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Allahabad High Court · body

2008 DIGILAW 2321 (ALL)

DEEPAK AGARWAL v. STATE OF U P

2008-11-21

D.V.SHARMA

body2008
( 1 ) THE instant revision is directed against the order dated 1-12-2005 passed in criminal revision No. 217 of. 2005 by district and Sessions Judge, Lucknow. ( 2 ) FACTUAL matrix is as under :-An application under Section 156 (3) Cr. P. C. was moved by opposite party No. 2 alleging therein that on 5-6-2000, the husband of the opposite party No. 2, namely, prakash Chandra Raheja was admitted at sheikhar Nursing Hospital, Lucknow. Dr. A. K. Sachan was the Managing Director of the hospital and Dr. Deepak Agarwal was the main surgeon-cum-architect of the Hospital. On 6-6-2000 various investigation was conducted at the Hospital and on the advice of the doctor E. R. C. P. of late Prakash chandra Raheja was done. He developed pain immediately during post operative period. The pain did not subside from 6-6-2000 onwards and he went in coma on 8-6-2000 with persistence of tachycardia and tachyponea. The condition of Sri Raheja deteriorated to the extent of his having developed respiratory problem from 8th afternoon and fever since 9th June, 2000. Sri raheja was referred and shifted to S. G. P. G. I. Lucknow on 10-6-2000 as a case of post e. R. C. P. Pancreatitis + A. R. D. S. + Septicaemia. He remained under the treatment of dr. S. S. Sikora and Dr. V. K. Kapoor at s. G. P. G. I. and Sri Raheja ultimately expired on 5-7-2000 due to cardio-respiratory. Thereafter, the learned Magistrate directed the police to register a case against the revisionist and Dr. A. K. Sachan vide order 30-1-2004, in pursuance of which a case at crime No. 87/04 under Section 304-A I. P. C. was registered at P. S. Ghazipur, Lucknow. Consequently, the police investigated the case and found no evidence against the revisionist and filed final report on 2-6-2004, which was accepted by the Special CJM (Custom), Lucknow. ( 3 ) THEREAFTER opposite party No. 2 filed a protest application before the learned magistrate, which too was rejected and final report dated 2-6-2004 was accepted. Consequently, the police investigated the case and found no evidence against the revisionist and filed final report on 2-6-2004, which was accepted by the Special CJM (Custom), Lucknow. ( 3 ) THEREAFTER opposite party No. 2 filed a protest application before the learned magistrate, which too was rejected and final report dated 2-6-2004 was accepted. Feeling aggrieved, opposite party No. 2 filed a criminal revision against acceptance of final report and rejection of protest application, before the District and Sessions Judge, lucknow, who allowed the revision vide impugned order dated 1-12-2005 directing the learned Magistrate to direct the investigating officer to further investigate or to treat the protest petition as a complaint and direct the opp. party to produce the evidence to show gross negligence and recklessness on the part of the doctor. ( 4 ) I have heard Shri Arun Sinha, learned counsel for the revisionist and the learned a. G. A. and perused the entire material on record. ( 5 ) THE only point which arises for determination is whether the deceased was treated by the doctor rashly and negligently or he was treated in good faith or the cause of death was related to the treatment rendered by the doctors to the deceased and if so, what would be the effect of compounding the matter in Consumer Forum, treating it to be of civil nature and if the matter falls within the ambit of a criminal offence punishable under Section 304-A of I. P. C. or not, especially when the matter was investigated and concluded by the submission of the final report in this case. ( 6 ) THE matter relates to application of Section 304-A I. P. C, which read as under:-"whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. " section 169 provides as under:- "169. " section 169 provides as under:- "169. Release of accused when evidence deficient :- If upon an investigation under this Chapter, it appears to the officer in-charge of the police station that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in qustody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report, and to try the accused or commit him for trial. " ( 7 ) IN this background, this Court has an occasion to consider the submissions of the petitioner in the light of the various pronouncements of the Honble Apex Court. ( 8 ) IT has been urged on behalf of the revisionist that opposite party No. 2 had also filed a complaint before the State Consumer disputes Redressal Commission, U. P. , lucknow, which was dismissed vide Annexure no. SA-1. Against the said order, opposite party No. 2 filed First Appeal before national Consumer Disputes Redressal commission, New Delhi which has been decided in terms of compromise entered into between the parties as opposite party No. 2 did not press the appeal filed by her and the same was dismissed as withdrawn vide annexure No. SA-2. ( 9 ) IT is further urged that during the pendency of this Revision, the parties have compromised among themselves and the matter has been amicably, settled between the parties outside the Court as is evident from annexure SA-4, the deed of settlement on record and now no dispute subsists. Opposite party No. 2 has also filed an affidavit annexure No. SA-3 in this revision deposing therein that a compromise has been arrived at between the parties and in view of the compromise Smt. Jaya Raheja does not want to proceed with the case. She has further deposed that there was no negligence on the part of the revisionist and the co-accused Dr. A. K. Sachan in the treatment given to late Prakash Chandra Raheja. In para-5 of the affidavit