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2010 DIGILAW 135 (CHH)

Padmini Singh v. State of C. G.

2010-05-12

PRITINKER DIWAKER

body2010
ORDER Pritinker Diwaker, J. 1. By way of present petition, the Petitioner is praying for the following relief(s): (a) To quash the initiation and continuation of the criminal proceedings registered as Criminal case No. 563/2005 in the court of the Judicial Magistrate. 1st Class. Durg in the case titled State v. Smt. Usha Das and Ors. being an abuse of process of law as well process of court; (b) To set-aside the order dated 23.08.2006 and 24.08.2006 (Annexure-P-1 collectively) passed by and particulars of charges framed in Criminal Case No. 563/2005 against the Petitioner by the Judicial Magistrate, 1st Class. Durg; (c) To pass such further or necessary orders as may appear to the Hon'ble Court just, fit and proper in the facts and circumstances of the present case. and for which act of kindness the Petitioner shall remain duty bound and for ever prays. 2. Facts lying in narrow compass go thus. On 25.05.2003 a complaint was made by one Sivesh Kumar Shukla to Police Station. City Kotwali, Durg alleging that on 24.05.2003 he along with his wife namely late Smt. Santosh Shukla who was having labour pain, went to District Hospital, Durg at about 10.30 p.m. The complaint further mentions that after examination, his wife was admitted in the hospital and on 25.05.2003 at about 8.45 a.m. she delivered a male child in the normal course. The complaint further says that the delivery was performed by staff nurse namely Usha Das and at that time no doctor was available. Complaint further says that in between 11 a.m. and 2 p.m. on 25.05.2003 the doctors had attended his wife as also the child. At about 12 noon the nurse on duty had informed the complainant that his wife needed blood and therefore the same had to be arranged. As per the complaint, the complainant immediately called his brother-in-law, father-in-law and other persons for giving blood as their blood group was same to that of his wife. Subsequently, they went to the blood bank, the slip was shown to the doctor and at about 1.30 p.m. the blood was handed over to the nurse on duty namely Usha Das. It is alleged that the said nurse had demanded some money from the complainant and in spite of receiving the same, she did not undertake blood transfusion on the wife of the complainant. It is alleged that the said nurse had demanded some money from the complainant and in spite of receiving the same, she did not undertake blood transfusion on the wife of the complainant. The complaint further alleges when the other nurse on duty namely Miss Tiwari came, she also demanded money for transfusion of blood and by that time the condition of the wife of the complainant had deteriorated. It is alleged that no doctor had treated her from 12 noon to 5 p.m. According to the complaint, even after arrival of the doctors correct information was not given to him and ultimately on account of their negligence his wife died. Based on this F.I.R, investigation was done by the police and on completion thereof, challan was filed on 31.11.2003 against the Petitioner herein. Dr. Vrinda Mandge. Dr. Shyamli Rai and nurse Usha Das. for an offence under Section 304-A I.P.C. Vide order dated 24.08.2006. particulars of charge were framed. 3. Counsel for the Petitioner submits that looking to the gravity of the complaint and anxiety of the complainant, post mortem of the deceased was performed by a team of three doctors - Dr. S. A. Khan, Dr. V. Gupta and Dr. B. S. Baghel and according to the post mortem report dated 26.05.2003 the cause of death was post partum hemorrhage (PPH). She submits that as per the medical jurisprudence, maternity death occurs due to post partum hemorrhage where the patient suffers excessive bleeding from placental implantation site and trauma to the genital tract and adjacent structure or both. She submits that post partum hemorrhage is a description of an event and not diagnosis. According to her, the post partum hemorrhage cannot always be prevented but it can be reduced only and at times the blood loss is so rapid and brisk that the death may occur within a few minutes. Referring to the text book of Obstretian, counsel for the Petitioner submits that in such a situation the criminal liability of the doctors or the staff nurse cannot be fixed for an offence under Section 304-A IPC as the standard of negligence required to be proved should be so high as can be described as gross negligence or recklessness to bring the case in hand within the definition of said provision. She submits that every mishap or accident in the hospital is not a gross act of negligence on the part of doctor. According to her the degree of negligence might create a civil liability but not the criminal one particularly under Section 304-A IPC. She submits that as per the enquiry report submitted by the joint director of Health and Medical Services and one expert