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Madhya Pradesh High Court · body

2013 DIGILAW 436 (MP)

Kusum v. Prabhavati

2013-04-02

S.R.WAGHMARE

body2013
ORDER 1. By this petition under section 482 of the CrPC the petitioner has challenged the order dated 3.8.2010 passed by the learned Judicial Magistrate, Class I, Indore in Criminal Case No.18881/10 taking cognizance and registering case under section 304A of the IPC against the present petitioner Dr. Kusum Maru and also issuing bailable warrants against her. 2. The prosecution case briefly stated is that the respondent complainant Smt. Prabhavati was pregnant and took treatment at the Lal Hospital Clinic, Indore (Government Hospital). On 17.6.2009 at 9:30 p.m. having pain, she was taken to the hospital by her husband and relatives. The office of the staff and duty doctors did not look after her properly and on 18.6.2009 at about 7 p.m. the complainant was taken for delivery and only nurses Tilotma Singh Shaiffali and Jaya Pandey, Dai Manorama, Sweeper Hemlata and one Kiran outsider were present. Kiran demanded Rs.2,000/- and she gave this money to one duty doctor Kirti Chaturvedi at 10:30 a.m. The doctors of the hospital thereafter came there and operated upon the respondent. The doctor came out and informed that the baby was already dead since last eight hours. Being aggrieved a complaint was put up before the Collector regarding the negligence of the hospital staff and doctors. The Collector ordered an enquiry. The committee submitted its report and the private complaint was lodged in the police station of Central Kotwali, Indore. After investigation a criminal offence was registered only against Kiran (Ayah). The respondent thereafter filed a private complaint against Kiran, Shaiffali, Manse Tilotma, Jaya Pandey, Sweeper Hemlata, Ayah Hemlata, Dr. Kirti Chaturvedi, Dr. Mukta Jain, Dr. Kusum Maru and the JMFC, Indore took cognizance and issued bailable warrants against all the persons and hence the present application for quashment of the said order. 3. Counsel for the petitioner Dr. Kusum Maru has vehemently urged that the Committee had given report that the case related to medical negligence and that the accused should be proceeded against. Counsel for the petitioner Dr. Kusum Maru has vehemently urged that the petitioner cannot be proceeded against primarily because sanction is necessary for her prosecution and the same has not been obtained from the competent authority and hence the order taking cognizance of the trial Court should be set aside. Counsel for the petitioner Dr. Kusum Maru has vehemently urged that the petitioner cannot be proceeded against primarily because sanction is necessary for her prosecution and the same has not been obtained from the competent authority and hence the order taking cognizance of the trial Court should be set aside. Moreover the complainant respondent had lodged a report at the Central Kotwali police station and the police did not find any negligence on the part of the petitioner and the same has not been taken into consideration by the trial Court. Counsel submitted that the order taking cognizance be quashed. Moreover if at all a case is related to medical negligence, only the Medical Board has power to enquire and a private committee cannot be thus appointed by the Collector. The negligence cannot be in any way attributed to the present applicant Dr. Kusum Maru. Counsel submitted that there was not an iota of evidence available on record against the applicant and moreover there was no such negligence as is being alleged. Counsel also urged that an appeal had been filed before the M.P. State Government Public Health and Family Welfare Department of Ministry and by an order dated 7.2.2012 the appeal has been accepted and it has been found that the Dr. Maru had not been informed of the admission of the deceased and the patient had been admitted by the doctor on emergency duty and it was not the duty of Dr. Maru. However as soon as the petitioner had examined the respondent Prabhavati; she had directed an operation and thereafter when the petitioner was operated the child had already died and the appellate authority had allowed the appeal and set aside the order passed by the committee. This order was not considered according to the counsel for the petitioner by the trial Court as well as the revisional Court. More importantly the focus of challenge to the impugned order is on the basis of the fact that the present petitioner Dr. Kusum Maru is a Class I Medical Officer appointed at Lal Hospital Poly Clinic, Govt. Hospital, Indore and had an excellent career through out. More importantly the focus of challenge to the impugned order is on the basis of the fact that the present petitioner Dr. Kusum Maru is a Class I Medical Officer appointed at Lal Hospital Poly Clinic, Govt. Hospital, Indore and had an excellent career through out. Moreover under the provision of law since the incident has occurred in the course of