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2008 DIGILAW 996 (PNJ)

Parveen Garg v. State Of Haryana

2008-05-07

VINOD K.SHARMA

body2008
Judgment Vinod K.Sharma, J. 1. This petition under Section 482 of the Code of Criminal Procedure has been moved for quashing of FIR No. 185 dated 10.6.2001 registered under section 304-A of the Indian Penal Code, at Police Station Civil Lines, Karnal along with all subsequent proceedings arising therefrom. 2. Learned counsel for the petitioner seeks quashing on the plea that the allegations levelled in the FIR, if taken on their face value, do not make out any offence triable against the petitioner. The FIR registered against the petitioner reads as under :- "It is submitted that I, Narain Dass son of Shri Ram Chander, resident of 123-R, Model Town, Karnal, do cultivation in Village Gheer. I had three sons, the eldest of whom Sandeep Kumar Raheja was running Electronics B.P.L. Show Room at Kunjpura Road, Karnal. Second son Ashwani Kumar, an S.D.O. in the Electricity Board, is posted at Karnal. Third son Vikram resides in America. My eldest son Sandeep aged 40 years was suffering from Gall Bladder Stone. On 8.6.2001 at 8.00 A.M., I had got my son Sandeep Kumar admitted in Dr. Parveen Gargs hospital, Jarnaily Colony, Karnal. The doctor had allotted us Room No. 11 in his Hospital. At about 3.00 p.m. on the same day, Dr. Parveen Garg had operated upon my son by Laproscopy. After two/three hours, my son Sandeep Kumar gained consciousness. At about 9.30 p.m., my son suddenly felt severe cold and he started shivering. At that time, my son Ashwani was present alone with me. In my presence, he informed the Compounder on duty to call the doctor. My son was having his mobile phone set No. 98120-98333. With this phone, contact was oracle on Dr. Parveen Gargs mobile telephone No. 981202- 0053 and information was given about the condition. On this phone, the doctor tallied to his Compounder and my presence and in the presence of my son, he gave direction on telephone itself for administering injections. At this, the Compounder administered injections told by the doctor. But the condition of my son deteriorated further. In my presence, my son Ashwani Kumar three/four times made phone calls from his mobile set to Dr. Parveen Garg and asked him to reach immediately but he did not come and he asked his Compounder only on the phone to administer injections. He administered two more injections. My Son had become unconscious. In my presence, my son Ashwani Kumar three/four times made phone calls from his mobile set to Dr. Parveen Garg and asked him to reach immediately but he did not come and he asked his Compounder only on the phone to administer injections. He administered two more injections. My Son had become unconscious. The doctor came after about two hours. Despite our repeated calling, Dr. Parveen Garg knowingly did not come with the intention of killing my son whereas he knew that by his not going my son would die. When Dr. Parveen Garg came after two hours, he asked to remove the patient to a big hospital at Delhi. At this, I and my son Ashwani Kumar took my son Sandeep Kumar to Apollo Hospital where he was declared dead. The death of my son Sandeep Kumar has taken place due to intentionally not giving of timely treatment by Dr. Parveen Garg, as it was well in the knowledge of Dr. Parveen Garg that if cold after the operation was not treated, the death of the patient could take place. On account of compulsion by the brotherhood, I had performed the cremation of my son on 9.6.2001. But I am sure that the death has taken place due to intentionally not giving of timely treatment to my son by Dr. Parveen Garg. Action may please be taken against Dr. Parveen Garg. " 3. The contention of the learned counsel for the petitioner is that the petitioner has successfully operated the deceased and the death had occurred due to post operation complications. 4. It is also the contention of the learned counsel for the petitioner that the complainant has intentionally concealed the material facts as the death had occurred not on account of negligence of the petitioner as would be clear from the report of Apollo Hospital. 5. It is also the case of the petitioner that he he had taken all necessary steps required from a professional as he had accompanied the patient to Apollo Hospital. 5. It is also the case of the petitioner that he he had taken all necessary steps required from a professional as he had accompanied the patient to Apollo Hospital. In support of his contention, reliance was placed on the Judgment of the Honble Supreme Court in the case of Jacob Mathew v. State of Punjab and another, 2005(3) RCR(Criminal) 836 : 2005(2) Apex Criminal 649 : (2005)6 SCC 1, wherein the Honble Supreme Court has been pleased to lay down that in order to attribute criminal medical negligence, it must be shown that the accused Doctor 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 injury resulted was most likely imminent. 