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2023 DIGILAW 1115 (JHR)

Gopinath Sahu v. State of Jharkhand

2023-09-05

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : Heard Mr. Bibhash Sinha, learned counsel for the petitioner, Mr. A.K. Kashyap, learned senior counsel along with Mrs. Chaitali Chatterjee Sinha, learned counsel for respondent no.2 and Mr. Piyush Anand, learned counsel for the State. 2. This petition has been filed for quashing the entire criminal proceeding including the order dated 05.10.2016, whereby cognizance for offence under Section 304A of the Indian Penal Code has been taken against the petitioner in connection with C.P. Case No.379/2015, pending in the court of the learned Judicial Magistrate, 1st Class, Bokaro. 3. I.A. No.11562 of 2022 has been filed, whereby, subsequent development has been sought to be challenged by way of amendment as substance has been explained to the petitioner vide order dated 25.08.2022. 4. Mr. Bibhash Sinha, learned counsel for the petitioner submits that this I.A. may kindly be allowed as there was stay of proceeding, which was being opposed by Mr. A.K. Kashyap, learned senior counsel for respondent no.2. Mr. Kashyap submits that substance has already been explained and in view of that at this belated stage, this I.A. may not be allowed. 5. In view of the above submissions of the learned counsel for the parties, this Court finds that the petitioner has moved before this Court and vide order dated 03.03.2017, the stay of further proceedings was granted in favour of the petitioner and during the pendency of the petition, the said order of explanation of substance has been passed and to avoid multiplicity of the litigation, the prayer made in the said I.A. is allowed. 6. Accordingly, I.A. No. 11562 of 2022 is disposed of. 7. Let this I.A. be treated as part of the present writ petition. 8. Now, the order dated 25.08.2022 is also under challenge in this petition. 9. The complaint case was filed by the complainant-respondent no.2 alleging therein that the wife of the complainant was suffering from weakness, since January, 2014 for which she has got treated herself by the doctor of Bokaro General Hospital who has prescribed her medicines, but later on, some absus was developed in the Filarial effected right leg of the wife of the complainant. It was further alleged that she was admitted in Bokaro General Hospital on 18.03.2014 and from blood report dated 19.03.2014, it was found that hemoglobin (H.B.) level was 4.7%. It was further alleged that she was admitted in Bokaro General Hospital on 18.03.2014 and from blood report dated 19.03.2014, it was found that hemoglobin (H.B.) level was 4.7%. The complainant further alleged that though the blood transfusion was required, but the treating doctors have administered sline to his wife and they did not take care towards her condition. It was also alleged that once the H.B. Level was found below 8%, blood transfusion was required, but due to negligence committed by the treating doctor, his wife died on 22.03.2014. The complainant lastly alleged that the treating doctors have intentionally killed his wife and, therefore, is liable for offence under Section 304A of the Indian Penal Code. The complainant has also lodged claim before the District Consumer Forum, Bokaro i.e. C.C. No.77/2014. 10. Mr. Bibhash Sinha, learned counsel for the petitioner submits that the petitioner was posted as Unit In-charge of Surgery in Bokaro General Hospital and he is a qualified medical practitioner having long unblemished service. He further submits that the complainant's wife Late Shreemati Devi was admitted in Bokaro General Hospital on 18.03.2014 with a provisional diagnosis of filarial lower limb with hypertension. He further submits that the deceased was known case of filarial left limb and hypertension with obesity for the last eight years and she was getting treatment for this. He submits that as a routine check-up, blood investigation e.g. HB, TLC, DLC, Blood Urea, Creatinine, Sodium, Potassium were conducted. The patient was being treated by the said Unit and a team of doctors was looking after the patient and in spite of their best efforts, the life of the wife of respondent no.2 was not saved. He further submits that the learned court has taken cognizance against the petitioner only, whereas, there are four named doctors of the said hospital. He also submits that nothing has come in the solemn affirmation as well as in the complaint petition about the role played by this petitioner, who was only Unit In-charge of the said hospital. He further submits that opposite party no.2 has also moved before the District Consumer Forum, Bokaro for a claim and compensation and even considering the opinion of the CMO, Bokaro, the said petition has been dismissed by the Forum. He submits that this is complete abuse of process of law. He further submits that opposite party no.2 has also moved before the District Consumer Forum, Bokaro for a claim and compensation and even considering the opinion of the CMO, Bokaro, the said petition has been dismissed by the Forum. He submits that this is complete abuse of process of law. He further submits that the concept of vicarious liability is alien to the penal provisions of the Indian Penal Code and, therefore, even though assumed, though specifically denied, that there is some negligence on the part of the treating doctors, the petitioner alone cannot be held liable for criminal prosecution. On these grounds, he submits that the entire criminal proceedings may kindly be quashed. 