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2014 DIGILAW 438 (CHH)

R. K. Gupta v. State of Chhattisgarh

2014-12-04

SANJAY K.AGRAWAL

body2014
ORDER Sanjay K. Agrawal, J. 1. This is an application filed under Section 439 of the Cr.P.C. for grant of regular bail to the applicant, who has been arrested in connection with crime No. 350/2014 registered at Police Station Chakarbhata, District Bilaspur, for the offence punishable under Sections 304 and 304-A of IPC. Case of the prosecution, in brief, is that applicant being a surgical specialist (LTT Surgeon) posted at District Hospital, Bilaspur, on 08.11.2014 performed Tubectomy procedures (for short TT operation) of 83 females that too in six hours in a camp organized by the State Government through Chief/Block Medical Officer in Seth Nemichand Jain Cancer Hospital, Pendari (Sakri). It is further case of the prosecution that applicant performed 83 TT operations of females in the said camp in Violation of Standard Operating Procedure for Sterilization Service in camp laid down by the Government of India which provides that only 30 TT operations can be performed by a surgeon in a day. It is further case of the prosecution that the applicant while performing surgery, neither sterilized the instruments available for surgical intervention nor used the hand glove and he failed to take appropriate and proper care and caution in performing said operation and due to which, 13 patients out of 83 died (three women died due to septicaemia on 11.11.2014 and ten women died due to other reasons). On report, first information report was registered initially under Section 304-A of IPC and later on, offence under Section 304 IPC was also registered and the applicant has been arrested on 12.11.2014 by the police station Chakarbhata, District Bilaspur. 2. Shri Kanak Tiwari, learned Senior counsel appearing for the applicant would submit as under: • That, the applicant is senior surgical specialist posted at District Hospital, Bilaspur and possesses sufficient expertise and experience and has conducted 50,000 sterilization operations in the State of Chhattisgarh under the Family Planning and Welfare Scheme of State Government and has been felicitated by the State Government on 26.01.2014 for his yeoman services rendered to the cause of population control. • That, he performed 83 TT operations on women in the said camp organized on 08.11.2014 by the Department of Health and Family Welfare under the supervision and control of Chief Medical cum Health Officer (for short, CMHO) and Block Medical Officer, Takhatpur (for short, BMO). • That, he performed 83 TT operations on women in the said camp organized on 08.11.2014 by the Department of Health and Family Welfare under the supervision and control of Chief Medical cum Health Officer (for short, CMHO) and Block Medical Officer, Takhatpur (for short, BMO). • That, the applicant has performed TT operations on 83 women successfully and they were discharged from the hospital. • That, as per settled procedure prevailing in such sterilization camps, the post surgery medical prescription, administration and distribution of necessary drugs and medicines is given by the staff in charge of the camp under; the supervision of BMO. • That, all 83 patients who had undergone TT operations by the applicant received the drugs/medicines in shape of medicine kit prepared and provided by the BMO, Takhatpur, containing Ciprocin-500 (antibiotic) and Ibuprofen-400 (pain killer) and they were discharged from the Camp on the same day i.e. 08.11.2014. • That, thereafter the women patient after reached respective residences and as per advice of the treating doctor consumed the medicine namely Ciprocin-500 and Ibuprofen-400 as advised and given to them in the hospital with the medicine kit, then, immediately they developed the symptom of pain, vomiting, nausia, congestion in the respiratory system and other discernible complications including brisk fall of blood pressure etc. and they were got admitted in the District Hospital and Chhattisgarh Institute of Medical Science and Apollo Hospital Bilaspur, but the life of 13 women patients could not be saved and succumbed to death solely on account of consumption of aforesaid medicines (Ciprocine-500 and Ibuprofen-400) administered and consumed by them as antibiotic and pain killer which was poisonous in nature. • That, on 14.11.2014, the principal Secretary, Department of Health and Family Welfare, Government of Chhattisgarh officially declared in press conference that 13 women and 2 other persons, who consumed Ciprocin-500 medicine manufactured by Mahawar Pharma Company, Raipur, died in Bilaspur district and all the patients whose sterilization surgeries were performed in the Camp have suffered from stomachache and vomiting and in preliminary investigation, it seems it is a case of poisoning. • Learned counsel appearing for the applicant would further submit that according to Modi's Medical Jurisprudence and Toxicology (24th Edn. 2011), causes of death in laparoscopic sterilization are: • Air embolism; • rupture of membrances; • vagal inhibition; • injury to major vessels; and • injury to intestines. • Learned counsel appearing for the applicant would further submit that according to Modi's Medical Jurisprudence and Toxicology (24th Edn. 2011), causes of death in laparoscopic sterilization are: • Air embolism; • rupture of membrances; • vagal inhibition; • injury to major vessels; and • injury to intestines. Further, According to said text book, causes of failure of laparoscopic sterilization