CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: FEBRUARY 03, 2010 Dr.Gurdeep Singh Kochhar and another .....Petitioners VERSUS U.T. Chandigarh and another ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. K. S. Nalwa, Advocate, for the petitioners. Mr. N. S. Shekhawat, Advocate, for U.T., Chandigarh. Mr. U. S. Dhaliwal, Advocate, for the complainant. **** RANJIT SINGH, J. Essential conditions and requirement to make a doctor liable for criminal negligence has been fairly settled by the Hon'ble Supreme Court in the case of Jacob Mathew Vs. State of Punjab and another, (2005) 6 Supreme Court Cases 1. There should not be any scope of any controversy to proceed against a doctor if the parameters as laid down in Jacob Mathew's case (supra) are satisfied. Still, the ratio of law as laid down by the Supreme Court CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 2 }: apparently was not followed in the present case while registering FIR against the petitioners. The petitioners, therefore, are before this Court to seek quashing of this FIR, not only on the ground that the same has been registered in complete violation of the law laid down by the Supreme Court but also on the ground that this FIR is outcome of an undue influence of a highly placed authority in the State of Punjab. The incidental question, thus, may arise for consideration about the role of police and their frequent failure to act independently to discharge their duties on being put under pressure by highly placed political and other authorities yielding powerful position. First a few facts. The petitioners are husband and wife doctors, who have set up a Nursing Home named “Deep” in Sector 21, Chandigarh. The petitioners would claim that the Nursing Home is very well equipped and is established with state of art facilities. It is also equipped for conducting major surgeries like close heart surgery, brain surgery, hip replacement surgery and such like other specialized surgeries. The Nursing Home is having equipments like ventilator, defibrillator,diathermy, pulse oxymeter, Suction Apparatus, Boyle's machine, Central Oxygen supply, big oxygen cylinder and all other necessary equipments essential for running admission facilities. Coming to the facts, leading to FIR, it may be noticed that Mrs.Charanpreet Kaur, aged 32 years and wife of complainant, Sh.Manmeet Singh Mattewal visited petitioner No.2 on 10.11.2005 while she was in eighth month of her pregnancy. Mrs.Charanpreet Kaur expressed her desire to avail the facilities of Nursing Home for delivery of the child, which was expected around 2.1.2006. After CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 3 }: necessary advice for intake of iron and calcium, she was told to approach the Nursing Home in case of any problem. She was also advised to consult a Cardiologist as she was having problem of breathlessness. Dr.Pawal Kansal was the Cardiologist recommended for consultation. Mrs.Charanpreet Kaur again visited the Nursing Home on 10.11.2005. She was going to deliver a second child but as per the averments, had not disclosed or shared any problem, if any, she would have faced during the first delivery. As per the petitioners, they later learnt that the earlier child of the patient was an autostic child, which is a genetic disorder of nervous system. She also carried history of abortion of one earlier pregnancy. Subsequently, she came for check up on 29.11.2005 and 9.12.2005. On the last referred date, she told petitioner No.2 that she had consulted Dr.Suneet, Cardiologist, as Dr.Pawal Kansal was not available. As per the petitioners, everything was found normal during the check up. Patient again visited the Nursing Home on 16.12.2005, was given a routine check up and advised to continue with the earlier medicine. On 19.12.2005, Mr.Charanpreet Kaur was brought to the Nursing Home with history of pain. On examination, it was found to be non-labour pain. Some course was recommended, which was not accepted by the family of the patient and she was taken away from the Nursing Home after half an hour stay. She was again brought back to the Nursing Home on 21.12.2005 with continued history of pain. This was again diagnosed to be non-labour pain. At that stage, petitioner No.2 suggested two alternatives either to suppress the pain or to induce labour pain through medication as the fetus was mature. CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 4 }: It was in this background that the procedure for inducing labour pain was started around 12 O'Clock on 21.12.2005. There is no need to mention in detail the action taken by the petitioners. However, the patient delivered