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2012 DIGILAW 123 (CHH)

M. K. RAI v. STATE OF C. G.

2012-04-26

T.P.SHARMA

body2012
ORDER 1. By this petition under Section 482 of the Cr.P.C., the petitioner has prayed for quashment of the order dated 4-4-2011 passed by the 5th Additional Sessions Judge, Bilaspur in Criminal Revision No41/2011, affirming the order framing charge dated 31-1-2011 passed by the Judicial Magistrate First Class, Bilaspur in Criminal Case NoA26/2010, whereby the trial Court has explained the particulars of the offence punishable under Section 304A of the IPC. 2. I have heard learned counsel for the parties, perused the orders impugned and copies of other documents. 3. As per copy of the charge sheet, the petitioner was posted as Block Medical Officer, Masturi. In the year 2008, Family Planning Operation Camp was organized at Masturi for family planning operation of females interested for their operation. On 27-2-2008 Smt. Madhuri Rathore (since deceased) also came for her family planning operation. Before surgery she was injected Atropine & Fortwine injections by Kum. P. Solomon, LHV i.e. Nurse. After administration of injections, Smt. Madhuri Rathore became restless. The doctors immediately shifted her to CIMS and probably during the course of travelling, she died. As per the charge sheet, the petitioner was in-charge of the said Camp. Report was lodged and after completion of investigation, charge sheet was filed. As per the autopsy report, death was due to cardio respiratory failure. 4. Learned counsel for the petitioner submits that the petitioner was in-charge of the Family Planning Camp organized for family planning operation of interested women. Trained nurse Kum. P. Solomon was authorized to administer the injections Atropine & Fortwine. The petitioner has not administered aforesaid injections. As per medical, requirement and report of a team of six doctors, Atropine & Fortwine injections have been administered under the supervision of qualified doctors by qualified nurse Kum. P. Solomon, deceased Madhuri Rathore was not suffering from any disease and she was gynaecologically fit for LTT operation. Primary pathological test of Madhuri Rathore has been conducted and nothing was found negative. Kum. P. Solomon has administered injections to other women also before LTT operation. Nobody was negligent in performing their duty. It is not the case of medical negligence or death caused by negligent act. It is an act of vis major and nobody is responsible for the unfortunate death of deceased Madhuri Rathore. 5. Learned counsel for the petitioner placed reliance in the matter of Jacob Mathew Vs. Nobody was negligent in performing their duty. It is not the case of medical negligence or death caused by negligent act. It is an act of vis major and nobody is responsible for the unfortunate death of deceased Madhuri Rathore. 5. Learned counsel for the petitioner placed reliance in the matter of Jacob Mathew Vs. State of Punjab and another (2005) 6 SCC 1, in which the Supreme Court has held that in case of death on account of treatment by doctor, the prosecution is required to show gross negligence by the doctor resulting in death of the patient or the person and also required to show that either the doctor was not possessing 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. 6. Learned counsel for the petitioner further submits that in the present case, the petitioner has not administered injections, injections have been administered by skilled nurse Kum. P. Solomon under the supervision of the petitioner. Same injections have also been administered to other patients. Deceased Madhuri Rathore was not having any disease and she was fit for operation. Pathological examination required for such surgery has been conducted before the surgery and necessary precautions have been taken at the time of administering injections that too by the nurses. The petitioner was having requisite skill and he has exercised reasonable care and competence. Death of the deceased was an act of God i.e. vis major. Therefore, continuance of criminal proceeding for the offence punishable under Section 304A of the IPC against the petitioner would be abuse of process of the court. 7. On the other hand, learned State counsel opposes the petition and submits that the material collected on behalf of the prosecution is sufficient for continuance of criminal proceeding against the petitioner for the offence punishable under Section 304A of the IPC and the prosecution is not unfounded. The petitioner has failed to make out exceptional case for quashment of criminal proceeding, therefore, the petition is liable to be dismissed. 8. As per undisputed facts, the petitioner was in-charge of the family planning LTT Camp organized at Masturi. The alleged two injections Atropine & Fortwine have been administered by Kum. P. Solomon, the skilled nurse, under the supervision of the petitioner. 