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2015 DIGILAW 3058 (MAD)

A. Jayasingh Rajamani v. A. Jayasingh Rajamani

2015-09-11

R.MALA

body2015
ORDER Seeking to quash the proceedings in C.C.No.42 of 2009 on the file of learned Judicial Magistrate No.I, Nagercoil, the petitioner has come forward with the present petition. 2. Heard both sides. 3. The learned counsel for the petitioner would submit that on 22.03.2007, the son of the defacto complainant, by name, Sijo aged about 6 years, fell down, while he was coming back from his school, due to which, he sustained fracture on his right hand and immediately, he was admitted in Government Hospital, Kuzhithurai for treatment and on the day itself, he was referred to Government Medical College Hospital at Asaripallam, Nagercoil, Kanyakumari District. He was taking treatment for 13 days. A surgery has been conducted on 03.04.2007 at about 08.30 a.m.., for the injuries sustained by him. 4. The learned counsel for the petitioner would further submit that the case of the prosecution is that the petitioner is said to have administered anaesthesia to the deceased boy to perform surgery on his right hand. The petitioner has given local anaesthesia at the right armpit and it was not effective. Then, another anaesthesia was given at right Clavicle bone and it was also not effective. Thirdly, general anaesthesia was given, and, thereafter, surgery was performed. According to the learned counsel, the petitioner was assisted by another anaesthesia Dr.Suganthalakshmi. Since the boy/patient has developed anaesthetic accident, immediately, they called for Dr.Sivakumar, the Head of the Department of Anaesthesia in the Government Medical College Hospital. On his advice, ventilation has been given stating that fluid has been accumulated in his lungs, but, unfortunately, the boy died on 04.04.2007 at 03.30 a.m. Therefore, a case has been registered under Section 174 Cr.P.C., on 04.04.2007 on the basis of the complaint given by one Vasantha, the mother of the deceased. But, post-mortem has been conducted by a team of doctor and it has been video-graphed. Subsequently, case has been altered into one under Section 304(A) IPC and after investigation, charge sheet has been laid under Section 304(A) IPC. 5. The learned counsel for the petitioner would also submit that the ingredients of Section 304(A) IPC have not been made out because, there is no gross negligence or recklessness. That factum was not considered by the Investigating Agency during investigation. 5. The learned counsel for the petitioner would also submit that the ingredients of Section 304(A) IPC have not been made out because, there is no gross negligence or recklessness. That factum was not considered by the Investigating Agency during investigation. He has taken me through 161(3) Cr.P.C., statement of the witnesses and would submit that prima facie there is no evidence to show that the petitioner has acted negligently, while giving anaesthesia to the deceased boy. He has taken me to the evidence of Dr.Sivakumar, in which, it was stated that it is not negligent and proper caution has been taken. 6. In support of his contention, the learned counsel would rely upon the following decisions: (i) Suresh Gupta (DR.) v. Govt. of NCT of Delhi [2004 SCC (Cri.) 1785] and (ii) Jacob Mathew v. State of Punjab [2005 SCC (Cri.) 1369]. 7. Adding further, he would submit that on the basis of the newspaper's report, Human Rights Commission has suomotu taken the matter and enquiry was conducted and report was received. In the meanwhile, the Human Rights Commission has taken the second application and that has been stayed by this Court. He would further submit that for the alleged incident, disciplinary proceedings have been initiated against the petitioner, but he was exonerated from the charges. Stating so, he prayed for quashing of the proceedings in C.C.No.42 of 2009 on the file of learned Judicial Magistrate No.I, Nagercoil, 8. Resisting the same, the learned counsel for the third respondent would submit that when the child was coming back from his school to his house, he fell down and sustained injury on 22.03.2007 and he was admitted in the Government Medical College Hospital, Asaripallam, where a suggestion has been given for surgery and till he underwent surgery, he was hale and healthy. During surgery only, because of the excess anaesthesia given, he died. During investigation, Dr.Sivakumar, the Dean, has categorically stated in his 161(3) Cr.P.C., statement that because of the negligence on the part of the petitioner only, death has been occurred and as such, prima-facie there is evidence for framing of charges against the petitioner. The question as to whether there is a gross-negligence or recklessness has to be decided only at the time of trial after letting in evidence and cross-examining the experts i.e., Sivakumar. The question as to whether there is a gross-negligence or recklessness has to be decided only at the time of trial after letting in evidence and cross-examining the experts i.e., Sivakumar. He would further submit that while giving anaesthesia, four points have to be decided i.e., (i) Whether proper dosage of anaesthesia was given? (ii) Was the patient properly examined before surgery? (iii) Was the patient given test dose to rule out sensitivity before conducting surgery? and (iv) Was a suitable type of anaesthesia administered?. 