Md. Irshad Ali Khan v. State Of Bihar — 1999 DIGILAW 941 (PAT)

Judgment S.K.Katriar, J. 1. This criminal revision application at the instance of the complainant is directed against the order dated 10.7.1989, passed by Shri M.P. Tiwary, CJM, Gaya, in Complaint Case no. 108 of 1985 (TR No. 118/88) (Irshad Ali Khan V/s. Dr. R. Kumar & Ors.), whereby he has held that no prima facie case is made out against any one of the accused persons (the opposite party herein), there is no case to go to trial, and has accordingly dismissed the petition of complaint. 2. I feel constrained to recapitulate the order dated 2.11.95 of this Court to the effect that this case was laid before the Bench on 21.2.90, and thereafter for the first time on 12.9.95, i.e. after a gap of five years. It was noticed by the Bench in its order dated 2.11.95. This criminal revision application had been taken up and dismissed by a learned Single Judge of this Court by, the same order dated 2.11.1995. Aggrieved by the same, the petitioner herein had moved the Supreme Court in Cr. Appeal No. 194 of 1997 (Md. Irshad Ali Khan V/s. State of Bihar & Ors.), which was allowed by order dated 21.2.97, the aforesaid order dated 2.11.95 of this Court was set aside, and the matter was remitted back to this Court to pass a speaking order giving its reasons for accepting/rejecting the findings of the magistrate. This Court was requested to comply with this direction as expeditiously as possible, preferably within a period of two months from the date of communication of this order. The matter could not be taken up by this Court earlier because of non-appearance of O.P. No.4 (Dr. Indeshwar Tiwary). The matter was disposed of by the Supreme Court in his presence, yet he showed no deference to the order of the Supreme Court, and chose to play truant. Hence the delay in disposal of this matter. The aforesaid facts have been recapitulated for the benefit of the trial court so that it can guard itself against any effort on the part of the accused persons to delay the trial. 3. Hence the delay in disposal of this matter. The aforesaid facts have been recapitulated for the benefit of the trial court so that it can guard itself against any effort on the part of the accused persons to delay the trial. 3. According to the petition of complaint lodged by the present petitioner, his nephew Farhad Ali Khan, aged about 20 years, was travelling in a bus which collided against a truck on 20.5.85, at about 5.30 PM, as a result of which the boy was injured, and his right leg was fractured. He was admitted into the Anugrah Narayan Magadh Medical College Hospital, Gaya, at about 7.40 PM. O.P. No. 3, Dr. Madan Lal Agrawal, was the doctor on emergency duty but was absent. He came on call after one hour and left by 9 PM without attending to the patient. According to the further allegations, all the injuries were on non- vital parts of the body, the boy was bleeding profusely, was at the time of admission in the hospital not in a serious condition, and he was in full senses. O.P. No.2, Dr. R. Kumar, Head of the Deptt. of Orthopaedic Surgery in the hospital, was given a call who arrived at 10.15 PM. The boy was lying on the operation table in the emergency operation theatre and was bleeding. O.P. No.2 gave a brief and perfunctory look at him and left the operation theatre without doing anything at all. The attendants ran to him towards his car and begged for mercy and his full attention to the patient. He replied in a raised voice that, "if you want to save the life of the patient then get him admitted into my private nursing home; you will have to choose between the money and the life of the patient". O.P. No.2 then hurriedly left the hospital without attending to the patient at all. According to the further allegations, O.P. No.4, Dr. Indeshwar Tiwary, was on emergency duty from 9 PM to 6 AM, but he reported on call at 12.30 hours, and did not do anything at all, knowing full well that the patient was by then in a serious condition. Request was made to him also to attend to the patient, but he told the attendants that it was really for O.P.No.2 to attend to the case. O.P.No.3 had earlier said the same thing. Request was made to him also to attend to the patient, but he told the attendants that it was really for O.P.No.2 to attend to the case. O.P.No.3 had earlier said the same thing. In view of such callous attitude and criminal negligence on the part of the Opposite Party, the boy died at about 1 AM. 3.1. According to the further allegations, the oxygen cylinder being administered to the patient was completely empty which was within full knowledge of the opposite parties. It was allegedly an act of fraud. No attempt was at all made by anyone of the three doctors to check the bleeding, to arrange for blood transfusion and to