8. As per undisputed facts, the petitioner was in-charge of the family planning LTT Camp organized at Masturi. The alleged two injections Atropine & Fortwine have been administered by Kum. P. Solomon, the skilled nurse, under the supervision of the petitioner. Before administering such injections, pathological test of the deceased has been conducted and she was medically fit for LTT operation. As per the report of team of six doctors, probably, the cause of death was side effect of injection Fortwine. Opinion of the team of doctors reads as follows:- ^^mijksDr lHkh c;kuksa ls ;g Li”V gksrk gS fd lkeqnkf;d LokLF; dsUnz eLrwjh esa fnukad 27-02-08 dks vk;ksftr jk”V~h; ifjokj dY;k.k f’kfoj esa lHkh vko’;d fpfdRldh; lqfo/kk,a ekin.M ds vuqlkj miyC/k Fkh rFkk vkijs’ku djokus vkbZ lHkh fgrxzkfg;ksa dh fof/kor~ fpfdRldh; tkap Hkh dh xbZ] ftlesa Jherh eerk ek/kqjh jkBkSj Hkh ‘kkfey FkhA f’kfoj esa dk;Zjr lHkh vkf/kdkfj;ks ,oa deZpkfj;ksa }kjk vius drZO; dk fuoZgu iw.kZ :i ls ,oa yxu ls fd;k x;kA ek/kqjh ¼eerk½ jkBkSj dh e`R;q laHkor% nqHkkZX;o’k izh vkijsVho esfM+ds’ku ds :i esa mi;ksx fd;s x;s batsD’ku Fortwin ds lkbZM+ bQsDV ds dkj.k Cardio respiratory arrest ds dkj.k gqbZA Post mortem dh laiw.kZ fjiksVZ vkus ds ckn gh e`R;q dh lgh dkj.k Kkr gks ldrk gSA** 9. This is not the case where the petitioner is not qualified doctor. This is also not the case that the petitioner has recklessly or knowingly administered injection or without taking proper precaution administered injection to the deceased. Kum. P. Solomon was skilled and qualified nurse competent to inject. Injections have been administered under the supervision of qualified doctor. The petitioner has not failed to exercise with reasonable competence the skill which he was possessing. 10. In case of medical negligence, the prosecution is required to show 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 the injury which resulted was most likely imminent. 11. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent. 11. While dealing with the case of medical negligence, the Supreme Court in the matter of Jacob Mathew (2005) 6 SCC 1 (supra) has held that 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. While considering the case of medical negligence, the Supreme Court has observed in para 48 as follows: "48. We sum up our conclusions as under: (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, Ratanlal & 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 fallow 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. 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 riot 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 Hmpital Management Committee, (1957) I WLR 582 : (1957) 2 All ER 118 (QBD), WLR at p. 586 holds good in its applicability (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 offeree, 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 higher degree may provide a ground for action in civil law but cannot form the basis for prosecution. 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 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 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 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." 12. As per copy of the charge sheet, in the present case, the petitioner was possessing proper qualification and skill. Fortwine injection has been injected by qualified and skilled nurse Kum. P. Solomon who has also administered same injections to other persons and nothing has happened to other patients. Before administering such injection, required pathological test of the deceased has been conducted and she was medically fit for LIT surgery. The petitioner and skilled nurses have exercised the skill with competence. The prosecution has not collected any material to show that the petitioner was careless in his duty or has failed to exercise his duty with due diligence or has administered the injections recklessly without taking precaution. The petitioner and skilled nurses have exercised the skill with competence. The prosecution has not collected any material to show that the petitioner was careless in his duty or has failed to exercise his duty with due diligence or has administered the injections recklessly without taking precaution. Even as per opinion of the team of six doctors, probably, death of the deceased was a result of side effect of the injection which was not in the knowledge of the petitioner. Even a person cannot presume that some medicine will give side effect to some person. 13. In the present case, if the allegation made in the charge sheet is admitted in its face value, conviction of the petitioner for the offence punishable under Section 304A of the IPC would not be legally possible. 14. Consequently, the petition is allowed. Order dated 4-4-2011 passed by the 5th Additional Sessions Judge, Bilaspur in Criminal Revision No.41/2011 and order framing charge dated 31-1-2011 passed by the Judicial Magistrate First Class, Bilaspur in Criminal Case No.426/2010 are hereby quashed; Petition Allowed.