a baby boy at 2.40 A.M. Petitioner No.2 states to have remained throughout with the patient. The baby did not cry but gasped. The baby was handed over to Pediatrician for resuscitation. The details of the efforts made thereafter are mentioned in the petition but despite this the baby failed to revive and was declared dead at 3.10 A.M. Mother was not informed about the death but mother-in-law and other relatives were so told about it. They were also advised to get the autopsy done to find out the cause of death, but they refused. Detailed mention has also been made to the treatment given to the mother and child. It is also disclosed that two more doctors were contacted and were requested to reach the operation theatre considering the complication as the patient was found to be excessively bleeding. The relatives were asked to arrange blood. Dr.Umesh Jindal, Sr. Gynecologist and Dr.N.S.Sandhu reached the Nursing Home at 4 A.M. They both conducted the necessary examination. When it was found by all the doctors that the patient was suffering from Uterine Interia PPH, it was decided to refer her to P.G.I for Uterine Artery Embolization. The patient was accordingly shifted with running blood transfusion. She was accompanied by the Staff Nurses of the Nursing Home. Despite best efforts, she could not be revived and breathed her last. Dr.Parmod Kumar, who was on duty at P.G.I., has recorded a note reading “patient brought dead to S.L.R ....... patient's attendance and husband not willing for autopsy. CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 5 }: We do not want the case to be made medico-legal.” On 22.12.2005, Manmeet Singh Mattewal, respondent No.2 and husband of the deceased lady, gave a written complaint to SSP Chandigarh and S.H.O., Police Station, Sector 19, Chandigarh, alleging negligent treatment by the petitioners, which led to loss of two precious lives. The copy of the complaint is annexed as Annexure P-3. The police accordingly got into motion and took custody of the original medical record from the Nursing Home. Petitioner No.2 gave a detailed reply to the complaint and submitted the same to the office of S.S.P., Chandigarh. Copy of the same is at Annexure P-4. The police accordingly initiated enquiry in regard to the medical treatment given to the deceased. A team of four doctors, namely, Dr.Rupinder Kaur, S.M.O., Dr.Vidhu Bhasin, S.M.O., Dr.N.K.Kaushal, S.M.O and Dr.Satinder Wadia, S.M.O., was constituted. This Board came to a conclusion that the patient had died because of severe atonic PPH which did not respond to the treatment given at the Nursing Home. The treatment given was found as recommended. The relevant extract of the finding ruling out the possibility of any gross negligence on the part of the petitioners is as under:- “Baby had severe birth asphyxia. As mentioned in the records “male baby born at 2.39 A.M. On 22.12.05 with no respiration, Heart-occasional heart beat APGAR-0/10. Resuscitation done in form of endotracheal intubation, assisted ventilation and Adrenalin in 1:10 given through the endotracheal tube but baby could not be revived.” If there was occasional heart beat than APGAR has to be CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 6 }: 1/10. In my view this therapy given to the baby in form of intubation, cardiac massage and endotracbheal Adrenalin are the standard procedures for the treatment of severely birth asphyxia is indeterminate, it could have been due to events occurring in intrapartum period or there could have been other etiology which cannot be commented upon in the absence of autopsy-which was not done. It is concluded that the patient has died because of severe atonic PPH which did not respond to the treatment given at Nursing Home. The treatment given for atonic PPH was as recommended. Blood is not arranged before hand for normal deliveries. The patient went into shock at 3.45 AM as per the record as the BP was 80/P and pulse was 96 per minute (Tachycardia). Blood samples sent for cross matching at 3.15 AM and blood was brought from Rotary and Blood Bank Society Resource Centre, Dakshin Marg, Sec.37, Chandigarh. The last BP recorded at time of referral 4.20 AM was 70/P and pulse 98 per minute. The Blood was started at 4.15 AM on both sides and referred to PGI at 4.45 AM.” Not satisfied with the above finding, the complainant approached the authorities and prayed for getting expert medical report. Secretary, Medical Education and Research, Chandigarh, constituted a Board of Professors to look into the complaint of respondent No.2. The Board headed by Dr.Harsh Mohan, Medical Superintendent-cum-Chairman, GMCH, Chandigarh, was constituted with the following Members:- CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 7 }: “1. Prof Veena Parmar, Member, Head, Deptt. Of Pediatrics. 