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2018 DIGILAW 1406 (RAJ)

Shyam Sunder Agarwal v. State of Rajasthan

2018-07-02

KANWALJIT SINGH AHLUWALIA

body2018
ORDER : Kanwaljit Singh Ahluwalia, J. The present petition has been filed under Section 482 Cr.P.C., 1973 praying that a direction be issued to the court below to reject Final Report in negative form bearing No. 94/2017 dated 28.6.2017 presented in case FIR No. 140/2017 registered at Police Station Gandhi Nagar, Jaipur (East). A further prayer has been made that the investigation of above case FIR be handed over to Central Bureau of Investigation in alternative to Special Operation Group, Rajasthan and furthermore, a direction be given to the Home Secretary of State of Rajasthan to upload the case diary of criminal case on the website of the police and thus, a prayer has been made that a case diary of every criminal case should be displayed online. 2. Briefly stated, son of petitioner was a student of Class VIII at St. Xavier School, Nevta, Jaipur. The case of the petitioner is that due to pain in the heart, son of the petitioner was taken to Sanjeevani Hospital, Jaipur then to J.K. Lone Hospital, Jaipur and finally to Santokba Durlabhji Memorial Hospital, Jaipur. It is stated that son of the petitioner was admitted in Intensive Care Unit of Santokba Durlabhji Memorial Hospital, Jaipur and he was being treated by Pediatric Unit headed by Dr. Rajeev Bansal. The petitioner was compelled to arrange for Rs. 40,000 to 50,000/- for treatment of son of the petitioner. The petitioner deposited Rs. 15,000/-. The son of the petitioner was transferred to advance Intensive Care Unit for children as he was having trouble in breathing. Para-6 to Para-8 of the petition, contain averments of the petitioner to allege that son of the petitioner had died because of negligence on the part of doctors in treating the son of the petitioner. 3. Para-6 to 8 of the petition, containing relevant averments reads as under:- "6. That the complainant found that the Child was tied to the Bed and an adhesive sheet was fixed on his mouth etc. he noticed that the Child was on Bed totally nude which worried the petitioner even more but the Doctor kept mum but demanded more and more money. The petitioner was asked to arrange medicines worth of more than Rs. 15000-16000/- every day. 7. he noticed that the Child was on Bed totally nude which worried the petitioner even more but the Doctor kept mum but demanded more and more money. The petitioner was asked to arrange medicines worth of more than Rs. 15000-16000/- every day. 7. That it was 28.02.2017 the Petitioner was told that the condition of the Child is worsening with every passing day, they are not able to identify the root cause of the condition which antagonized the Petitioner and the Petitioner asked to discharge the Child immediately and to hand him over all the Treatment Papers and it was 28.02.2017, the Petitioner was informed of the death of the only Child of the petitioner. 8. That the Doctors did not allow to see the Body of the Child but asked to deposit Rs. 50,000/- whereon the Petitioner deposited Re. 52649/- on 01.03.2017 only thereafter the Hospital handed over the Dead Body of the Child." 4. The petitioner, thus, lodged FIR No. 140/2017 dated 22.3.2017 at Police Station Gandhi Nagar, Jaipur (East) for offence under Section 304A IPC against doctors of Santokba Durlabhji Memorial Hospital, Jaipur. The above said FIR was investigated and investigating agency vide Annexure-2 submitted a Final Report in negative form bearing No. 94/2017 absolving the doctors of medical negligence. The investigating agency after thorough investigation concluded as under:- izdj.k esa vuqal/kku] e`rd izQqy dqekj ds bZykt lacaf/k nLrkostkr] fjiksVZ esfMdy cksMZ lokbZ ekuflag fpfdRlky; t;iqj ,oa i=koyh ij miyC/k lk{;ksa ls e`rd izQqy dqekj dh e`R;q dk laHkkfor dkj.k Pneumonia/Respiratory Failure, ARDS, Sepsis, MODS, Multi Organ Dysfunction Syndrome, Refractory shock izrhr gksrk gS] rFkk larksdck nqyZHkth vLirky t;iqj ds MkWDVjksa] ulksZa }kjk e`rd izQqy dqekj ds bZykt esa izFke n`"V~;k ykijokgh (Medical negligence) izrhr ugha gksrh gSA izdj.k esa vuqla/kku o miyC/k lk{;ksa ls ekeyk ,Q0vkj0 vne odq >waB dk ik;k x;k gSA vr% ,Q0vkj0ua0 94@17 fnuakd 28-06-2017 vne odq >waB esa fdrk dj okLrs Lohd`fr ekuuh; U;k;ky; ds le{k is'k gSA 5. Admittedly, the court of concerned Magistrate is seized of the Final Report submitted in negative form by the investigating agency. 