High Court
Legal Reasoning
(( 12 ))919wp216-23Jgeneral ward. Thereafter, at about 10.30 a.m., when the patient wasfacing breathing problem and the mother of patient and her relativescontacted the petitioner on phone about discomfort of the patient andheavy bleeding from the place of cesarean, but the Petitioner /accused replied that he is busy in meeting in the Government hospitaland unable to attend the patient. The material placed on recordshows that, at about 01.30 p.m., the accused visited at SamantHospital and the patient (Vaishali) was shifted at the GovernmentHospital, Beed where she was declared dead. 17.In view of above facts and circumstances it prima facieappears that, the present Petitioner medically treated and operatedthe patient deceased Vaishali in Samant hospital, but due to excessivebleeding, patient was facing breathing problem and was becomeserious, hence, she was shifted to Civil Hospital, Beed where she wasdeclared dead. 18.On face of record, it further appears that, as per theGovernment Resolution dated 26.03.2010 and 31.01.2014, the StateGovernment has issued directions and formed the Medical ExpertCommittee as per the judgment and order passed by the Hon’bleSupreme Court in the case of Jacob Mathew cited (supra). From the 12 of 16 (( 13 ))919wp216-23JMedical Expert Committee’s Report dated 03.07.2017 which is partand parcel of the charge-sheet, it appears that the Medical ExpertCommittee after considering all medical papers, diagnosis paper ofthe deceased, postmortem report as well as considering the oralsubmissions of the witnesses i.e. Dr. P. R. Lodh, Medical Officer, SubDistrict Hospital, Kej, Dr. Shankar Kashid, Medical Officer, Beed andthe Petitioner opined that due to medical negligence of the presentPetitioner, death of patient Vaishali caused. 19.The learned counsel for the Petitioner invited myattention to the Medical Expert’s Report dated 20.04.2018, issued bythe Committee consisting of Dr. S. V. Birajdar, Dr. R. V. Kachare, Dr. S.S. Chavan, Dr. Sanjay Bansode. However, said report is not a part andparcel of the charge-sheet and the Petitioner has not clarified underwhat circumstances, the said report has been obtained. 20.Needless to say that, the material brought on recordshows that, the Investigating Officer had submitted proposal formedical opinion and the Deputy Director of Medical Health Servicesappointed a committee of the experts in the medical field.Accordingly, the Medical Expert Committee submitted its’ Report and 13 of 16 (( 14 ))919wp216-23Jopined that death of patient caused due to medical negligence on thepart of the accused. However, the Deputy Director appointed anotherExpert Committee of the Medical Officer from District Beed, wherethe accused was working as District Civil Surgeon at the relevanttime. The Report of second Medical Expert Committee is contrary tothe first Medical Expert Committee’s Report dated 03.07.2017. Onconsidering first Medical Expert Committee’s Report dated03.07.2017, it appears that, the Petitioner / accused committedmedical negligence whereas another report i.e. report dated20.04.2018 is contrary to the first report. However, the anothermedical Expert Committee’s report (dated 20.04.2018) is not a partand parcel of the charge-sheet, therefore, the said report cannot beconsidered while framing the charge. 21.Section 239 of Code of Criminal Procedure, 1973provides as under;“If, upon considering the police report and the documentssent with it under Section 173 and making such examination, ifany, of the accused as the Magistrate thinks necessary and aftergiving the prosecution and the accused an opportunity of beingheard, the Magistrate considers the charge against the accusedto be groundless, he shall discharge the accused, and record hisreasons for so doing.” 14 of 16 (( 15 ))919wp216-23J22.In the case of Century Spinning & Manufacturing Co.Vs. State AIR 1972 SC 545, it has been held that if there is noground for presuming that the accused has committed an offence,the charge must be considered as groundless, which is same thingas saying that there is no ground for framing the charges, thisnecessarily depends on the facts and circumstances of each case andthe Magistrate is entitled and indeed as a duty to consider the entirematerial referred to in Section 239 of the Code of CriminalProcedure. 23.However, in case-in-hand, the present Petitioner is facingthe summons trial and the provisions of Section 239 of the Code ofCriminal Procedure, 1973 is applicable to only to the warrant case.24.Further, as per the provisions of Section 239 of Code ofCriminal Procedure, 1973, if the learned Magistrate considers that thecharges leveled against the accused are groundless, in that event, theaccused may be discharged. However, in case-in-hand, as discussedabove it appears that material available on record is sufficient toframe the charge against the Petitioner. The charge cannot said to be 15 of 16 (( 16 ))919wp216-23Jgroundless, hence, the accused is not entitled for discharge u/s 239of the Code of Criminal Procedure, 1973. 