9. The learned counsel for the third respondent, relying upon Synopsis 7-16-Liability of an anaesthetist for negligence, in Medical Negligence & Compensation written by Dr.Jagdish Singh Vishwa Bhushan, would submit that the procedures found in the above synopsis have not been followed by the petitioner before conducting surgery. Therefore, he caused negligence and that can be decided only at the time of trial. 10. The learned counsel would also submit that breach of duty would amount to gross negligence. Here, the petitioner must be double cautious to administer anaesthesia to the child aged about six years. Anaesthetist must foresight the future consequences of the anaesthesia given to the child. The learned counsel would submit that the parents of the deceased boy are having three children and two of them are mentally disabled persons and the deceased boy alone is a normal boy, but they lost him in this tragedy. Hence, he prayed for dismissal of this petition. 11. I have considered the rival submissions made by both sides and perused the materials available on record. 12. Admittedly, on 22.03.2007, the son of the defacto complainant, by name, Sijo aged about 6 years, fell down, while he was coming back from his school to his house, due to which, he sustained fracture on his right hand and immediately, he was admitted in Government Hospital, Kuzhithurai for treatment and on the day itself, he was referred to Government Medical College Hospital at Asaripallam, Nagercoil, Kanyakumari District. He was taking treatment for 13 days. A surgery has been conducted on 03.04.2007 at about 08.30 a.m.., for the injuries sustained by him. Before conducting surgery on his right hand, the petitioner has given local anaesthesia at the right armpit and it was not effective. Then, another anaesthesia was given at right Clavicle bone and it was also not effective. Lastly, general anaesthesia was given, and, thereafter, surgery was performed. Before conducting surgery on his right hand, the petitioner has given local anaesthesia at the right armpit and it was not effective. Then, another anaesthesia was given at right Clavicle bone and it was also not effective. Lastly, general anaesthesia was given, and, thereafter, surgery was performed. The petitioner was also assisted by another anaesthesia Dr.Suganthalakshmi. Since the boy/patient has developed anaesthetic accident, immediately, they called for Dr.Sivakumar, the Head of the Department of Anaesthesia in the Government Medical College Hospital. On his advice, ventilation has been given stating that fluid has been accumulated in his lungs, but, unfortunately, the boy died on 04.04.2007 at 03.30 a.m. Therefore, initially, a case has been registered under Section 174 Cr.P.C., on 04.04.2007, on the basis of the complaint given by one Vasantha, the mother of the deceased. Subsequently, after investigation, charge sheet has been laid under Section 304(A) IPC. 13. The only point that has to be decided is whether it is a fit case to quash the proceedings initiated against the petitioner under Section 304(A) IPC. 14. Before going into the merits of the case, it is appropriate to incorporate Section 304(A) IPC, which reads thus: "304-A. Causing death by negligence.-Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." 15. But here, in the case on hand, the learned counsel for the third respondent relied upon the Medical Negligence and Compensation written by Dr.Jagdish Singh Vishwa Bhushan, wherein, the liability of an anaesthetist for negligence was specifically mentioned. It is appropriate to incorporate the relevant clause found therein, which reads thus: "7.16................... (a)............. (b)................ (c) Was the patient properly examined before the operation and was his fitness adequate to undergo the operation, assessed pre-operatively with reasonable skill and care? (d)................... (e) Was the patient given test does to rule out sensitivity before the drugs used in spinal or local anaesthesia was administered? (f) Was a suitable type of anaesthesia administered? (g)................ (h)................ (i) .................. (j)......................." Thus, the above extracted portion clearly indicates the procedures that have to be followed before giving anaesthesia to the patient. 16. At this juncture, it is appropriate to consider the decision relied upon by the petitioner in Suresh Gupta (DR.) v. Govt. (f) Was a suitable type of anaesthesia administered? (g)................ (h)................ (i) .................. (j)......................." Thus, the above extracted portion clearly indicates the procedures that have to be followed before giving anaesthesia to the patient. 16. At this juncture, it is appropriate to consider the decision relied upon by the petitioner in Suresh Gupta (DR.) v. Govt. of NCT of Delhi [2004 SCC (Cri.) 1785, wherein it was stated that for fixing criminal liability on a doctor or surgeon, the standard of negligence required to be proved should be so high, as can be described as "gross negligence" or "recklessness". Paragraphs 20 and 21 of the said judgment are extracted as under: "20. For fixing criminal liability on a doctor or surgeon, the standard of negligence required to be proved should be so high as can be described as "gross negligence" or "recklessness". It is not merely lack of necessary care, attention and skill. The decision of the House of Lords in R. v. Adomako relied upon on behalf of the doctor elucidates the said legal position and contains the following observations: "Thus a doctor cannot be held criminally responsible for patient's death unless his negligence or incompetence showed such disregard for life and safety of his patient as to amount to a crime against the State." 