are: • misidentification of tubes; • absence of band on one side; • superficial application; and • spontaneous rejoining. • Placing reliance upon above-stated text, he would submit that cause of death of 13 women are not due to laparoscopic sterilization as none of the above-mentioned symptoms have been found to be present in the dead body of women patients, rather causes of death is due to consumption of poisonous drugs Ciprocin-500 and Ibuprofen-400 which is used for killing Mouse and which were provided to the patients alongwith medicine kits after TT operation in the Camp at Pendari (Sakri) and which they have consumed as advised by the physician he would also submit out of fifty thousand operation performed by him, none of the operations has been reported to be unsuccessful till this date. • That directions issued by the Supreme Court in case of Jacob Mathews Vs. State of Punjab & Another 2005 (6) SCC 1 (paras 48 and 52) for the investigating officer with regard to registration of offence against the medical professional for offence under Section 304-A IPC and arrest, and the law laid down by the Supreme Court in respect of medical professional in case of Smt. Kusum Sharma & Others Vs. Batra Hospital and Medical Research Centre and Others 2010 (3) SCC 480 (para 49) has not been followed in its proper perspective and no such offence under Section 304-A is not made out and offence under Section 304-A is bailable offence. • That no offence under Section 304 IPC is made out as nothing has been done by the applicant with an intension or knowledge that such an act is likely to cause death and the said offence is punishable with imprisonment or fine and the imposition of imprisonment is not mandatory. • He has already been punished by dismissing him from service by State Government by order dated 13.11.2014 without holding any departmental inquiry in violation of Article 311 of the Constitution of India and applicable service rules. • He has already been punished by dismissing him from service by State Government by order dated 13.11.2014 without holding any departmental inquiry in violation of Article 311 of the Constitution of India and applicable service rules. • That he has been arrested on 12.11.2014 by investigation officer in violation of the mandate given by the Supreme Court in Jacob Mathew 2005 (6) SCC 1 (supra), without obtaining independent medical opinion before registering the offence and arresting him. • That the applicant is old aged person about 63 years and in his family only son is differently disabled person, and thus no one is available to look after his family and to prepare his defence. • That the applicant is the permanent resident of Bilaspur and he is not likely to abscond, if is granted privilege of bail and he is ready and willing to furnish bail bond as directed by this Court and he will co-operate in trial. 3. Per contra, Shri A.S. Kachhwaha, learned counsel appearing for state would oppose the bail application and would submit that applicant has Violated Standard Operating Procedures for Sterilization Services in Camps prescribed by Ministry of Health and Family Welfare, Government of India in March-2008 stipulating pre-requisites for sterilization camp site as well as probable client load. He further submit that the number of TT operation to be performed in one day by one doctor has been prescribed to be 30 and should not exceed 50 in any case. He would further submit that while-performing sterilization he did not properly sterilize the installments used in TT operations and also failed to use proper gloves while performing such operations, which is apparent from the statement of Ramawatar Suryavanshi whose wife Nema Bai succumbed to death in Hospital after consuming antibiotic Ciprocin provided to her after operation. He would also submit that according to postmortem conducted by medical team of five doctors three women patient died due to septicaemia and remaining ten patients died due to other reasons and in the post mortem report doctors held final opinion to be given after chemical analysis and histopathological studies and microbiological analysis. He would also submit that according to postmortem conducted by medical team of five doctors three women patient died due to septicaemia and remaining ten patients died due to other reasons and in the post mortem report doctors held final opinion to be given after chemical analysis and histopathological studies and microbiological analysis. He would further submit that the samples of the seized medicine Ciprocin-500 and the Tbuprofen-400 were sent to Shree Ram Institute for Industrial Research Centre and also to the National Institute of Immunology, New Delhi for chemical/biological examination and report has been received in which presence of Zinc/Aluminum Phosphide based on phosphine gas have been found and according to report sent by National Institute of Immunology New Delhi, the 500 gm of Ciprocine-500 has capacity to cause acute toxic shock in Rats within 24 hours. He would lastly submit that the statement recorded by the police of the relatives of the deceased women would clearly establish that the applicant has performed the TT operation without following the standard procedure by the Government of India in March-2008 and therefore he is not entitled to be released on bail. 4. While replying the submissions made by the learned Additional Advocate General, learned Senior counsel Shri Kanak Tiwari, would submit that it is the Chief Medical Officer and Block Medical Officer who give direction to applicant/other