25.Needless to say that, in case-in-hand, there is strongsuspicion about committing medical negligence on part of thePetitioner because on 27.09.2016, the deceased Vaishali was admittedin Samant hospital for delivery due to stomach pain as she waspregnant and the present Petitioner conducted delivery by performingcesarean section, thereafter, the Petitioner stitched the same,however, due to excessive bleeding from the cesarean place, physicalhealth of the patient get worsened and she was shifted to the CivilHospital, Beed where she was declared died. The Petitioner has notclaimed that he has not performed medical surgery being theconsultant. Therefore, the material evidence collected by theInvestigating Officer produced along with charge sheet is sufficient toframe the charge against the accused for the offence punishableunder Section 304 A of the Indian Penal Code. Therefore, I do notfind any substance in the present Petition. Hence, Criminal WritPetition is dismissed. Rule is discharged. [ Y. G. KHOBRAGADE, J. ] HRJadhav 16 of 16
Arguments
919wp216-23J.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 216 OF 2023Nagorao S/o Shivajirao Chavan,age: 55 years, Occ: Government Serviceas Civil Surgeon At Yeotmal,Taluka and District Yeotmal. ...PETITIONER(Original accused) VERSUSThe State of Maharashtra,through the Incharge,Police Station Officer,Shivajinagar Police Station,Beed, Taluka and Dist. Beed. ...RESPONDENT.…Mr. Rajendra Deshmukh Senior Advocate a/w Mr. R. G. Dodiya i/bMr. Devang Deshmukh, Advocate for the PetitionerMs. A. S. Deshmukh, APP for the Respondent-State...CORAM: Y. G. KHOBRAGADE, J.RESERVED ONPRONOUNCED ON:: 16.01.2025 28.01.2025 JUDGMENT :- 1.Rule. Rule made returnable forthwith. Heard thematter finally with consent of both the sides at the stage ofadmission.2.The Petitioner has invoked jurisdiction of this Courtunder Article 227 of the Constitution of India and takes exceptionto the judgment and order dated 07.01.2023 passed by the 1 of 16 (( 2 ))919wp216-23Jlearned Additional Sessions Judge, Beed in Criminal RevisionApplication No. 106 of 2022, thereby affirmed the order of rejectionof discharge of Petitioner for offence under Section 304-A of IndianPenal Code passed by the learned Judicial Magistrate First Class, Beedon 21.12.2022 below Exh. 15 in SCC No.958 of 2018. 3.The facts giving rise to the present Petition are that, thepresent Petitioner is a Medical Officer by profession. The Petitioner ischarge-sheeted for the offence punishable under Section 304-A of theIndian Penal Code, 1860 (for brevity hereinafter to be referred as“IPC”) in Crime No. 256 of 2017 registered with Shivajinagar PoliceStation, Beed on 27.07.2017, on the basis of Report lodged by theinformant namely Mr. Rafiyoddin Ajimoddin Shaikh, P.S.I attachedwith Shivajinagar Police Station. The Informant alleged that, Smt.Vaishali Vijay Bansode, the daughter of Smt. Kanta Sopanrao Mhaske,was pregnant and she was admitted in Samant Hospital, Beed due tostomach pain. At the relevant time, the Petitioner/accused wasattached with Government Civil Hospital Beed being a Civil Surgeonand was consultant for delivery in “Samant Hospital”. The Petitioner /accused medically advised that, Smt. Vaishali Vijay Bansode is seriousand she has to undergo cesarean. 2 of 16 (( 3 ))919wp216-23J4.Therefore, Smt. Kanta Mhaske, the mother of victim /patient told the Petitioner/accused that, her daughter Vaishali(Victim) was taking treatment from Dr. Shirpurkar and she wanted totake her daughter to the said Doctor, but at that time the Petitioner /accused told her not to waste time and it is necessary to conductcesarean immediately. Since, the petitioner terrified her, therefore,the mother of the victim was compelled to admit her pregnantdaughter in Samant Hospital. Thereafter, the Petitioner accusedperformed cesarean on the victim at 8:00 a.m., without obtainingconsent of mother of patient or relatives on any required forms. Afterconducting cesarean, the Victim gave birth to twin male child.Thereafter, the Petitioner / accused informed the mother of victimthat, her daughter (Patient) will be alright within a short time and heleft the hospital without informing physical condition of the patient.However, at about 10.30 am., the patient was facing breathingproblem and heavy bleeding from the operated place, due to whichthe patient was feel discomfort. Therefore, the patient's mothercontacted the Petitioner / accused and informed the condition of thepatient, but the Petitioner / accused informed her that, he is busy inmeeting in the Government Hospital, hence, he is unable to attend 3 of 16 (( 4 ))919wp216-23Jthe patient. At about 01.30 p.m., the accused visited at SamantHospital but the patient (Vaishali) was shifted to the GovernmentHospital, where she declared dead. Therefore, Smt. Kanta mother ofvictim filed a complaint, on the basis of which, the Collector Beedappointed the Medical Expert Committee by issuing a letter to theDeputy Director Health, Latur.5.Pursuant to