11. On the other hand, Mr. A.K. Kashyap, learned senior counsel appearing for respondent no.2 submits that now the trial is under progress and substance has already been explained to the petitioner and one witness has also been examined and at this stage, this Court may not interfere with the entire criminal proceedings. He further submits that the opinion of the CMO is there and in view of that background, the case against the doctor is made out and the learned court has, therefore, rightly taken cognizance against the petitioner. He also submits that the ingredient of Section 304A of the Indian Penal Code is made out against the petitioner and, therefore, the learned court has rightly taken cognizance. 12. Mr. Piyush Anand, learned counsel for the State submits that looking into the solemn affirmation and enquiry witnesses, the learned court has taken cognizance. 13. In view of the above submissions of the learned counsel for the parties, the Court has gone through the materials on record including the complaint petition as well as the order taking cognizance and subsequent development, which has been brought before the Court by way of filing I.A. No.11562 of 2022, which has been allowed today and after hearing the learned counsel for the parties, the Court finds that in the complaint petition, there are four named doctors, however, the learned court has taken cognizance against the petitioner only. 14. The petitioner was Unit In-charge of Surgery in Bokaro General Hospital. In the solemn affirmation and complaint petition, there is no direct allegation against the petitioner that due to his fault and not properly doing the treatment by the present petitioner, the said death has occurred. 15. 14. The petitioner was Unit In-charge of Surgery in Bokaro General Hospital. In the solemn affirmation and complaint petition, there is no direct allegation against the petitioner that due to his fault and not properly doing the treatment by the present petitioner, the said death has occurred. 15. The Court further finds that the CMO, Bokaro has opined that the sudden death in a clinically stable patient leads to suspicion of inappropriate management. Thus in the said report also, there is no clear cut finding about the role played by this petitioner and how negligence has been committed by this petitioner in treating the wife of respondent no.2. This is a vague opinion and there is no specific finding about the negligent act done by this petitioner. Further, the case is filed against four doctors, whereas, the learned court has taken cognizance against the petitioner only. 16. The Court further finds that the learned District Consumer Forum, Bokaro has considered the opinion of CMO and has rightly concluded that the expert opinion before it, is not specific and the same has not been supported by any medical guideline, which is taken as a proper way of treatment. However, this opinion of the Court is not coming on any finding as it has been informed that the complainant has already moved before the State Commission by way of filing an appeal, but the fact remains that there is nothing specific against the petitioner. 17. In a case of medical negligence, the preliminary enquiry with regard to said negligence is a must as has been held by the Hon’ble Supreme Court in Jacob Mathew v. State of Punjab; [ (2005) 6 SCC 1 ]. Paragraph nos. 48, 49, 50, 51 and 52 of the said judgment are quoted hereinbelow: “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 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. 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. 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. (4) The test for determining medical negligence as laid down in Bolam case, 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. (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. 49. In view of the principles laid down hereinabove and the preceding discussion, we agree with the principles of law laid down in Dr. Suresh Gupta case and reaffirm the same. Ex abundanti cautela, we clarify that what we are affirming are the legal principles laid down and the law as stated in Dr. Suresh Gupta case. We may not be understood as having expressed any opinion on the question whether on the facts of that case the accused could or could not have been held guilty of criminal negligence as that question is not before us. We also approve of the passage from Errors, Medicine and the Law by Alan Merry and Alexander McCall Smith which has been cited with approval in Dr. Suresh Gupta case1 (noted vide para 27 of the Report). Guidelines — Re: prosecuting medical professionals 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 the 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 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 to his reputation cannot be compensated by any standards. 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. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered to his reputation cannot be compensated by any standards. 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 emphasise 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 prefer recourse to criminal process as a tool for pressurising the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against. 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. 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 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.” 18. The said judgment has been followed in series of the judgments by different High Courts including the Jharkhand High Court. The said judgment has been followed in series of the judgments by different High Courts including the Jharkhand High Court. A reference may be made to the judgment passed by Bombay High Court (Nagpur Bench) in Bhushan v. State of Maharashtra and others; MANU/MH/0777/2021. Further reference may be made to the judgment passed by this Court in Biswajith Bandopadyay and others v. The State of Jharkhand and others; MANU/JH/1662/2019 and further in Martin F. D'Souza v. Mohd. Ishfaq; [ (2009) 3 SCC 1 ]. Paragraph no.106 of the said judgment is quoted hereinbelow: “106. We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer For a (whether District, State or National) or by the criminal court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or the criminal court should first refer the matter to a competent doctor or committee of doctors, specialised in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the doctor/hospital concerned. