Gujarat High Court
Pradip B Dhaduk vs State Of Gujarat & on 7 April, 2017
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
R/CR.MA/8021/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION NO. 8021 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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PRADIP B DHADUK....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR MB PARIKH, ADVOCATE for the Applicant(s) No. 1
MR PM LAKHANI, ADVOCATE for the Respondent(s) No. 2
MR RH RUPARELIYA, ADVOCATE for the Respondent(s) No. 2
MRS R P LAKHANI, ADVOCATE for the Respondent(s) No. 2
MS. DIMPLE L. JOSHI, ADVOCATE for the Respondent(s) No. 2
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 07/04/2017
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ORAL JUDGMENT
1.Rule. Mr. P.M. Lakhani, learned advocate for the Respondent no.2 and Mr. N.J. Shah, learned APP waives service on behalf of the respective respondents. With the consent of both the sides the matter is heard today finally.
2.This application is filed under Section 482 of the Criminal Procedure Code, 1973 (herein after referred to as "the Code" for the sake of convenience), for quashing and setting aside F.I.R being CR No. I42/2011 registered with Amreli City Police Station and chage sheet filed pursuant thereto.
3. Respondent no.2 - Original complainant has filed F.I.R being CR No. I42/2011 against the petitioner under Section338 of the Indian Penal Code (herein after referred as "IPC") before the Amreli City Police Station. In the said F.I.R it has been alleged that the complainant was suffering from ("Wart") a kind of disease on the first finger of left hand. She, therefore, approached the petitionerdoctor for necessary treatment. It was advised by the petitioner that operation is required to be performed. Accordingly complainant has given consent for such Page 2 of 14 HC-NIC Page 2 of 14 Created On Tue Aug 15 17:36:32 IST 2017 R/CR.MA/8021/2011 JUDGMENT operation. On 11.04.2011, she was operated and thereafter discharged from the hospital. After the period of 10 days, she was called for removal of stitches. However, in the meantime, on 04.05.2011, she was having pain in her left hand and therefore, she once again approached the petitioner. It is alleged that petitioner prescribed an injection and the said injection was given to her. Thereafter, also she was having pain in her hand, therefore, she once again approached the petitioner. However, petitioner did not give proper reply and therefore, the complainant alongwith her family members came to Ahmedabad and admitted in the V.S. Hospital. She was treated in V.S. Hospital and it is alleged that because of the negligence on the part of the petitioner, her left hand below elbow was removed by way of operation in V.S. Hospital. Thereafter, she was discharged on 09.05.2011 from V.S. Hospital. It is further alleged in the F.I.R that one Dr. Ravi had informed her at V.S. Hospital that because of the negligence on the part of the petitioner, operation is required to be performed on her left hand. It is thus alleged that the petitioner has committed alleged offence punishable under Section338 of the Indian Penal Code.
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4.Heard learned advocate, Mr.M.B. Parikh for the petitioner and learned advocate, Mr. P.M.Lakhani for respondent no.2complainant and learned Additional Public Prosecutor, Mr. N.J. Shah for respondent - State.
5. Learned advocate, Mr. Parikh mainly submitted that there was no negligence or carelessness on the part of petitioner as alleged by the complainant and therefore ingredients of alleged offence are not made out. Hence, the impugned F.I.R and chargesheet filed thereunder be quashed and set aside. It is submitted that the petitioner has taken due care while performing an operation on the left hand of the complainant. However, after the operation because of complications, the complainant taken treatment at V.S. Hospital. However, it could not be said that the petitioner has remained negligent while performing an operation. At this stage, it is further contended that the complainant has mainly relied upon the opinion given by one Dr.Ravi of V.S. Hospital while lodging F.I.R against the petitioner. As per say of the complainant, said Dr.Ravi informed her that petitioner has remained negligent while performing operation and therefore her left hand is required to be removed. At this stage, learned advocate, Mr. Parikh has Page 4 of 14 HC-NIC Page 4 of 14 Created On Tue Aug 15 17:36:32 IST 2017 R/CR.MA/8021/2011 JUDGMENT referred statement given by the Dr.Ravichandra Basavraj, a doctor working in V.S. Hospital. The said doctor has given statement before the police during the course of investigation that he is not aware about the treatment given by the petitioner to the complainant. He is not in a position to say that whether Dr. Pradeep B. Dhaduk was negligent or not. The said doctor has further stated that he had not given opinion to the complainant with regard to alleged negligence on the part of the petitioner.
6.Thus, it is submitted by the learned advocate that no doctor has given any opinion that the petitioner has remained negligent while performing the operation or while giving an injection to the complainant. Learned advocate, Mr. Parikh has further placed reliance upon the opinion given by the panel doctors, wherein they opined that the petitioner was not negligent in giving treatment, the said document is part of papers of chargesheet.
7. Learned advocate Mr. Parikh has thereafter placed reliance upon the decision rendered by the Supreme Court in case of Jacob Mathew v.
