High Court of Chhattisgarh
Case Details
1 Digitally signed by INDRAJEET SAHU Date: 2025.02.05 17:58:51 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 223 of 2022 NAFR 1 - Dr. Arun Madharia S/o Late Dr. Ankat Ram Madharia, Aged About 60 Years Orthopedic Surgeon, Gayatri Hospital, Om Parisar, Durg, District Durg Chhattisgarh. 2 - Dr. Kalyan Sahu, S/o Late Shri P.S. Sahu, aged about 64 years, Gayatri Hospital, Om Parisar, Durg, District Durg, Chhattisgarh. versus ... Petitioner(s) 1 - Yuvraj Singh S/o Amarnath Singh Aged About 70 Years R/o 5-F Railway Avenue, Sector Vi, Bhilai, Tahsil and District Durg Chhattisgarh. ... Respondent(s) For Petitioner For Respondent : : Shri Shalvik Tiwari, Advocate. Shri Uttam Pandey and Shri Vikas Bajpai, Advocates.
Decision
Order reserved on 18.10.2024 Order delivered on 05.02.2025 1. The present Criminal Misc. Petition under Section 482 CrPC has been filed by the petitioner against the impugned order dated 22.12.2021 passed by the Judicial Magistrate First Class, Durg (in short, JMFC) in Criminal Case No. C/1390/2012 whereby the preliminary objection filed by the petitioners for quashing of criminal proceeding have been dismissed. 2. Brief facts of the case are that, the petitioners are medical doctors who 2 are accused persons in Criminal Case No.C/1390/2012 pending before the JMFC, Durg for the offence under Section 338 IPC. The allegation against the petitioners are that, the petitioners are Orthopedician and running Gayatri Hospital at Durg. The complainant is a Police Constable. On 09.02.1995 the complainant met with an accident with his departmental Jeep. He was immediately taken to Dr. ML Maheshwari’s hospital where he was given primary treatment and found that he received spiral fracture. On 10.02.1995 he was shifted to Gayatri Hospital Durg where he remained hospitalized up to 25.02.1995. The complainant underwent various surgeries of his injuries and caused damage to his peroneal nerve and his leg was damaged. The complainant was known patient of diabetes despite that he was continuously kept in glucose by which he further suffered by compartmental syndrome. Subsequently, the complainant was shifted to Sector-9 Hospital, Bhilai. On 13.07.1995 a legal notice was also served upon the petitioners and claimed compensation by the complainant and ultimately he filed a consumer case before the District Consumer Forum, Durg and also filed the present complaint case for the offence under Sections 191, 192,193, 326, 500 and 34 IPC. 3. The said complaint case was registered by the trial court as Criminal Case No.1254 of 1998 for the offence under Sections 191, 192,193,326 and 500 read with Section 34 IPC. The said registration of complaint case by the trial court was challenged by the petitioners by filing petition under Section 482 of CrPC before the High Court of Madhya Pradesh (as it then was) by filing MCrC No.3920 of 1998. The said MCrC came up for hearing before the coordinate Bench of this 3 Court on 21.01.2011 and after hearing the parties, the coordinate Bench of this court has passed the order on 21.01.2011; quashed the registration of criminal case for the offence under Sections 191,192,193, 326 and 500 read with Section 34 IPC, however, it was observed that prima facie commission of offence under Section 338 IPC is made out and a criminal case with respect to section 338 IPC was directed to be continued against the petitioners. 4. During pendency of criminal case against the petitioners, they raised preliminary objection regarding maintainability of the complaint case on the ground that the guidelines issued by the Supreme Court in various judgments have not been followed before registration of complaint case against the petitioners who are qualified medical Doctors and no other opinion was obtained from any other medical institution or qualified Doctors. Therefore, the petitioners may be discharged from the offence and criminal case may be quashed. The said objection raised by the petitioners was dismissed by the trial court vide its order dated 22.12.2021 which is under challenge in the present petition. 5. Learned counsel for the petitioners would submit that although the co- ordinate Bench of this court has observed in its order dated 21.01.2011 passed in MCrC No.3920 of 1998 that offence under Section 338 IPC is prima facie made out, yet prosecution of petitioners for the said offence for causing grievous hurt by act of endangering life cannot be continued without following the procedure and guidelines laid down by the Supreme Court in Jacob Mathew Vs. State of Punjab, 2005(6)SCC1 and Kusum Sharma Vs. Batra Hospital & Medicine Research Centre, (2010) 3 SCC 480. Further, the opinion of other competent medical Doctors have not been obtained to ascertain the 4 liability of the petitioners. He would further submit that though the offence is prima facie made out as observed by the co-ordinate Bench of this court court, but for prosecuting the petitioner, the necessary procedure has to be followed. In absence of which, they cannot be prosecuted