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew case, otherwise the policemen will themselves have to face legal action.” 19. In view of the above facts and looking into the judgment of the Hon'ble Supreme Court, it is crystal 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. 20. Further, vicarious liability cannot be fastened upon the petitioner in view of the fact that in the solemn affirmation and in the complaint petition, there is no direct allegation against the petitioner. 21. 20. Further, vicarious liability cannot be fastened upon the petitioner in view of the fact that in the solemn affirmation and in the complaint petition, there is no direct allegation against the petitioner. 21. Further, a surgeon knowing that a particular operation is likely to cause the death of any patient, who suffers under the painful complaint, but not intending to cause patient's death, and intending in good faith, patient's benefit, performs operation on patient with patient's consent, the doctor has committed no offence. For ready reference, Section 88 of the Indian Penal Code is quoted herein below: “88. Act not intended to cause death, done by consent in good faith for person's benefit.— Nothing, which is not intented to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm.” 22. The argument of Mr. Kashyap, learned senior counsel appearing for respondent no.2 with regard to Section 304A of the Indian Penal Code is not being accepted by this Court in view of the fact that for making the case under Section 304A of the Indian Penal Code, the offence is required to be committed either by a rashness or negligent act, which is lacking in the case in hand. A reference may be made to the judgment passed by the Hon'ble Supreme Court in S.N. Hussain v. State of A.P.; ( AIR 1972 SC 685 ). The argument of Mr. Kashyap, learned senior counsel with regard to further development in the trial, is also not being accepted by this Court. It is well settled that the High Court under Article 226 of the Constitution of India or Section 482 Cr.P.C, at any stage, can quash the entire criminal proceedings, if the case is made out. This aspect of the matter has been recently considered by the Hon'ble Supreme Court in Abhishek v. State of Madhya Pradesh; (2023 SCC OnLine SC 1083). This aspect of the matter has been recently considered by the Hon'ble Supreme Court in Abhishek v. State of Madhya Pradesh; (2023 SCC OnLine SC 1083). Paragraphs 11 and 12 of the said judgment are quoted hereinbelow: “11.This being the factual backdrop, we may note at the very outset that the contention that the appellants' quash petition against the FIR was liable to be dismissed, in any event, as the chargesheet in relation thereto was submitted before the Court and taken on file, needs mention only to be rejected. It is well settled that the High Court would continue to have the power to entertain and act upon a petition filed under Section 482 Cr. P.C. to quash the FIR even when a chargesheet is filed by the police during the pendency of such petition [See Joseph Salvaraj A. v. State of Gujarat ( (2011) 7 SCC 59 )]. This principle was reiterated in Anand Kumar Mohatta v. State (NCT of Delhi), Department of Home [ (2019) 11 SCC 706 ]. This issue, therefore, needs no further elucidation on our part. 12. The contours of the power to quash criminal proceedings under Section 482 Cr. P.C. are well defined. In V. Ravi Kumar v. State represented by Inspector of Police, District Crime Branch, Salem, Tamil Nadu [ (2019) 14 SCC 568 ], this Court affirmed that where an accused seeks quashing of the FIR, invoking the inherent jurisdiction of the High Court, it is wholly impermissible for the High Court to enter into the factual arena to adjudge the correctness of the allegations in the complaint. In Neeharika Infrastructure (P). Ltd. v. State of Maharashtra [Criminal Appeal No. 330 of 2021, decided on 13.04.2021], a 3-Judge Bench of this Court elaborately considered the scope and extent of the power under Section 482 Cr.P.C. It was observed that the power of quashing should be exercised sparingly, with circumspection and in the rarest of rare cases, such standard not being confused with the norm formulated in the context of the death penalty. It was further observed that while examining the FIR/complaint, quashing of which is sought, the Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made therein, but if the Court thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, and more particularly, the parameters laid down by this Court in R.P. Kapurv. State of Punjab ( AIR 1960 SC 866 ) and State of Haryana v. Bhajan Lal [(1992) Supp (1) SCC 335], the Court would have jurisdiction to quash the FIR/complaint.” 23. In view of the above facts, reasons and analysis, the Court finds that it is a fit case to exercise power under Article 226 of the Constitution of India. Accordingly, the entire criminal proceedings including the order dated 05.10.2016 and the order dated 25.08.2022 passed in connection with C.P. Case No.379/2015, pending in the court of the learned Judicial Magistrate, 1st Class, Bokaro are quashed. 24. It is made clear that if any civil proceeding is pending, that will be decided on its own merit in accordance with law, without prejudiced to this order. 25. This petition is, therefore, allowed and disposed of. 26. Interim order, if any granted by this Court, stands vacated.