Sakhavat Husain v. Dr. Pavan and others), under Section
Case Details
Neutral Citation No. - 2023:AHC:160793 Court No. - 50 Case :- MATTERS UNDER ARTICLE 227 No. - 2603 of 2023 Petitioner :- Sushil Kumar Agarwal Respondent :- State of U.P. and Another Counsel for Petitioner :- Bhaskar Bhadra Counsel for Respondent :- G.A. Hon'ble Ram Manohar Narayan Mishra,J. As per the office report, notice was issued to respondent No.2 through registered post and track consignment of Indian Post reveals that item was delivered to the addressee on 9.5.2023. Copy of track consignment is filed but as per CIS inquiry, no Vakalatnama or counter affidavit has been filed. Heard Sri Bhaskar Bhadra, learned counsel for the petitioner, learned AGA for the State and perused the material placed on record. Present petition under Article 227 of Constitution of India has been filed by the petitioner being aggrieved by order dated 6.1.2023 passed by Additional Sessions Judge, Court No.1, Bareilly, in Criminal Revision No. 65 of 2022 (Sakhavat Husain vs. Dr. Pavan and others), under Section 156(3) Cr.P.C, Police Station Izzat Nagar, District Bareilly. The factual matrix of the case relevant for the purpose of present writ petition are that the respondent No.2 filed an application under Section 156(3) Cr.P.c. before the court Chief Judicial Magistrate, Bareilly against the petitioner and others wherein he has stated that on 4.1.2013, he suffered severe stomach ache and he consulted his relative Noor Ahmad, who operates a clinic in the village. The said Noor Ahmad took him to the clinic of Dr. Pawan in Bareilly on assurance that he bears good acquaintance with said Dr. Pawan and Dr. Pawan had conducted his ultrasound in his hospital and stated that there was stone in his right kidney and the same can only be removed by operation. ON 6.1.2013, said Dr. Pawan alongwith his two assistants operated upon the applicant and got him admitted in his hospital for 15 days and thereafter discharged him. After some time, the applicant again suffered stomach age and when he told this fact to Noor Ahmad, he prescribed some medicine to him, which provided immediate relief. The applicant got an ultrasound of him done on 17.10.2020 at B. Care Diagnostic and Imaging Centre, Bareilly, wherein it was reported by the Doctor that his right kidney was not present. The applicant became astonished to know this fact and it cause him much worry for his future life. He got his second ultrasound done on 29.1.2021, at another
Legal Reasoning
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 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 for 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. Learned CJM, Bareilly acting upon above observations of Apex Court directed the C.M.O., Bareilly to constitute a medical Board to enquire into the facts of the case. The Medical Board consisting of Additional CMO, one surgeon, one radiologist and one physician report on 26.11.2021 that pursuant to the complaint of Sri Shekhawat Husain regarding removal of his one kidney. The matter was enquired into by the board and the ultrasound reports of the applicant were perused, whereby it was found that his right kidney was absent. However, no document or record was found with regard to treatment, operation or discharge of the applicant in Pawan Hospital, Janakpuri, Bareilly. Doctor Shushil Kumar Agarwal stated in his written statement before the Board that in January, 2013, no patient in the name of Sakhawat Husain ever got admitted in the hospital. He also made available the Admission Register. Therefore, in the absence of relevant records, regarding treatment, operation and discharge of the applicant, no opinion can be given in the matter. The learned CJM dismissed the application placing reliance on the report of Medical Board and also concluded that no cognizable office appears to be made out for want of sufficient medical records. Feeling aggrieved by the order of CJM, Bareilly, the applicant filed a criminal revision before the court of Additional Sessions Judge, Court No.1, Bareilly and said revision was finally disposed of by impugned order passed by learned Additional Sessions Judge, Court No.1, Bareilly. Learned Additional Sessions Judge, while deciding the criminal revision filed by the applicant, examined the photocopy of Admission Register of Pawan Hospital in course of hearing and observed that the names, which are mentioned from Serial No.1 to 56, are written in the same hand writing and five columns of the said register kept blank, in photocopy of the register of Pawan Hospital. The description of patient is mentioned from Serial No.1 to 77, it is also prepared in the same hand writing. There is no explanation found of the fact that why other columns of register were not filled up. The matter alleged by the applicant is not related to medical negligence but this is a case of removal of kidney during the course of treatment. In ultrasound report, it is mentioned that the right kidney of the applicant was removed. Learned trial court has not adjudicated the matter in proper manner as this is the case of revisionist that he was treated in Pawan Hospital. The opposite party No.2 