and they may be discharged from the said offence also. 6. On the other hand, the counsel for the respondent/complainant opposes the submissions made by the counsel for the petitioners and would submit that the order dated 21.01.2011 has not been challenged by the petitioners before any higher forum and as such the same attains its finality. In the complaint case filed before the District Consumer Forum, Durg, compensation was awarded in favour of the complainant by the Consumer Forum after holding that petitioners have caused injury to the complainant. The said order was upheld upto National Consumer Dispute Redressal Commission Delhi. Therefore, prima facie involvement of the petitioner in the offence in question has been proved for which the complainant is prosecuting them in his complaint case. Therefore, there is no merit in the submissions made by the counsel for the petitioners and the petition is liable to be dismissed. 7. I have heard the counsel for the parties and perused the material available in the case. 8. In Jacob Mathew’s case, dealing with the issue of medical negligence, the Hon. Supreme Court has laid down certain precautions to be taken while summoning the doctor, and held as under: “48.(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 5 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. (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. 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 prefer 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. 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 W.P. (Cr.)No.146/2016 impartial and unbiased opinion applying the Bolam11 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.” 9. In the matter of Bijoy Sinha Roy (dead) by Legal Representative Vs. Biswanath Das and others, (2018) 13 SCC 224, the Hon. Supreme 6 Court has held that safeguards were necessary against initiation of criminal proceedings against medical professionals and till such safeguards are incorporated by the State, direction of this Court will operate to the effect that the private complaint will not be entertained unless credible opinion of another competent doctor in support of the charge of rashness was produced. 10. Further, in Martin F. D'Souza v. Mohd. Ishfaq, (2009) 3 SCC 1, the Hon. Supreme Court has observed that uncalled for proceedings of medical negligence can have adverse impact on access to health and held that while action for negligence can certainly be maintained, there should be no harassment of doctors merely because their treatment was unsuccessful. This view has subsequently been followed in Kusum Sharma’s case wherein in paragraph 78 to 80, the Supreme Court has held that: “78. It is a matter of common knowledge that after happening of some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. A professional deserves total protection. The Indian Penal Code has taken care to ensure that people who act in good faith should not be punished. Sections 88, 92 and 370 of the Indian Penal Code give adequate protection to the professional and particularly medical professionals. 79. The Privy Council in John Oni Akerele v. The King AIR 1943 PC 72 dealt with a case where a doctor was accused of manslaughter, reckless and negligent act and he was convicted. His conviction was set aside by the House of Lords and it was held thus:- (i) That a doctor is not criminally responsible for a patient's death unless his negligence or incompetence went beyond a mere matter of compensation between subjects and showed such disregard for life and safety of others as to amount to a crime against the State.; (ii) That the degree of negligence required is that it should be gross, and that neither a jury nor a court can transform negligence of a lesser degree into gross negligence merely by giving it that appellation.... There is a difference in kind between the negligence which gives a right to compensation and the negligence which is a crime. 7 (iii) It is impossible to define culpable or criminal negligence, and it is not possible to make the distinction between actionable negligence and criminal negligence intelligible, except by means of illustrations drawn from actual judicial opinion....The most favourable view of the conduct of an accused medical man has to be taken, for it would be most fatal to the efficiency of the medical profession if no one could administer medicine without a halter round his neck." (emphasis supplied) In the said case, their Lordships refused to accept the view that criminal negligence was proved merely because a number of persons were made gravely ill after receiving an injection of Sobita from the appellant coupled with a finding that a high degree of care was not exercised. Their Lordships also refused to agree with the thought that merely because too strong a mixture was dispensed once and a number of persons were made gravely ill, a criminal degree of negligence was proved. 