doctors time to time to perform 100 or 150 TT operations in a day. In support of his contention, he refers document Annexure A/12 dated 24.10.2007 issued by the Chief Medical and Health Officer in which he was directed to perform 150 TT operations at Community Health Centre, Bilha on 07.11.2007. He would further submit that statement as relied upon by the State counsel would also suggest that all the women patients including Smt. Nema Bai, who died after consuming the medicine particularly Ciprocine-500 and Ibuprofen-400 given to her by the doctors after surgery was performed. It is further submitted that there is no complaint that 50,000 TT operations conducted by the present applicant have suffered any failure in the past as he has specialization in performing TT operations. It is only and only on account of administration of poisonous medicine (Ciprocin-500, Ibuprofen-400), thirteen women patients have died. 5. I have heard the counsel appearing for the parties and perused the case diary with utmost circumspection. 6. It is only and only on account of administration of poisonous medicine (Ciprocin-500, Ibuprofen-400), thirteen women patients have died. 5. I have heard the counsel appearing for the parties and perused the case diary with utmost circumspection. 6. After hearing learned counsel appearing for the parties and after having perused the case diary, following fact would emerge on face of the record:-- • That, the applicant is a surgical, specialist working in the Government Hospital State of Chhattisgarh and till 08.11.2014 he had already performed fifty thousand TT operations with no complaint in the past. • That the State Government through its C.M. & H.O. organized sterilization camp at Seth Nemichand Jain Cancer Hospital, Pendari (Sakri) for performing TT operations of 83 womens who were admitted in the said camp by the Block Medical Officer. • That, TT operation performed by the applicant in the capacity of surgical specialist duly authorized and instructed by the C.M. & H.O. • That, all 83 TT operations were performed by the present applicant on 08.11.2014 and all the women patients were discharged from the said camp on the same day. • That, medicine kits including Ciprocin-500 and Ibuprofen-400 were provided to the women patients at the camp by the medical staff at the instructions of Block Medical Officer. • That, all the women patients, after reaching their respective houses have taken and consumed the drugs namely Ciprocin-500 and Ibuprofen-400 as advised, immediately thereafter they developed symptoms of pain, vomiting, nausia, giddiness congestion in the respiratory system and other discernible complications including fall of blood pressure etc. and they were got admitted in the District Hospital, CIMS and Apollo Hospital, Bilaspur for their treatment. • That, out of 83 patients, 13 women patients died on 11.11.2014, three on account of septicaemia and ten for other reasons as indicated in the post mortem report. • The seized medicines namely Ciprocin-500, Ibuprofen-400 were sent for chemical examination to the National Institute of Immunology, New Delhi, Shri Ram Institute of Research Centre, New Delhi and also to Homecamp Lab of Nagpur and in the chemical examination report the Ciporcin-500 and the Ibuprofen-400, the presence of Zinc/Aluminum Phosphide based on phosphine gas has been confirmed and the medicines doesn't confirm to the required standard. • The statement of the relatives of the deceased women recorded by police would show that most of the women developed complication after consuming the aforesaid two medicines. • First Information Report was initially registered against the applicant for commission of offence under Section 304-A of IPC, but later on, offence under Section 304 of IPC was also inserted. • That, on 13.11.2014, the applicant has been dismissed from service by State Government holding that on account of serious negligence and carelessness, 13 women patients died who were operated by the applicant in the said camp. 7. At this stage it would be appropriate to notice Section 439 of the Code, Section 439 of the Code of Criminal Procedure, 1973 provides as under:-- "439. Special powers of High Court or Court of Session regarding bail--(1) A High Court or Court of Session may direct-- (a) that any person accused of an offence and in custody be released on bail, and if the, offence is of the nature specified in subsection (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that subsection; (b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified: Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice. (2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody." 8. Very recently in Sanjay Chandra Vs. Central Bureau of Investigation (2012) 1 SCC 40 , highlighting the object of granting bail, their Lordships of the Supreme Court held as under:-- "21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. 22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should he deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. 23. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson." Their Lordships in the later part of judgment has held that the jurisdiction of criminal court to grant bail to the accused pending trial is discretionary and held as under:-- "25. The provisions of Cr.P.C. confer discretionary jurisdiction on criminal courts, to grant bail to the accused pending trial or in appeal against convictions; since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. 