Dr. Deepak Kumar, aged about 38 years, son of Nageshwar Prasad, resident of Adityapur v. 1. The State of Jharkhand 2. Manoj Kumar Singh, S/o Mahendra Prasad Singh, R/o
Case Details
1 Cr.M.P. No. 3465 of 2022 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 3465 of 2022 Dr. Deepak Kumar, aged about 38 years, son of Nageshwar Prasad, resident of Adityapur P.O. & P.S.- Adityapur, District- Seraikella- Kharsawan .... Petitioner Versus 1. The State of Jharkhand 2. Manoj Kumar Singh, S/o Mahendra Prasad Singh, R/o River View Colony, Manjhi Tola, P.O. & P.S.- Adityapur, Dist.- Seraikella- Kharsawan ….. Opposite Parties For the Petitioner For the State For the O.P.No. 2 : Mr. Nagmani Tiwari, Adv. : Mr. Satish Prasad, Addl.PP : Mr. Shashank Shekhar, Adv. P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:-
Legal Reasoning
Heard the parties. 2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 of Cr.P.C. with a prayer for quashing the entire criminal proceeding including the order taking cognizance dated 30.10.2021 in connection with Adityapur P.S. case no. 139 of 2020 corresponding to G.R. No. 925 of 2021 registered for the offence punishable under Section 304A 506, 504, 323 of IPC, now pending in the court of learned CJM, Seraikella- Kharsawan. 3. The brief fact of the case is that the wife of the informant namely Renu Devi was under treatment of interalia the petitioner. On 19.09.2020 at about 10.00AM, the doctor instructed the informant to come with one unit of blood for dialysis of Renu Devi. The informant handed over the blood at 12.00 noon on the same day but neither the petitioner nor any doctor carried out dialysis of the wife of the informant, which resulted in death of wife of the informant because of negligent act of the petitioner and the co- accused persons. There is further allegation that during the 2 Cr.M.P. No. 3465 of 2022 treatment of the wife of the informant, she was not treated properly and when the informant asked about the condition of his wife from the petitioner, the petitioner criminally intimidated the informant and abused him and got him manhandled by the guard of the hospital and drove him out from the hospital. After registration of the case, the police took up investigation and found the allegation against the petitioner to be true and submitted charge-sheet against the petitioner. Learned CJM, taking into consideration, the contents of the FIR, charge sheet, statement of the witnesses, found sufficient material to proceed against the accused persons for having committed the offence punishable under Sections 304A, 506, 504, 323, 34 IPC . 4. Learned counsel for the petitioner submits that the petitioner is having qualification of MBBS, MD (General Medicine) and he is not involved in the conduct of the dialysis. Relying upon the judgment of Hon’ble Supreme Court of India in the case of Jacob Mathew vs. State of Punjab & Anr. reported in (2005) 6 SCC 1, para 48 and 52 of which reads as under :- “48. We sum up our conclusions as under: (1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: “duty”, “breach” and “resulting damage”. (2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some 3 Cr.M.P. No. 3465 of 2022 particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used. (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 for judging the performance of the professional proceeded against on indictment of negligence. (4) The test for determining medical negligence as laid down in Bolam case [(1957) 1 WLR 582 : (1957) 2 All ER 118 (QBD)] , WLR at p. 586 [ [Ed.: Also at All ER p. 121 D-F and set out in para 19, p. 19 herein.]] holds good in its applicability in India. (5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution. (6) The word “gross” has not been used in Section 304-A IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be “gross”. The expression “rash or negligent act” as occurring in Section 304-A IPC has to be read as qualified by the word “grossly”. (7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent. (8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law, specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence. 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 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 4 Cr.M.P. No. 3465 of 2022 proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.” (Emphasis supplied) and submits that the petitioner was not qualified to treat the deceased, hence, the entire criminal proceeding including the order taking cognizance in connection with Adityapur P.S. case no. 139 of 2020 corresponding to G.R. No. 925 of 2021 be quashed.