Gynecologist of District hospital. Raipur. the only act attributed to the Petitioner is that while filling the requisition slip tor blood it was not fully filled up by her. Learned Counsel for the Petitioner submits that at times in case of emergency the form ma)' not be fully filled up by the doctors but that cannot be termed as negligence on their part. She submits that except this, there is no other allegation against the Petitioner though there are certain allegations against Dr. Shymali Rai. Dr. Vrinda Mandge and staff nurse Usha Das. She submits that as per the duty chart given by Dr. Smt. Rekha Gupta on 04.06.2004, the present Petitioner was on duty on 25.05.2003 from 9 a.m. to 12 noon and admittedly the death of the deceased took place on 25.05.2003 at about 7.30 p.m. She submits that as per the bed head ticket of the deceased it is apparent that on 25.05.2003 from 9.15 a.m. to 11 and the Petitioner did attend the patient and provided the best possible treatment and at that time her general condition was better. She argued that even as per the complaint and the enquiry report, the main negligence has been attributed to Dr. Shyamli Rai. Dr. Vrinda Mandge and staff nurse Usha Das. She submits that even in the case diary statement none of the witnesses has deposed against the Petitioner and that even if the documents filed by the prosecution are taken at their face value, Petitioner cannot be prosecuted under Section 304-A IPC. She placed reliance on the decisions of the Supreme Court in the matter of Jacob Methew v. Stale of Punjab. (2005) 6 SCC 1 and in the matter of Kusum Shurma and Ors. v. Batra Hospital and Medical Research Centre and Ors. (2010) 3 SCC 480. 4. She placed reliance on the decisions of the Supreme Court in the matter of Jacob Methew v. Stale of Punjab. (2005) 6 SCC 1 and in the matter of Kusum Shurma and Ors. v. Batra Hospital and Medical Research Centre and Ors. (2010) 3 SCC 480. 4. On the other hand counsel for the Respondent submits that admittedly one life has been lost on account of negligence of the doctors and nurse and therefore the involvement of the Petitioner can be justified only after recording the evidence of the witnesses. He submits that at this stage entire charge sheet against the Petitioner cannot be quashed particularly when in the enquiry report of two doctors the involvement of the Petitioner in crime in question is apparent. He submits that admittedly at the time of delivery, no doctor was present and it is the joint responsibility of the doctors and the staff nurse. According to him if the blood was not transfused by the nurse, the doctors cannot escape from their responsibility. 5. Before adverting to other aspects of the matter it would be appropriate for this Court to first see the grievance of the complainant. In the complaint the complainant has stated that on 24.5.2003 his wife Smt. Santosh Shukla who was having labour pain was hospitalised and on the next day i.e. 25.5.2003 at about 8.45 a.m. she delivered a male child. Complainant has further stated that at the time of delivery there was no doctor on duty and the delivery was performed by the staff nurse. He has stated that on 25.5.2003 at about 11 a.m. two doctors had attended his wife as also the child and as per the advice of the doctor her wife was given tea. Thereafter, the complainant was informed that the blood was required | for his wife. He has stated that the blood was arranged and the nurses namely Usha Das and one Tiwari were demanding money for the same. He has stated that in between 12 noon and 5 p.m. there was no doctor on duty to attend his wife nor any information was given to him regarding his wife being in serious condition. | However, there is no specific allegation against the present Petitioner. He has stated that in between 12 noon and 5 p.m. there was no doctor on duty to attend his wife nor any information was given to him regarding his wife being in serious condition. | However, there is no specific allegation against the present Petitioner. Even the complainant does not say that at any point of time the present Petitioner had shown an}' negligence or they misbehaved either with him or with the patient. 6. The other relevant material to be considered in this case is the enquiry report submitted by the Joint Director of the State of Chhattisgarh and the expert of the subject i.e. Gynecologist. After undertaking an analytical examination of the statements of the witnesses and conducting a detailed enquiry' of the facts, it has been submitted by the two experts that on 25.5.2003 the present Petitioner was on duty and was required to attend the patient on call whereas two other doctors i.e. Dr. Shyamli Rai and Dr. Vrinda Mandge were required to be there on duty. The enquiry report reveals that on 25.5.2003 the Petitioner was called. According to the enquiry report the female attendant had also called the doctor and she had attended the wife of the complainant in the labour room and by that time delivery