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2011 DIGILAW 1909 (RAJ)

Dr. N. K. Agarwal v. State of Rajasthan

2011-09-06

NISHA GUPTA

body2011
JUDGMENT 1. - This criminal Misc. Petition under Section 482 Cr.P.C. has been filed against the order dated 29.6.2006 passed by the Revisional Court, affirming the order dated 15.3.2004 passed by the learned Additional Chief Judicial Magistrate, Chomu, taking cognizance against the petitioner for the offence under Sections 304-A and 201 I.P.C. 2. The facts in brief are that an F.I.R. was lodged against the present petitioner by non-petitioner No. 2 Smt. Shanta, alleging therein that the present petitioner has given wrong treatment to her husband and as a result of negligence on his part, her husband has died. After investigation, the Police submitted Final Report and upon protest petition having been filed by the complainant, the learned Magistrate made inquiry under Sections 200 and 202 Cr.P.C. and thereafter took cognizance against the petitioner for offence under Sections 304-A and 201 I.P.C. Aggrieved by the order of the learned Magistrate, the petitioner preferred a revision petition, but that too was dismissed by the revisional Court. Hence the present petition. 3. Learned counsel appearing on behalf of the petitioner has strenuously argued that the evidence regarding ingredients for offence under Section 304-A I.P.C. against a medical professional is completely lacking in the present case. There is no allegation of gross negligence against the petitioner, which could be termed as criminal negligence. The deceased was taken to the Hospital, which is evident from statement of wife of the deceased as also the statement of accompanying witness Sushil Kumar. The treatment given to the petitioner has been opined by the Medical Board as quite appropriate. No wrong drug was administered to the deceased and according to the post-mortem report, the cause of death was 'hypovolemia leading to syncope and cardio pulmonary arrest'. 4. Learned counsel for the petitioner further submitted that there is no prima facie evidence against the petitioner that he treated the patient with negligence. It was obligatory upon the complainant to have produced credible opinion of any other doctor to suggest that negligence has been committed in the given case. Even the complainant herself has not stated about negligence on the part of the present petitioner.On the strength of above, learned counsel for the petitioner submitted that the order impugned orders are bad in law and deserve to be quashed. orders. 5. Per contra, learned Public Prosecutor has supported the impugned. 6. Even the complainant herself has not stated about negligence on the part of the present petitioner.On the strength of above, learned counsel for the petitioner submitted that the order impugned orders are bad in law and deserve to be quashed. orders. 5. Per contra, learned Public Prosecutor has supported the impugned. 6. I have given my thoughtful consideration to the rival submissions. Looking to the factual scenario of the case, it is evident that F.I.R. was lodged by the wife of the deceased, attributing negligence to the present petitioner in treating her husband. The police after investigation, submitted Final Report. From the medical opinion, it is evident that treatment offered to the deceased was quite appropriate in the given circumstances. According to the FSL report, there is negative tests for metallic poisons, ethyl and methyl alcohol, cyanide, alkaloids, barbiturates, tranquilliser and insecticides. After post morteun report, the cause of death could not be concluded and after FSL report, opinion has been given that the cause of death was 'hypovolemia leading to syncope and cardio pulmonary arrest'. 7. Learned counsel for the petitioner further submitted that as per internal medicine by "Harison", Hypovolemia refers to a state of combined salt and water loss exceeding intake. In other words, the cause of Hypovolemia may be Satro intestinal because of vomiting etc. At the same time, he also refers to the Medical Emergencies in General practice by Dr. S.P. Gupta, which speaks that Hypovolemia is a commonest type of shock and is primarily due to loss of large amount of water, blood and plasma. 8. Smt. Sarita, wife of deceased has categorically stated in her statement that deceased was suffering from diarrhea and vomiting and the same has been corroborated by witness Sushil Kumar. Dr. Section Rajawat who was a member of the Medical Board has also stated that cause of death of deceased was pressure on the heart and lungs and due to heavy loss of water. It is thus clear that other doctor has also categorically stated that deceased was not died due to negligence of the petitioner. 9. Dr. Section Rajawat who was a member of the Medical Board has also stated that cause of death of deceased was pressure on the heart and lungs and due to heavy loss of water. It is thus clear that other doctor has also categorically stated that deceased was not died due to negligence of the petitioner. 9. In the protest petition filed by the complainant, it was stated that when injection was given to the deceased, his whole body turned into black, but this fact has neither been alleged in the F.I.R. nor in her statement under Section 161 Cr.P.C. Thus, there is a material improvement in the statement of the. complainant. 10. I have also gone through the case law cited at the Bar. In Jacob Mathew v. State of Punjab and another, reported in 2005 ACJ 1840 , while dealing with gross negligence in medical profession, their Lordships of the Supreme Court have held has under : "The word 'gross' has not been used in Section 304A of I.P.C., yet it is settled that in criminal negligence or recklessness, to be so held, must be of such a high degree as to be 'gross' expression 'rash and negligence act' as accruing in Section 304A of the I.P.C. has to be read as by the word grossly'. To prosecute a medical professional for negligence under criminal law it must be shown that accused did something or failed to do something which in the given facts and circumstances medical professional in his ordinary senses and prudence would have done or failed to hazard taken by the accused doctor should be of such a nature that the injury which resulted most likely imminent." 11. Looking at the above legal position, it was obligatory for the Courts below to have come to a specific finding that there was gross professional negligence on the part of the present petitioner. However, in the instant case, there is no iota of evidence against the present petitioner to connect with negligence. The orders impugned in this petition are based on assumptions and presumption, whereas, specific evidence has come on record before the Courts below that the treatment given to the deceased was quite appropriate and no negligence what to say of gross negligence has been committed by the present petitioner. 12. The orders impugned in this petition are based on assumptions and presumption, whereas, specific evidence has come on record before the Courts below that the treatment given to the deceased was quite appropriate and no negligence what to say of gross negligence has been committed by the present petitioner. 12. As regards, offence tinder Section 201 I.P.C., learned counsel for the petitioner has submitted that there is no iota of evidence to connect the petitioner with the commission of offence under Section 201 I.P.C. It is submitted that merely because empty vials and sample of fluid administered to the deceased were not made available to the Medical Board, it cannot be said that petitioner has deliberately removed the evidence. 13. The Medical Board has seen the prescription and was aware of the treatment given to the deceased. Hence, there was no deliberate removal of the evidence. That apart, prescriptions were made available to Dr. Rajawat, who has specifically opined about the cause of death of the deceased. In this view of the matter, there is no evidence to meet the ingredients of Section 201 I.P.C. 14. For the reasons aforesaid, this Court is of the firm opinion that there is no prima facie evidence against the present petitioner and therefore, continuance of proceedings against the petitioner would amount to abuse of process of law. 15. Accordingly, the petition succeeds and is hereby allowed. The impugned order dated 15.3.2004 passed by the learned Magistrate taking cognizance against the present petitioner for offence under Sections 304-A and 201 I.P.C. and the order dated 29.6.2006 passed by the revisional Court, affirming the order of the learned Magistrate, are hereby quashed and set aside.Petition Allowed. *******