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2018 DIGILAW 632 (AP)

A. Padmaja v. State of Telangana

2018-08-28

M.SATYANARAYANA MURTHY

body2018
ORDER : M. Satyanarayana Murthy, J. This petition is filed under section 482 of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.') by the petitioner-accused to quash the proceedings against her in C.C.No. 119 of 2017 on the file of the Court of II Additional Judicial I Class Magistrate at Mancherial, Adilabad District (for short, 'the Court below'), registered for the offence punishable under Section 304-A of IPC. 2. The petitioner is a doctor. Respondent No. 2 lodged a written report with police on 0101-2015 against the petitioner alleging that on 29-12-2014 at about 7 p.m., he took his pregnant wife to Government Hospital, Mancherial; that the petitioner examined his wife and advised them to come to hospital on next day morning with scanning report; that on 30-12-2014 between 9 and 10 hours, they again came to hospital along with scanning report; that the petitioner admitted her in hospital and informed that an operation will be conducted tomorrow but on 31-12-2014, the petitioner did not conduct operation; that on 01-01-2015 at morning hours as his wife suffered labour pains, he took her to hospital and that an operation was done but due to delay in performing operation by the petitioner from 31-12-2014 to 01-01-2015, the child was found dead in the womb itself. On the strength of the report, the police registered a case in crime No. 1 of 2015 for the offence punishable under Section 304-A of IPC, issued FIR and took up investigation. During the course of investigation, the police examined as many as 12 witnesses, recorded their statements under section 161 (3) of Cr.P.C., 1973 and filed charge sheet having concluded that there is prima facie material to proceed against the petitioner for the offence referred supra. 3. The present petition is filed on the ground that the petitioner was on leave on 31-122014 as she has to appear before the Court below to get the bailable warrant issued against her recalled and as such, no negligence is attributable to the petitioner and therefore she is not liable to be prosecuted for the offence punishable under Section 304-A of IPC. It is also contended that the charge sheet is filed contrary to the guidelines issued by the Apex Court in Jacob Mathew v. State of Punjab and another (2005) 6 SCC 1 and in the absence of any expert opinion, the prosecution cannot be continued and prayed to quash the proceedings. 4. At the hearing, learned counsel for the petitioner while reiterating the contentions urged in the petition would draw the attention of this Court to the order passed by the Court below on 31-12-2014 recalling the warrant issued against the petitioner and would also draw the attention of this Court to the guidelines issued by the Apex Court in Jacob Mathew (1st supra) and requested to quash the proceedings. 5. Though notice to respondent No. 2 is served, none appeared for him. 6. As seen from the material on record, the petitioner is working as doctor and she has to perform a surgery to the wife of respondent No. 2 on 31-12-2014 but she went on leave on 31-12-2014 as a bailable warrant was issued against her by the Court below in connection with C.C.No. 446 of 2014. Thus, it is evident that the petitioner was on leave on 31-12-2014 and attended the Court below on the said date. The petitioner, being a Government doctor, is entitled to avail leave subject to her requirement and availability and failure to attend hospital on a particular date i.e. on 31-12-2014 cannot be said to be negligence. Negligence means failure to take reasonable care as an ordinary prudent man and mere negligence is not sufficient and there must be culpable negligence to constitute the offence punishable under Section 304-A of IPC as held by the Apex Court in Mohammed Aynuddin @ Miyam v. State of Andhra Pradesh (2000) 7 SCC 72 (vide G.Kumar v. State of A.P., rep. by Public Prosecutor 2009 (3) ALT (Crl.) 20 (AP) , K.Nagaraju v. State of A.P. 2009 (2) ALT (Crl.) 298 (AP) and K. Rajayya v. State of A.P., rep. by Public Prosecutor 2010 (3) ALT (Crl.) 169 (AP). Here in this case, it is difficult to conclude that there was culpable negligence or conscious or deliberate avoidance of duty knowing the ill consequences that flow from such absence. by Public Prosecutor 2010 (3) ALT (Crl.) 169 (AP). Here in this case, it is difficult to conclude that there was culpable negligence or conscious or deliberate avoidance of duty knowing the ill consequences that flow from such absence. In the absence of any specific allegation that the petitioner wantonly or consciously avoided to attend the hospital on a particular day, it is difficult to hold that the petitioner is guilty of culpable negligence. 7. In any view of the matter, the wife of respondent No. 2 was admitted in hospital but operation could not be performed due to availment of leave by the petitioner. Therefore, the above case was registered for negligence on the part of the petitioner i.e. medical negligence. As there are no specific guidelines to prosecute medical professionals for the offence punishable under Section 304-A of IPC, the Apex Court in Jacob Mathew's case (1st supra) laid down certain guidelines to be followed to prosecute accused doctor for the offence of negligence i.e. professional negligence. In para No. 52 of the above judgment, the Apex Court made it clear that 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 test laid down in Bolam v. Friern Hospital Management Committee (1957) 1 WLR 582 to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner. 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. A doctor accused of rashness or negligence, may not be arrested in a routine manner. 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. Thus, from the law declared by the Apex Court in Jacob Mathew's case (1st supra), the main requirement is to obtain an opinion from a competent doctor as to the negligence or rashness attributed to the petitioner and the opinion must be impartial and unbiased. In the case on hand, no such independent opinion from a competent doctor which is unbiased and impartial is obtained but basing on the post mortem report, respondent No. 1 launched prosecution against the petitioner attributing rashness or negligence to her. The statements recorded by the police during investigation with regard to culpable rashness or negligence do not disclose that the petitioner consciously or deliberately applied for leave and attended the Court below to get the bailable warrant recalled. Availing casual leave by a government servant cannot be said to be negligence or rashness. Even according to the doctor who gave final opinion, the cause of death of was due to asphyxia due to uterus rupture. This cause is not attributable to the petitioner as no other independent opinion from a competent doctor is obtained as to the cause of death of the child. At best, the remedy available to respondent No. 2 is elsewhere and not in a criminal Court since the material collected and placed before the Court does not disclose that the petitioner is guilty of culpable negligence or rashness. Hence, I find that it is a fit case to exercise power under section 482 of Cr.P.C., 1973 to quash the proceedings against the petitioner. 8. The criminal petition is accordingly allowed quashing the proceedings against the petitioner-accused in C.C.No. 119 of 2017 on the file of the Court of II Additional Judicial I Class Magistrate at Mancherial. Pending miscellaneous petitions, if any, in this criminal petition shall stand closed in consequence. 9. Criminal petition is accordingly allowed quashing the proceeding.