2. Prof. K.K.Gomar, Head Deptt. Of Anesthesia, Member. 3. Prof. Anju Huria, Head, Deptt. Of Gynae, Member. 4. Prof. A.K.Attri, Head, Department of Surgery, Member.” This Board submitted its detailed report on 20.3.2006 and recorded the following conclusion:- “Conclusion No.1- From the above notes and sequence, it emerges that the baby had severe birth asphyxia with APGAR score of 1/10. The resuscitation measures taken by attending pediatrician are according to standard protocol/guidelines and were carried out for sufficient time as per recommendations. (Reference: International Guidelines for Neonatal Resuscitation, 2000. An excerpt from the Guidelines 2000 for Cardio-pulmonary Resuscitation and Emergency Cardiovascular Care: International Consensus on Science. Pediatrics 2000; 106:29). The cause of death of baby is severe birth asphyxia and resuscitation failure. The cause of severe birth asphyxia cannot be determined without autopsy of the baby. Conclusion No.2:- From the above sequence of events, it appears that this patient had atonic PPH which was managed conservatively but without success...PPH is a known complication of delivery and accounts for 8% of maternal mortality in developed countries. As such, it cannot be said with certainty from the records CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 8 }: whether this patient had anemia at term or hypotension and shock before delivery or not. However, in the presence of either or both of these conditions, atonic PPH is more likely to be worse and catastrophic.” Yet another Board was constituted by Home Secretary- cum-Secretary, Medical Education, consisting of seven Members with Chairman. This seven Members Board again gave a report that there is no diversion in the conclusion drawn from both the reports of the Experts at General Hospital, Sector 16 and Board of Doctors of G.M.C.H., Sector 32, Chandigarh. Copy of this report is at Annexure P-7. This could have brought this controversy to a fair end once report after report given by the doctors in sufficient number ruled out gross negligence but the matter was still not closed. S.S.P., Chandigarh, without much purpose, wrote another letter dated 15.6.2006 and another Committee of doctors was constituted under the Chairmanship of Director, Health, Chandigarh. The Committee consisted of the following doctors:- “1. Dr.Manjit Singh Bains, Chairman, Director Health Services, General Hospital, Sector 16, Chandigarh. 2. Dr.Usha Bishnoi, Medical Superintendent, General Hospital, Sector 16, Chandigarh- Member. 3. Prof.Harsh Mohan, Medical Superintendent, GMCH-32, Chd., Member. 4. Prof. K.K.Gomar, Head Deptt. Of Anesthesia, Member. 5. Prof Veena Parmar, Member, Head, Deptt. Of Pediatrics. CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 9 }: 6. Prof. Anju Huria, Head, Deptt. Of Gynae, Member. 7. Prof. A.K.Attri, Head, Department of Surgery, Member.” Yet again, this Committee came to form an opinion that it was not a case of any gross medical negligence in management of the said patient by the treating doctors. It will be relevant to reproduce the relevant portion of the opinion of this Board, which is as under:- “The committee deliberated on the issue addressed in the above-mentioned letter of SSP Chandigarh took into consideration the record of deceased mother and child provided by the Police Department earlier. The Committee also discussed the inquiry reports submitted previously by the team of doctors from General Hospital, Chandigarh, and team of experts from the Govt. Medical College, Sector 32, Chandigarh. Taking into consideration the above-mentioned medical records and inquiry reports, the Committee is of opinion that there does not appear to be any gross medical negligence in the management of patients by treating doctors.” Thus, no criminal case was made out to proceed against the petitioners. It may be essential to notice here that in Jacob Mathew's case (supra), the Supreme Court has issued certain guidelines for criminal prosecution of doctors pending issuance of such guidelines for future, if any, by the Central or the State Government, which may govern the prosecution of doctor for offences for criminal rashness or criminal negligence. It is CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 10 }: accordingly urged that a private complaint may not be entertained unless the complainant produced prima-facie evidence before the Court in the form of credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of accused