Noor Ahmad took him to said hospital and on advise of the Doctor, he got himself operated in impression of removal of kidney stone. He was stated to be admitted there for 15 days but no document was provided to him by the hospital. All the relevant documents were stated to have been weeded out by the hospital and the list of patients are in same hand writing in the register. With above observation, learned Revisional Court has allowed the criminal revision and set aside the impugned order passed by the learned CJM. He directed the court below to hear and decide the application moved under Section 156(3) Cr.P.C. filed by the revisionist afresh on the basis of material placed on record. Feeling aggrieved by the impugned order passed by the learned revisional court, one of the proposed accused Dr. Sushil Kumar Agarawal, filed present petition before this Court. Learned counsel for the petitioner submitted that learned CJM, Bareilly after conducting proper inquiry and seeking report from respondent No.2 dismissed the application when he did not find any material evidence in the said offence. In fact the respondent No.2 filed false and baseless complaint against the revisionist, which was correctly rejected by the learned CJM in his order dated 11.1.2022. There is no record or slip of registration or treatment by which it may be proved that the allegations levelled by the respondent No.2 are true. Therefore, there is no illegality in order passed by the learned CJM but the lower revisional court without any proper reasoning passed the impugned order on false and baseless grounds shown before him by the opposite party No.2/applicant. The impugned order passed by the learned revisional court is itself vitiated by vice of illegality and is not sustainable under the eye of law. Considering rival submissions made by learned counsel for the parties, impugned orders passed by learned revisional court as well as initial order passed by learned CJM and other materials placed on record, I find no fault with the reasoning and finding given by the learned revisional court in impugned order whereby the matter is remanded back to the Court of first instance to hear and decide afresh and the order passed by learned CJM has been set aside. The sequence of events narrated by learned revisional court and reasoning given in impugned order are logical and impugned order is based on meticulous examination of material available on record. There is force in reasoning of learned revisional court that this is not a case of medical negligence but a case of removal of an important body organ like kidney during treatment of a patient without his knowledge and learned court below while rejecting the application under Section 156(3) Cr.P.C. has not considered the attending facts and circumstances of the case in proper manner. The present petition is devoid of merits and is liable to be dismissed. Accordingly, the petition stands dismissed and impugned order passed by learned revisional court is affirmed. Let a copy of this order be sent to learned C.J.M., Bareilly for information and necessary action. Order Date :- 26.5.2023 Kamarjahan Digitally signed by :- KAMARJAHAN ANSARI High Court of Judicature at Allahabad
Arguments
diagnostic centre wherein also Doctor Prachi Srivastava confirmed that his right kidney was not present. He apprised Noor Ahmad of this fact but his approach was procrastinate. When, he was operated in Pawan Hospital in the year 2013. There were other persons like Shakir, Sabir, Sarafat and Mohammad Saed were also present there on 10.2.2021. He visited Doctor Pawan alongwith these persons where Doctor Pawan and Doctor Sushil were present. He stated this fact to said doctors and has shown his ultrasound reports. He asked for his medical records from the Doctor but they stated that there was no record available and asked him to come next day. On next day, they got a news published in Hindi newspaper 'Dainik Jagran' that the records of the Pawan Hospital, Janakpuri up to year 2016 were weeded out. A copy of newspaper clipping was filed alongwith the application under Section 156(3) Cr.P.C. Doctor Pawan, subsequently refused to meet him when he tried to visit, subsequently. The applicant his very much concerned to know that his one kidney was removed surreptitiously and he is likely to develop many body ailments. He made a complaint of this incident to S.H.O., Police Station Izzatnagar, S.S.P, Bareilly through registered post but no action was taken in the matter, as the concerned doctors are having protection of police officers. The act of concerned doctors was inhumane and grossly criminal. Learned trial court called a report from police station concerned with regard to the incident wherefrom it was reported that no case is registered in the matter. Learned CJM placed reliance on a judgement of Apex Court in the case of Jacob Mathew vs. State of Punjab, (2005) 6 SCC wherein Apex Court laid down certain guidelines in the cases of alleged medical practices in India. In that judgment, it was clearly stated that there was need for protecting doctors from frivolous or unjust prosecutions. Hon'ble Apex Court held that a private complaint may not be