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Karnataka High Court · body

2010 DIGILAW 739 (KAR)

SHIV ANAND DODDAMANI v. STATE OF KARNATAKA

2010-06-22

JAWAD RAHIM

body2010
ORDER These two petitions are by the accused 1 and 3 facing prosecution for offence punishable under Section 304-A read with Section 34 of the Indian Penal Code, 1860 in C.C. No. 776 of 2009 on the file of Principal Civil Judge (Junior Division) and Judicial Magistrate First Class, Dharwad, issuing process against them. 2. The petitions are posted for admission after notice to the respondent-complainant and the State. 3. Heard. The petitions are admitted and taken up for final disposal. 4. The facts relevant for consideration are: One Yellanagouda Dharmanagouda Patil lodged a report at Sub-Urban Police Station, Dharwad, stating that on 1-2-1991 his brother Basanagouda Dharmangouda Patil along with 7 to 8 persons were proceeding towards their field situated near Garag Road for harvesting the crops in the trailer of his tractor. When the tractor reached Veerappana Lake after climbing over a mud heap capsized on the left side canal. Due to such mishap, 3 to 4 persons suffered simple injuries and his brother sustained injuries to his thigh. On receiving information about the accident, he rushed to the place of accident, by which time the villagers brought his brother to the District Hospital, Dharwad and admitted him at 3.30 p.m. He approached Dr. Doddamani, Dr. Hebbal, Dr. Kulkarni at the said hospital as also the District Surgeon requesting for proper treatment to be given to his brother. 5. Dr. Doddamani, the petitioner in Criminal Petition No. 7203 of 2010 (accused 1) examined his brother and told there was nothing serious to worry about. However, on 2-2-1991 when he met Dr. Doddamani, he told him he has to spend Rs.2,000/-. Accordingly, the complainant gave Rs.2,000/- to Dr. Doddamani-accused 1. On 3-2-1991 when he went to hospital Dr. Doddamani and Dr. Kulkarni (petitioner in Cr. P. No. 7219 of 2010) were in the room. Again Dr. Doddamani demanded money to be given to other doctors and said Rs.2000/- is to be paid to Dr. Kulkarni. At that time, there was some protest by the members of Rytha Sangha outside the hospital against the demand of money by the doctors. 6. In the complaint, the complainant alleged he has given Rs.2,000/to the accused 3-Dr. Kulkarni apart from giving money to Dr. Doddamani. Since the Rytha Sangha members were agitating against the demand of money, the petitioners herein asked him to get lost from the hospital in view of the protest. 6. In the complaint, the complainant alleged he has given Rs.2,000/to the accused 3-Dr. Kulkarni apart from giving money to Dr. Doddamani. Since the Rytha Sangha members were agitating against the demand of money, the petitioners herein asked him to get lost from the hospital in view of the protest. 7. On 4-1-1991, in the morning when he went to hospital, he noticed no treatment was given to his brother and he was in critical condition. He rushed to the room of Dr. Kulkarni and Dr. Doddamani, but he could not meet them. Hence, he met Dr. C.M. Patil who was District Surgeon and informed him of the inaction on the part of the petitioners. It is stated that the District Surgeon expressed his inability to help him as the petitioners were not heeding to his advise to take care of the patients. However, the District Surgeon directed the 2nd accused-Dr. Hebbal to attend the victim. Dr. Hebbal after examining the complainant's brother informed him patient has to be operated on 5-11991 and asked him to arrange for blood. But no operation was performed till the next day. At 5.00 p.m. his brother expired succumbing to the injuries. 8. The main allegation of the complainant is the petitioners were in charge of treating the patient in the hospital along with accused 2-Dr. Hebbal. None of them treated his brother. Due to deliberate omission consequent to which for want of medical treatment his brother died. He filed complaint on 24-2-1991 before the SHO of Sub-urban Police Station, Dharwad, which was investigated in Crime No. 54 of 1991. The Investigation Officer filed final report before the Judicial Magistrate First Class only on 12-12-1997, after a lapse of six years, in the form of B Summary Report indicating no prima facie case to proceed against the petitioners for the offences alleged. The complainant resisted acceptance of the B-summary report, consequent to which he filed protest petition. The learned Magistrate considering the final report and the protest memo of the complainant, issued summons to the accused directing their appearance to answer the charge for offence under Section 304-A of IPC, by its order dated 5-4-2003. 9. The petitioners questioned the said order of the Judicial Magistrate First Class before this Court in Cri. P. Nos. 2746, 1215 and 2513 of 2004. The maim. 9. The petitioners questioned the said order of the Judicial Magistrate First Class before this Court in Cri. P. Nos. 2746, 1215 and 2513 of 2004. The maim. ground urged in those petitions was, that on receipt of private complaint from the complainant, the jurisdictional Magistrate had referred it for investigation by the jurisdictional Police in exercise of power under Section. 