Punjab-Haryana High Court
Dr. Alka Singh vs Rajinder Singh on 1 March, 2013
Author: Ranjit Singh
Bench: Ranjit Singh
Criminal Misc.-M No. 9089 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Criminal Misc.-M No. 9089 of 2012
Date of decision : 01.03.2013
Dr. Alka Singh
......Petitioner
Versus
Rajinder Singh
.....Respondent
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Bhupinder Ghai, Advocate
for the petitioner
Mrs. Pratibha Yadav, Advocate
for the respondent
RANJIT SINGH, J.
The petitioner is a qualified Gynaecologist and is statedly practicing since 2003. She is presently posted as Specialist Medical Officer in the Department of Obstetrics and Gynaecology at Civil Hospital, Gurgaon since 2005. The petitioner claims that she has conducted large number of surgeries including caesarian sections etc. During the month of December 2010 the petitioner had performed 59 laparoscopic sterilization. The petitioner has claimed that she in routine is performing more than 350 such procedures per year. As per the petitioner a frivolous and vexatious complaint has been filed against her in an effort to make a fortune out of misfortune. The petitioner would allege motive to the complainant behind filing the said complaint and it is to coerce the petitioner to pay him heavy Criminal Misc.-M No. 9089 of 2012 2 amount.
Rajinder Singh - complainant has filed a complaint which is stated to be fake. It is urged that from complaint no offence under Section 304 A IPC is made out. It is stated that said incident at best is an accident and had taken place and was not due omission or negligence on the part of the petitioner.
The preliminary evidence, however, is recorded on the complaint. The complainant has examined his father-in-law Raju as CW-1 and he himself stepped into the witness box as CW-2. No evidence of any expert, however, is brought on record to prove the negligence but the Court still has summoned the petitioner. It is also stated that without referring the matter to competent doctor or a committee of doctors specialized in the field and without obtaining sanction under Section 197 Cr.P.C., the petitioner could not have been summoned by the trial Magistrate.
Aggrieved against this summoning order, the petitioner has approached this Court for quashing of the summoning order as well as the complaint.
No reply has been filed on behalf of the respondent. However, copy of the reply has been handed over in the Court today.
The complainant has urged in the preliminary submissions that the expert report are not per se admissible and the opinion of the expert without examination of the expert in Court are not admissible in evidence. Otherwise, it is stated that the documents relied upon by the petitioner even if taken on their face value would at the most project the defence of the petitioner which Criminal Misc.-M No. 9089 of 2012 3 she had to raise before the trial Court. The other submissions made in the petition are also denied. It is, accordingly, prayed that the present petition may be dismissed.
I have considered the submissions made before me by counsel for the petitioner.
Though counsel for the petitioner did make a bold attempt to make submissions on merits but those would not impress me in any manner. However it is equally essential to notice that a doctor in this case has been summoned to face prosecution for an offence under Section 304 A IPC alleging that there is negligence on her part while performing her duties. In this regard reference can be made to the case of Jacob Mathew vs. State of Punjab and another, 2005 (3) R.C.R. (Criminal) 836. In this case Hon'ble Supreme Court has considered the negligence in actionable tort and negligence punishable as a crime. To be punishable as crime negligence has to be gross or of very high degree.
In this background the Court has considered the requirements which are to be met to find negligence by professionals. In this regard it is observed as under:-
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 Criminal Misc.-M No. 9089 of 2012 4 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 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."
The Court has then quoted the often referred passage from Bolam vs. Friern Hospital Management Committee(1957) 1 W.L.R. 582 which is as under:-
"Where you get a situation which involves the use of Criminal Misc.-M No. 9089 of 2012 5 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 ordinary competent man exercising that particular art."
(Charlesworth & Percy, ibid, Para 8.02)"
Medical practitioner can not be held liable simply because things were wrong from mischance or misadventure or through error of judgment in choosing one reasonable course of treatment in preference of another (See Hucks v Cole (1968) 118 New LJ 469) The Court has then advocated the formation of guidelines in this regard as can be noticed from the following:-
Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably Criminal Misc.-M No. 9089 of 2012 6 from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam's test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld."
It is further held as under:-
"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 IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He 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.
We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are Criminal Misc.-M No. 9089 of 2012 7 doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against."
However, at the same time the Supreme Court has also observed that it may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. However, the Court has emphasized the need for care and caution in the interest of society, for the service which the medical profession renders to human beings probably the noblest of all and hence there is need for protecting doctors from frivolous or unjust prosecution. The Courts thus need to protect doctor from frivolous and unjust prosecution. In this background safeguards are provided while initiating prosecution against the doctors for an offence under Section 304A IPC. A private complaint is not to be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of accused doctor.
The present summoning order thus can not be sustained in the absence of the evidence of expert and is required to be quashed. It is so ordered. This will, however, not be a bar for the respondent to lead fresh evidence in the form of expert and if any Criminal Misc.-M No. 9089 of 2012 8 negligence is seen on the part of the petitioner, the Court may consider summoning the petitioner on the basis of that evidence.
The present petition is, accordingly, disposed of.
March 01, 2013 ( RANJIT SINGH ) reena JUDGE