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Allahabad High Court · body

2017 DIGILAW 2218 (ALL)

CHHAYA RASTOGI v. STATE OF U. P.

2017-09-20

HARSH KUMAR

body2017
JUDGMENT : Hon'ble Harsh Kumar,J. Heard Shri Nitin Sharma, learned counsel for the revisionist, learned A.G.A. for the State and perused the record. 2. None present for the complainant/opposite party no.2. 3. The revision has been filed against the order dated 2.4.2011 passed by A.C.J.M., Meerut in complaint case no.703 of 2011 (Seema vs. Chhaya Rastogi and another) under Sections 323, 504, 506 and 269 I.P.C. P.S. Civil Lines, District Meerut, issuing process against the revisionist and another for the offences under Sections 323, 504 and 269 I.P.C. and rejecting the part of complaint for the offences under Sections 500 and 270 I.P.C. 4. The brief facts relating to the case are that the opposite party no.2 filed a complaint against the revisionist and one Dr. Rekha Rana with averments that "(i) Dr. Rekha Rana is an agent of revisionist; (ii) the sister-in-law (nanand) of the complainant Sonia was operated by the revisionist on 6.11.2010, and when she was again admitted under the complaint of pain, she was again operated; (iii) during operation by the revisionist some foreign material was left in the abdomen of Sonia on account of which pain subsisted in her abdomen, and on 20.11.2010 when the revisionist was again approached, she abused the patient and ousted her from the Hiralal Nursing Home; (iv) subsequently, the operation of Sonia was got conducted in Modi Nagar where upon the operation, the piece of foreign material taken from her abdomen was shown by the doctor, apart from showing the proceedings of operation on the screen; (v) when a notice was sent by the complainant to the revisionist on 5.1.2011 she threatened her on telephone." 5. On above complaint the statements of complainant and her witnesses were recorded under Section 200 and 202 Cr.P.C. and the Magistrate finding prima facie evidence of the offences issued impugned summoning order, feeling aggrieved with which accused has preferred this revision. 6. Learned counsel for the revisionist contended that the impugned order is wrong on facts and law; that it is wrong to say that there was any carelessness or negligence on the part of revisionist in conducting the surgery of Sonia the sister-in-law of the complainant; that Dr. 6. Learned counsel for the revisionist contended that the impugned order is wrong on facts and law; that it is wrong to say that there was any carelessness or negligence on the part of revisionist in conducting the surgery of Sonia the sister-in-law of the complainant; that Dr. Rekha Rana is not agent of revisionist and has no concern with her; that it is absolutely wrong to say that any foreign material (piece) was left inside the abdomen of the patient at the time of operation by the revisionist or due to her alleged negligence the patient suffered pain to any extent; that the revisionist conducted the surgery of Sonia with all reasonable care and caution and performed her duty with all sincerety; that aftre surgery by revisionist Sonia was alright; that it is wrong to say that due to alleged negligence of revisionist, some piece of foreign material left inside her abdomen and under complaint of pain, the revisionist conducted 2nd surgery of Sonia or she was again operated at Modi Nagar for the 3rd time; that there is no medical report or any other medical evidence on record and without there being any expert evidence regarding the alleged negligence of revisionist, there may be no sufficient prima facie evidence of offences against the revisionist;that there is no injury report on record and no whisper of marpeet; that the allegation of threats over mobile phone are false and concocted; that in view of law laid down by the Apex Court in the case of Jacob Mathew vs. State of Punjab and another, (2005) 6SCC page 1, Martin F. D'souza vs. Mohd. Ishfaq (2009) 3 SCC 1 and Marghesh K. Parik vs. Dr. M.H.Mehta, (2011) 1 SCC 31 no offence under Section 269 I.P.C. is made out against the revisionist; that the revisionist never abused complaint or Sonia and never committed marpeet with any of them and never threatened or intimidated them for life, on mobile or otherwise; that the entire story mentioned in complaint is false, vague and concocted; that the revisionist is a qualified doctor and performs her duty sincerely; that the Magistrate was not correct in issuing process summoning the revisionist for offences under Sections 323, 504, 506 and 269 I.P.C; that the impugned order has been passed in cyclostyled manner without due application of mind and is liable to be set aside. 7. 7. Per contra, learned A.G.A. supported the impugned order and contended that there was sufficient prima facie evidence on record of the offences and the learned Magistrate has rightly passed the impugned summoning order. 