Legal Reasoning
5. Learned Additional Public Prosecutor and learned counsel for the opposite party no. 2, on the other hand, vehemently opposes the prayer for quashing the entire criminal proceeding including the order taking cognizance in connection with Adityapur P.S. case no. 139 of 2020 corresponding to G.R. No. 925 of 2021. It is further submitted by learned Addl.PP and learned counsel for the opposite party no. 2 submit that in para 3 of this criminal miscellaneous petition, the petitioner has narrated the case of the prosecution, he has not disputed nor anywhere in this criminal miscellaneous petition, the petitioner has denied the fact that he was treating the wife of the informant, who died during the course of her treatment in Meditrina hospital, Jamshedpur, wherein the petitioner was undisputedly the doctor. It is further jointly submitted that there is no dispute of the fact that the deceased died because the dialysis was not done for a considerable period of time, even though, as per the advice of the petitioner and the co-accused persons, the informant came with a unit of blood for the purpose of dialysis. It is next submitted that this is a case where the petitioner being a doctor did not exercise, with reasonable competence, the skill which he did possess and as the petitioner undisputedly advised for dialysis of Renu Devi, it may amount to his defence that why he did not go for dialysis, resulting in death of Renu Devi but such defence cannot be considered by this court in exercise of its jurisdiction under section 482 of the Code of Criminal Procedure. It is then submitted that under such undisputed facts, the gross negligent act of the petitioner is apparent and the mens rea is also apparent from the fact that the petitioner criminally intimated the complainant and 5 Cr.M.P. No. 3465 of 2022 got him manhandled by the security personnel, hence, the offence under Section 304A IPC is made out against the petitioner. It is next submitted that the there is no doubt that the case of Jacob Mathew (supra), the Hon’ble Supreme Court has summed up the conclusion regarding the negligence in the context of medical profession but here it is the case, where the undisputed facts establishes that there was gross negligence on the part of the petitioner, resulting into death of Renu Devi and it is submitted that the police during investigation of the case, has found the allegations to be true and the witnesses whose statement were recorded by the police, have all supported the case of the prosecution, hence, it is submitted that since it is full-proof case of the prosecution, so far as the offence punishable under Section 304A of IPC as well as the others offences of criminal intimidation, causing simple hurt in furtherance of common intention, is also there, 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 available in the record, it is pertinent to mention here that; it is a settled principle of law that the high court exercising jurisdiction under Section 482 Cr.P.C., shall not embark upon an enquiry as to whether the evidence is reliable or not and that would be the function of trial court, as has been held by the Hon’ble Supreme court of India in the case of the State of M.P. vs. Awadsh Kishore Gupta and Others reported in 2004 (1) SCC 691. It is also a settled principle of law that the inherent power under Section 482 CrPC, should not be exercised by the high court to stifle a legitimate prosecution, as has been held by the Hon’ble Supreme Court of India in the case of Monica Kumar (Dr. )and another v. State of Uttar Pradesh and others. reported in (2008) 8 SCC 781. 7. Now coming to the facts of the case, the fact remains undisputed that the petitioner was the doctor, who was treating the deceased. Renu Devi and the deceased died during the course of her treatment and the fact remains undisputed that though the 6 Cr.M.P. No. 3465 of 2022 complainant brought one unit of blood by 12 noon, as per the instruction of the petitioner and the co-accused persons, for the purpose of dialysis but the dialysis was not done till evening resulting in death of the deceased. The plausible reason, if any, for the petitioner not to advise or ensure dialysis being done, may at best form of defence, which the petitioner can take at the time of trial but certainly, the same cannot be considered at this stage, for the purpose of quashing the entire proceeding. The undisputed fact that the petitioner advised for dialysis of Renu Devi but even after blood was procured for the same by the complainant, yet dialysis was not done resulting in the death of Renu Devi amounts to the petitioner, not exercising the skill which he did possessed and the same can be termed as a gross negligence. The mens rea of the petitioner is apparent from the fact that he criminally intimated the petitioner and got him manhandled by the security personnel. 8. Under such circumstances, this court is of the considered view that this is not a fit case where the entire criminal proceeding including the order taking cognizance dated 30.10.2021 in connection with Adityapur P.S. case no. 139 of 2020 corresponding to G.R. No. 925 of 2021 be quashed. 9. Accordingly, this Criminal Miscellaneous Petition being without any merit is dismissed. High Court of Jharkhand, Ranchi Dated, the 19th June, 2023 Smita /AFR (Anil Kumar Choudhary, J.)