State of Punjab and Another, reported in 2005 (6) Page 5 of 14 HC-NIC Page 5 of 14 Created On Tue Aug 15 17:36:32 IST 2017 R/CR.MA/8021/2011 JUDGMENT SCC 1 and in the case of Dr. Suresh Gupta v.
Government of N.C.T. Of Delhi and another, reported in AIR 2004 SC 4091.
8.Learned advocate, Mr. Parikh therefore submitted that impugned F.I.R and charge sheet filed pursuant thereto which has been culminated into Criminal Case No. 162 of 2015 be quashed and set aside.
9. Learned advocate, Mr. P.M. Lakhani submitted that ingredients of alleged offence are clearly made out in the impugned F.I.R. The Investigating Officer has after investigation filed a chargesheet against the petitioner. Therefore, when the chargesheet is filed against the petitioner, this court may not quash and set aside the impugned F.I.R and chargesheet filed pursuant thereto as prayed for by the petitioner.
10. Learned Public Prosecutor, Mr. N.J.Shah has also supported submission canvased by Mr. Lakhani.
11. Having heard learned advocate for the parties and having gone through the material produced on record, it emerges that impugned F.I.R is filed by the complainant on the basis of so called oral opinion given by Dr.Ravi of V.S. Hospital. It is alleged in Page 6 of 14 HC-NIC Page 6 of 14 Created On Tue Aug 15 17:36:32 IST 2017 R/CR.MA/8021/2011 JUDGMENT the F.I.R that Dr.Ravi has opined that petitioner Dr.Pradeep B. Dhaduk has remained negligent and therefore, the left hand of the complainant is required to be removed by performing another operation.
12. I have gone through the papers of charge sheet produced by the learned advocate for the petitioner and from the said papers of the chargesheet, it is revealed that Dr.Ravichandra Basavraj has given the statement on 12.07.2011, during the course of investigation wherein he has specifically stated that he is not in a position to say that whether Dr.Pradeep B. Dhaduk had remained negligent while performing operation of the complainant or not. He further specifically stated that he has not given any opinion to the complainant about Dr.Pradeep B. Dhaduk that because of his negligence, hand is required to be removed. The Commissioner of Health Services requested the panel of doctors (Medical Commission) to give their opinion with regard to incident in question and whether Dr.Dhaduk was negligent or not. Panel of three doctors submitted their opinion on 05.10.2011, which is part of papers of the chargesheet. Wherein they have opined that petitionerdoctor has not remained negligent while giving treatment to Page 7 of 14 HC-NIC Page 7 of 14 Created On Tue Aug 15 17:36:32 IST 2017 R/CR.MA/8021/2011 JUDGMENT the complainant.
13. In the aforesaid facts and circumstances of the case, the decision rendered by the Hon'ble Supreme Court in the case of Dr.Suresh Gupta v. Govet. Of N.C.T. Of Delhi and Another (supra), is required to be considered wherein, Hon'ble the Supreme Court has specifically observed and held in Paras 20,21,23 and 25, are as under;
20. For fixing criminal liability on a doctor or surgeon, the standard of negligence required to be proved should be so high as can be described as "gross negligence" or recklessness". It is not merely lack of necessary care, attention and skill. The decision of the House of Lords in R. Vs. Adomako (Supra) relied upon on behalf of the doctor elucidates the said legal position and contains following observations : "Thus a doctor cannot be held criminally responsible for patient's death unless his negligence or incompetence showed such disregard for life and safety of his patient as to amount to a crime against the State."
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 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 Page 8 of 14 HC-NIC Page 8 of 14 Created On Tue Aug 15 17:36:32 IST 2017 R/CR.MA/8021/2011 JUDGMENT but would not suffice to hold him criminally liable.
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 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.
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 wrong doing i.e. a higher degree of morally blameworthy conduct.
14. The Hon'ble Supreme Court in case of Jecob Methew v. State of Panjab and Another has observed and held in Paras23,29,47 and 48(7)
28. A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the Page 9 of 14 HC-NIC Page 9 of 14 Created On Tue Aug 15 17:36:32 IST 2017 R/CR.MA/8021/2011 JUDGMENT complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. A surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the enddose of medicine to his patient.
29. If the hands be trembling with the dangling fear of facing a criminal prosecution in the event of failure for whatever reason whether attributable to himself or not, neither a surgeon can successfully wield his lifesaving scalper to perform an essential surgery, nor can a physician successfully administer the lifesaving dose of medicine. Discretion being better part of valour, a medical professional would feel better advised to leave a terminal patient to his own fate in the case of emergency where the chance of success may be 10% (or so), rather than taking the risk of making a last ditch effort towards saving the subject and facing a criminal prosecution if his effort fails. Such timidity forced upon a doctor would be a disservice to the society.
