1. Ravijit Singh 2. Dhanbad Nursing Home, Pvt. Ltd. through its Director Ravijit Singh v. 1. The State of Jharkhand. 2. Bhupendra Agarwal
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 1881 of 2014 1. Ravijit Singh 2. Dhanbad Nursing Home, Pvt. Ltd. through its Director Ravijit Singh Versus 1. The State of Jharkhand. 2. Bhupendra Agarwal with ..... … Petitioners ..... … Opposite Parties Cr.M.P. No. 1882 of 2014 1. Dr. Jogendra Singh 2. Dr. Rakesh Inder Singh 3. Dr. Amir Pravez Versus 1. The State of Jharkhand. 2. Bhupendra Agarwal -------- ..... … Petitioners ..... … Opposite Parties
Legal Reasoning
CORAM : HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioners For the State For the O.P. No. 2 ------ : : : ------ Mr. Shailesh Kumar Singh, Advocate. Mr. P.D. Agarwal, Spl.P.P. None. 08/ 27.02.2024 In both these cases common FIR is under challenge, that’s why, both these matters are being heard together with the consent of the parties. 2. Heard Mr. Shailesh Kumar Singh, learned counsel appearing for the petitioners and Mr. P.D. Agarwal, learned Spl.P.P. for the State. 3. Nobody has responded on behalf of the O.P. No. 2 in spite of repeated calls, however, appearance has been made on his behalf, that’s why, these petitions are being heard on merits in absence of O.P. No. 2. 4. In both these petitions, prayer is made for quashing of the entire criminal proceeding in connection with Dhanbad (Bankmore) P.S. Case No. 634 of 2014 corresponding to G.R. No. 2827 of 2014, registered for the offence under Sections 304, 420 and 34 of the Indian Penal Code, pending in the court of learned Chief Judicial Magistrate, Dhanbad. 5. Learned counsel appearing for the petitioners submits that subsequently the chargesheet has been submitted in the case and the learned court has been pleased to take cognizance against the petitioners by order dated 06.05.2017. He submits that for challenging -2- the said cognizance order, I.A. No. 2956 of 2020 [In Cr.M.P. No. 1881 of 2014] and I.A. No. 2955 of 2022 [In Cr.M.P. No. 1882 of 2014] have been filed. He further submits that the prayer made in these I.As. may kindly be allowed. 6. Mr. Agarwal, learned Spl.P.P. appearing for the State has opposed the prayer on the ground that at this belated stage, these I.As. may not be allowed. 7. Considering that the matter is still pending and also to avoid the multiplicity of litigation, the prayer made in these two I.As. are
Decision
allowed and the same are disposed of. 8. Let both these I.As. be treated as a part of the respective Cr.M.Ps. 9. In view of the above, the order taking cognizance dated 06.05.2017 is also under challenge in these petitions. 10. The FIR was lodged pursuant to the direction issued u/s 156(3) Cr.P.C. in Complaint Case No. 1340/14 which was lodged by one Bhupendra Agrawal alleging that he got admitted his brother - Shyam Shunder Agrawal in Dhanbad Nursing Home on 26.09.13 where it was stated that the patient was suffering from infection in urinary duct requiring Postate surgery and costs of Rs. 1 Lakh will be incurred therein. On 06.10.13 surgery was carried out wherein it was stated that the patient was suffering from Postate abscess which has been removed and the urinary bag was fixed which will be removed after 7 days. It is further alleged that on the day after removal of the urinary bag, some bad smelling liquid started leaking. On enquiry from the petitioners, it was stated that the same will take 10-15 days to recover. However, it is stated that in spite of lapse of 15 days, as the liquid did not stop and after 20-22 days the condition of the patient worsened. It is further alleged that on 17.10.13, after taking Rs. 1 Lakh, the patient was forcefully discharged. It is further alleged that on 2- 3 occasions thereafter the patient was taken back to the accused persons where it was stated that the patient was alright and he was sent back. The condition of the patient worsened wherein on pleading, the accused person no. 4 told the petitioner to take the patient to the accused no. 1 at Inder Singh Namdhari Hospital where the accused no. I took Rs. 10,000/- and prescribed medicines and stated that the patient will be ok -3- within 3-4 days. It is further alleged that thereafter the patient was taken to Christian Medical College, Vellore where he was seen on 18.11.13 and it was opined that on account of wrong treatment the urinary passage has been connected to stool passage due to which the internal organs have badly been damaged and that 4-5 times operation would be required. It is stated that twice operation has been performed and still thrice operation is to be performed and till now expenses of Rs. 3 lakh has been incurred and further expenses of Rs. 7-8 lakhs is likely to be incurred. It is further alleged that all the accused persons, in order to cheat the petitioner of heavy amount, in a wrong manner occasioned wrong treatment of the patient and no proper reply nor treatment was given. It is further alleged that in spite of two legal notices. no satisfactory response was received. 