was already performed. However, wife of the complainant was suffering from post partum hemorrhage (PPH), her pulse rate and blood pressure was not normal and after seeing her the Petitioner had informed the attendant of the patient that excessive bleeding had taken place and therefore the patient required blood. Blood could only be arranged after 11 a.m. and at that time Dr. Vrinda Mandge who was on duty had reached the labour room. Enquiry report further says that the Petitioner after giving all the information to Dr. Vrinda Mangde had left the place. Though the doctors had advised to arrange the blood, it took some time for the same and ultimately at 1.30 p.m. the blood was handed over to the staff nurse Usha Das and after arranging the dip sets etc. at 2 p.m. the blood was transfused. Enquiry report specifically says that the Petitioner was not at fault and the death of the patient has not occurred on account of the negligence of the Petitioner. at 2 p.m. the blood was transfused. Enquiry report specifically says that the Petitioner was not at fault and the death of the patient has not occurred on account of the negligence of the Petitioner. In the suggestion given by the two enquiry officers, it has only been pointed out against the Petitioner that the requisition form was not fully filled up by the Petitioner but there is no mention of time in the diagnosis and also the requisition slip. By pointing out this suggestion, the enquiry officers have stated that in future the Petitioner has to be cautious. In respect of other persons involved in the case, some or the other action has been suggested and it is only the Petitioner against whom no action has been suggested and she has not been found negligent in the death of the deceased. 7. Apart from the above complaint and the enquiry report, in the entire challan there is absolutely no allegation against the Petitioner. None of the witnesses has deposed against the Petitioner nor there is any evidence available on record to show that in any manner the Petitioner was negligent while performing her duty. On the contrary, the record reveals that on 25.5.2003 the duty of the Petitioner was from 9 a.m. to 12 noon and during this period the Petitioner did attend the patient first at 9. 15 a.m. and thereafter at 10.30 a.m. Thus the report shows that the Petitioner has mentioned the entire factual position in the record including the fact that the deceased was suffering from post partum hemorrhage (PPH). The record of the patient and the enquiry report given by two experts makes it clear that the deceased was having excessive bleeding after the delivery which in the medical terminology is called as post partum hemorrhage (PPH). 8. Though this Court is not expert in the subject, from the material available on record it appears that in the diagnosis of post partum hemorrhage (PPH). mostly the same proves fatal and it becomes difficult for the doctors to save life of the patient. Be that as it may, here in this case, this Court has to decide as to whether the Petitioner was negligent in any manner on the basis of which she can be prosecuted for the offence under Section 304-A IPC. 9. mostly the same proves fatal and it becomes difficult for the doctors to save life of the patient. Be that as it may, here in this case, this Court has to decide as to whether the Petitioner was negligent in any manner on the basis of which she can be prosecuted for the offence under Section 304-A IPC. 9. It is a settled position of law that for prosecuting a doctor under Section 304-A IPC there has to be enough evidence on record and merely the fact that the patient died while being under treatment, the doctors cannot always be charged under Section 304-A IPC. The criminal liability of the doctors cannot be fixed under Section 304-A IPC as the standard of negligence requires to be proved should be so high as can be described as gross negligence or recklessness to bring the provisions of Section 304-A IPC into play. Every mishap of accident in the hospital cannot be termed as gross negligence on the part of the doctor. The courts have to be very careful while prosecuting any of the doctors under Section 304-A IPC and surrounding circumstances have to be observed very minutely. In the case of Jacob Methew v. State of Punjab (2005) 6 SCC 1 it has been held by the Apex Court as under: 6. In Dr. Suresh Gupta case the patient, a young man with no history of any heart ailment, was subjected to an operation performed by Dr. Suresh Gupta for nasal deformity. The operation was neither complicated nor serious. The patient died. On investigation, the cause of death was found to be not introducing a cuffed endo tracheal tube of proper size as to prevent aspiration of blood from the wound in the respiratory passage". The Bench formed an opinion that this act attributed to the doctor, even if accepted to be true, could be described as an act of negligence as there was lack of due care and precaution. But, the Court categorically held: (SCCp.430, para 24) For this act of negligence he may be liable in tort but his carelessness or want of due attention and skill cannot be described to be so reckless or grossly negligent as to make him criminally liable. 