27. The provisions of Cr.P.C. confer discretionary jurisdiction on criminal courts, to grant bail to the accused pending trial or in appeal against convictions; since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. 27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under. Article 21 of the Constitution." 9. The Supreme Court laid down the principles for granting or declining bail in Prahlad Singh Bhati Vs. NCT, Delhi (2001) 4 SCC 280 as under:-- "8. The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of [the] evidence in support thereof, the severity of the punishment which conviction will entail, the character, behavior, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words 'reasonable grounds for believing' instead of 'the evidence' which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt." 10. Further their Lordships of the Supreme Court in State of U.P. Vs. Amarmani Tripathi (2005) 8 SCC 21 , held as under:-- "18. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt." 10. Further their Lordships of the Supreme Court in State of U.P. Vs. Amarmani Tripathi (2005) 8 SCC 21 , held as under:-- "18. It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behavior, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail [see Prahlad Singh Bhati Vs. NCT, Delhi and Gurcharan Singh Vs. State (Delhi Admit.) (1978) 1 SCC 118 ]. While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused." 11. It has further been held in Kalyan Chandra Sarkar Vs. Rajesh Ranjan (2004) 7 SCC 528 , by their Lordships of the Supreme Court as under:-- "11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay Vs. Sudarshan Singh (2002) 3 SCC 598 and Puran Vs. Rambilas (2001) 6 SCC 338 .) * * * 22. While a detailed examination of the evidence is to be avoided while considering the question of bail, to ensure that there is no prejudging and no prejudice, a brief examination to be satisfied about the existence or otherwise of a prima facie case is necessary." 12. In case Sanjay Chandra (2012) 1 SCC 40 (supra), their Lordships of the Supreme Court pertinently held as under:-- "39. ........In the present case, the charge is that of cheating and dishonestly inducing delivery of property and forgery for the purpose of cheating using as genuine a forged document. The punishment for the offence is imprisonment for a term which may extend to seven years. It is, no doubt, true that the nature of the charge may be relevant, but at the same time, the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration. 40. The grant or refusal to grant bail lies within the discretion of the court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. 40. The grant or refusal to grant bail lies within the discretion of the court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the court, whether before or after conviction, to assure that he will submit to the jurisdiction of the court and be in attendance thereon whenever his presence is required." 13. In Dipak Shubhashchandra Mehta Vs. Central Bureau of Investigation (2012) 4 SCC 134 , following the Sanjay Chandra (2012) 1 SCC 40 , (supra), their Lordships of the Supreme Court have concluded as under:-- "32. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted, particularly, where the accused is charged of having committed a serious offence. The court granting bail has to consider, among other circumstances, the factors such as (a) the nature of accusation and severity of punishment in case of conviction and the nature of supporting evidence; (b) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant; and (c) prima facie satisfaction of the court in support of the charge. In addition to the same, the court while considering a petition for grant of bail in a non-bailable offence, apart from the seriousness of the offence, likelihood of the accused fleeing from justice and tampering with the prosecution witnesses, have to be noted." 14. In addition to the same, the court while considering a petition for grant of bail in a non-bailable offence, apart from the seriousness of the offence, likelihood of the accused fleeing from justice and tampering with the prosecution witnesses, have to be noted." 14. In case of Jacob Mathew 2005 (6) SCC 1 (supra) their Lordships of the Supreme Court have clearly held that indiscriminate prosecution of a medical professional for criminal negligence is counterproductive and does no service or good to the society and medical professional doesn't gain anything by acting with negligence and held as under:-- "48.2 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. 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. 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. 48.3 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. 48.5 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. 48.6 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". 48.7 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. 48.7 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." In the later part of judgment the Supreme Court emphasized the need for framing statutory rules/executive instructions for prosecution of the doctors for criminal negligence is an ingredient and laid down the guidelines pending rules/instructions to be framed by Central Government/State Government and held as under:-- "52. A private complaint may 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. 