11. Mr. Shailesh Kumar Singh, learned counsel appearing for the petitioners submits that the petitioners are doctors in Cr.M.P. No. 1882 of 2014 and in Cr.M.P. No. 1881 of 2014, the petitioner No. 1 is one of the Director of the Hospital and petitioner No. 2 is the nursing home. He submits that the petitioners in Cr.M.P. No. 1882 of 2014 are very qualified doctors, however, allegations are made against the petitioners that they wrongly connected the urinary pipe to the stool pipe due to which internal injuries were caused. He further submits that the same nowhere spells out any criminal intention on part of the petitioners. He submits that Prostate Abscess, R.U. Fistula was caused in its own and the same is a known complication, which can be treated by surgery. Mr. Singh, learned counsel submits that the doctors have done their duty in terms of the medical protocol and every care was taken and falsely the present case has been filed. He submits that the petitioner No. 1 is a senior most surgeon of the region and he has many credits of treating patients successfully and the petitioner Nos. 2 and 3 are the competent doctors in the team of petitioner No. 1 and have handled numerous cases in the past. He further submits that the patient was suffering from Prostate abscess with diabetes with septicemia and one of the inherent complications of Prostatic abscess surgery in a case of diabetes with septicemia is Urethra-rectal fistula, which can be treated through surgery. Mr. Singh further submits that in a case like this, certain guidelines have been made by Hon’ble Supreme Court in -4- the case of Jacob Mathew Versus State of Punjab & Anr., reported in (2005) 6 SCC 1, but the same has not been followed and the learned court has been pleased to take cognizance against the petitioners. He further draws the attention of the court to the medical report brought on record in the I.As, which was issued by the office of the Civil Surgeon, Dhanbad and submits that cause of such development is discussed therein and finding is there that Dr. Jogendra Singh possesses the post graduate decree in general surgery (Master of Surgery) and he is a retired professor of surgery and he has worked as a teaching faculty in the department of surgery in different medical colleges from the year 1975 to 2000. On these grounds, learned counsel appearing for the petitioners submits that maliciously the present case has been filed against the petitioners and against the nursing home as well as one of the directors. 12. Mr. Agarwal, learned Spl.P.P. appearing for the State has opposed the prayer on the ground that in the Medical report of the Medical Board, it has not been said that there was no fault on the part of the doctors. He submits the learned court has been pleased to take cognizance in view of that at this stage, this court may not quash the proceeding. 13. It is an admitted fact that the petitioners in Cr.M.P. No. 1882 of 2014 are qualified doctors and they were discharging their duties in the Dhanbad Nursing Home Pvt. Ltd. The patient was treated by them and surgery was done and thereafter certain complications are developed and further he was treated and he was cured. 14. In the case of “Martin F. D’Souza V. Mohd. Ishfaq” reported in (2009) 3 SCC 1, where in para-106 of the said judgment, the Hon’ble Supreme Court has held as under:- “106. We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer For a (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 or doctors specialized in the field relating to which the -5- to then issued medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie of medical negligence should notice be 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 Mathew case, otherwise the policemen will themselves have to face legal action.” 15. Further in the case of Jacob Mathew Vs. State of Punjab” reported in 2005 (6) SCC 1, there were certain directions with regard to proceeding against the qualified doctors. 16. In these two cases the concern of the court was that unnecessarily a bona fide action of any doctor may not be the subject matter of civil wrong as well as criminal wrong and in that aspect in both the judgements it has been directed that the case will be proceeded against the doctors after taking expert opinion and the case in hand expert report appears to be there, which is contained in the I.As. and in absence of any report, the learned court has proceeded in the matter and even the police has not examined any qualified doctors. 17. In the case in hand, the doctors have discharged their responsibilities and the operation was successful and thereafter certain complication was developed. the case of Martin F. D’Souza(supra) the Hon’ble Supreme Court has noted the facts that the courts and the Consumer Forum are not experts in medical science, and must not substitute their own views over that of specialists. It is true that the medical profession has to an extent become commercialized and there are many doctors who depart from their Hippocratic oath for their selfish ends of making money. However, the entire medical fraternity cannot be blamed or branded as lacking in integrity or competence just because of some bad apples. It is well known that in spite of best effort made by the doctor sometime they are not successful and this does not mean that doctor must be held guilty. 18. In view of the above facts, reasons and analysis, the entire criminal proceeding including the order taking cognizance dated 06.05.2017, in connection with Dhanbad (Bankmore) P.S. Case No. 634 -6- of 2014 corresponding to G.R. No. 2827 of 2014, registered for the offence under Sections 304, 420 and 34 of the Indian Penal Code, pending in the court of learned Chief Judicial Magistrate, Dhanbad, are hereby, quashed. 19. Both these petitions are allowed and disposed of. Amitesh/- [A.F.R.] (Sanjay Kumar Dwivedi, J.)