said letter, the Deputy Director HealthServices appointed an Inquiry Committee. After due Inquiry, theMedical Expert Committee submitted its Report under letter dated03.07.2017 holding that, due to medical negligence on part of thepresent Petitioner / accused death of Vaishali caused. After receipt ofMedical Expert Committee’s report, a Crime No. 526 of 2017 wasregistered against the present Petitioner / accused for the offencepunishable under Section 304-A of IPC.6.The Investigating Officer referred the dead body ofpatient (Smt. Vaishali) for autopsy on 28.09.2016. After Postmortemwas conducted, the Medical Officer opined that death of deceasedcaused due to “Disseminated Intravascular coagulation with Multiorgan dysfunction syndrome.” The Investigating Officer recorded 4 of 16 (( 5 ))919wp216-23Jstatements of the witnesses and after collecting sufficient material,charge-sheet came to be filed against the present Petitioner for theoffence punishable u/s 304-A of IPC. The said charge sheet came tobe registered as summary Criminal Case No. 958 of 2018.7.On 10.02.2020, the Petitioner accused filed Exh. 15,Application under Section 239 of the Code of Criminal Procedure,1973 and thereby prayed for discharging him in Crime No. 526 of2017 (SCC No. 958 of 2018) on Ground Nos. A to J as described insaid Application. 8.On 21.12.2022, the learned Judicial Magistrate FirstClass, Beed passed the order and thereby turned down the prayer ofthe present Petitioner / accused for discharging him. 9.Being aggrieved by the said order, the Petitioner / accusedfiled Criminal Revision Application No. 106 of 2022 before thelearned Sessions Judge, Beed. On 07.01.2023, the learned AdditionalSessions Judge, Beed passed the impugned order holding that, thePetitioner / accused produced all the medical treatment papers of theGovernment Hospital, but failed to produce medical papers pertainingto Samant Hospital. Merely obtaining consent of the relatives of the 5 of 16 (( 6 ))919wp216-23Jvictim (Vaishali), the Petitioner / accused could not absolve from hisresponsibility to take care of his patient, and no license granted tothe Medical Practitioner to commit negligence while treating patient.The Petitioner produced two contradictory reports of the MedicalExpert Committee in respect of the Medical negligence on part of thePetitioner / accused. The learned Revisional Court further held thatthe report of the Medical Expert dated 01.07.2017, issued by theExperts Committee formed by the Deputy Director Health Services,Latur, duly established as per the Government Resolution dated26.03.2010, the Petitioner / accused is found negligent while treatingthe deceased (Vaishali). 10.Further, another report dated 20.04.2018 filed by theCommittee of Superintendent, Swami Ramanand Tirth RuralGovernment Medical College (for brevity “SRTRGMC”), Ambejogai isnot called by the Investigation Agency and the said report is not apart and parcel of the charge-sheet. So also, the material available onrecord are sufficient to frame the charges against the accused, hence,the learned Revisional Court rejected the Revision. 11.The Petitioner / accused challenged the order dated07.01.2023, passed by the learned Additional Sessions Judge, Beed in 6 of 16 (( 7 ))919wp216-23JCriminal Revision Application No. 106 of 2022 on the ground Nos.(VIII) to (XIV), which read as under. VIII. That, the learned trial court has committed great error innot appreciating properly the reported judgments cited for and onbehalf of the petitioner and thereby causing great prejudice, as inthe case of Jacob Mathew Vs. State of Punjab reported in 2005AIR SC 3180, wherein the ratio is being laid down, whichsubstantiates the case of the petitioner. In fact, various other caseshave been referred to in the above said Jacob Mathew's case andthe petitioner craves leave to rely upon the above saidcitations/reported judgments.IX.That both the learned Courts below seem to havelost sight of the subsequent inquiry report by Special Committeethereby arriving at an incorrect conclusion, which has put thepetitioner at the receiving end.X.That, perusal of the case papers of the deceasedVaishali, which were filed before the learned trial court do indicatethat there was no negligence, moreover, no gross negligence onthe part of the petitioner, and therefore, the continuation ofcriminal prosecution would be an abuse of process of law.XI.That, the learned both the courts below ought tohave taken into account the subsequent report of the Committeeof the Medical Superintendent and its Members of the S.R.T.R.Medical College, Ambajogai, which was very much constituted asper the norms of the Government.XII.That, there is no sufficient evidence to frame thecharge against the petitioner.XIII.That, both the learned courts below ought to haveheld that the report submitted by the Deputy Director of HealthServices, Latur, dated 01.07.2017 has no legal base and in fact, thereport submitted by the Medical Superintendent of S.R.T.R.College, Ambajogai should have been considered