High Court
Legal Reasoning
ABA 182/256lh-lh-Vh-Ogh- QwVste/;s rs fnY;kps fnlwu ;sr ukgh- rlsp Lik;uyvusLFksf”k;k uarj lh-lh-Vh-Ogh- QqVst e/;s vkWijs”ku njE;ku 3batsD”ku fnY;kps fnlwu ;srs T;kcn~ny dkxni=kkar mYys[kfnlwu ;sr ukgh- dkxni=kaps voyksdu dsys vlrk R;kr fyfgysY;kekfgrhuqlkj fnY;k xsysY;k Hkwy ckcrps Mkslsl ps izek.k fu;ekuqlkjikGys vlY;kps fnlwu ;srs- iz”u 5½----------iz”u 7½vkWijs”ku pkyq vlrkuk HkqyrK ;kauh iqUgk ckGkP;kgkrkojhy V~;qce/;s nqljs batsD”ku fnY;kps lh-lh-Vh-Ogh- QqVst e/;sfnlqu ;srs] batsD”ku d”kkps gksrs o rs ns.ks xjtsps gksrs dk \mRrj % 7½lh-lh-Vh-Ogh- e/;s vkWijs”kuP;k e/;s HkqyrK ;kauh thbatsD”ku fnysyh vkgsr] R;kph uksan isij e/;s fnlwu ;sr ukgh] R;keqGs;koj vfHkizk; ns.ks “kD; ukgh-iz”u 8½----------iz”u 11½ran:Lr ckGkyk lsQ~Vhflfe;k gks.;kps dkj.k dk; \mRrj % 11½ dks.krhgh “kL=fdz;k vFkok Invasive InterventionseqGs :X.kkyk lsQ~Vhflfe;k gks.;kpk /kksdk laHkorks-”13.From the answers given by the Committee of Doctors in respect ofabove questions, prima facie it is apparent that the death of the child haspossibly occurred on account of brain hypoxia due to bradycardia andhypotension and Cardiac arrest. CPR was given to the child in O.T. and brainhypoxia has occurred in O.T. as the brain did not receive sufficient oxygensupply for prolonged period. Thereafter, the child was kept on ventilatorsupport in PICU from 26.4.2024 till 6.5.2024 as is reflected from the clinicalnotes. From the record, it appears that no clear indication of condition ofthe child was given to the parents or to the family members of the child. 14.It is to be noticed that in the instant case, prima facie mishap has ABA 182/257happened in the O.T. on 26.4.2024. Medical/clinical notes of various doctorsare placed before this Court from which it appears that the patient was onthe ventilator every day, from the date of surgery till his demise i.e. from26.4.2024 to 6.5.2024. As per the statement made by the applicant thedeath of child has occurred possibly due to complications arisen out ofanesthesia or possibly due to co-morbid conditions or alternatively would bevarious reasons post operation.15.Considering the material on record i.e. the report of the committee ofthe doctors this Court is of the view that the mishap has occurred onaccount of lapses on the part of anesthetist/surgeon. The CCTV footagedoes not match with the clinical notes and thus, it is clear that there hasbeen some error in the O.T. which has resulted in mishap and that theoperating doctors thereafter have tried to cover up the situation and has notgiven clear information to the relatives of the patient and has continued tokeep the relatives of the child in dark about the prognosis and possibleoutcome and thereafter, the hospital has continued to charge for thetreatment of the patent till his demise.16.There are only two occasions when it is mentioned in the medicalpapers that condition of the patient was explained to the relatives. Clinicalnotes of Dr. Pradip Aghav indicates that on 27.4.2024 at 9 p.m. patient’sgeneral and present condition is explained in detail to the relatives andprobable outcome is also discussed in detail, danger signs and risks(probable) also discussed and explained to relatives and current and furthertreatment plan is also explained to relatives. Thereafter, on 1.5.2024 at11.30 a.m. in the clinical notes of Dr. Akshay Wagh, it is mentioned asunder :- ABA 182/258“Central line consentvkEgkyk vkeP;k ckGkP;k rC;rhfo’k;h loZ ekfgrh fnyh vlwuiq<hy mipkjklkBh ckGkP;k ekusP;k vein e/kqu lwbZ Vkd.ksxjtsps