156(3) of the Criminal Procedure Code, 1973. The Police Officer had submitted B summary report. Therefore, it was incumbent on the learned Magistrate to have accepted or rejected the said report before issuing summons to the accused. 10. The co-ordinate Bench of this Court, accepting the said contention urged in the said criminal petitions, set aside the impugned order dated 5-4-2003 and remanded the matter to the learned Magistrate for reconsideration of the case, from the stage of receipt of B report and the protest petition in the light of observation made therein. 11. In pursuance to the order passed by this Court in those petitions on 3-3-2008, the learned Judicial Magistrate First Class once again took the case on board and after hearing the accused and the complainant, passed the impugned order on 8-11-2009, once again issuing process against the petitioners, which is assailed in these proceedings. 12. The learned Counsel Sri KL. Patil, for petitioner in Crime No. 7203 of 2010 who is 1st accused assailed the impugned order summoning him on the following grounds: (1) The learned Judicial Magistrate First Class having referred the matter for investigation under Section 156(3) was bound to consider the B-report along with the grounds urged in the protest memo and to proceed to pass a considered order. (2) He was required to examine whether the statement in the complaint and the protest memo makes any prima facie case to show petitioner (accused 1) was guilty of negligence of higher degree as laid down by the Apex Court in the case of Jacob Mathew v State of Punjab and Another1. 1. AIR 2005 SC 3180 : (2005)6 SCC 1 : 2005 AIR SCW 3685 : 2005 Cri. L.J. 1710 (SC): 2005 SCC (Cri.) 1369 (3) That the guidelines laid down by the Supreme Court for initiating action against the Medical Officer were totally flouted by the jurisdictional Magistrate. 1. AIR 2005 SC 3180 : (2005)6 SCC 1 : 2005 AIR SCW 3685 : 2005 Cri. L.J. 1710 (SC): 2005 SCC (Cri.) 1369 (3) That the guidelines laid down by the Supreme Court for initiating action against the Medical Officer were totally flouted by the jurisdictional Magistrate. (4) Lastly, he would sum-up contending that as far as petitioner 1 is concerned, the complainant had not obtained any 2nd opinion or authentic medical reports to show that because of professional negligence of the accused 1 the victim died. 13. The learned Counsel Sri Pachchapure for the petitioner in Cri. P. No. 7219 of 2010 (accused 3) while adopting the arguments advanced by learned Counsel Sri KL. Patil supplemented it contending that as far as his clients is concerned, on facts also there is no allegation that his client was in charge of or responsible for the treatment of the victim, that there was no demand from his client for money or that any money was paid to him. There is no material to show how the petitioner (accused 3) was negligent or had failed to perform his duty. Lastly, he would submit that as the petitioners are undoubtedly Government servants employed in the District Hospital prior sanction under Section 197 of Cr. P.C. was necessary to initiate prosecution against them. 14. On the above grounds, the petitioners seek quashing of the proceedings in exercise of power under Section 482 of Cr. P.C. 15. The learned Counsel for the complainant, supported the impugned order and in negation of what is urged by both the learned Counsel, submits his client has in clear terms brought out that the petitioners owed a duty to treat his brother but they omitted to do what was required and failed to save his brother's life. Their inaction was motivated for illegal gratification. Despite giving of money as demanded by them, they failed to treat the patient, consequent to which he died. He submits, that it is not the case of medical negligence but it is a case of willful negligence in omitting to do what was required to be done to safeguard the life of a patient. 16. Demanding of money being additional charge, he submits, that the complaint was right in opposing B-summary report. He submits, that it is not the case of medical negligence but it is a case of willful negligence in omitting to do what was required to be done to safeguard the life of a patient. 16. Demanding of money being additional charge, he submits, that the complaint was right in opposing B-summary report. He drew my attention to the B-summary report wherein the main reason for negative report is that complainant had failed to produce the receipts for having paid Rs.2,000/- to the 1st accused, Rs.2,000/- to the 3rd accused. He submits for such illegal gratification no receipt would have been issued by the accused and hence it was improper to expect proof. 17. The learned Counsel further submits that the petitioner has taken on to himself the responsibility of establishing the charge which he will do at the stage of trial. At the stage of taking cognizance sufficient material is produced to make out prima facie that the learned Trial Judge was justified in issuing process. He, therefore, opposes grant of any interim order. 18. Keeping in mind what is urged by both sides and in supplementation thereto, I have examined the order of this Court in earlier proceedings in Cri. P. No. 2746 of 2004 connected with Cr. P. No. 1215 of 2004 and Cri. P. No. 2573 of 2004 as also the protest memo of the complainant. 