8. Upon hearing the parties counsel and perusal of record, I find that the opposite party no.2 filed a complaint case no.703/9/2011 on 1.2.2011 in the court of A.C.J.M. (5th), Meerut with the allegations that her nanand Sonia was operated by the revisionist on 6.11.2010 but due to negligence of revisionist some piece was left inside the abdomen of Sonia and after discharge when the complaint of pain continued to her, the revisionist was again contacted upon which Sonia was again operated in Parvati Devi Poly Clinic Nursing Home & Cancer Research Centre but still no care was taken and the pain continued. It is also contended that on 20.11.2010 when the complainant again approached the revisionist with her Nanand patient Sonia she was abused. In paragraph 2 of the complaint it has been contended that subsequently Sonia was treated in Modi Nagar where upon operation the piece was taken out from her abdomen and the proceedings of surgery were also displayed on screen whereafter Sonia recovered. In paragraph 3 it has been stated that the complainant sent legal notice to the revisionist through her counsel upon which the revisionist made a call on the mobile of Sonia on 5.1.2011 and again on the mobile of complainant on 7.1.2011 giving threats of dire consequences. The statement of complainant has been recorded under Section 200 Cr.P.C. with statements of her witness Sonia the Nanand and Veer Singh the husband of complainant under Section 202 Cr.P.C. after which the impugned order of summoning has been passed. 9. The perusal of copy of above statements at A-2 & A-3 shows that in her statement under Section 200 Cr.P.C. the complainant has repeated the averments made in complaint, while the patient Sonia in her statement under Section 202 Cr.P.C. has stated that she was subsequently admitted in Jeevan Nursing Home and after surgery at Jeever Nursing Home she is well. She has not stated that any piece was recovered from her abdomen during operation at Jeevan Nursing Home, while Veer Singh, the husband of complainant in his statement under Section 202 Cr.P.C. has stated that the proceedings of surgery at Jeevan Nursing Home, Modi Nagar were displayed on screen and a piece was recovered from the abdomen of Sonia. 10. The above evidence on record and the impugned order shows that neither any medical report regarding surgery of Sonia conducted by the revisionist, or regarding her surgery which was subsequently conducted at Jeevan Nursing Home Modi Nagar have been filed by the complainant nor there is any whisper of any such report in the statements of complainant and her witness. The impugned order does not state that the learned Magistrate ever gone through any such medical reports of Sonia indicating any carelessness of revisionist in surgery, at the time of passing impugned summoning order. There is no iota of evidence or any such report on record which may prima facie indicate that any piece of cotton, metal or surgical item or anything else was left inside the abdomen of patient Sonia by the revisionist and the impugned order does not state that the learned Magistrate has considered any such report. It is also pertinent to mention that neither the complainant nor her witnesses in their statements under Sections 200 and 202 Cr.P.C. could dare to state as to what piece (of whatever material) was left in abdomen of Sonia and was recovered during operation at Jeevan Nursing Home Modi Nagar and whether it was a piece of cotton or of cloth, rubber, metal or any part of surgical instrument. The impugned order does not state that there is any medical report of Jeevan Nursing Home Modi Nagar to above effect. In absence of any medical evidence on record, mere bald allegations made in complaint or in statements of complainant & her witnesses may not be sufficient to form prima facie evidence of any offences under Section 269 or 270 I.P.C. by the doctor, the revisionist. 11. For ready reference, the provisions of sections 269 and 270 I.P.C. are being reproduced as under :- "Section 269 in The Indian Penal Code 269. 11. For ready reference, the provisions of sections 269 and 270 I.P.C. are being reproduced as under :- "Section 269 in The Indian Penal Code 269. Negligent act likely to spread infection of disease dangerous to life.--Whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both. Section 270 in The Indian Penal Code 270. Malignant act likely to spread infection of disease dangerous to life.--Whoever malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." 