her duties attending to a patient; then to prosecute such a person who is a government servant no Court shall take cognizance of such an offence except with the previous sanction of the State Government under section 197 of the CrPC. Counsel submitted that there was no doubt that the petitioner was discharging her duties and hence permission is required from the State Government under section 197 of the CrPC which is mandatory in nature and counsel submitted that there could be no deviation from the said procedure and the prosecution of the petitioner was without jurisdiction and petitioner had come to Court within time and it was proper stage to quash the proceedings. Counsel prayed that the impugned order taking cognizance be set aside on these grounds alone since the order was completely without jurisdiction. 4. Counsel for the petitioner placing reliance on Prakash Singh Badal and another v. State of Punjab and others [AIR 2007 SC 1274], to state that there must be an nexus between the act of the accused and death of the victim. The apex Court had held that the expression extends only those acts or omissions done by public servant in discharge of official duty and it was necessary to obtain sanction for prosecution under section 197 of CrPC. Moreover the official act would be determined from stage to stage and the test is “abuse of office”, the act must be confined to the time related to the criminal acts performed under colour or authority of public servants and not performed for their pleasure or benefits and then the prosecution would not be available to the petitioner. Otherwise the apex Court had clearly held that sanction would be necessary. However, relying on Jacob Mathew v. State of Punjab and another [ AIR 2005 SC 3180 (1)]. Otherwise the apex Court had clearly held that sanction would be necessary. However, relying on Jacob Mathew v. State of Punjab and another [ AIR 2005 SC 3180 (1)]. Counsel submitted that the apex Court had considered several situations and concluded that the Government of India or the State Government in consultation with the Medical Council of India was to lay down to certain guidelines to govern the criminal prosecution of doctors. The apex Court also had categorically observed that 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 and unbiased opinion applying Bolam’s test laid down in (1957) I WLR 582, to the facts collected in the investigation. “A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the Investigation Officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.” And hence counsel submitted that no such special expert opinion was taken in the matter except the report of the committee. It was not in accordance with the provisions of law. 5. Moreover Counsel also placed further reliance on Rooplekha v. State of M.P. [2006(3) MPLJ 120], Dr. Smt. Beena Yadu v. State [2003 Cri.LJ 3402], Smt. Sudesh v. State of U.P. and others [2012 Cri.LJ 1460] to state that for proving the death of the accused due to rash and negligence act of the accused who is a doctor there must be an nexus between the act of the accused and the death of the victim and materials on record must be so incriminating as to reach to the inevitable conclusion that there has been culpable negligence on the part of the accused. However, if the act pertains to way in which the treatment has been meted out such an act would definitely would fall within the purview of official duty and sanction would be required under section 197 of the CrPC. 6. However, if the act pertains to way in which the treatment has been meted out such an act would definitely would fall within the purview of official duty and sanction would be required under section 197 of the CrPC. 6. Per contra, Counsel for the respondent complainant has vehemently opposed the fact and has also placed reliance on Prakash Singh Badal and another v. State of Punjab and others [AIR 2007 SC 1274], to indicate that sanction would not be required considering the nature of the act, if the nature of the act is one of deliberate negligence and delay which has directly resulted in the death of the infant as in the present case, then such a duty could not be said to official duty and counsel submitted that the offence would fall within the parameters of section 304A of the IPC. 7. Counsel relied on Mahadev Prasad Kaushik v. State of U.P. and another [ AIR 2009 SC 125 ], to state that the accused can be proceeded against for the said offence. Counsel also vehemently urged that the petition under section 482 of the CrPC was not maintainable primarily because the order taking cognizance of the offence against the petitioner being a public servant was not a plea raised before the trial Court and no revision was filed against the order taking cognizance and the petitioner had approached the High Court directly and such a petition was not maintainable. He placed reliance on Balraj Singh v. State of Rajasthan and another [2009 Cri.LJ 2042]. Placing reliance on