Crl.Rev.No.1058 of 1999 1 In the High Court of Punjab and Haryana at Chandigarh Crl.Rev.No.1058 of 1999 Date of decision: 24.8.2011 Surinder Kaur ......Petitioner Versus Pal Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Vikram K.Chaudhary, Advocate, for the petitioner. Mr.G.S.Brar, AAG, Punjab. **** SABINA, J. This petition has been filed under Section 401 of the Code of Criminal Procedure challenging order dated 3.8.1999 passed by the Judicial Magistrate (Annexure P-2), whereby charge was ordered to be framed against the petitioner under Sections 337/338 of the Indian Penal Code, 1860 (IPC for short) in a complaint (Annexure P-3) filed by respondent No.1. The case of the complainant, in brief, is that his wife Paramjit Kaur was admitted in Udham Singh Manmohan Singh Charitable Trust Hospital (Gumtala Hospital) and was advised to undergo removal of uterus. After the operation, Paramjit Kaur suffered continuous pain and leakage of urine. Due to negligence of Crl.Rev.No.1058 of 1999 2 the petitioner during operation, the urinary bladder of Paramjit Kaur had been punctured. Learned counsel for the petitioner has submitted that the petitioner had been falsely involved in this case. In fact the uterus of wife of the complainant was removed as it was a case of heavy painful menstruation for two years. The operation was conducted by the petitioner on 8.6.1995. Patient Paramjit Kaur again got admitted on 25.10.1995 with a diagnosis of coital injury. The urinary bladder of the patient was torn due to forceful coitus. The patient had also approached the Consumer Forum and the State Consumer Disputes Redressal Commission, in an appeal filed by the petitioner, had dismissed the complaint filed by Paramjit Kaur. In support of his arguments, learned counsel has placed reliance on Jacob Mathew vs. State of Punjab and another 2005 (92) AIR (SC) 3180, wherein, in para Nos. 51 and 55, it was held as under:- “ 51. 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 Crl.Rev.No.1058 of 1999 3 negligence are three: 'duty', 'breach' and 'resulting damage'. (2) Negligence in the context of 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 particular Crl.Rev.No.1058 of 1999 4 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's case [1957] 1 W.L.R. 582, 586 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 Crl.Rev.No.1058 of 1999 5 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 304A of 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 of the 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. Crl.Rev.No.1058 of 1999 6 55. 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 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 Crl.Rev.No.1058 of 1999 7 face the prosecution unless arrested, the arrest may be withheld.” None has appeared on behalf of respondent No.1despite service. After hearing learned counsel for the parties, I am of the opinion that the present petition deserves to be allowed. The complainant is the husband of patient Paramjit Kaur. Admittedly, the petitioner operated Paramjit Kaur on 8.6.1996 and removed her uterus. Thereafter, the patient was again operated in October, 1995 on account of leakage of urine from the urinary bladder. The State Consumer Disputes Redressal Commission, Punjab, Chandigarh, while allowing the appeal filed by the petitioner against an order passed by the District Forum dated 26.2.1997, whereby the petitioner was directed to pay compensation to the patient, held as under:- “There is another aspect of the matter which is requird to be noticed. First operation was performed on June 8, 1995. The operation in Guru Nanak Dev Hospital was performed in May, 1996. The complaint of dribbling of urine was made after about three months of performance of the operation by the opposite party. Atleast upto June 30, there was no complaint of dribbling when the patient was in the hospital of the opposite party. It was from October 25 to November 18, 1995 that the complaint of lavatory discharge was made and it was found that it was coital injury in the records of the opposite party. Only medical expert could depose as to whether such an injury Crl.Rev.No.1058 of 1999 8 could be caused by coitus. It was observed by the District Forum that the opposite party did not get sonography or ultrasound before or after performance of the operation and this was a negligent act. There is no basis for coming to such a conclusion. Such tests merely would not confirmed the disease or the defective organ in the body when the doctor after examining the patient had come to the conclusion that uterus or the ovaries were required to be removed, it was for the doctor to get this opinion confirmed through other tests. But non performance of such tests would not raise a presumption that no such disease existed. It is common knowledge that the patient would approach the doctor only when there was aliment.” The patient had, thus, again approached the petitioner after about 4 months of her operation. As per Annexure P-5 at the time of her admission on 25.10.1995, the patient was diagnosed with a coital injury. Operation was conducted and the patient was discharged on 18.11.1995. It was a case of history of “coitus followed by bleeding and foul discharge one week.” From the impugned order dated 3.8.1999 passed by the trial Court, it is evident that in her pre-charge evidence, the complainant had examined Paramjit Kaur as CW-2. The complainant himself appeared in the witness box and examined Jaspal Singh as CW-3. The complainant could not examine Dr. Paramjit Singh Bedi. Thus, the complainant has not led any medical opinion of an expert to support his contention that the urinary bladder of patient Paramjit Kaur had been punctured due to negligence on the part of the petitioner. In Crl.Rev.No.1058 of 1999 9 these circumstances, there was no material before the trial Court to come to the conclusion that the petitioner was negligent while operating upon patient Paramjit Kaur. Moreover, the patient had complained of leakage of urine after about four months of her operation qua removal of uterus. In these circumstances, the trial Court erred in framing the charge against the petitioner under Sections 337/ 338 IPC. Accordingly, this petition is allowed. The impugned order dated 3.8.1999 (Annexure P-2) is set aside. Consequently, the petitioner stands discharged. (SABINA) JUDGE August 24, 2011 anita