19. The genesis of this action is relatable to a road traffic accident on 1-2-1991 in which the complainant's brother suffered injuries to his lower limb resulting in hurt to his thigh, which was grievous in nature. The date of accident is on 1-2-1991 and on the same day he is said to have been admitted to the hospital where the petitioners were working as medical officers. The time and date of admission is 3.30 p.m. on 1-2-1991, which is not brought into dispute by the either side. Death of the victim was at 5 a.m. on 5-2-1991 which is also not in dispute. What transpired from 1-2-1991 till 5-2-1991 is now the controversy pending adjudication before the Trial Court. 20. While the complainant alleges during the period 1-2-1991 till 5-2-1991 the petitioners being in charge of the patient have failed to do what was required i.e., to give him the required treatment. What transpired from 1-2-1991 till 5-2-1991 is now the controversy pending adjudication before the Trial Court. 20. While the complainant alleges during the period 1-2-1991 till 5-2-1991 the petitioners being in charge of the patient have failed to do what was required i.e., to give him the required treatment. The petitioners contend they have done their best professionally and hence unless prima facie case is shown that there was medical negligence, any action is not to be sustained. 21. Assertively, Sri KL. Patil would submit that in similar facts and circumstances, the Supreme Court had laid down guidelines to avoid any malicious prosecution of medical officers. His persistent demand is that until and unless the complainant satisfies the Court there was willful negligence of higher degree the prosecution will be untenable. Therefore, it will be desirable to refer to the guidelines laid down by the Apex Court in an action against the Medical Officers for negligence, in the case of Jacob Mathew: "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, rational and Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, 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" . 2. Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used. 3. A professional may be held liable for negligence on one of the two findings either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. 4. The test for determining medical negligence as laid down in Bolam v Friern Hospital Management Committee, (1957)1 WLR 582, holds good in its applicability in India. 5. The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. 5. The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e., gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution. 6. The word "gross" has not been used in Section 304-A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be "gross". The expression "rash or negligent act" as occurring in Section 304-A of IPC has to be read as qualified by the word "grossly". 7. 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. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent. 8. Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law, specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence". 22. I have bestowed my concern to the guidelines laid by the Apex Court, undoubtedly it is harbinger to examine other facts to decide as to whether prima facie case is made out. In this contest, it will be necessary to observe, that what was considered by the Apex Court in the aforesaid decision is 'negligence' in various circumstances by persons of different category and profession. For convenience, the Apex Court referred to negligence relating to conduct of human force, negligence in medical profession, negligence in other profession and negligence in tort. In this contest, it will be necessary to observe, that what was considered by the Apex Court in the aforesaid decision is 'negligence' in various circumstances by persons of different category and profession. For convenience, the Apex Court referred to negligence relating to conduct of human force, negligence in medical profession, negligence in other profession and negligence in tort. Therefore, the Apex Court defined what is 'negligence' and for our purposes it will be of utmost importance. This case relates to negligence attributed to the medical professionals. The definition of negligence spelled out by Apex Court is, negligence is a 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 was adopted by the Apex Court as to mean, 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 'duty', 'breach' and 'resulting damage'. 