Bhagwan Prasad Srivastava v. N.P. Mishra [ AIR 1970 SC 1661 (1)], counsel submitted that it was the essential under the circumstances to distinguish between the act and duty. Section 197 is not to be interpreted too widely or too narrowly as held by the apex Court. The apex Court further held thus : “5. The principle embodied in this section seems to be well understood; the difficulty normally lies in its application to the facts of a given case. The question whether a particular act is done by a public servant in the discharge of his official duty is substantially one of fact to be determined on the circumstances of each case. The principle embodied in this section seems to be well understood; the difficulty normally lies in its application to the facts of a given case. The question whether a particular act is done by a public servant in the discharge of his official duty is substantially one of fact to be determined on the circumstances of each case. In the present case the alleged offence consists of the use of defamatory and abusive words and of getting the complainant forcibly turned out of the operation theatre by the cook. There is nothing on the record to show that this was a part of the official duty of the appellant as Civil Surgeon or that it was so directly connected with the performance of his official duty that without so acting he could not have properly discharged it.” 8. Moreover counsel for the respondent complainant submitted that the petitioner had not narrated the facts correctly. He drew the attention of the Court to the fact that according to the record of Sir Seth Hukumchand Shaskiya Chikitsalaya, Indore dated 18.6.2009 that an admission of the complainant the water had broken and there was no foetal heart beat in the previous night itself. Then counsel submitted that the doctor did not attend to the patient on the previous night and on the next day only the delivery was undertaken. The child was born and died immediately on its birth and a contradictory stand is taken by the present petitioner in the order dated 7.3.2012 passed in appeal by the Department. The observation has been made in para 4 that the patient was being readied for operation since the child was alive at that time in the womb. Counsel vehemently urged that such an negligence act could not be the act done in the course of official duty and hence no sanction was required. Counsel prayed that the petition was without merit and also not maintainable under the circumstances and prayed that the petition be dismissed. 9. On considering the above submissions and on perusing the record, I find that the matter has been considered in the matter of Dr. Counsel prayed that the petition was without merit and also not maintainable under the circumstances and prayed that the petition be dismissed. 9. On considering the above submissions and on perusing the record, I find that the matter has been considered in the matter of Dr. Smt. Beena Yadu (supra), and the Court held that the emergency calls not attended by the accused doctor was not supported by the report of the Civil Surgeon and other material to show that there was a culpable negligence on the part of the accused and the allegation was definitely connected with the discharge of official duty. And hence the Court had held that no cognizance of the offence can be taken without previous sanction. It was alleged that the accused doctor had been unable to attend the emergency call of the complainant and her child died during the birth. Then under the similar circumstances the offence has been lodged against the present accused Dr. Kusum Maru. 10. I also place reliance on Jacob Mathew (supra), whereby the apex Court had held thus : “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 decree. 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.” 11. Moreover the criminal negligence must be in relation to an act purported done in the discharge of official duty and the words used in section 197 of the CrPC are that no Court shall take cognizance of such an offence except the previous sanction of the competent authority. Then there is no doubt left about the non-obstante clause used and the fact that the present petitioner was attending to the respondent Smt. Prabhavati in the course of her official duties; and is therefore a public officer in the course of her duties. Hence sanction would be required before proceeding against the petitioner. 12. In this light, the petition is allowed. The impugned order is hereby set aside. Hence sanction would be required before proceeding against the petitioner. 12. In this light, the petition is allowed. The impugned order is hereby set aside. However, liberty is granted to the respondent to move against the applicant if she chooses to do so only after obtaining proper sanction from the competent authority under the provisions of law. With the aforesaid observations and directions the petition is allowed to the extent herein above indicated. .............