doctor. The Court also held that 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 test to the facts collected in the investigation. That being the standard set down by the Hon'ble Supreme Court to prosecute a doctor for a charge of criminal negligence and criminal rashness, it would be hard to notice that the police went ahead to register the first information report and that too after an expiry of a period of more than 1 year from the date this complaint was first made. In between, the complainant Manmeet Singh Mattewal also approached the State Consumer Disputes Redressal Commission under the Consumer Protection Act, seeking claim for Rs.95 lacs as compensation. The State Commission ordered compensation of Rs.20,26,000/- to be paid by the Nursing Home and petitioner No.2 against which, the petitioners had filed an appeal before the National Consumer Disputes Redressal Commission and operation of the order has been stayed. Still, another complaint was made on 10.2.2007, alleging gross medical negligence, which was enquired into by S.I Udey Pal Singh, who while ignoring the opinion of various Board of Doctors, CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 11 }: ruling out the possibility of any negligence, registered an FIR on 1.3.2007 under Sections 304-A, 193 and 34 IPC. This FIR is alleged to be an example of malicious prosecution, which was registered with a delay of more than one year without any justification. The petitioners would urge that while recording this FIR, the law laid down in the case of Jacob Mathew (supra) was completely ignored and no regard was given to the opinion by four different Medical Boards constituted at different stages, who gave consistent opinion, ruling out the possibility of any gross negligence on the part of the petitioners to allow their criminal prosecution. Rather, the allegations in the FIR totally run contrary to the medical opinion and is based on the view and apprehension expressed by a complainant who was a lay man and not expert in the medical field. The learned counsel for the petitioners, however, would draw my attention to a representation given by Indian Medical Association, copy of which is at Annexure P-19, where it was urged that the Association was shocked to see a clear travesty of justice and the process of law being misused to please influential parties. I think because of some fear, only, the IMA has not dared to name the influential party. The petitioners have filed this petition to quash this FIR on various grounds, primarily on the ground that no case of criminal negligence would be made out unless the requirement laid down by the Hon'ble Supreme Court was satisfied. Notice of the petition was issued. Initially, the complainant was not impleaded as a party respondent. However, in an application for impleading Manmeet Singh Mattewal, husband of the deceased, was ordered to be CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 12 }: impleaded as respondent No.2 on 14.1.2008. Reply on behalf of respondent No.1 was filed on 6.11.2008. It is prayed in the reply that investigation be not stifled. This Court directed the respondent-State to indicate its specific stand. Respondent No.2, however, prayed for some more time to file reply. Reply on behalf of respondent No.2 was ultimately filed on 12.8.2009. On 22.10.2009, the case was again adjourned with a direction to the Union Territory to indicate its specific stand either way. On 25.11.2009, counsel for the Union Territory on instructions from S.I. Sucha Singh stated that legal opinion was to be given by D.D.A, Legal and thereafter action would be taken by the prosecution. The S.H.O. And D.D.A (Legal) were directed to be present on the next date of hearing. They both came present on 30.11.2009 and made a statement that the State wants to present a challan and prosecute the petitioners as during investigation gross negligence was found to have been made out against the petitioner. Challan was presented accordingly. The case for quashing has, thus, been heard. In reply filed on behalf of U.T. by S.H.O., Police Station, Sector 19, Chandigarh, it is stated that offence under Section 304-A, 193 and 34 IPC is made out from the evidence collected. Primarily, it is only on the basis of allegation made in the FIR that the aspect of negligence has been appreciated and alleged against the petitioner. Reference is made to the case law to say that while exercising power under Section 482 Cr.P.C., the Court does not function as a court of appeal or revision and this jurisdiction has to be exercised sparingly, carefully, with caution and only when such exercise is justified. It