vkgs- R;kps Qk;ns o uqdlku vkEgkyk letkowu lkafxrysvkgs-rjh vkEgh ijokuxh nsr vkgksr-”Thereafter at 8 a.m. on 2.5.2024 it is mentioned in the clinical notes asunder :-“Poor prognosis consenteyk@ vkEgkyk vkeP;k ckGkP;k rC;srhfo’k;h MkWDVjkauh lfoLrjdYiuk fnysyh vkgs- l/;k ckGkph eTtklaLFkk (CNI) eq=fiaM(kidney) ;kaph dk;Ziz.kkyh vR;ar deh >kyh vkgs- rlsp ckGkpkjDrnkc gk vR;ar deh >kyk vlqu lq: vlysY;k mipkjkyk“kjhj izfrlkn nsr ukgh ;kph dYiuk eyk MkWDVjkauh fnyh- v”kkojhy ckcheqGs ckGkph rC;sr gh vR;ar xaHkhj vlwu ckGkP;kftokyk dqBY;kgh {k.kh /kksdk gksm “kdrks] ckG nxkm “kdrs ;kphtk.kho eyk vkgs- rjh eh iq<hy mipkjklkBh lger vkgs oftokyk gks.kk&;k laHkkO; /kksD;kl voxr vkgs-”However, in the above noted ‘poor prognosis consent’ note dated 2.5.2025there is no signature of relative of the child. The informant has stated thatthe doctors have clearly not stated anything about the child’s condition tohim or his family members. However, it was always mentioned by thedoctors that child is showing improvement and that the child will take somemore time to recover from anesthesia.17.In the instant case, it is to be noted that CCTV footage of O.T. isavailable. However, CCTV footage of the post operation of the child ofintensive care unit (ICU) for the period from 26.4.2024 to 5.3.2024 is notavailable although for earlier and later period it is stated to be available.The clinical notes indicating intravenous injection (I.V.) being given to the
Arguments
ABA 182/251IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADANTICIPATORY BAIL APPLICATION NO. 182 OF 2025WITHCRIMINAL APPLICATION NO. 437 OF 2025Arjun Apparao Pawar,Age 40 yrs., Occu. Doctor,R/o. E 31/32, Millenium Park Road,Chikhalthana Industrial Area,Chh. Sambhajinagar.….ApplicantVs.The State of MaharashtraThrough jPolice Inspector,Pundlik Nagar Police Station,Vide C.R. No. I-498/2024….RespondentMr. Himanshu S. Gavit and Mr. Y.D. Ugale, Advocates for applicants.Mr. A.B. Girase, PP a/w. Ms. Neha B. Kamble, APP for respondent/State.Mr. S.S. Thombre and Mr. S.R. Andhale, Advocate for assisting APP.CORAM : ARUN R. PEDNEKER, J.DATE : 13.03.2025ORDER :1.Criminal Application No. 437/2025 is filed for assisting the APP. Thesaid application is allowed and Mr. S.S. Thombre and Mr. S.R. Andhale,learned advocates are allowed to assist APP.2.Heard Mr. H.S. Gavit and Mr. Y.D. Ugale, learned counsel for theapplicant, Mr. A.B. Girase, learned Public Prosecutor a/w. Ms. Neha B.Kamble, learned APP for the respondent-State and Mr. S.S. Thombre withMr. S.R. Andhale, learned advocates assisting APP. 3.The applicant is apprehending arrest in connection with Crime No.498/2024 dated 27.11.2024 registered with Pundlik Nagar Police Station,Chh. Sambhajinagar for the offences punishable under sections 201, 304-A,406 r/w. 34 of I.P.C. 4.The facts in brief of the case are summarized below :- ABA 182/252On 27.11.2024 the F.I.R. came to be registered wherein theinformant/father of the deceased child of 5 years and 6 months statingtherein that his son was operated in Vedant Bal Ruganalaya by theapplicant/doctor for “genetal psora”. It is stated that informant was givenunderstanding that it is a very small surgery for “phimosis with peniletorsion”. Surgery was scheduled on 26.4.2024 and the child/patient wasadmitted in hospital on 25.4.2024. In the FIR, it is stated that on 26.4.2024at 7.00 a.m. the child/patient was taken into operation theater. It is statedthat the small surgery which was scheduled continued for longer time andafter the surgery the family members of