High Court
Legal Reasoning
(1) appln-1737-2023 & anr..odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.1737 OF 2023Dr. Prashant Sopan Ahire,Age: 35 years, Occu: Medical Practitioner,R/o. At Post Savada, Sali Bagh,Tq. Raver, Dist. Jalgaon...ApplicantVersus1.The State of Maharashtra,Through its Police Inspector,Nimbhora Police Station,Tq. Raver, District Jalgaon...RespondentANDCRIMINAL APPLICATION NO.888 OF 2024Sachin @ Digambar Arun Patil,Age: 32 years, Occu: HouseholdR/oA At Post Village- Vivare Kh.Taluka Raver, Dist. Jalgaon...ApplicantVersus1.Dr. Prashant Sopan Ahire,Age: 35 years, Occu: Medical Practitioner,R/o. At Post Savada, Sali Bagh,Tq. Raver, Dist. Jalgaon.2.The State of Maharashtra,Through its Police Inspector,Nimbhora Police Station,Tq. Raver, District Jalgaon...Respondent …Mr. V. B. Patil, Advocate for the Applicant in (Appln/1737/2023).Mr. J. V. Patil, Advocate for Applicant in (Appln/888/2024).Mr. A. M. Phule, APP for Respondent-State. … CORAM : SMT. VIBHA KANKANWADI AND S. G. CHAPALGAONKAR, JJ. DATED : 10th SEPTEMBER, 2024.JUDGMENT (Per S. G. Chapalgaonkar, J.):-1.The applicant approached this Court under Section 482 of theCriminal Procedure Code praying to quash the FIR in CrimeNo.182/2022 dated 30.09.2022 registered with Nimbhora Police (2) appln-1737-2023 & anr..odtStation, Dist. Jalgaon for offence punishable under Sections 304-Aof the Indian Penal Code as well as consequential criminalproceeding in SCC No.146/2023 pending before Judicial MagistrateFirst Class at Raver.2.Mr. Kashinath Shravan Kolambe, Police Sub Inspector,Nimbhora Police Station lodged report informing that one Mr.Sachin Arun Patil had filed compliant to Police Station allegingthat his wife Gayatri Sachin Patil was treated by applicant i.e. Dr.Prashant Sopan Ahire, who runs Samarth Clinic at village Vivare(Bk.). The Gayatri was under his medical supervision during theperiod from 13.05.2021 to 16.05.2021. However, the healthcondition of Gayatri deteriorated, hence, she was referred toGajanan Hospital of Dr. Sunil Choudhari at Savada. On hisadvice, she was admitted at Dr. Rajesh Dabi’s Hospital at Jalgaon.Since, there was no improvement in health condition of Gayatri,she was further referred to Om Clinic Hospital, Jalgaon. Lastly,she was brought back Gajanan Hospital at Savada. However, on31.05.2021, Gayatri lost her life. It is alleged that because ofwrong treatment and overdose of medicine during the preliminarytreatment by the applicant, Gayatri lost her life.3.In pursuance of aforesaid complaint, papers related to themedical treatment advanced to Gayatri were collected fromrespective hospitals and opinion was solicited from CivilHospital/Government Medical College, Jalgaon videcommunication dated 13.06.2021. The Committee constituted atMedical College submitted its report dated 15.09.2022 to PoliceStation, which states that the applicant had prescribed irrationalcombination of medicines. The report further states that applicant (3) appln-1737-2023 & anr..odtbeing qualified in stream of Ayurvedic medicine, he was notcompetent to prescribe modern medicines.4.It is, therefore, alleged that applicant treated Gayatri innegligent manner by prescribing modern medicines with irrationalcombination, hence, responsible for her death. Consequently,Crime No.182/2022 came to be registered against applicant foroffence punishable under Section 304-A of the Indian Penal Code.On completion of investigation, charge-sheet no.3/2023 dated05.02.2023 has been filed against the applicant, which has beenculminated into S.C.C. No.146/2023, pending before JudicialMagistrate First Class at Raver.5.Mr. V. B. Patil, learned Advocate appearing for the applicantsubmits that applicant is registered medical practitioner andentitled to prescribe modern scientific medicines to the extent oftraining that is received by him in that stream. He submits thatMedical Education and Drugs Department has clarified thatmedical practitioner enrolled and holding qualification specified inPart A, B and A-1 of the Scheduled Appended to the Act is eligibleto practice modern system of medicine with Allopathy medicines tothe extent of training received. Although applicant holds a degreein Ayurvedic Medical Science, he is qualified to practice in foreignscientific medicines in pursuance of his training and registration.He would submit that applicant had treated Gayatri during theperiod from 13.05.2021 to 16.05.2021 and provided best possiblemedical assistance during Covid period. Thereafter, Gayatrisuffered brain hemorrhage for which she was treated at threedifferent hospitals before her death on 01.06.2021. Thepostmortem is not conducted. The cause of death is not known.However, from the treatment papers, it can be gathered that cause