is, thus, urged that inherent powers in this case should not be exercised CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 13 }: to stifle a legitimate prosecution when the matter is being investigated and the agency is busy in collecting incriminating evidence. While replying on merit, the factual aspects are not put to much dispute. The enquiry reports that were prepared by various Boards are not denied. It is simply stated that sufficient incriminating evidence has been collected against the petitioners to show that they had committed an offence under Section 304-A etc. In a separate reply filed by respondent No.2, almost identical stand is taken by making reference to the detailed facts as narrated in the first information report. Even respondent No.2 has also not in any manner denied that various Boards were constituted and they had prepared various enquiry reports, which have been referred to and relied upon in the petition. Still, it is stated that the causing of death due to negligence is made out and accordingly provisions of the offence as alleged against the petitioners would be attracted. There would not be much need to go over the legal position to see the standard needed to direct prosecution of doctors for criminal negligence as this has been fully settled by Hon'ble Supreme Court in Jacob Mathew's case (supra). This Court had an occasion to consider the same question of law while deciding Criminal Misc. No.63512 M of 2005(Dr.Neera Garg Vs. State of Haryana and another) on 10.1.2007. It is observed in this case that the issue has elaborately been considered and adjudicated by the Hon'ble Supreme Court in Jacob Mathew's case (supra), and, thus, would not require any detail analysis of law. What is, thus, required CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 14 }: to be seen is whether the law laid down by the Supreme Court would rescue the present doctors, petitioners, from criminal liability. This was the precise submission made by Mr.R.S.Cheema, learned Senior counsel to say that case of criminal negligence is not made out as per the standard laid down in Jacob Mathew's case (supra). Detailed reference is made to this judgment to say that it is to regulate now the legal aspect relating to negligence on the part of the doctors to attract provisions of Section 304-A IPC. Before going into the factual position, let us first notice as to what is negligence or rashness and when it would be criminal negligence etc. to charge doctors. Negligence in law in ordinary case which does not involve any specific skill, as observed by Lord Justice McNair in celebrated case of Bolam Vs. Frien Hospital Management committee, (1957) 1 WLR 582 : (1957) 2 All ER 118, means:- “Some failure to do some act which a reasonable man in the circumstances would do; or doing some act which a reasonable man in the circumstances would not do; and if that failure or doing of that act results in injury, then there is a cause of action.” Lord Justice went on to observe:- “How do you test whether this act or failure is negligent? In an ordinary case, it is generally said, that you judge that by the action of the man in the street. He is the ordinary man. In one case it has been said that you judge it by the conduct of the man on the top of a Clapham omnibus. He is the ordinary man. But where you get a CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 15 }: situation which involves the use of some special skill or competent, then the test whether there has been negligence or not is not the test of the man on the top of a Claphm omnibus, because he has not got this man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is well-established law that it is sufficient if her exercises the ordinary skill of an ordinary competent man exercising that particular Art.” Negligence, in Halsbury's law of England on the part of doctor owing duty to patient is defined as:- “A person who holds himself out as ready to give medical (a) advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case: a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment (b) A breach of any of these duties will support an action for negligence by the patient(c).” Thus, a different standard of negligence in an ordinary sense and that in case of involving special skill is maintained. The famous Bolam test, as noted above, has constantly been applied in England and other countries, including our Country. In Whitehouse V. Jordon and Anr., (1981) 1 All ER 267, House of Lords said:- CRIMINAL MISC. M NO.44167 OF 2007 (O&M) :{ 16 }: ““[W]here you get a situation which involves the use of some special skill or competence, then the test as to