save the life of the patient, and to handle the situation which, perhaps, called for amputation of the right leg. 3.2. The petitioner along with Abdul Quadir (witness no.1), rushed to the residence of Dr. M.R Singh, the Principal of the Medical College, and Dr. Ram Lakhan Sinha, Superintendent of the said hospital. They were awakened from sleep and the Principal immediately despatched the driver to call Dr. R. Kumar who refused to respond. In the meantime, Dr. R. Kumar contacted the Principal over the telephone who was asked to report immediately. All of them then went to the hospital. According to the further allegations, on account of the action taken by the Principal and the Superintendent of the college, O.P. Nos. 2 to 4 herein huddled altogether and have made interpolations and false entries in the bed-head ticket. On these allegations, the aforesaid Complaint Case No. 108 of 1985, was registered in the court of learned CJM, Gaya. 4. Under orders of the Commissioner of the Division, a three-member Committee was constituted to go into the entire incident which comprised of Dr. M.P.Singh, Principal of the Medical College, Dr. Ram Lakhan Sinha, Superintendent of the Medical College and Dr. Kumar Dilip Singh, a Surgeon and a member of Advisory Committee of the Medical College. The committee submitted its report on 23.8.85 wherein it recorded the following findings: (i) The patient was admitted in a serious condition with compound fracture. (ii) No steps were taken in the hospital to check the bleeding; (iii) First Aid was provided to the patient. (iv) Opposite party no.2, Dr. R.Kumar, completely failed in his duty in attending to the patient, and did not devote any time. (ii) No steps were taken in the hospital to check the bleeding; (iii) First Aid was provided to the patient. (iv) Opposite party no.2, Dr. R.Kumar, completely failed in his duty in attending to the patient, and did not devote any time. He ought to have been continuously present in the Emergency Ward which may have saved the life of the patient. (v) O.P. No.2 is also guilty of interpolations and false entries in the bedhead ticket in an effort to create the evidence that he had attended to the patient. The report was submitted to the Commissioner of Gaya Division a copy whereof is marked Annexure 2 before me. Neither of the parties has informed me whether or not any action at all was taken by the Commissioner. 5. In the meantime, the learned CJM conducted an enquiry under Section 202 of the Code of Criminal Procedure. 16 witnesses were examined. The aforesaid report dated 23.8.85 formed part of the materials brought on record during the course of enquiry. On a consideration of the entire materials on record, the CJM passed the impugned order dated 10.7.89, whereby he has held that no prima facie case is made out against anyone of the accused persons and, therefore, there is no case to go to trial. He has thus dismissed the petition of complaint. 6. While assailing the validity of the impugned order, the learned counsel for the petitioner submitted that in view of the materials on record, a prima facie case is undoubtedly made out against the three doctors. It is a case of utter callousness and criminal negligence. It was a conspiracy between the three doctors to have the patient treated in the private nursing home of Dr. R.Kumar. The three doctors are equally guilty of interpolation and false entries in the bed-head ticket to create their defence. The report of the committee (Annexure 2), speaks volumes on the issue. The solemn affirmation and the statements of the 16 witnesses during the course of enquiry have consistently supported the allegations in the petition of complaint. 6.1. Opposite Party Nos.2 and 3 are jointly represented by one counsel who submitted that the patient was admitted in a precarious condition. He was bleeding profusely and was not fit for surgery. The attendants are primarily to be blamed for the condition because he was admitted two hours late after the accident. 6.1. Opposite Party Nos.2 and 3 are jointly represented by one counsel who submitted that the patient was admitted in a precarious condition. He was bleeding profusely and was not fit for surgery. The attendants are primarily to be blamed for the condition because he was admitted two hours late after the accident. He further submitted that the statement of O.P. No.2, Dr.R. Kumar, that the patient should be admitted to his private nursing home was a mere advice which did not amount to any pressure. He next submitted that all the three doctors did attend to the patient. Surgery including amputation of leg would have been considered after his condition improved. The bed-head ticket shows that 1200 c.c. blood was transfused. Lastly, he submitted with condour that he had no answer to the aforesaid report dated 23.8.85 (Annexure 2). 