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2010 DIGILAW 770 (JHR)

Sanjay Lal Das v. State of Jharkhand

2010-07-31

D.G.R.PATNAIK

body2010
Order Heard counsel for the petitioners and the counsel for the State as also the counsel for the O.P. No.2. The opposite party no. 2 has also appeared through lawyer. 2. Petitioners herein who are medical practitioners, have through the present application, invoked the inherent jurisdiction of this court under Section 482 of the Code of Criminal Procedure for quashing the order dated 27.6.2005 passed by Shri Rakesh Kumar, Judicial Magistrate, 1st Class, Dumka in G.R. No. 757 of 2004 (T.R.No. 387 of 2006) whereby, by framing charge for the offence under Section 304A of the Indian Penal Code, petitioners have been called upon to face trial. 3. The case relates to the untimely death of the informant brother-in-law and for which, holding the petitioners as responsible, the informant has accused them of criminal negligence resulting in the death of the deceased. 4. Facts of the case, briefly stated, is that in the afternoon of 5.8.2004, the informant's brother-in-law Kailash Prasad Bhagat sustained injuries by falling on the ground. He complained of pain and swelling on his left hand and wrist. He was taken to the clinic of one Dr. Ravi Shankar Prasad who gave first aid and referred the patient to Dumka for medical treatment. Thereafter, the injured was brought to the clinic of the petitioner no. 1 at Dumka who, on examining the injuries, had found that the injured had sustained fracture of his left wrist and advised the patient for his admission in the clinic of the petitioner no. 2. The injured was accordingly brought to the clinic of the petitioner no. 2 where, he was admitted. The petitioner no. 1 also later came to the clinic and on being demanded by them, the informant deposited a sum of Rs. 2,000/- in cash towards fees and medical charges. It is alleged that the injured was thereafter taken inside the operation theatre. Two hours later, both the doctors came out of the operation theatre and allegedly declared that the fractured wrist of the injured was plastered and that the patient would come out of the operation theatre within an hour. However, the patient never came out of the operation theatre alive and the attendants at the clinic later revealed that the injured had died in course of putting plaster on his hand. However, the patient never came out of the operation theatre alive and the attendants at the clinic later revealed that the injured had died in course of putting plaster on his hand. Accusing the petitioners that in order to save money, instead of inviting an expert anesthetist, the petitioners themselves administered heavy dose of anesthesia to the patient which had resulted in his death. 5. On such allegation, the informant lodged a FIR which was registered against the petitioners for the offences under Section 304 of the Indian Penal Code vide Dumka Town P.S. Case No. 104 of 2004. In course of investigation, autopsy on the dead body of the deceased was conducted and in the opinion of the doctor conducting autopsy, cause of death of the deceased was due to shock and haemor-rhage as a result of assault and injury and the death was due to asphyxia. Upon concluding the investigation, police submitted a charge-sheet against both the petitioners, .recommending their trial for the offences under Section 304A. IPC. Besides lodging the FIR, the informant had also filed a complaint before the District Consumer Redressal Forum, Dumka which was registered as complaint case no. 21 of 2005. Though, the District Consumer Forum had allowed the complainant's claim and directed the petitioners to pay a compensation of Rs. 5.00 lakhs, but the judgment of the District Consumer Forum was annulled by the State Consumer Redressal Forum, holding that there was no negligence on the part of the doctors, nor can they be held responsible for the death of the deceased. 6. Assailing the impugned order of charge, learned counsel for the petitioners argues that the learned court below has seriously erred in failing to appreciate that even on the basis of the entire facts and circumstances, and regard being had to the cause of death of the deceased, as indicated in the post mortem report, no criminal liability whatsoever could be attached to either of the petitioners, much less the offence under Section 304A IPC. The impugned order, according to the learned counsel, has been passed apparently without application of judicial mind and continuation of the criminal proceedings against the petitioners even on the face of admitted facts and materials on record, suggesting no negligence whatsoever against the petitioners, is a misuse of the process of court. The impugned order, according to the learned counsel, has been passed apparently without application of judicial mind and continuation of the criminal proceedings against the petitioners even on the face of admitted facts and materials on record, suggesting no negligence whatsoever against the petitioners, is a misuse of the process of court. Elaborating his arguments, learned counsel explains that even as admitted by the informant, the deceased had fallen down on the ground and on being referred to the doctor, had complained only of injury to his wrist. Petitioners, on examining the injuries, had found the same to be in the nature of fracture. Both petitioners had inquired from the injured as to whether he had sustained any other injury or whether he had lost conscious after falling down on the ground or whether, he had ENT bleeding and vomiting after the fall and upon the injured and his attendants declaring that he had no such symptoms at all and he had suffered only the injuries on his wrist, petitioners proceeded to put plaster on his wrist. It was in course of the treatment that the patient suddenly collapsed and died. Learned counsel submits that in the facts and circumstances, as stated above, there was no need or occasion to administer anesthesia to the petitioner for plastering his fractured wrist and furthermore, the post mortem report also does not confirm that death of the deceased was due to anesthesia. Learned counsel argues further that from the facts, it is apparent that the deceased besides suffering a fracture injury on his wrist, had also suffered a head injury, of which the patient was not aware and there being no pain or other symptoms which could make the patient conscious of such head injury, there was no occasion for the petitioners to infer that the injured had also suffered a head injury which could possibly result in extramural blood clot beneath a fractured skull. Learned counsel argues further that under such circumstances, no criminal negligence can be attributed to the petitioners. Learned counsel argues further that under such circumstances, no criminal negligence can be attributed to the petitioners. Referring in this context to a Full Bench judgment of the Supreme Court reported in 1994 Cr.L.J. 3484, learned counsel submits that as has been explained by the Supreme Court, there is a difference between civil negligence and criminal negligence and in the present case, there is not even any element of civil negligence, as has been held by the State Consumer Redressal Forum, much less criminal negligence. 