Ranchi v. The State of Jharkhand
Case Details
1 Cr.M.P. No.3941 of 2023 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 3941 of 2023 Dr. Nibha Sinha @ Nibha Sinha, aged about 55 years, W/o –Ranjan Kumar Sinha, R/o –Quarter No. E-09, Near Panchmukhi Mandir, Sector- II, P.O. –Dhurwa, P.S. –Dhurwa, District -Ranchi. .... Petitioner Versus The State of Jharkhand …. Opp. Party P R E S E N T
Legal Reasoning
HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioner For the State By the Court:- : Mr. Arpit Kumar, Advocate : Ms. Rupa Chandra, Advocate : Mr. Ankitesh Kr. Jha, Advocate : Mr. Bhola Nath Ojha, Addl. P.P. ….. 1. 2. 3. 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 to quash the FIR being Dhurwa (T) P.S. Case No. 330 of 2023 registered for the offences punishable under Section 304A of the Indian Penal Code. The allegation against the petitioner is that the wife of the informant was admitted in a hospital on 27.10.2023 and was under the supervision of the petitioner who is a doctor in the said hospital. Between 7:00 A.M. to 8:00 A.M. of a Saturday by a cesarean procedure, the wife of the informant gave birth to a child. After the cesarean procedure, both the mother and child were in a healthy condition but suddenly at 12:00 mid-night of Sunday, the condition of the wife of the informant deteriorated 2 Cr.M.P. No.3941 of 2023 but the hospital administration did not provide the required treatment facility because of which the wife of the informant died at about 05:00 A.M. on Sunday. The informant contacted the doctor who came to the hospital and informed the informant that she has no knowledge about the condition of the wife of the informant and did not take the matter seriously and went away from the hospital. On the basis of the written report submitted by the informant, the case has been registered. 4. It is submitted by the learned counsel for the petitioner relying upon the Judgment of Hon’ble Supreme Court of India in the case of Lalita Kumari v. Govt. of Uttar Pradesh and Others reported in (2014) 2 SCC 1 para -120.6(c) of which reads as under:- “120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: (a) Matrimonial disputes/family disputes (b) Commercial offences (c) Medical negligence cases (d) Corruption cases (e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months’ delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.” And submits that the police ought to have conducted a preliminary enquiry before registration of the F.I.R. 5. It is next submitted by the learned counsel for the petitioner relying upon the Judgment of Hon’ble Supreme Court of India in the case of Jacob Mathew Vs. State of Punjab and Ors., reported in MANU/SC/0457/2005 that in that case, the Hon’ble Supreme Court of India has taken note of the tendency of 3 Cr.M.P. No.3941 of 2023 the doctors being subjected to criminal prosecution are on the increase. 6. The learned counsel for the petitioner further draws the attention of this Court to the Judgment of a Coordinate Bench of this Court in the case of Dr. Dilip Kumar Vs. The State of Jharkhand & Anr., in Cr.M.P. No. 1005 of 2006 dated 07.01.2019 in which the Coordinate Bench relied upon the Judgment of Hon’ble Supreme Court of India in the case of Dr. Suresh Gupta v. Govt. of NCT of Delhi and Another, reported in (2004) 6 SCC 422, para -20 & 21 of which reads as under:- “20. For fixing criminal liability on a doctor or surgeon, the standard of negligence required to be proved should be so high as can be described as “gross negligence” or “recklessness”. It is not merely lack of necessary care, attention and skill. The decision of the House of Lords in R. v. Adomako [(1994) 3 All ER 79 (HL)] relied upon on behalf of the doctor elucidates the said legal position and contains the following observations: “Thus a doctor cannot be held criminally responsible for patient’s death unless his negligence or incompetence showed such disregard for life and safety of his patient as to amount to a crime against the State.” 21. Thus, when a patient agrees to go for medical treatment or surgical operation, every careless act of the medical man cannot be termed as “criminal”. It can be termed “criminal” only when the medical man exhibits a gross lack of competence or inaction and wanton indifference to his patient’s safety and which is found to have arisen from gross ignorance or gross negligence. Where a patient’s death results merely from error of judgment or an accident, no criminal liability should be attached to it. Mere inadvertence or some degree of want of adequate care and caution might create civil liability but would not suffice to hold him criminally liable.” And submits that even if the allegations made against the petitioner are considered to be true in its entirety, still the offence punishable under Section 304A of the Indian Penal Code is not made out against the petitioner. 