6.2. Learned counsel for Opposite Party No.4 (Dr. Indeshwar Tiwary), submitted that the attendants of the patient were guilty of negligence in bringing the patient to the hospital two hours after accident and, therefore, they should be prosecuted for such criminal negligence, rather than the doctors. She also submitted that the aforesaid report dated 23.8.85 (Annexure 2), has not found anything against O.P. No.4. 7. Having considered the rival submissions, I am of the view that this application has to be allowed, and the impugned order set aside. It is manifest from the materials on record that prima facie the three doctors were guilty of gross negligence in attending to the patient. It appears that the patient was bleeding at the time he was admitted in the hospital, no steps were taken to stop the bieeding, and to save his life. The petition of complaint alleges that the patient was being administered an empty oxygen cylinder, and all the three doctors knew it full well. The aforesaid report dated 23.8.85 (Annexure 2) has strongly found against Dr. R.Kumar, and has found him guilty of complete negligence in attending to the patient for the reason that he wanted the patient to be treated in his private nursing home. O.P.No.3, Dr.Madan Lal Agrawal, was the doctor on emergency duty at 7.40 PM, but he was absent and he had reported shortly before 9 PM on call, and left at 9 PM without attending to the patient. O.P.No.3, Dr.Madan Lal Agrawal, was the doctor on emergency duty at 7.40 PM, but he was absent and he had reported shortly before 9 PM on call, and left at 9 PM without attending to the patient. The doctor on emergency duty has got to be personally and physically present in the emergency ward during his duty hours. O.P.No.2, the H.O.D. in the Deptt. of Orthopaedic Surgery in the hospital, and the required specialist in the present case, came on call after 10 PM. O.P. No.4, Dr. Indeshwar Tiwary, was the doctor on emergency duty from 9 PM to 6 AM, was also absent and had leisurely reported at 12.30 hours on call. There is allegation against the three doctors of interpolation and false entries in the bed-head ticket. There is also allegation of criminal conspiracy against the three doctors to take the patient to the private nursing home of Dr.R.Kumar. The allegation in the petition of complaint, the solemn affirmation of the complainant, the report of three-member Committee, and the statements of the 16 witnesses during course of enquiry undoubtedly make out a prima facie case of wilful negligence and conspiracy against O.P. Nos.2 to 4 which resulted in the death of the boy. The aforesaid report dated 23.8.85 (Annexure 2), itself states that proper treatment might have saved the life of the boy. The entire materials on record is quite consistent and makes out a prima facie case against the three doctors. 8. In such circumstances, I set aside the impugned order, direct the Magistrate to take cognizance of the alleged offences under the appropriate provisions of law, put O.P. Nos.2 to 4 herein on trial, and conclude the same within a period of six months from the date of receipt/production of a copy of this judgment. The delay of five years, i.e. from 21.2.90 to 12.9.95 in this Court speaks volumes. This Court records with regret the manner in which O.P. No.4 behaved, and played truant. The order of the Supreme Court was to his full knowledge, yet he chose not to appear before this Court voluntarily, which has resulted in further delay of more than two years in disposal of the present revision application. O.P. Nos. 2 to 4 are represented by their own counsel before this Court and, therefore, it is obvious that the judgment is being passed to their full knowledge. O.P. Nos. 2 to 4 are represented by their own counsel before this Court and, therefore, it is obvious that the judgment is being passed to their full knowledge. They are hereby directed to appear before the learned CJM without the necessity of issuance of notices to them failing which the same shall be treated as contempt of this court. They are responsible functionaries of this State and are expected to conduct themselves accordingly. 9. In the result, this revision application is allowed, the impugned order dated 10.7.89, is hereby set aside, and the trial court is directed to conclude the trial within a period of six months from the date of receipt/production of a copy of this judgment. Let copies of this judgment along with lower court records be sent to the court of learned Chief Judicial Magistrate, Gaya, per special messenger forthwith. Let the CJM forward a copy of this judgment to the Principal of the Anugrah Narayan Medical College & Hospital, Gaya, to consider the desirability of placing O.P. Nos.2 to 4 under suspension during pendency of the trial.