and relied upon, 7 of 16 (( 8 ))919wp216-23Jbeing the correct report as per the Government Resolution, dated31.01.2014. XIV.That, in paragraph 23 of the impugned judgmentand order, passed by the learned Revisional Court, incorrectobservations and conclusions are being drawn in relation to theGovernment Resolution, dated 31.01.2014 and which has causedgreat prejudice to the petitioner, as the learned Revisional Courtseems to have not at all considered the issuance of subsequentGovernment Resolution in its true letters and spirit.12.The learned counsel for the Petitioner placed reliance onthe following cases:-(i)Jacob Mathew Vs. State of Punjab and Another, AIR 2005Supreme Court 3180;(ii)Martin F. D’Souza Vs. Mohd. Ishfaq, AIR 2009 SupremeCourt 2049;(iii)Neeraj Sud and Another Vs. Jaswinder Singh (Minor) andAnother, 2024 SCC Online SC 3069.13.Per contra, the learned APP supported the findings ofboth the Courts below and canvassed that the Petitioner has notdenied that he was working as a Civil Surgeon with Government CivilHospital, Beed. The Petitioner accused has also not disputed the factthat, on 27.09.2016, the patient pregnant lady (Vaishali) wasadmitted in Samant Hospital and the accused was consultant for thedelivery. The Petitioner / accused has also admitted that, he 8 of 16 (( 9 ))919wp216-23Jperformed cesarean on the patient Vaishali. The complainant Smt.Kantabai Mhaske specifically alleged in her complaint that, on27.09.2016, her married daughter, hospitalized in Samant Hospital,Beed with history of stomach pain due to pregnancy. The Petitioneraccused terrified her to perform cesarean immediately as the patientis serious. When the complainant told the present Petitioner abouttaking medical treatment of her daughter with Dr. Shirpurkar and shewanted to take her daughter for medical treatment to Dr. Shirpurkar.But at that time, the accused told her not to waste time and it isnecessary to perform cesarean immediately and put under fear.Therefore, the patient Vaishali was hospitalized in Samant Hospital onadvice of the present Petitioner / accused. Further, the Petitioner /accused performed cesarean at about 08.00 a.m. After cesareanpatient gave birth to twin male child. Thereafter, the Petitioneraccused informed the mother of victim Vaishali that her daughter(Patient) will recover in a short time and left the Hospital withoutinforming physical condition of the patient. However, at about 10.30a.m., the patient was facing breathing problem, hence, the mother ofpatient and his relatives contacted petitioner / accused on phone andinformed him about the patient's discomfort. Further there was lot of 9 of 16 (( 10 ))919wp216-23Jbleeding from the place of cesarean section, but the Petitioner /accused informed her that, he is busy in the meeting in theGovernment hospital therefore he is not able to attend the patient. Atabout 01.30 p.m., the accused visited at Samant Hospital and shiftedthe patient (Vaishali) at the Government Hospital where she wasdeclared as dead. 14.The learned APP further canvassed that the MedicalExpert Committee constituted by the State Government as per thedirections issued by the Supreme Court in the case of Jacob Mathew,cited supra, and the Medical Expert Committee consisting AssistantDirector, Medical Superintendent has recorded the statements ofwitnesses and also on examination of the Medical treatment papers /reports as well as Postmortem report held that the present Petitioner /accused has committed medical negligence and he is responsible fordeath of patient Smt. Vaishali Bansode. Therefore, both the courtsbelow have considered the various case laws cited therein andconcurrently held that there are sufficient evidence and material toframe the charge against the Petitioner / accused. Therefore prayedfor dismissal of the Petition. 10 of 16 (( 11 ))919wp216-23J15.Needless to say that, the learned Senior Counsel for thePetitioner relied on the case of (1) Jacob Mathew, (2) Martin F.D’Souza and (3) Neeraj Sud, cited supra, however, on perusal of theimpugned judgment and order dated 07.01.2023, it appears that thelearned Additional Sessions Judge has well considered the ratios laiddown in the cited cases. The Petitioner has not denied that, at therelevant time he was not working as Civil Surgeon with GovernmentHospital, Beed. It has come on record that, Petitioner was alsoworking being consultant with Samant Hospital, Beed at the time ofadmission of patient (Vaishali). It is not in dispute that patient(Vaishali) was admitted in Samant Hospital on 27.09.2016 withstomach pain due to advanced pregnancy. The present Petitioner /accused gave advise to admit the patient in Samant Hospital and heperformed cesarean on the patient. After cesarean victim gave birth totwo male child. 16. The material placed along with charge sheet shows thatthe Petitioner / accused performed cesarean on the victim at about08.08 to 08.09 a.m. The present Petitioner informed the relatives ofthe patient about delivery of two twin male child and he left to the 11 of 16