23. We have already referred to the guidelines relating to allegation of negligence. But as seen from the definition of the term 'negligence' laid down by the Apex Court, it has three components, uiz., duty, breach and resulting damage. In the instant case, what is alleged is the victim was admitted on 1-2-1991 for an injury which was only to his limb. For a common human it may appear to be not life threatening, which is exactly what the complainant alleges was told to him by the accused 1, who is petitioner in Cri. P. No. 7203 of 2010. Reasonably it was expected the injury being not on any vital part death was not imminent. In normal course of events the risk was confined to his limb and not to his life. But unfortunately, the effect has been devastated. He succumbed to the said injury on 5-2-1991 due to lack of treatment. The question therefore is, was the death result of a primary cause or secondary cause. In medical jurisprudence if a fatality is result of an injury it is treated as primary cause and if it is by failure of treatment or lack of response to the treatment death is caused, it is secondary cause. The question therefore is, was the death result of a primary cause or secondary cause. In medical jurisprudence if a fatality is result of an injury it is treated as primary cause and if it is by failure of treatment or lack of response to the treatment death is caused, it is secondary cause. The complainant alleges that death in this case is not because of the injury sustained by the victim but by utter negligence by petitioners in providing him required treatment. From the undisputed facts, accident was on 1-2-1991 and death as a result of injury to the leg was on 5-2-1991. Therefore, the statement of complainant cannot be discarded as devoid of merits, it certainly needs investigation as to whether any treatment was given and if treatment was given, was it required treatment adequate to save his life. The responsibility is undoubtedly on the doctors who were in charge of the patients and in this case it is the petitioners. The complainant has not alleged that improper treatment was given or treatment which was not required was given. But his case is of utter negligence on the part of the accused to treat the patients. For such an allegation, we cannot expect proof except for the records which show admission of patient to the hospital and his ultimate death. Prima facie, the complainant has shown that victim was admitted on 1-2-1991 and he died on 5-2-1991 while being in the hospital as inpatient. The second allegation is about the bribe demanded by the doctors. This is incidental charge or other charge, which the Trial Court will have to consider. 24. On the basis of facts which are not in dispute, we conclude that injuries to the leg would not, in normal course, cause death. The secondary cause could only be by not providing treatment which was required or by negligence. Since the allegation is of omission, the definition of 'negligence' coined by Apex Court answers the charge: 'duty', 'breach' and 'resulting damage'. In the instant case, the allegation is petitioners had 'duty' to treat the patient who was admitted to the hospital. Not treating him is 'breach of duty' and 'death' being the ultimate result due to breach of duty, negligence of higher degree noticeable. The guidelines of the Apex Court as elicited above when applied to the facts in question will make out prima facie case. Not treating him is 'breach of duty' and 'death' being the ultimate result due to breach of duty, negligence of higher degree noticeable. The guidelines of the Apex Court as elicited above when applied to the facts in question will make out prima facie case. 25. At this juncture the petitioners urge that earlier this Court had allowed Cri. P. No. 2746 of 2004 connected with Cri. P. Nos. 1215 and 2573 of 2004 and remanded the matters and therefore, the Trial Court was required to consider police report as also the complaint. In this regard, it is necessary to record that in the earlier petitions, the pleadings of the parties contained facts which were actually incorrect. As could be seen from the order of this Court, the facts projected show that the complainant had filed a private complaint under Section 200 of Cr. P.C. before the Magistrate which was referred for investigation by jurisdictional police under Section 156(3) of Cr. P.C. and in response to such reference the investigation was done and B-report was filed. Accepting the submission of the petitioners the Co-ordinate Bench of this Court observed thus: "2. The respondent filed a complaint under Section 200 of Cr. P.C. The complaint was referred to jurisdictional police, in terms of Section 156(3) of Cr. P.C. The jurisdictional police, after investigation, submitted B-report, which was notified to 1st respondent, who filed a protest petition to challenge B report and prosecute the accused. The learned Magistrate recorded sworn statement of 1st respondent, issued summons to accused for aforesaid offences, in terms of impugned order. Therefore, accused are before this Court. 3. I have heard learned Counsel for petitioners, learned Counsel for 1st respondent and learned High Court Government Pleader for 2nd respondent. I have been taken through records of Trial Court and impugned order. 4. The learned Magistrate on receipt of B-report has neither accepted nor rejected the same. It is needless to State, reference under Section 156(3) is a judicial order and report submitted under Section 173 of Cr. P.C. either in favour of complainant or in favour of accused must be accepted or rejected". Thus, the petitions were accepted on what was stated as facts. But, on examination of records it is noticed the 1st respondent had not filed private complaint before jurisdictional Magistrate under Section 200 of Cr. P.C. either in favour of complainant or in favour of accused must be accepted or rejected". Thus, the petitions were accepted on what was stated as facts. But, on examination of records it is noticed the 1st respondent had not filed private complaint before jurisdictional Magistrate under Section 200 of Cr. P.C. and no order was passed by the learned Magistrate referring such complaint for investigation under Section 156(3) of Cr. P.C., as was represented by the parties in these petitions before this Court. 