the informant were informed by theapplicant/doctor that the child was given spinal anethesia. It is alsoinformed that during the course of surgery the child moved his hand,therefore, again an injunction was given so that child would sleep. The childwas then moved to PICU at about 8.40 a.m. 5.The informant stated that the child was not moving and remainedunconscious till 29.4.2024. However, the doctors provided no clearinformation about the condition of the child. It is stated that on 29.4.2024Dr. Nitin Adhane informed informant that child was given CPR in operationtheater (O.T.) and that he was put on ventilator. On 6.5.2024 at about 3.30p.m. the child was declared dead.6.It is stated that on 1.6.2024 the informant filed a complaint regardingmedical negligence of the doctors to the Pundlik Nagar Police Station. Themedical opinion of the cause of death given by medical officer was “multi-organ failure due to septicemia following hypoxic brain in an operated casefor recurrent balanopsthitis penile torsion”. Accordingly, the aforesaid crimewas registered on 27.11.2024. ABA 182/2537.It is contended by the applicant that there is delay of 205 days inlodging the F.I.R. and the F.I.R. is lodged after taking due consultation anddeliberation with the help of legal advisors and medico legal advisors. Theapplicant has stated that the applicant has cooperated with the investigationafter receipt of notice under section 35 (3) of B.N.S.S. 2023. It is stated bythe applicant that medical report clearly indicates that there is nonegligence in treatment given by the applicant to the patient. The applicantcontends that section 406 of I.P.C. is only non bailable section, however, inthe F.I.R. no ingredients of section 406 of I.P.C. are made out. It is statedthat custodial interrogation of the applicant is not necessary as theapplicant is well respected surgeon, who has performed more than sixthousand surgeries on child patients as pediatric surgeon. The applicant,therefore prays for granting him anticipatory bail.8.Per contra, Mr. A.B. Girase, learned Public Prosecutor with learnedAPP Ms. Neha B. Kamble and Mr. S.S. Thombre, learned counsel assistingAPP submits that in the report it is clearly mentioned that there is medicalnegligence by the medical officers. It is submitted that after negligentconduct of the doctor leading to the mishap, the applicant/doctor and histeam has consciously manipulated the record so as to destroy the evidenceestablishing the crime. It is therefore prayed that the applicant is notentitled for any relief and his application for anticipatory bail may berejected.9.Considered the rival submissions and perused the record.10.The medical opinion dated 11.7.2024 about cause of death of thechild given by the Government Medical College and Hospital, ChhatrapatiSambhajinagar is as under :- ABA 182/254“Multi-organ failure due to septicemia following hypoxic braindamage in an operated case for recurrent balanoposthitiswith penile torsion.”11.On 13.8.2024 the opinion on allegations of medical negligence in thetreatment of the child patient was given by the Committee of the doctors ofGovernment Medical College and Hospital, Chhatrapati Sambhajinagar,which is as under :-“Opinion of the committee -As per per the provided treatment records and theCCTV footage of the patient, he developed brain hypoxia. Itcould have occurred either in OT or PICU or both, whichseems reasonably treated as per existing various standardmedical guidelines. The patient was succumbed due tosepticemia with multiorgan