6. Supreme Court in the case of Jacob Mathew v. State of Punjab & Anr., (2005) 6 SCC 1 , laid guidelines regarding prosecution of medical professionals as under:- "50. As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. 6. Supreme Court in the case of Jacob Mathew v. State of Punjab & Anr., (2005) 6 SCC 1 , laid guidelines regarding prosecution of medical professionals as under:- "50. As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by police on an FIR being lodged and cognizance taken. The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to a rash or negligent act within the domain of criminal law under Section 304-A of IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered in his reputation cannot be compensated by any standards. (Emphasis Supplied) 51. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against. (Emphasis Supplied) 52. Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. 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 Bolam's test to the facts collected in the investigation. (Emphasis Supplied) 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." 7. From perusal of the above judgment, it is apparent that the Supreme Court held that the investigating officer before proceeding against doctors accused of rash and negligent act, must obtain an independent and competent medical opinion preferably from a doctor in Government Service qualified in that branch of medical practice who is normally expected to give an impartial and unbiased opinion applying the Bolam test to the facts collected during the investigation. 8. The learned counsel for the petitioner has also relied upon the case of Mahadev Prasad Kaushik v. State of U.P. & Anr. reported in (2008) 14 SCC 479 . The judgment relied by the learned counsel for the petitioner in Mahadev Prasad Kaushik (supra) is distinguishable and is not attracted on the facts and circumstances of the case and therefore, reliance placed thereupon is misplaced. 9. In the present case, thus, remedy for the petitioner is to urge before the court of Magistrate to obtain opinion from a Government Doctor who is expert in the field to give his opinion by applying Bolam test. 9. In the present case, thus, remedy for the petitioner is to urge before the court of Magistrate to obtain opinion from a Government Doctor who is expert in the field to give his opinion by applying Bolam test. Thus, the prayer of the petitioner to hand over the investigation to CBI or Special Operation Group cannot be entertained, as the rightful course for the trial court is to examine expert in the field at the instance of prosecution, complainant and if the court so desires at the instance of accused. The said experts after applying principles laid in Bolam test and considering the medical record, gathered by the investigating agency shall give opinion, whether in the present case there was any medical negligence on the part of treating doctors falling within the ambit of Section 304-A IPC or not. 10. Thus, with the direction issued above, the first two prayers of the petitioners stand disposed of by holding that neither this Court can reject Final Report in negative form which is pending before concerned Magistrate nor it is appropriate to transfer the investigation to CBI or Special Operation Group. 11. In view of observation made above, the present petition is disposed of by issuing a direction to the court of Magistrate to examine expert in the field preferably Professor and Head of Government Medical College at the instance of the complainant or at the prosecution. The said experts shall give their opinion after applying Bolam test in consonance with observation made by Supreme Court in the case of Jacob Mathew (supra). The trial court if deem fit can also before taking cognizance as part of preliminary enquiry can afford an opportunity to the accused to examine expert at their instance, who also shall be Professor and Head of Medical College in the specialized field. 12. As a parting note, it will be appropriate to observe that the third prayer made by the petitioner that State Government be directed to upload case diary of each and every criminal case on the website of police or same may be displayed online is liable to be rejected because of mandate of Section 172 Cr.P.C., 1973.