26. I had requested the learned Counsel on both sides to clarify this position and Sri K.L. Patil and Sri Srinand A. Pachchapure, learned Counsel for petitioners and learned High Court Government Pleader Sri V.S. Kulkarni have made categorical statement at the bar, that complainant had submitted a complaint only to the police, which was undoubtedly a report under Section 154 of Cr. P.C. and not a complaint under Section 200 of Cr. P.C. Therefore, it was investigated and final report was filed which was not in response to Section 156(3) but in the nature of final report under Section 173 of Cr. P.C. 27. Be that as it may, even if B-'report under Section 173 of Cr. P.C. was filed, the learned Magistrate had to accept or reject the report. Perhaps, it was for that reason the co-ordinate Bench of this Court held that Magistrate had not passed any order either accepting or rejecting the report and therefore, it remanded the matter. But it is to be noticed, if it was a private complaint under Section 200 of Cr. P.C. the Magistrate is required to consider the final report received in response to reference under Section 156(3) of Cr. P.C. as also the sworn statement and assign reasons for dismissing the complaint, if he is of the opinion no case is made out. This is the requirement of Section 203 of Cr. P.C. But when a protest petition against B-report is filed by the complainant, the Magistrate may examine it and permit the proceedings under the scheme of Section 200 of Cr. P.C. and when once it is treated as complaint under Section 200 of Cr. P.C. then the procedure prescribed for action under Section 200 of Cr. P.C. shall apply. P.C. But when a protest petition against B-report is filed by the complainant, the Magistrate may examine it and permit the proceedings under the scheme of Section 200 of Cr. P.C. and when once it is treated as complaint under Section 200 of Cr. P.C. then the procedure prescribed for action under Section 200 of Cr. P.C. shall apply. In this context, the learned Magistrate has permitted the complainant to examine himself on oath and his sworn statement has been recorded apart from the sworn statement of witnesses. On that basis, the learned Magistrate has opined that prima facie case is made out. After having taken cognizance, he has issued process against the petitioners in exercise of power under Section 204(1) of Cr. P.C. For issuance of process under Section 204(1) of Cr. P.C. which is covered under different chapter, no reasons are to be recorded. Reasons are to be recorded only under Section 203 of Cr. P.C. if the complaint is to be dismissed. I am, therefore, unable to accept the contention of both sides that Magistrate was required to give reasons for issuance of process. 28. Lastly, the ground to be considered is about the requirement of sanction to prosecute the petitioners. Learned Counsel Sri S.A. Pachchapure, has drawn my attention to the grounds urged before the Trial Court in this regard and the observation of the Trial Court. The question is, whether the act attributed to the petitioners is covered as part of an official duty or whether the allegation constitute an offence committed during discharge of official duties. 29. At the first look it may appear that accused being appointed as Medical Officers in the District Hospital under the State services are public servants and therefore, their duties being to treat patients, would come within the mischief of Section 197 of Cr. P.C. But the question here is, what was the nature of duty to be performed. The nature of duty to be performed was undoubtedly to treat patients in the Government hospital and hence treatment of patients was part of their duty for which their admission was done. The petitioners are alleged to have failed to perform duty for oblique motive to demand and receive bribe. The nature of duty to be performed was undoubtedly to treat patients in the Government hospital and hence treatment of patients was part of their duty for which their admission was done. The petitioners are alleged to have failed to perform duty for oblique motive to demand and receive bribe. As held by this Court in the case of Romesh Lal Jain v Naginder Singh Rana and Others1, relied upon by the learned Trial Judge, distinction is drawn between acts purporting to have been done in the official discharge of duty or acts done in the colour of such duty. In the instant case, the allegations are, accused demanded and received Rs.2,000/- to treat the patient which undoubtedly cannot be said to be a part of duty. 1. AIR 2006 SC 336: (2006)1 SCC 294 : 2005 AIR SCW 5875 : 2005 Cri. L.J. 5068 (SC) 30. Being of this view, both the petitions are rejected. Reference made to the case of the complainant and the defence, is only for the purpose of disposal these petitions, which shall not influence the decision on merits before the Trial Judge.