesses, it would not be safe at all to criminally prosecute such professionals. The law as enunciated by the Apex Court in Jacob Mathew (supra) reiterating Bolam Test principles is a reminder and it sounded a caution before criminally prosecuting the medical professionals in absence of any gross criminal negligence attributed. Applying the same standard to the petitioners, the Court did not find it to be a prima facie case of negligence of gross nature and therefore, it is left with no option except to reach at a decision that the material on record is deficient to criminally prosecute them.
11. Accordingly it is ordered.
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12. In the result, the CRLMC stands allowed. As a necessary corollary, the impugned order of cognizance dated 27th April, 2015 is hereby set aside. Consequently, the criminal proceeding in connection with G.R. Case No.622 of 2014 pending by the learned S.D.J.M., Sadar Cuttack corresponding to Purighat P.S. Case No.49(3) of 2014 is quashed for the reasons discussed hereinabove.
(R.K. Pattanaik) Judge CRLMC No.2222 of 2016 Page 13 of 13