Prashant Kumar Gupta @ Dr. Prashant Kumar Gupta, aged about 44 years, son of v. late Jaminikant Singh, R/o Vill- Sikandarpur, P.O- Shyam Bazar, P.S.- Baunsi, Dist.- Banka
Case Details
1 Cr.M.P. No.1018 of 2022 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 1018 of 2022 Prashant Kumar Gupta @ Dr. Prashant Kumar Gupta, aged about 44 years, son of Devi Dutta Gupta, resident of Block-B, Basudeo Palace, Ranjan Yadav Path, P.O. & P.S.- Khagaul, Dist.-Patna, Bihar .... Petitioner 1. The State of Jharkhand 2. Kalyan Kumar Singh, s/o Versus late Jaminikant Singh, R/o Vill- Sikandarpur, P.O- Shyam Bazar, P.S.- Baunsi, Dist.- Banka (Bihar) …. Opp. Parties P R E S E N T
Legal Reasoning
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 [(1957) 1 WLR 582 : (1957) 2 All ER 118 (QBD)] 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.” (Emphasis supplied) It is submitted by Mr. Singh that no offence as alleged in the F.I.R. is made out. Hence, it is submitted that entire criminal proceeding in connection with Deoghar Town P.S. Case No.294 of 2021 be quashed. 5. Learned Spl. P.P. and the learned counsel for the opposite party no.2 on the other hand vehemently objects to the prayer for quashing of the entire criminal proceeding in connection with Deoghar Town P.S. Case No.294 of 2021. It is next submitted by learned counsel for the opposite party no.2 that the allegations made in the F.I.R. no doubt besides the offence under Section 302 of Indian Penal Code also categorically makes out the offence punishable under Section 304A of Indian Penal Code. It is next submitted by Mrs. Ritu Kumar, learned counsel for the opposite party no.2 that the F.I.R. is not an encyclopedia of prosecution 4 Cr.M.P. No.1018 of 2022 case and the F.I.R. is not expected to contain all the detail evidence which is to be collected during the investigation of the case. Hence, it is submitted by Mrs. Ritu Kumar that when the contents of the F.I.R. itself reveals a cognizable offence, the same cannot be quashed on the basis of the defence of the accused person or for want of evidence. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. 6. Having heard the submissions made at the Bar and after going through the materials in the record, this Court has no hesitation in holding that there is specific allegation inter alia against the petitioner that the petitioner in this case, did not exercise with reasonable competence, the skill which he did possess, amounting to rashness and negligence, which resulted in the death of the son of the informant namely Sudip Kumar Singh. Further, there is allegation of the petitioner in criminal conspiracy with the co- accused persons having killed and cheated the informant by suppressing the fact that though his son has already died by deceiving him to take the deceased to RIMS, Ranchi saying that his condition is critical. 7. It is a settled principle of law as has been held by the Hon’ble Supreme Court of India that when FIR makes out a case of commission of an offence, there cannot be an order of discharge and the accused then must face the trial as has been held by the Hon’ble Supreme Court of India in the case of Rajbir Singh versus State of UP and another AIR 2006 SC 1963 by observing thus in paragraph-9 5 Cr.M.P. No.1018 of 2022 9. The High Court did not at all apply the relevant test, namely, whether there is sufficient ground for proceeding against the accused or whether there is ground for presuming that the accused has committed an offence. If the answer is in affirmative an order of discharge cannot be passed and the accused has to face the trial. (Emphasis supplied) 8. It is also a settled principle of law that when the contents of the F.I.R. disclose a cognizable offence, the same cannot be quashed in exercise of the inherent power of the High Court as a legitimate prosecution cannot be stifled in exercise of the inherent power of the High Court as observed by the Hon’ble Supreme Court of India in the case of Monica Kumar (Dr.) and another v. State of U.P. and others, reported in (2008) 8 SCC 781. Without doubt the allegation made in the FIR is accepted to be true in its entirety, certainly the same makes out at least a case for the offence punishable under Section 304A of Indian Penal Code, inter alia against the petitioner. 9. The Hon’ble Supreme Court of India in the case of Jacob Mathew v. State of Punjab (supra) has laid down the guidelines elaborately to be followed by the Investigating Officer of the case in paragraph no.52 of the said Judgment. 10. So under such circumstances, this Court is of the considered view that this is not a fit case where the entire criminal proceeding in connection with Deoghar Town P.S. Case No.294 of 2021 pending in the court of Chief Judicial Magistrate, Deoghar be quashed but for the interest of justice, the Investigating Officer is directed to comply with the guidelines of the Hon’ble Supreme 6 Cr.M.P. No.1018 of 2022 Court of India as laid down in paragraph no.52 of the case of Jacob Mathew v. State of Punjab (supra) during the investigation of the case. 11. 12.
Arguments
HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioner For the State For O.P. No.2 : Mr. Jitendra Shankar Singh, Advocate : Mrs. Pinki Kumari, Advocate : Mrs. Priya Shrestha, Spl. P.P. : Mrs. Ritu Kumar, Advocate : Mr. Samavesh Bhanj Deo, Advocate ….. By the Court:- 1. 2. Heard the parties. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer for quashing the entire criminal proceeding in connection with Deoghar Town P.S. Case No.294 of 2021 pending in the court of Chief Judicial Magistrate, Deoghar. 3. The brief facts of the case is that the father of the deceased namely Kalyan Kumar Singh lodged the F.I.R. vide Deoghar Town P.S. Case No.294 of 2021 alleging therein that the petitioner who is a doctor associated with a private hospital killed the son of the informant namely Sudip Kumar Singh in the operation theatre 2 Cr.M.P. No.1018 of 2022 of the said hospital and after killing told the informant to take the dead body of his son to RIMS, Ranchi suppressing the fact and thereby deceiving the informant and making him believe that his son is still alive and the petitioner did so in criminal conspiracy with the co-accused- Dr. Amit Kumar Keshri by their rash and negligence act. 4. Mr. Jitendra Shankar Singh, learned counsel for the petitioner submits that the informant gave his consent for surgery of the deceased by signing of the consent form and there is no evidence in support of the allegations made against the petitioner in the F.I.R. It is then submitted by Mr. Singh that the postmortem report of dead body of the deceased did not indicate a homicidal death of the deceased. Relying upon the judgment of Hon’ble Supreme Court of India in the case of Jacob Mathew v. State of Punjab reported in (2005) 6 SCC 1, paragraph no.48 (3) and 52 of which reads as under :- “48.(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. 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 judging the performance of the professional proceeded against on indictment of negligence. 52. Statutory 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 executive rules for or 3 Cr.M.P. No.1018 of 2022
Decision
This criminal miscellaneous petition is disposed of accordingly. In view of disposal of this Criminal Miscellaneous Petition, the interim order granted vide order dated 02.05.2022 stands vacated. High Court of Jharkhand, Ranchi Dated the 20th March, 2023 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.)