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2007 DIGILAW 1150 (PAT)

Sheonandan Yadav v. State Of Bihar

2007-07-16

ABHIJIT SINHA

body2007
Judgment 1. This application has been filed for quashing the order dated 30.1.2006 passed by learned 1st Additional Sessions Judge, Aurangabad, in Cr. Revision No.35 of 2005 whereby the revision application filed by the petitioner has been rejected as also the order dated 25.5.2005 passed by Sri Ra-tan Kumar, Judicial Magistrate, 1st Class, Aurangabad, whereby he has taken cognizance against the petitioner under Section 316 I.P.C. as also sections 3/4 of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act (hereinafter referred to as the SC/ST Act) in Complaint Case no. 939 of 2004. 2. According to the complaint case filed by one Jagdish Ravi Das, the father of the victim lady on 28.9.2004 against the petitioner herein, it was alleged inter alia, that he admitted his daughter, Jaso Devi, who was in an advanced stage of pregnancy in the hospital run by the petitioner on 21.9.2004 in the presence of Munna Ram, Ajay Ram, Dulari Devi, Ramashish Ram and Rajaram Yadav and a sum of Rs. 1500/- was deposited with the petitioner by way of his fees, it is said that at about mid night Jaso Devi gave birth to a child under normal circumstances but thereafter the petitioner herein demand a sum of Rs. 6000/- for the treatment of the mother and the child. However, since the complainant had nothing with him at that moment for paying to the Doctor he feigned his helplessness and promised to pay the amount by the next morning. However, the accused doctor is said to have driven away the patient from his clinic at mid night without any medical aid being rendered to her or the newly born child. The lady with the child was forced to remain on the road which resulted in the death of the newly born child. It was alleged that since the patient was a Harijan she and the newly born child were thrown on to the road without any medical attention. 3. The submission of the learned counsel for the petitioner is that the entire allegation levelled by the complainant with regard to the negligence in the treatment is false and baseless as the child was still born. It has been submitted that the petitioner took all precaution and proper care but it was due to ill luck that the newly born baby did not survive. It has been submitted that the petitioner took all precaution and proper care but it was due to ill luck that the newly born baby did not survive. It has also been submitted that prosecution of the petitioner is malacious in nature and lodged with ulterior and oblique motive with a view to extract money from the petitioner. The further submission of the learned counsel was that no criminal liability can be fastened upon the petitioner and continuance of the present proceeding would be an abuse of the process of the court more so when the victim girl, Jaso Devi, along with her husband had not complained of any mal-treatment in the hospital and had also filed a petition in court to the effect that the complaint petition had" been filed by her father on instigation of some antisocial elements and that she did not want to proceed with the case and wanted the court to I drop the same. It has also been stated that Ganesh Ram, the husband of Jaso Devi, had also put his signature on the said petition. 4. Admittedly no allegation either of mal-treatment or misbehaviour has been levelled against the doctor by Jaso Devi who allegedly lost her newly born child. It is also an admitted position that no post mortem examination of the dead body of the newly born child was held. Further more Jaso Devi does not complain of or support the allegation of her father to the effect that she and her newly born child were thrown out of the hospital at mid night. 5. As has been held in the case of Jacob Mathew Vs. The State of Punjab reported in (2005) 6 SCC 1 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. Then again in paragraphs 52 and 53 of Jacob Mahtew case (supra) it has been held that:- "52. As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being sub- jected 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. As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being sub- jected 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 amount to rash or negligent act within the domain of criminal law under Sec. 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. 53". 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 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 prosecution. Many a complainant prefers recourse to criminal process as a tool for pressurising to medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against". 6. It may be noted that in this case neither the complainant nor Jaso Devi insisted for post mortem and as such the cause of death of the newly born child remains unknown and on the basis of the nature of the allegations levelled in the complaint it would not be possible to attribute the death of the newly born child to any negligence, carelessness of the doctor or an error on his part. Continuance of the instant proceeding would amount to an abuse of the process of the court. 7. The order taking cognizance is, accordingly, set aside and the application is allowed.