12. 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. 12. 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 isdeterminative of the extent of liability in ton; 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. In R. v. Lawrence Lord Diplock spoke in a Bench of five and the other Law Lords agreed with him. He reiterated his opinion in R. v. Caldwell and dealt with the concept of recklessness as constituting mens rea in criminal law. His Lordship warned against adopting the simplistic approach of treating all problems of criminal liability as soluble by classifying the test of liability as being "subjective" or "objective", and said: (All ER p. 982e-f) Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting 'recklessly' if, before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognized that there was such risk, he nevertheless goes on to do it. It is only when this is so that the doer of the act is acting 'recklessly' if, before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognized that there was such risk, he nevertheless goes on to do it. 13. The moral culpability of recklessness is not located in a desire to cause harm. It resides in the proximity of the reckless state of mind to the state of mind present when there is an intention to cause harm. There is, in other words, a disregard for the possible consequences. The consequences entailed in the risk may not be wanted, and indeed the actor may hope that they do not occur, but this hope nevertheless fails to inhibit the taking of the risk. Certain types of violation, called optimizing violations, may be motivated by thrill-seeking. These are clearly reckless. 14. In order to hold the existence of criminal rashness or criminal negligence it shall have to be found out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The element of criminality is introduced by the accused having run the risk of doing such, an act with recklessness and indifference to the consequences. Lord Atkin in his speech in Andrews v. Director of Public Prosecutions stated (All ER p. 556 C) Simple lack of care such as will constitute civil liability is not enough. For purposes of the criminal law there are degrees of negligence, and a very high degree of negligence is required to be proved before the felony is established. Thus, a clear distinction exists between "simple lack of care" incurring civil liability and 'very high degree of negligence" which is required in criminal cases. In Riddell v. Reid (AC at p.31) Lord Porter said in his speech-- A higher degree of negligence has always been demanded in order to establish a criminal offence than is sufficient to create civil liability." (Charlesworth & Percy, ibid., para 1.13). In the matter of Kusum Sharma and Ors. v. Batra Hospital and Medical Research Centre and Ors (2010) 3 SCC 480. it has been held by the Supreme Court as under: 89. In the matter of Kusum Sharma and Ors. v. Batra Hospital and Medical Research Centre and Ors (2010) 3 SCC 480. it has been held by the Supreme Court as under: 89. On scrutiny of the leading cases of medical negligence both in our country and other countries specially the United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well-known principles must be kept in view: I. Negligence is the breach of a duty exercised 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. II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. III. The medical professional is expected to bring 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. IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor. VI. 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. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence. VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence. VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. VIII. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck. IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension. X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals, particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners. XI. The medical professionals are entitled to gel protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals. 10. Thus in view of the aforesaid factual and legal analysis, this Court is of I the opinion that the Petitioner cannot be fastened with the liability for the death of the wife of the complainant as nothing specific has been brought on record by the prosecution to show that the Petitioner remained negligent in discharging her duties. In this view of the matter the petition is allowed. The criminal proceedings registered against the Petitioner vide Cr. Case No. 563/2005 are hereby quashed. The order dated 23.08.2006 as also the particulars of charge framed against the Petitioner are also quashed.