4 Cr.M.P. No.3941 of 2023 7. The learned counsel for the petitioner next relied upon the Judgment of a Coordinate Bench of this Court in the case of Dr. Om Prakash Anand Vs. The State of Jharkhand in Cr.M.P. No. 1914 of 2021 dated 20.07.2022, wherein the Coordinate Bench relied upon the Judgment of Hon’ble Supreme Court of India in the case of Martin F. D’Souza v. Mohd. Ishfaq, reported in (2009) 3 SCC 1, para -106 of which reads as under:- “106. We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer Fora (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 of doctors, specialised in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to 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 [(2005) 6 SCC 1: 2005 SCC (Cri) 1369], otherwise the policemen will themselves have to face legal action.” And submits that to avoid harassment to the petitioner before proceeding in the case, the report of the Doctor or Committee of Doctors ought to have been procured. Hence, it is submitted that the FIR being Dhurwa (T) P.S. Case No. 330 of 2023 registered for the offences punishable under Section 304A of the Indian Penal Code be quashed and set aside. 8. The learned Addl. P.P. on the other hand vehemently opposes the prayer for quashing the FIR being Dhurwa (T) P.S. Case No. 330 of 2023 registered for the offences punishable under Section 304A of the Indian Penal Code and submits that there is specific allegation against the petitioner of being indulging in 5 Cr.M.P. No.3941 of 2023 gross negligence. Therefore, it is submitted that the F.I.R. ought not be quashed and set aside at this nascent stage. 9. Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that to bring a case of homicide under Section 304A of the Indian Penal Code, besides the death of a person, there must exist; the following ingredients:- (i) (ii) The accused has caused such death. That such act of the accused was rash and negligent and that it did not amount to culpable homicide as has been held by the Hon’ble Supreme Court of India in the case of State of Punjab v. Balwinder Singh and Others, reported in (2012) 2 SCC 182 by observing thus in para-10 “10. Section 304-A was inserted in the Penal Code by Penal Code (Amendment) Act 27 of 1870 to cover those cases wherein a person causes the death of another by such acts as are rash or negligent but there is no intention to cause death and no knowledge that the act will cause death. The case should not be covered by Sections 299 and 300 only then it will come under this section. The section provides punishment of either description for a term which may extend to two years or fine or both in case of homicide by rash or negligent act. To bring a case of homicide under Section 304-A IPC, the following conditions must exist, namely, (1) there must be death of the person in question; (2) the accused must have caused such death; and (3) that such act of the accused was rash or negligent and that it did not amount to culpable homicide.” 10. As has been held by the Hon’ble Supreme Court of India in the case of Dr. Suresh Gupta Vs. Government of N.C.T. of Delhi and Another (supra), for fixing a criminal liability on a doctor or a surgeon, the standard of negligence required to be proved should be so high that can be described as gross negligence or recklessness. 6 Cr.M.P. No.3941 of 2023 11. Now coming to the facts of the case, there is no allegation against the petitioner under whose supervision the cesarean procedure was conducted; that the petitioner has committed any negligence in conducting the cesarean procedure. The only role in treatment of the petitioner as alleged is confined only up to conducting the cesarean procedure. Admittedly, after the surgery, the wife of the informant and the child were healthy and hearty. There is no allegation against the petitioner of having neglected or indulging in any reckless activity rather the allegation is against the management of the hospital. There is no allegation against the petitioner that the petitioner was in any manner associated with the management of the hospital. The only allegation against the petitioner is that after the death of the wife of the informant, the petitioner came to the hospital and expressed her ignorance about the condition of the wife of the informant. So considering the entire allegations made in the First Information Report to be true in its entirety, in the considered opinion of this Court, the same do not constitute the offence punishable under Section 304A of the Indian Penal Code. Hence, continuation of the criminal proceeding will amount to abuse of process of court. Therefore, this is a fit case where the FIR being Dhurwa (T) P.S. Case No. 330 of 2023 registered for the offences punishable under Section 304A of the Indian Penal Code be quashed and set aside qua the petitioner. 12. Accordingly the FIR being Dhurwa (T) P.S. Case No. 330 of 2023 registered for the offences punishable under Section 304A 7 Cr.M.P. No.3941 of 2023 of the Indian Penal Code is quashed and set aside qua the petitioner only. 13. In the result, this criminal miscellaneous petition is allowed. High Court of Jharkhand, Ranchi Dated the 17th January, 2024 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.)