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 the Bolam 9 test 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 investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld." 15. In decision reported in Kusum Sharma, 2010 (3) SCC 480 (supra), Supreme Court has laid down the guidelines to determine the medical negligence of medical professional and held as under:-- "89. On scrutiny of the leading cases of medical negligence both in our country and other countries specially the United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. On scrutiny of the leading cases of medical negligence both in our country and other countries specially the United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well-known principles must be kept in view: I. Negligence is the breach of a duty exercised 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. II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. III. The medical professional is expected to bring a reasonable degree of 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 circumstances of each case is what the law requires. IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor. VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence. VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. VIII. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. VIII. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck. IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension. X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurising the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners. XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals. 16. Such malicious proceedings deserve to be discarded against the medical practitioners. XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals. 16. Thus, following the principles of law laid down by their Lordships of the Supreme Court in above-stated decisions particularly the factors to be taken into account in considering the application for grant of regular bail and taking into consideration the registration of the offence for prosecution of the applicant doctor under Section 304-A IPC followed by his immediate arrest on 12.11.2014 in teeth of the imperative guidelines laid down by their Lordships of the Supreme Court in para 52 of the Jacob Methew 2005 (6) SCC 1 (supra) requiring investigating officer to obtain and independent and an competent medical opinion before proceeding against the medical professional and further direction that arrest of medical professional should be made only when that his arrest is inevitable and further taking into consideration the above-stated facts and circumstances of the case as mentioned hereinabove particularly the facts stated in paragraph seven of this order alongwith the nature and gravity of the offence of the offence alleged to have been committed by the applicant and further taking into consideration that applicant is senior surgical specialist having already performed 50,000 TT operations and there is no complaint in any of the operations performed by him earlier, further taking into consideration that after performing surgery, the medicine/drugs administered by medical staff of the camp at the instance of Block Medical Officer particularly Ciprocin-500 and Ibuprofen-400 having been found containing Zink/Aluminum Phosphide based on Phosphine gas which is poisonous in nature and can cause acute toxic shock and does not confirm to the required standard and keeping in view, further, no custodial interrogation is required from the applicant and investigation is likely to take more time and filing of the charge-sheet may also likely take time and thereby, commencement of trial is also to delayed for some more time and he has already lost his job of Surgical Specialist as he has been dismissed from service on 13.11.2014 and there is nothing on record to show that if he is released on bail, he is likely to tamper with the prosecution witness or he is likely to abscond and he will not co-operate or flee from justice, and further taking into consideration that his only son is differently abled person and offence under Section 304-A IPC is a bailable offence and 304 Pt II of the IPC is punishable with imprisonment or fine or with both and no useful purpose will be served in keeping the applicant (surgical specialist) who is of 63 years old in jail as he is already in custody from 12.11.2014. Thus in the considered opinion of this court, it is a fit case where the power under Section 439 of the Code of Criminal Procedure can be exercised in favour of the applicant. Accordingly, the application for grant of bail under Section 439 of the Code of Criminal Procedure is allowed. 17. It is directed that in the applicant shall be released on bail on furnishing a personal bond in the sum of Rs. 50,000/- with one surety for the like sum to the satisfaction of the trial court and he shall abide by the following terms and conditions: • That, the accused/applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or to any police officer; • That, the accused/applicant shall not act, in any manner, which will be prejudicial to fair and expeditious trial; and • That, the applicant shall appear before the trial Court on each and every date given to him by the said Court till disposal of the trial. For any reason due to unavoidable circumstances for remaining absent he has to give intimation to the court concerned. 18. It is clarified that observation made herein shall not be taken into consideration in other stage of criminal case, as it is only for the purpose of consideration of application for bail under Section 439 Cr.P.C. and criminal case will be considered and decided on its own merits without being influenced by any of the observations made hereinabove. Certified copy, as per rules on usual charges.