21. Thus, when a patient agrees to go for medical treatment or surgical operation, every careless act of the medical man cannot be termed as "criminal". It can be termed "criminal" only when the medical man exhibits a gross lack of competence or inaction and wanton indifference to his patient's safety and which is found to have arisen from gross ignorance or gross negligence. Where a patient's death results merely from error of judgment or an accident, no criminal liability should be attached to it. Merely inadvertence or some degree of want of adequate care and caution might create civil liability but would not suffice to hold him criminally liable." 17. In Jacob Mathew v. State of Punjab [2005 SCC (Cri.) 1369], the Supreme Court has held that criminal negligence is counter-productive and does no service or good to society. A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. In paragraph Nos.38 and 48, it was observed thus: "38. The question of degree has always been considered as relevant to a distinction between negligence in civil law and negligence in criminal law. In Kurban Hussein Mohammedali Rangwalla v. State of Maharashtra while dealing with Section 304-A IPC, the following statement of law by Sir Lawrence Jenkins in Emperor v. Omkar Rampratap was cited with approval: (SCR p. 626 D-E) “To impose criminal liability under Section 304-A, Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another’s negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non.” 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. 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. (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. 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. (4) The test for determining medical negligence as laid down in Bolam case, WLR at p. 586 holds good in its applicability in India. (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. (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." [Emphasis supplied] 18. 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." [Emphasis supplied] 18. On going through the decisions cited supra, one could understand that deficiency in service is entirely different from gross negligence and recklessness. Here, in the present case, in 161 (3) Cr.P.C., statement of Dr.Sivakumar, he had stated that there was a anaesthetic accident, but, when he was examined by the Enquiry Committee, he has stated that as soon as the boy has developed critical stage, immediately he was called and he attended and he has given a suggestion to give ventilation to the child. Chile Specialist was also called, who, in turn, has given treatment, which shows that the petitioner and others have taken much care to save the life of child. 19. It is also pertinent to note that in pursuance of the alleged incident, disciplinary proceedings have been initiated against the petitioner, where it was held that there is no negligence on the part of the petitioner and as such, he was exonerated from the charges levelled against him. 20. It is the well settled dictum of the Apex Court that proving of the guilt of the disciplinary proceedings is only mere preponderance of probabilities, but whereas, proving the guilt of offence is beyond all reasonable doubts. Here, in the disciplinary proceedings itself, it was held that there is no negligence on the part of the petitioner. In such circumstances, no useful purpose will be served to fascinate criminal liability against the petitioner and to give burden upon the prosecution to prove the guilt of the accused beyond any reasonable doubt, because they were unable to prove the charges on preponderance of probabilities. 21. Therefore, for all the reasons stated above, I am inclined to quash the charge sheet laid against the petitioner herein. Accordingly, the proceedings in C.C.No.42 of 2009 on the file of the Court of the Judicial Magistrate No.I, Nagercoil, is, hereby, quashed in respect of the petitioner alone. This Criminal Original Petition is allowed accordingly. Consequently, the connected miscellaneous petition is closed. 22. Accordingly, the proceedings in C.C.No.42 of 2009 on the file of the Court of the Judicial Magistrate No.I, Nagercoil, is, hereby, quashed in respect of the petitioner alone. This Criminal Original Petition is allowed accordingly. Consequently, the connected miscellaneous petition is closed. 22. At this juncture, the learned counsel for the third respondent would submit that considering the economical and social background of the third respondent and since she gave birth to three children, out of them, two children were mentally disabled persons and the third one, who is a normal child, died in the tragedy situation, liberty may be given to the third respondent to approach the Consumer Forum. 23. Considering the plight of the third respondent, I make it clear that the observation made herein will not prevent the third respondent-the mother of the deceased Sijo from approaching the Consumer Forum. She is at liberty to do so.