it has further been deposed that she has no objection if the criminal revision No. 671 of 2005 filed by dr. She has further deposed that there was no negligence on the part of the revisionist and the co-accused Dr. A. K. Sachan in the treatment given to late Prakash Chandra Raheja. In para-5 of the affidavit it has further been deposed that she has no objection if the criminal revision No. 671 of 2005 filed by dr. Deepak Agarwal is allowed and the order dated 1-12-2005 passed by the learned sessions Judge in criminal revision No. 217 of 2005 is set-aside. ( 10 ) THE affidavit regarding compromise annexure SA-3 and deed of settlement annexure SA-4 filed by the complainant in this revision are accepted by this Court, wherein the complainant Smt. Jaya Raheja deposed that compromise has been arrived at between the parties and there was no negligence on the part of the revisionist and the co-accused Dr. A. K. Sachan in the treatment given to her husband late Prakash chandra Raheja. Thus, under Consumer protection Act parties have compromised and accordingly the dispute of civil nature has already been resolved. The controversy in issue is to be appreciated in the light of law laid down by the Honble Apex Court in series of cases, which are as under:-In this context the decision of Honble apex Court in John Oni Akerele v. the King air 1943 Privy Council 72, is relevant, which reads as under:- "a doctor is not criminally responsible for a patients death unless his negligence or incompetence passed beyond a mere matter of compensation and showed such disregard for life and safety as to amount to a crime against the State. The degree of negligence required is that it should be gross, and neither a jury nor a Court can transform negligence of a lesser degree into gross negligence merely by giving it that appellation. Care should be taken before imputing criminal negligence to a professional man acting in the course of his profession. " Further their Lordships of the Honble apex Court in such type of matter in achutrao Haribhau Khodwa and others v. State of Maharashtra and others (1996) 2 scc 634 : ( AIR 1996 SC 2377 ) observed as under :-"a medical practitioner has various duties towards his patient and he must act with a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. This is the least which a patient expects from a doctor. This is the least which a patient expects from a doctor. The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence. But in cases where the doctors act carelessly and in manner which is not expected of medical practitioner, then in such a case an action in torts would be maintainable. " Lastly their Lordships of the Honble Apex court considered the scope of negligence of the doctor in the case of Dr. Suresh Gupta v. Govt. of NCT of Delhi and another (2004)6 SCC 422 : ( AIR 2004 SC 4091 ) which reads as under:-"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. 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 patients death results merely from error of judgement 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 but would not suffice to hold him criminally liable. Where a patients death results merely from error of judgement 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 but would not suffice to hold him criminally liable. 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 the 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. " The scope of negligence is evident from the view of the Honble Apex Court in Jacob mathew v. State of Punjab and another 2005 air SCW 3685 : ( AIR 2005 SC 3180 ) which concluded the matter in the following paragraphs :-"according to Charlesworth and Percy on negligence (Tenth Edition, 2001), in current forensic speech, negligence has three meanings. They are: (i) a state of mind, in which it is opposed to intention; (ii) careless conduct; and (iii) the breach of duty to take care that is imposed by either common or statute law. All three meanings are applicable in different circumstances but any one of them does not necessarily exclude the other meanings. (Para 1. 01) The essential components of negligence, as recognized, are three: "duty", "breach" and "resulting damage", that is to say :-1. the existence of a duty to take care, which is owed by the defendant to the complainant; 2. the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and 3. damage, which is both causally connected with such breach and recognized by the law, has been suffered by the complainant. (Para 1. 23)If the claimant satisfies the Court on the evidence that these three ingredients are made out, the defendant should be held liable in negligence. damage, which is both causally connected with such breach and recognized by the law, has been suffered by the complainant. (Para 1. 23)If the claimant satisfies the Court on the evidence that these three ingredients are made out, the defendant should be held liable in negligence. Negligence - as a tort and as a crime "the term negligence is used for the purpose of fastening the defendant with liability under the Civil Law and, at times, under the Criminal Law. It is contended on behalf of the respondents that in both the jurisdictions, negligence is negligence, and jurisprudentially no distinction can be drawn between negligence under civil law and negligence under criminal law. The submission so made cannot be countenanced inasmuch as it is based upon a total departure from the established terrain of thought running ever since the beginning of the emergence of the concept of negligence up to the modern times. Generally speaking, it is the amount of damages incurred which is determinative of the extent of liability in tort; but in criminal law it is not the amount of damages but the amount and degree of negligence that is determinative of liability. To fasten liability in Criminal Law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in Civil Law. The essential ingredient of mens rea cannot be excluded from consideration when the charge in a criminal court consists of criminal negligence. " the degree of skill and care required by a medical practitioner is so stated in halsburys Laws of England (Fourth Edition, vol. 30, Para 35):-"the practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men. Deviation from normal practice is not necessarily evidence of negligence. Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1)that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional ,man of ordinary skill would have taken had he been acting with ordinary care. " above said three tests have also been stated as determinative of negligence in professional practice by Charlesworth and Percy in their celebrated work on Negligence (ibid, para 8. 110 ). "in the opinion of Lord Denning, as expressed in Hucks v. Cole, (1968) 118 New lj 469, a medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. " "the decision of House of Lords in maynard v. West Midlands Regional Health authority, (1985) 1 All ER 635 (HL) by a bench consisting of five Law Lords has been accepted as having settled the law on the point by holding that it is not enough to show that there is a body of competent professional opinion which considers that decision of the defendant professional was a wrong decision, if there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances. It is not enough to show that subsequent events show that the operation need never have been performed, if at the time the decision to operate was taken, it was reasonable, in the sense that a responsible body of medical opinion would have accepted it as proper. Lord Scarman who recorded the leading speech with which other four Lords agreed quoted the following words of Lord President (Clyde) in Hunter v. Hanley 1955 SLT 213 at 217, observing that the words cannot be bettered - "in the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men. . . . . . . . . The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care. . . . . . ". Lord Scarman added - "a doctor who professes to exercise a special skill must exercise the ordinary skill of his specialty. Differences of opinion and practice exist, and will always exist, in the medical as in other professions. There is seldom any one answer exclusive of all others to problems of professional judgment. A court may prefer one body of opinion to the other, but that is no basis for a conclusion of negligence. " His lordship further added "that a Judges preference for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed, honestly held, were not preferred. " "a mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence. So also an error of judgment on the part of a professional is not negligence per se. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice prevalent now-a-days is to obtain the consent of the patient or of the person in-charge of the patient if the patient is not in a position to give consent before adopting a given procedure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice prevalent now-a-days is to obtain the consent of the patient or of the person in-charge of the patient if the patient is not in a position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure. " "no sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitur is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors. Else it would be counter productive imply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur. " "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, there-fore, it will be for the 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 end-dose of medicine to his patient. " "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 life-saving scalper to perform an essential surgery, nor can a physician successfully administer the life-saving dose of medicine. " "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 life-saving scalper to perform an essential surgery, nor can a physician successfully administer the life-saving dose of medicine. Discretion being better part of valuer, 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. " we sum up our conclusions as under: - (1) 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 and dhirajlal (edited by Justice G. P. Singh), referred to herein above, 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. As we have noticed herein above that the cases of doctors (surgeons and physicians)being subjected to criminal, prosecution are on an increase. Sometimes such prosecutions are filed by the 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 I. P. C The criminal process once initiated subjects, the medical profes-sional to serious embarrassment and sometimes harassment. He has to seek ball 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. He has to seek ball 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 doing it 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 complain 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. " 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. ( 11 ) THUS the law referred to above reflect that none of the ingredients of negligence as given in Law of Torts is made out from the material on record as the complainant failed to adduce prima facie evidence before the Investigating Officer. ( 12 ) REVERTING back to the facts of the case, it is crystal clear that the averments made in the complaint, even if held to be proved, do not make out a case of criminal rashness or negligence on the part of the