Legal Reasoning
(4) appln-1737-2023 & anr..odtof death is attributable to brain hemorrhage and unsuccessfulsurgery, which has nothing to do with medicines prescribed andtreatment advanced by applicant. He would submit that applicanthas been falsely implicated in case of medical negligence in absenceof evidence to establish rash and negligent act on the part ofapplicant and consequential death of Gayatri. He would submitthat career of the applicant would be ruined, if prosecution iscontinued against him.6.Per contra Mr. J. V. Patil, learned Advocate appearing for theintervenor i.e. husband of deceased Gayatri and Mr. Phule, learnedAPP appearing for respondent-State vehemently opposed theprayers in the application. They would submit that applicant beingmedical practitioner in Ayurvedic stream of medical science, hewas not competent to prescribe modern medicines and practice inAllopathy. The report of Expert Committee clearly stipulates thatapplicant prescribed medicines of irrational combination that wasresponsible for deteriorating health of Gayatri. Consequently,there is triable material against applicant. As such, they urge toreject application.7.We have considered submissions advanced by the learnedAdvocates appearing for respective parties. We have perused FIRand material in the charge-sheet. Admittedly, deceased Gayatriwas treated by applicant during the period from 13.05.2021 to16.05.2021. Since she had weakness in right hand, applicantprescribed certain medicines and advanced preliminary treatment.The certain medicines were injected through Intravenous (IV). Theblood samples were collected. On the basis of report of PathologyLaboratory, further medicines were prescribed suspecting her to bepatient of Typhoid. Since there was no improvement in health (5) appln-1737-2023 & anr..odtcondition of Gayatri, Dr. M. M. Deshmukh was consulted. Henoticed that condition of patient was critical, therefore, she wasadmitted to hospital of Dr. Sunil Choudhari on 16.05.2021. On17.05.2021 doctor expressed possibility of paralytic attack andreferred Gayatri to Dr. Rajesh Dabi’s Hospital at Jalgaon. On18.05.2021, the report of CT Scan was called. The blockage of bloodsupply to the brain was noticed and surgery was conducted by Dr.Swapnil Patil at Om Critical Hospital. Till 21.05.2021, she wasadmitted at Om Critical Hospital and then again brought back toDr. Rajesh Dabi’s Hospital. There, some improvement in health ofGayatri was noticed. However, after two days again her heath wasdeteriorated and brain hemorrhage was noticed. Second surgerywas conducted to control hemorrhage, but there was noimprovement in health of Gayatri. On 31.05.2021, doctor advisedto stop medical treatment, for want of response and on 01.06.2021ultimately Gayatri lost her life.8.Apparently, role of applicant is limited to the extent ofmedical treatment advanced to her during the period from13.05.2021 to 16.05.2021. Although there is no postmortem reporton record, medical treatment papers clearly indicates that Gayatrihad suffered brain hemorrhage. Initially, she lost movement of herhand and leg. Therefore, she was operated twice. However, couldnot be recovered from the ailments. From 16.05.2021 till31.05.2021 Gayatri was medically treated by three doctors for brainhemorrhage, which appears to be ultimate cause of death. Theallegation against the applicant is that during medical treatmentfrom 13.05.2021 to 16.05.2021, Gayatri was prescribed irrationalcombination of medicines. The Committee of four doctors wasconstituted at Medical College and