80. This court in Kurban Hussein Mohammedali Rangawalla v. State of Maharashtra (1965) 2 SCR 622, while dealing with Section 304A of IPC, the following statement of law by Sir Lawrence Jenkins in Emperor v. Omkar Rampratap (1902) 4 Bom LR 679, was cited with approval:- "To impose criminal liability under Section 304A, 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." 11. This view was subsequently been followed in Jayshree Ujwal Ingole Vs. State of Maharashtra and another, (2017) 14 SCC 571 and Meenakshi Jain Vs. State and another, 2012 SCC OnLine Del 3334. 12. From the aforesaid judgments, it is quite vivid that basic and underlying principle of these judgments is that every careless act of a 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. It has been emphasized by the Court that mere error of judgment or an accident does not involve criminal liability or mere inadvertence or some degree of want of adequate care would not create criminal liability though it 8 may create civil liability. In Martin F. D'Souza (supra), it was further held by the Supreme Court as under: - “106. We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer Fora (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, specialized 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 Mathews case, otherwise the policemen will themselves have to face legal action.” 13. Reverting to the facts of the present case though the petitioners have challenged the criminal proceeding and prayed for quashment of the same by filing a petition under Section 482 CrPC in MCrC No.3920 of 1998 and vide order dated 21.01.2011 the coordinate Bench of this court has held that prima facie commission of offence under Section 338 IPC is made out and further directed to continue criminal proceeding under Section 338 IPC, but the necessary ingredients as held by the Supreme Court in Jacob Mathew (Supra), Martin F. D'Souza (supra), Kusum Sharma (Supra) and Bijoy Sinha Roy (Supra) are missing. Though the order dated 21.01.2011 has not been challenged by the petitioners before any higher forum, but the fact remains that before proceeding against the medical practitioners for their alleged medical negligence, the procedure laid down in the aforementioned cases by the Hon. Supreme Court should have been followed. Before proceeding in a criminal case, an expert opinion from a qualified doctor with equal force while registering the case against 9 the medical professionals should have been called by the trial court. The principles of law laid down by the Hon. Supreme Court in case of Jacob Mathew (supra), Martin F. D'Souza (supra), Bijoy Sinha (Supra) and Jayshree Ujwal Ingole (Supra) are mandatory and has to be followed before taking action against the medical professionals by obtaining medical opinion from expert is sine qua non for taking action against the medical practitioners. 14. Further, the act of the petitioners, if any, may have civil liability against them, but certainly before imposing criminal liability upon them, the necessary procedure has to be followed. For their civil liability, the order of compensation has already been passed by the District Consumer Redressal Forum, Durg which has been upheld up to the National Consumer Dispute Redressal Commission, New Delhi, but for criminal liability against medical practitioners certainly the petitioners cannot be prosecuted without following due process of law. 15. In the matter of Krishna Lal Chawla and Others Vs. State of Uttar Pradesh and Another, 2021 (5)SCC 435, the Hon. Supreme Court has considered that summoning of an accused in a criminal case is a serious matter and criminal law cannot be said to be motion as a matter of course. In paragraph 18 of its judgment it was observed as under: “18. The aforesaid powers bestowed on the Magistrate have grave repercussions on individual citizens’ life and liberty. Thus, these powers also confer great responsibility on the shoulders of the Magistrate – and must be exercised with great caution, and after suitable judicial application of mind. Observations in a similar vein were made by this Court in Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749: “28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his 10 mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” (emphasis supplied). This Court, thus, clearly emphasised that the power to issue a summoning order is a matter of grave importance, and that the Magistrate must only allow criminal law to take its course after satisfying himself that there is a real case to be made.” 16. Accordingly, this court is of the opinion that continuance of the criminal proceeding of Criminal Case No.C/1390/2012 against the petitioners for the offence under Section 338 IPC for causing medical negligence suffers from material irregularly and illegality that too without following the guidelines laid down by the Supreme Court in the aforementioned cases. 17. Therefore, the present CrMP is allowed and proceeding of said Criminal Case No.C/1390/2012 (Yuvraj Singh Vs. Dr. Arun Madharia & Another) pending before the JMFC, Durg, against the petitioners, is hereby quashed. No order asto costs. Sd/- (Ravindra Kumar Agrawal) Judge inder