6. The contention of the learned counsel for the petitioner was that rash and negligent act in Section 304-A IPC has to be read as qualified by word "grossly" and in the present case the petitioner had taken all necessary steps which were expected from a professional Doctor and, therefore, it cannot be said that the petitioner was guilty of gross negligence. 7. Learned counsel for the petitioner referred to following paragraphs of the aforesaid judgment of the Honble Supreme Court in support of his case : "50. 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 the 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 as to determine whether the act of the accused medical amounts to a rash or negligent act within the domain of criminal law under Section 304-A 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 to his reputation cannot be compensated by any standards. 52. 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 to his reputation cannot be compensated by any standards. 52. 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 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 the Bolam test (Bolam v. Friern Hospital Management Committee, (1957)1 WLR 582 : (1957) 2 All ER 118 (ABD) 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 investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld." 8. However, it may be noticed that in the present case the petitioner Doctor in spite of information having been received about deteriorating condition of the patient, chose not to attend to him and directed his Compounder to continue with the treatment. Thus, in this case prima facie gross negligence has been shown by the petitioner. 9. Learned counsel for the petitioner thereafter referred to the judgment of the Honble Supreme Court in the case of Dr. Suresh Gupta v. Govt. Thus, in this case prima facie gross negligence has been shown by the petitioner. 9. Learned counsel for the petitioner thereafter referred to the judgment of the Honble Supreme Court in the case of Dr. Suresh Gupta v. Govt. of N.C.T. of Delhi and another, 2004(3) RCR(Criminal) 925 : 2004(3) Apex Criminal 396, to contend that if death has occurred due to negligence, in that event, the doctor accused can, at best, be held liable to pay compensation in tort, but he cannot be prosecuted for a criminal offence. 10. This contention of the learned counsel for the petitioner cannot be accepted as in the judgment relied by the petitioner, the Honble Supreme Court was pleased to lay down that in order to fix criminal liability, the negligence should be gross negligence or reckless and not merely lack of care, skill or error of judgment. 11. On a consideration of the matter, I find that the judgment relied upon by the learned counsel for the petitioner does not advance the case of the petitioner as it is a case of gross negligence. 12. Learned counsel for the petitioner also made reference to the judgment of the Honble Supreme Court in the case of Rakesh Ranjan Gupta v. State of U.P. and another, 1999(3) RCR(Criminal) 655 : (1999)1 SCC 188 to contend that mere delay on the part of Doctor to attend on patient can, at worst, be a case of civil negligence and not culpable negligence. 13. As already observed above, a reading of the allegations in the present case would show that in spite of repeated requests having been made by the person attending to the patient, the petitioner chose not to attend to him but issued instructions to the Compounder to administer medicines/injections even though it was brought to his notice that as per his advised treatment, the patient was not responding favourably. Thus, prima facie the allegations levelled against the petitioner make out a case of culpable negligence and not mere negligence as is sought to be projected. 14. Honble the Supreme Court in the case of Sunita Jain v. Pawan Kumar Jain and others, 2008(1) RCR(Criminal) 954 : 2008(1) RAJ 563 : (2008)2 SCC 705 has been pleased to lay down that inherent power under Section 482 Cr. P.C. can be exercised only in rarest of rare cases. 14. Honble the Supreme Court in the case of Sunita Jain v. Pawan Kumar Jain and others, 2008(1) RCR(Criminal) 954 : 2008(1) RAJ 563 : (2008)2 SCC 705 has been pleased to lay down that inherent power under Section 482 Cr. P.C. can be exercised only in rarest of rare cases. The power under Section 482 of the Code is to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down under Section 482 of the Code. The power cannot be used to stifle a legitimate prosecution. Keeping in view the allegations levelled against the petitioner, it cannot be said that no offence is made out. No merit. Dismissed. However, it is made clear that nothing stated above shall be construed as an expression of opinion on the merit of the case which is to be determined by the learned trial Court after prosecution and defence are allowed to lead evidence.