1. Dr. Poonam Singh @ Dr. Punam Singh 2. Vimla Tiwari @ Bimla Tiwary v. 1. The State of Jharkhand. 2. Sunil Prasad Gupta
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 813 of 2017 1. Dr. Poonam Singh @ Dr. Punam Singh 2. Vimla Tiwari @ Bimla Tiwary Versus 1. The State of Jharkhand. 2. Sunil Prasad Gupta ..... … Petitioners ..... … Opposite Parties with Cr.M.P. No. 361 of 2017 Dr. C. Thacker @ Charulata Thacker Versus 1. The State of Jharkhand. 2. Sunil Prasad Gupta -------- ..... … Petitioner ..... … Opposite Parties
Legal Reasoning
ingredient. A private complaint may not be entertained unless complainant has the 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 Bolam's 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 furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.” for 6. Mr. Kalyan Banerjee, learned counsel appearing for the O.P. No. 2 submits that the case of cheating is made out, as on the inducement, the operation was taken place and in view of that no case of interference at this stage is made out. 7. In view of the above, the court has perused the complaint petition and finds that there is allegation of rash and negligence in operation being done by the doctors in the nursing home in question. Thus, the genesis of the filing the complaint case is of medical negligence and if such a case is there, the requirement of law is to follow, in view of the judgment of Hon’ble Supreme Court in the case of Jacob Mathew (Supra). On the same line, there are catena of judgments of different High Courts including this court. 8. As such, it appears that without following the law laid down in the case of Jacob Mathew (Supra), the complaint case has been filed and the learned court has taken the cognizance under Section 420 of the Indian Penal Code, however, there is allegation of medical negligence in the complaint case, but how the case under Section 420 IPC is made -4- out is not disclosed in the order taking cognizance. 9. In view of the above fact, reasons and analysis, the entire criminal proceedings including the order taking cognizance dated 04.01.2017, by which, cognizance for the offence under Section 420 of the Indian Penal Code has been taken against the petitioners, in connection with C.P. Case No. 1343 of 2016, pending in the court of learned Judicial Magistrate, 1st Class, Dhanbad, in both the cases, are hereby quashed. 10.
Arguments
CORAM : HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioners For the State For the O.P. No. 2 ------ : : : ------ Mr. Nishant Roy, Advocate. None. Mr. Kalyan Banerjee, Advocate. 04/ 20.09.2023 In both these matters common question of fact, order taking cognizance as well as the complaint are under challenge, that’s why both these matters are being heard together with the consent of the parties. 2. Heard Mr. Nishant Roy, learned counsel appearing for the petitioners and Mr. Kalyan Banerjee, learned counsel appearing for the O.P. No. 2. Nobody has responded on behalf of the State in spite of repeated calls. 3. Both these petitions have been filed for quashing of the entire criminal proceedings including the order taking cognizance dated 04.01.2017, by which, cognizance for the offence under Section 420 of the Indian Penal Code has been taken against the petitioners, in connection with C.P. Case No. 1343 of 2016, pending in the court of learned Judicial Magistrate, 1st Class, Dhanbad. 4. Complaint case was lodged by the O.P. No. 2 alleging therein that he has taken his wife to Primary Health Centre, Karkend for treatment. There they were suggested by accused No. 3 (Bimla Tiwary) to go to Nutan Nursing Home, Godhar, Kenduadih (Dhanbad) for treatment of the wife of the complainant. Thereafter Dr. Poonam Singh (accused No. 1), Proprietor of Nutan Nursing Home said that his wife was suffering from uterus problem and it can only be cured by -2- removing uterus through operation. It has been further stated that the wife of the complainant was operated on 09.02.2016 by Dr. Poonam Singh. After operation due to rash and negligence and inexperienced operation done by the accused Doctor, the condition of the wife of complainant became serious. Thereafter the complainant took her wife to Medica Hospital and Divine Hospital, Kolkata where his wife was saved. The accused No. 1 at the time of admission of patient took Rs. 25,000/-, but thereafter the complainant spent Rs. 10 lakhs for treatment and this situation occurred only due to negligence and inexperience operation done by the accused persons. 5. Mr. Nishant Roy, learned counsel appearing for the petitioners submits that the petitioner No. 1 in Cr.M.P. No. 813 of 2017 is a qualified doctor and petitioner No. 2 is the nurse of the nursing home in question. He submits that the petitioner in Cr.M.P. No. 361 of 2017 is a practicing doctor in the city of Dhanbad. He further submits that the petitioner No. 1 namely Dr. Poonam Singh @ Dr. Punam Singh, in Cr.M.P. No. 813 of 2013 and the petitioner Dr. C. Thacker @ Charulata Thacker in Cr.M.P. No. 361 of 2017 are working in the same nursing home in question and doing the medical practice. He further submits that the allegations are made in the complaint petition of medical negligence, however, the learned court has taken the cognizance under Section 420 of the IPC. He draws the attention of the court to the complaint petition and submits that no case of cheating is made out. He further submits that the case of the petitioners are fully covered in view of the judgment of the Hon’ble Supreme Court in the case of Jacob Mathew Versus State of Punjab & Anr., reported in (2005) 6 SCC 1, where in para-52, the Hon’ble Supreme Court has held as follows:- 52. Statutory Rules or Executive 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 certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an -3-
Decision
Both these petitions are allowed and disposed of. Amitesh/- (Sanjay Kumar Dwivedi, J.)