doctor. The investigating officer found no evidence of negligence during the course of investigation. The death had occurred in SGPGI, lucknow after about 25 days of shifting from shekhar Hospital, Lucknow on account of cardio-resplratory failure. The investigating officer found no evidence of negligence during the course of investigation. The death had occurred in SGPGI, lucknow after about 25 days of shifting from shekhar Hospital, Lucknow on account of cardio-resplratory failure. In these circum-stances, the order of the learned Sessions judge calling for the further evidence, is unwarranted. However, the matter has been settled between the parties and the compromise has been filed before the national Consumer Disputes Redressal Commission, New delhi. ( 13 ) THE learned Magistrate after registration of the case on the application moved under Section 156 (3) Cr. P. C. called for a report from the Police Station concerned, in pursuance of which the Police sent a detailed report after due inquiry that there was no negligence on the part of the doctor against whom the application was moved as the death of Sri Raheja had occurred after shifting from Shekhar Hospital and remaining admitted in SGPGI Lucknow for 25 days. After thorough investigation the Investigating officer submitted a final report in the matter, which was accepted by the learned magistrate. Being aggrieved, Smt. Jaya raheja filed a protest petition against the final report, but the learned Magistrate after considering the matter rejected the protest application and accepted the final report. It was the prerogative of the learned magistrate to accept or not to accept the final report or protest application, but it was not proper for the Sessions Judge to direct the learned Magistrate either direct the investigating Officer to further investigate or treat the protest application as a complaint. ( 14 ) FROM the perusal of the record, it transpires that on an application moved under Section 156 (3) Cr. P. C, the learned magistrate directed the in-charge of the police station to register a case and investigate the same. The police after due investigation did not find any negligence on the part of the doctors, who attended the deceased during the course of his treatment in Shekhar Hospital, Lucknow. Consequently, the police submitted a final report, which was accepted by the learned magistrate, but the complainant being dissatisfied filed a protest petition, which did not find favour and the same was rejected by the learned Magistrate. Consequently, the police submitted a final report, which was accepted by the learned magistrate, but the complainant being dissatisfied filed a protest petition, which did not find favour and the same was rejected by the learned Magistrate. Accordingly, with no stretch of imagination it can be said that the provisions of Section 304-A attract in any manner as per the law referred to above and the conclusion so drawn by the investigating officer by submitting a final report, which was correctly appreciated by the learned Magistrate by accepting the report under Section 169 Cr. P. C. and the learned sessions Judge was not correct in directing the Investigating Officer to collect further evidence because it would amount interference in investigation. Further it transpires that since the parties have come to terms, compounded the matter which is civil in nature, accordingly it would be an abuse of process of law in further prolonging the litigation. ( 15 ) THUS, in view of the facts and circumstances of the case and the law laid down by the Honble Apex Court in Jacob mathews case ( AIR 2005 SC 3180 ) (supra)no case of negligence and recklessness is proved on the part of the revisionist and Dr. A. K. Sachan. ( 16 ) YET there is another aspect of this case. The effect of compromise has been considered by the Honble Apex Court in Arvind barsaul (Dr.) and others v. State of Madhya pradesh and another (2008) 5 SCC 794 : (2008 AIR SCW 6814) which has observed that if there is compromise, it would be an abuse of process of law, if the criminal proceedings are allowed to continue, relevant para 10, reads as under:-"we have heard learned counsel for the parties at length. The parties have compromised and the complainant Smt. Sadhna madnawat categorically submitted that she does not want to prosecute the appellants. Even otherwise also, in the peculiar facts and circumstances of the case and in the interest of justice, in our opinion, continuation of criminal proceedings would be an abuse of the process of law. We, in exercise of our power under Article 142 of the constitution, deem it proper to quash the criminal proceedings pending against the appellants emanating from the FIR lodged. We, in exercise of our power under Article 142 of the constitution, deem it proper to quash the criminal proceedings pending against the appellants emanating from the FIR lodged. " ( 17 ) IN view of the law laid down by the honble Apex Court in the case referred to above when the parties have compromised and the complainant categorically submitted that she does not want to prosecute the revisionist, continuation of criminal proceeding would be an abuse of the process of the court as prima facie there is no evidence to bring home the charge of Section 304-A of i. P. C. for committing negligence in the treatment and the discretion so exercised by the learned Sessions Judge was not in accordance with law and the impugned order is liable to be quashed, especially when final report was accepted and protest petition was also rejected. ( 18 ) CONSEQUENTLY, the revision is allowed and the order dated 1-12-2005 passed by the learned Sessions Judge, Lucknow is hereby quashed. Revision allowed. .