failure as per the P.M. report.There is no signature and name, other details of anyguardian or immediate relative of the patient on the ‘Poorprognosis consent’ dated 02/05/24 of 8 AM on the providedtreatment record of the patient. Considering all the provided treatment records, otherdocuments and the CCTV footage of the patient, it isobserved that the standard medical treatment protocol havebeen reasonably followed in the operation theatre and inPICU. Accordingly, it can be opined that there was no visiblemedical negligence in the treatment of the patient.”12.As the ‘Committee of doctors’ in it’s report dated 13.8.2024 had notanswered the questions posed by the Investigating Officer, as such WritPetition No. 1679/2024 was filed by the parent of the deceased and on thebasis of directions given by the Division Bench of this Court vide order dated14.11.2024 another expert committee was constituted and all the questionsposed by the Investigating Officer were answered. The committee by it’sreport dated 25.10.2024 has given opinion on the following relevant andimportant questions, which are as under :- ABA 182/255“iz”u 1½czsu gk;iksDlh;k gk dk >kyk o rks gks.;kl dkj.khHkwrdkj.ks dks.krs \mRrj 1½miyC/k dkxni=s o lh-lh-Vh-Ogh- QqVstph l[kksy ppkZo vH;kl dsyk vlrk czsu gk;ikWDlh;k gks.;kph dkj.ks v½Bradycardia vkf.k Hypotension o c½ Cardiac Arrest v”khvkgsr-;k v½ o c½ gks.;kps dkj.k %1½vkWijs”ku osGh fnyk xsysyk Likbuy vu,LFksf”k;k vlq “kdrks-2½rlsp lh-lh-Vh-Ogh- QqVst e/;s vkWijs”ku njE;ku dkghbatsD”kUl fnysyh fnlr vkgsr ijarq R;kpk :X.kkP;k isije/;s mYys[kfnlwu ;sr ukgh- 1 o 2 ;k dkj.kka”kh laca/k vl.;kph “kD;rk ukdkjrk ;sr ukgh-iz”u 2½----------iz”u 3½lnjhy gkWLihVyps vkWijs”ku fFk,Vj gs “kklukus BjowufnysY;k fu;ekuqlkj@SOP izek.ks vkWijs”ku njE;ku MkWDVlZ ovflLVaV ;kauh vkWijs”ku fFk,Vj e/khy izksVksdkWy ikGysyk vkgs vxjdls \mRrj % 3½vkWijs”ku njE;ku dkgh MkWDVlZ o vflLVaV ;kauhvkWijs”ku fFk,Vj e/khy izksVksdkWy ikGysyk fnlwu ;srks ijarq dkghMkWDVlZ o vflLVaV ;kauh rks ikGysyk fnlqu ;sr ukgh-iz”u % 4½vkWijs”ku iwohZ HkqyrK ;kauh ckGkyk riklys gksrs dkrlsp ckGkyk Hkqy ns.ks ckcrph izkslsl o Mkslps izek.k bR;knh ckcrpsizksVksdkWy fu;ekuqlkj ikGysys vkgsr vxj dls \mRrj % 4½vkWijs”ku iwohZ HkqyrK ;kauh ckGkph rikl.kh (Pre-anaesthetic Evaluation) dsY;kcn~nyP;k uksV~l isij e/;sfnlwu ;sr ukghr- dkxnki=kaps voyksdu dsys vlrk Lik;uyvusLFksf”k;k ns.;kiwohZ 3 batsD”kUl fnY;kps fyfgys vkgs] ijarw miyC/k
Decision
ABA 182/259child before the surgery are not seen in the CCTV footage whereas there isno clear record of injunctions/medicines given to the child post CPR in theO.T. although the doctors are seen giving medicines through I.V. injectionsin CCTV footage.18.There is suppression of the procedure undertaken in the O.T. so alsoin PICU. So also the C.C.T.V. footage in the O.T. also does not correspond tothe clinical notes. Prima facie, it appears that real reasons leading to thecause of death of the child is sought to be suppressed. As such, in this factssituation, it would be difficult for this Court to grant discretionary relief ofanticipatory bail in favour of the applicant. In view of the above, theapplication is dismissed. 19.It is clarified that the observations made in this order are limited forthe disposal of the present anticipatory bail application only and the trialCourt shall not proceed further or shall not be influenced by theobservations made hereinabove while deciding the regular bail application ofthe applicant, if filed.20.The application stands disposed of. [ARUN R. PEDNEKER, J.]SSC/