Hospital, Jalgaon. The report ofthe Committee indicates that Committee examined prescription (6) appln-1737-2023 & anr..odtdated 13.05.2021 issued by applicant, which contains irrationalcombination of medicines, hence, it is a case of negligence. Furtherapplicant being B.A.M.S. Degree holder, he was not competent toprescribe modern medicines. The report nowhere suggests thatprescription of irrational combination of medicines was responsiblefor brain hemorrhage and consequential death of Gayatri. In thatview of the matter, whether prosecution of applicant for offencepunishable under Section 304-A of the Indian Penal Code can besustained is the question posed before us. 9.At this stage reference can be made to Section 304-A of theIndian Penal Code that reads as under:“304A. Causing death by negligence.—Whoever causes the death of any person by doing any rash ornegligent act not amounting to culpable homicide, shall bepunished with imprisonment of either description for a termwhich may extend to two years, or with fine, or with both.”10.The aforesaid penal provision requires two ingredients tomake out offence. Firstly, there must be rash and negligent act onthe part of the accused and secondly, such rash and negligent actmust be the cause of death. Apparently, mere negligence would notconstitute any offence, unless such negligent act on the part of theaccused is found to be proximate cause for death. On perusal of thecontents of FIR and material in the charge-sheet, we could not findany proximity between death of Gayatri and medical treatmentadvanced by applicant. Accepting contents of report of ExpertCommittee as it is, what is discerned is that combination ofmedicines prescribed by applicant was irrational. However, theCommittee report nowhere specify consequence of such irrationalcombination of medicines. On the basis of contents of report, it isnot possible to arrive at conclusion that brain hemorrhage, whichappears to be ultimate reason of death of Gayatri was directly (7) appln-1737-2023 & anr..odtresulted or oriented from irrational combination of medicinesadministered to her. In fact, in absence of postmortem report,when Gayatri was treated at different hospitals for about twoweeks before her death, the definite conclusion regarding cause ofdeath cannot be drawn. There is no causal connection betweenmedical treatment advanced by applicant and cause of death ofGayatri. Apparently, ingredients of Section 304-A of the IndianPenal Code would not attract against applicant in facts of the case.11.The law on the point of medical negligence and criminalliability on doctor or surgeon has been well settled by now. 12.In case of Dr. Suresh gupta Vs. Government of N.C.T ofDelhi and Another1, it is observed that “for fixing criminalliability on a doctor or surgeon, the standard of negligence requiredto be proved should be so high as can be described as "grossnegligence" or recklessness". It is not merely lack of necessarycare, attention and skill. The doctor cannot be held criminallyresponsible for patient's death unless his negligence orincompetence showed such disregard for life and safety of hispatient as to amount to a crime against the State”. Similarly, incase of Malay Kumar Ganguly Vs. Sukumar Mukherjee andOthers2, it is observed that “Charge of professional negligence on amedical person is a serious one as it affects his professional statusand reputation and as such the burden of proof would be moreonerous. A doctor cannot be held negligent only because somethinghas gone wrong. He also cannot be held liable for mischance ormisadventure or for an error of judgment in making a choice whentwo options are available. The mistake in diagnosis is notnecessarily a negligent diagnosis”. It is further observed that“Death is the ultimate result of all serious ailments and the doctors1AIR 2004 SC 4091.2AIR 2010 SC 1162. (8) appln-1737-2023 & anr..odtare there to save the victims from such ailments. Experience andexpertise of a doctor are utilised for the recovery. But it is notexpected that in case of all ailments the doctor can give guaranteeof cure”.13.In case of Jacob Mathew Vs. State of State of Punjaband another3 