7. Counsel for the State on• the other hand, argues in support of the impugned order of charge and claims that from the facts stated in the FIR, and the evidence collected by the investigating officer, there is ample evidence to infer that the death of the deceased was a result of the criminal negligence of the petitioners. 8. The law relating to medical negligence has been elaborately explained in a three Judges Bench decision of the Supreme Court in the case of Jacob Mathews vs. State of Punjab [( 2005(6) SCC 1 ] [: 2005(4) JLJR (SC)137]. Distinguishing between simple negligence and criminal negligence or recklessness, the court had observed that for civil liability, only damages can be imposed by the court, whereas for criminal liability, the doctor can also be sent to jail. On general principles relating to medical negligence, the Supreme Court has observed that that the "basic principle relating to medical negligence is known as the BOLAM Rule explained in the following terms:- "Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill... It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. The degree of skill and care required by a medical practitioner is the practitioner himself bring to his task a reasonable skill and knowledge, and must exercise a reasonable degree of care. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. The degree of skill and care required by a medical practitioner is the practitioner himself bring to his task a reasonable 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 circumstance 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 skill 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. To establish liability on that basis it must be shown (1) that there is 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." 9. As has been explained, 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. 10. In the case of Jacob Mathews (supra), the Supreme Court has laid down certain Rules offering protection to doctors in criminal cases. These Rules are as follows:- i. A private complaint should 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. ii. 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 opinion applying the Bolam test. 11. ii. 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 opinion applying the Bolam test. 11. In the light of the above principles as laid down by the Supreme Court, the facts of the present case needs to be analyzed. Admittedly, the deceased had fallen on the ground and had sustained injuries. He was provided first aid by the local doctor and thereafter, taken to the clinic of the present petitioners. Admittedly, before the doctor who had provided first aid, and before the petitioners, the injured had complained of pain only on his wrist. He did not complain of any pain elsewhere on his body. Yet, precautionary steps were taken by both the petitioners seeking information as to whether, the deceased was rendered unconscious after fall or whether, he had suffered ENT bleeding and vomiting and to each of the querries, the injured and his attendants had assured the petitioners that the injured did not demonstrate any such symptoms. These are the admitted facts. Under such circumstances, the petitioners had no occasion to suspect that the patient had suffered any other injury or any injury on his head and the only treatment required was to put plaster on his fractured wrist. 12. As rightly submitted by the counsel for the petitioners, the injured did not require to be rendered unconscious by means of anesthesia for putting plaster on his injured wrist. The informant's allegation that the petitioners had themselves administered anesthesia, appears to be result of his misconceived impression. The post mortem report does not confirm that before his death, the patient was subjected to anesthesia or that the death had occurred on account of heavy dose of anesthesia. The post mortem report, on the contrary, suggests that the death was as a result of shock and haemorrhage caused by the injury and also due to asphyxia. The symptoms do indicate that the deceased had suffered not only injury on his wrist, but also a head injury, though he was not conscious of the same. The post mortem report, on the contrary, suggests that the death was as a result of shock and haemorrhage caused by the injury and also due to asphyxia. The symptoms do indicate that the deceased had suffered not only injury on his wrist, but also a head injury, though he was not conscious of the same. Such injury had the effect of extramural blood clot in the skull at the site of injury which could have led to his collapse on the table while the plaster was being put on his wrist. Strangely enough, before arriving at any conclusion about the alleged criminal negligence, the investigating officer did not obtain any report from any expert regarding the general practice and procedure in cases of treating injured persons who have suffered a fractured wrist or arm, nor has any expert opinion been obtained on the basis of which, it could be stated that the petitioners had committed gross negligence and recklessness while giving medical treatment to the injured. The State Consumer Forum in the complaint filed by the informant on the same allegation, has discussed the same facts and evidences adduced by the informant in support thereof and has recorded its findings that there was no civil liability of the petitioners since they could not be accused of any civil negligence. 13. It is apparent even from the admitted facts and the entire evidences which the prosecution intends to prove against the petitioners, that the evidences are grossly insufficient to establish even prima facie the charge of criminal negligence against the petitioners and certainly, no conviction of the petitioners for the offences of criminal negligence, can be secured by the prosecution on such insufficient evidence. 14. Under such circumstance, it would not only be futile to subject the petitioners to undergo the rigours of a protracted trial, but would also amount to an abuse of the process of court. 15. In the light of the facts and circumstances and the discussions made above, I find merit in this application. This application is allowed. The impugned order of charge dated 27.6.2005 and the entire criminal proceedings following the impugned order, is hereby quashed.