12. In view of the provisions mentioned above, if a person unlawfully and negligently does any act which is and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished for the offence under Section 269 Cr.P.C. and if a person malignantly does any such act shall be punished for the offence under Section 270 I.P.C. 13. Basic principle relating to medical negligence is known as "BOLAM" rule. This rule was laid by Justice McNair in the case of Bolam Versus Friern Hospital Management Committee (1957) 1 WLR 582, which reads as under: "Before I turn to that, I must explain what in law we mean by ''negligence'. In the ordinary case which does not involve any special skill, negligence in law means this: some failure to do some act which a reasonable man in the circumstances would do, or the doing of some act which a reasonable man in the circumstances would not do; and if that failure or the doing of that act results in injury, then there is a cause of action. How do you test whether this act or failure is negligent? In an ordinary case it is generally said, that you judge that by the action of the man in the street. He is the ordinary man. How do you test whether this act or failure is negligent? In an ordinary case it is generally said, that you judge that by the action of the man in the street. He is the ordinary man. In one case it has been said that you judge it by the conduct of the man on the top of a Clapham omnibus. He is the ordinary man. But where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this man exercising and professing to have that special skill. ... A man need not possess the highest expert skill at the risk of being found negligent. It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art." 14. 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. 15. The Apex Court in the case of Jacob Methew Versus State of Punjab and another, (2005) 6 SCC 1 , approving the BOLAM's test held that "the statement of law in Bolam's case has been widely accepted as decisive standard of case for professional as well medical practitioner and has been applied by Court as touchstone to test the pleas of medical negligence." 16. The Apex Court in Jacob Mathew's (supra) case has also held "that the private complaint should not be entertained unless the complainant had produced prima facie evidence before the Court in the form of a credible opinion given by a competent Doctor; the Investigating Officer should before preceding 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." 17. I am of the considered view that there is nothing on record to show that the revisionist did any act unlawfully or negligently or knowingly or having reason to believe that by her act there is likelihood of spreading infection of any disease dangerous to life of Sonia, did such act of leaving any piece of whatever material inside her abdomen during surgery. There is nothing on record to show that any piece was left inside her abdomen or by leaving of any such piece inside her abdomen there was likelihood of spreading any infection of any disease to Sonia or there was likelihood of spreading of any such infection of disease which would have caused danger to her life. Though there is no iota of evidence to show that due to alleged carelessness or negligence of the revisionist, during surgery of Sonia, any piece of any material was left inside her abdomen, but if it is taken to be correct for the sake of arguments that any such piece was left inside her abdomen, because of which pain sustained to her, even then mere causing of pain may not be sufficient to bring the alleged act of revisionist, within the ambit of offence under Section 269 I.P.C. It is also pertinent to mention that there is no whisper of marpeet and no injury report and the threats are also alleged to have been given on mobile phone, which allegations are ornamental. 18. I am of the considered view that the learned Magistrate has passed the impugned summoning order in cyclostyled manner without considering any such medical report to indicate that any piece of cloth cotton, rubber or metal was left inside the abdomen of Smt. Sonia during surgery due to negligence of the revisionist and if so, whether by such act there was any likelihood of spreading of any disease which could have been dangerous to her life. The learned Magistrate has acted wrongly, illegally and erroneously in issuing process against the revisionist for the offences under Sections 323, 504, 506 and 269 IPC without even finding prima facie sufficient evidence for above offences. The impugned order if allowed to stand may cause irreparable injury to the revisionist and cause miscarriage of justice. In view of material on record the complaint case was liable to be dismissed under the provisions of Section 203 Cr.P.C. 19. In view of the discussions made above, the impugned order is liable to be set aside and revision is liable to be allowed. 20. The revision is allowed and impugned summoning order is set aside. 21. Interim order, if any, stands vacated. 22. Let a copy of this order be sent to Court below for disposal of complaint case in view of observations made in the body of judgement.