in reference to various decisions on criminalnegligence, particularly, decision of Privy Council in John OniAkerele v. The King4 (a case of administration of injection ofSobita and because of overdose of medicine patient died), theirLordships have summed up the principles governing the criminalnegligence. “(i)That a doctor is not criminally responsible for apatient's death unless his negligence or incompetence wentbeyond a mere matter of compensation between subjects andshowed such disregard for life and safety of others as toamount to a crime against the State.; (ii)That the degree of negligence required is that it shouldbe gross, and that neither a jury nor a court can transformnegligence of a lesser degree into gross negligence merely bygiving it that appellation. There is a difference in kindbetween the negligence which gives a right to compensationand the negligence which is a crime. (iii)It is impossible to define culpable or criminalnegligence, and it is not possible to make the distinctionbetween actionable negligence and criminal negligenceintelligible, except by means of illustrations drawn fromactual judicial opinion.”14.Similarly, in case of Kurban Hussein MohamedalliRangawalla v. State of Maharashtra5 while dealing withSection 304-A of IPC, the referring statement of law by SirLawrence Jenkins in Emperor v. Omkar Rampratap6 following3(2005) 6 SCC 1.4AIR 1943 PC 72.5(1965) 2 SCR 622.64 Bom LR 679. (9) appln-1737-2023 & anr..odtobservations are made as to imposition of criminal liability underSection 304-A of IPC: “it is necessary that the death should have been the directresult of a rash and negligent act of the accused, and that actmust be the proximate and efficient cause without theintervention of another's negligence. It must be the causacausans; it is not enough that it may have been the causasine qua non.”15.Keeping in mind authoritative judicial pronouncements inthe subject matter, on appreciation of facts in the present case, weare of the considered opinion that in absence of the materialindicating direct nexus between the cause of death and medicaltreatment advanced by the applicant, no case can be made out toprosecute him for the offence punishable under section 304-A of theIPC. It may be possible that owing to negligence attributed againstthe applicant to Gayatri, some case for actionable negligence incivil law is made out, however, in absence of proximity betweencause of death and negligent act which is sine qua non forprosecution against medical practitioner, criminal prosecutionunder Section 304-A of the Indian Penal Code cannot be sustained.We have observed in present case that primary treatment ofGayatri was under medical supervision of the applicant during theperiod from 13.05.2021 to 16.05.2021. Thereafter, she was treatedby Dr. Sunil Choudhari at Gajanan Hospital, Dr. Rajesh Dabi’sHospital and Dr. Swapnil Patil at Om Critical Hospital.Ultimately, she took last breathe on 01.06.2021. The treatmentpapers clearly demonstrate that it was a case of BrainHemorrhage. There is nothing on record to depict that brainHemorrhage was attributable to alleged prescription of medicinesof irrational combination by the applicant.16.We are not oblivious of the fact that the criminalprosecutions against medical practitioners are on an increased
Decision
(10) appln-1737-2023 & anr..odtrate, they require to be protected from frivolous and unjustprosecution, particularly when that has been used for pressurizingthem for extracting uncalled or unjust compensation. TheSupreme Court of India in case of Jacob Mathew (supra) hasemphasized on need to guard such proceedings.17.In the result, we are inclined to exercise our powers underSection 482 of the Criminal Procedure Code in the facts of thepresent case and proceed to allow the application. Hence, followingorder:ORDERa.Criminal Application is allowed in terms of prayer Clause(B).b.Criminal Application is disposed of.c.In view of disposal of Criminal Application No.1737 of 2023,present Criminal Application No.888/2024 does not survive andstands disposed of.(S. G. CHAPALGAONKAR) (SMT. VIBHA KANKANWADI) JUDGE JUDGEDevendra/September-2024