47. Before we embark upon summing up our conclusions on the several issues of law which we have dealt with hereinabove, we are inclined to quote some of the conclusions arrived at by the learned authors of "Errors, Medicine and the Law"
(pp. 241248), (recorded at the end of the book in the chapter titled 'Conclusion') highlighting the link between moral fault, blame and justice in reference to medical profession and negligence. These are of significance and relevant to the issues before us. Hence we quote :
(i) The social efficacy of blame and related sanctions in particular cases of deliberate Page 10 of 14 HC-NIC Page 10 of 14 Created On Tue Aug 15 17:36:32 IST 2017 R/CR.MA/8021/2011 JUDGMENT wrongdoings may be a matter of dispute, but their necessity in principle from a moral point of view, has been accepted. Distasteful as punishment may be, the social, and possibly moral, need to punish people for wrongdoing, occasionally in a severe fashion, cannot be escaped. A society in which blame is overemphasized may become paralysed. This is not only because such a society will inevitably be backward looking, but also because fear of blame inhibits the uncluttered exercise of judgment in relations between persons. If we are constantly concerned about whether our actions will be the subject of complaint, and that such complaint is likely to lead to legal action or disciplinary proceedings, a relationship of suspicious formality between persons is inevitable. (ibid, pp. 242243)
(ii) Culpability may attach to the consequence of an error in circumstances where substandard antecedent conduct has been deliberate, and has contributed to the generation of the error or to its outcome. In case of errors, the only failure is a failure defined in terms of the normative standard of what should have been done. There is a tendency to confuse the reasonable person with the errorfree person. While nobody can avoid errors on the basis of simply choosing not to make them, people can choose not to commit violations. A violation is culpable. (ibid, p. 245).
(iii) Before the court faced with deciding the cases of professional negligence there are two sets of interests which are at stake : the interests of the plaintiff and the interests of the defendant. A correct balance of these two sets of interests should ensure that tort liability is restricted to Page 11 of 14 HC-NIC Page 11 of 14 Created On Tue Aug 15 17:36:32 IST 2017 R/CR.MA/8021/2011 JUDGMENT those cases where there is a real failure to behave as a reasonably competent practitioner would have behaved. An inappropriate raising of the standard of care threatens this balance. (ibid, p.246). A consequence of encouraging litigation for loss is to persuade the public that all loss encountered in a medical context is the result of the failure of somebody in the system to provide the level of care to which the patient is entitled.
The effect of this on the doctorpatient relationship is distorting and will not be to the benefit of the patient in the long run. It is also unjustified to impose on those engaged in medical treatment an undue degree of additional stress and anxiety in the conduct of their profession. Equally, it would be wrong to impose such stress and anxiety on any other person performing a demanding function in society. (ibid, p.247). While expectations from the professionals must be realistic and the expected standards attainable, this implies recognition of the nature of ordinary human error and human limitations in the performance of complex tasks. (ibid, p. 247).
(iv) Conviction for any substantial criminal offence requires that the accused person should have acted with a morally blameworthy state of mind. Recklessness and deliberate wrongdoing, are morally blameworthy, but any conduct falling short of that should not be the subject of criminal liability. Commonlaw systems have traditionally only made negligence the subject of criminal sanction when the level of negligence has been high a standard traditionally described as gross negligence. In fact, negligence at that level is likely to be indistinguishable from recklessness. (ibid, p.248).
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(v) Blame is a powerful weapon. Its inappropriate use distorts tolerant and constructive relations between people. Distinguishing between (a) accidents which are life's misfortune for which nobody is morally responsible, (b) wrongs amounting to culpable conduct and constituting grounds for compensation, and (c) those (i.e. wrongs) calling for punishment on account of being gross or of a very high degree requires and calls for careful, morally sensitive and scientifically informed analysis; else there would be injustice to the larger interest of the society. (ibid, p. 248).
48(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.
15. Keeping in mind the aforesaid decisions rendered by the Honourble Supreme Court, the facts as observed and discussed hereinabove are examined, this court is of the opinion that the ingredients of alleged offence punishable under Section338 of the Indian Penal Code, are not made out. Hence, the impugned F.I.R is nothing but an abuse of the process of Court and therefore, in the Page 13 of 14 HC-NIC Page 13 of 14 Created On Tue Aug 15 17:36:32 IST 2017 R/CR.MA/8021/2011 JUDGMENT interest of justice, the impugned F.I.R and chargesheet pursuant thereto which culminated into Criminal Case no. 168 of 2015 pending before the learned JMFC, Amreli are required to be quashed and set aside. Accordingly the same are quashed and set aside. However, at this stage, it is clarified that this court has examined about the alleged criminal liability of the petitioner and this court has not examined the alleged civil liability of the petitioner. It is pointed out that complainant has filed civil proceeding for getting compensation from the petitioner which is pending. Hence, while deciding the said civil proceeding, the concerned court may decide the matter without being influenced by the present order independently and in accordance with law. Petition is accordingly allowed. Rule is made absolute.
(VIPUL M. PANCHOLI, J.) Nabila Page 14 of 14 HC-NIC Page 14 of 14 Created On Tue Aug 15 17:36:32 IST 2017