CRR No. 469 of 2007 (O&M) and other connected case 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CRR No. 469 of 2007 (O&M) Date of Decision : September 16, 2011 Dr. Sanjay Saluja son of Surjit Singh Saluja .... PETITIONER Vs. State (Union Territory of Chandigarh) ..... RESPONDENT CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH * * * Present : Mr. R.S.Cheema, Sr. Advocate, with Mr. J.S.Mehndiratta, Advocate, for the petitioner. Mr. Rajiv Sharma, Advocate, and Mr. Puneet Bassi, Advocate, for the respondent-UT Chandigarh. * * * AUGUSTINE GEORGE MASIH, J. (ORAL) Challenge in this petition is to the order dated 17.11.2006 passed by the Judicial Magistrate Ist Class, Chandigarh, vide which charges have been framed under Section 338 of the Indian Penal Code against the petitioner, who is a doctor. The allegations against the petitioner are that the petitioner had treated Master Abhishek, who was hurt in his school while playing CRR No. 469 of 2007 (O&M) and other connected case 2 football on 11.07.2003 and was taken to the clinic of the petitioner where he was examined and after considering the X-ray report, was sent to the INSCOL Hospital, Sector-34 for setting right the bone i.e. reduction of fracture and for that, anesthesia was given to the patient. After putting on the plaster, the patient was discharged at about 9.30 P.M. Since the pain did not subside despite giving pain killer injections, the doctor was again requested to see the patient and on the next day, the doctor checked up the patient and the plaster was loosened to reduce the pain but that also did not have any effect. The swelling and numbness of the leg did not subside and then he was re-admitted in INSCOL on 13.07.2003 in the evening and on 14.07.2003 in the morning, fasciotomy was done. The patient remained in the hospital till 18.07.2003 during which his condition deteriorated from bad to worse. He was, thereafter, referred to Government Medical College and Hospital, Sector 32, Chandigarh. At that stage, according to the complainant, the condition of the patient was critical and he was having multiple organ dysfunction, septicemia and compartment syndrome etc. The patient remained there for several days but the leg of the patient could not be saved and had to be amputated above knee to save his life. This was done on 01.08.2003. The mother of the child filed a complaint with the Police, Sector-34, Chandigarh, on the basis of which, an FIR No. 302 dated 26.08.2003 was registered. After investigation, challan was presented against the petitioner and on consideration of the same, charge has been framed against the petitioner vide order dated 17.11.2006 under Section 338 IPC, which has been challenged in the present petition. The primary contention, which has been raised by the counsel for the petitioner, is that charge under Section 338 IPC cannot be framed CRR No. 469 of 2007 (O&M) and other connected case 3 against the petitioner in the absence of any opinion of a medical practitioner, which would suggest that any act, during the treatment given to the patient by him, would amount to rash and negligent nature which would endanger a human life or personal safety of human life. That apart, the challan, along with which the medical records have been attached, do not indicate any act or omission on the part of the petitioner, which would bring the same within the ambit of Section 338 IPC. His further contention is that in the light the mandate of the Hon'ble Supreme Court in the case of Jacob Mathew vs. State of Punjab and another, (2005) 6 SCC 1, which provides 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. There being nothing on record on this count, the charge framed against the petitioner cannot be sustained. On this basis, he prays for setting aside the impugned order. On the other hand, counsel for the respondent has pressed hard that the medical record clearly indicate that when the patient was taken to the Clinic and thereafter, was admitted in INSCOL, his health day by day deteriorated, which obviously was because of the negligence committed by the petitioner. Otherwise, there was no reason that he should have to be shifted to the Government Medical College and Hospital in Sector 32, Chandigarh. He further contends that the condition of the child, when he was referred to the Government Medical College and Hospital, Sector 32, Chandigarh and on his reaching there as the record CRR No. 469 of 2007 (O&M) and other connected case 4 suggests, was extremely critical and he was having multiple organ dysfunction, septicemia and compartment syndrome so much so that despite efforts made by the doctors at the Government Medical College and Hospital also, the leg of the child had to be amputated to save the life of the child. This would clearly suggest negligence of the nature as provided for in Section 338 IPC, for which the petitioner has been rightly charged. He contends that the discharge certificate, as provided by the petitioner, is totally contradictory to the initial report of the Government Medical Hospital and College when he was admitted therein. This also, he states, indicates the gross negligence on the part of the petitioner. Accordingly, he prays for dismissal of the present revision petition as being without any merit. I have heard the counsel for the parties and have gone through the records of the case with their able assistance. The judgment of the Supreme Court in Jacob Mathew (supra) clearly spells out the procedure, requirement and responsibility of an Investigating Officer before proceeding against the doctor accused of rash or negligent act or omission, which can be so termed so that the doctor can be proceeded against under Section 338 IPC. A perusal of the medical records does not indicate that there is any suggestion with regard to any rash and negligent act or omission on the part of the petitioner, which could be termed to be of such a nature which would bring it within the ambit of Section 338 IPC. The submissions made by the counsel for the respondent would only be suggestive but cannot be termed to be one where a doctor could be prosecuted for a criminal liability that too, under Section 338 IPC. As there is no opinion of any doctor, much less a competent one, which CRR No. 469 of 2007 (O&M) and other connected case 5 would suggest that there was any rash and negligent conduct or action on the part of the petitioner which would indicate some liability, the mandate of the Supreme Court also not having been complied with by the investigating officer, there was no occasion for a trial Court to frame charge under Section 338 IPC against the petitioner as there was no sufficient evidence for doing so. Even the trial Court has proceeded on the assumption that the facts indicated in the FIR were sufficient to create a doubt/suspicion in the light of the fact that the accused had not performed his duty in a proper manner as provided, which is not sufficient to frame charge as under the Statute, this doubt/suspicion against a doctor has to be fortified by an opinion and that the evidence on record is adequate to presume that the accused had committed the offence triable by him, which opinion has not been so expressed by the learned Court. Accordingly, the impugned order dated 17.11.2006 passed by the Judicial Magistrate Ist Class, Chandigarh, cannot sustain and is hereby set aside. The learned Judicial Magistrate may now deal with the case in accordance with law. The revision petition is allowed in above terms. (AUGUSTINE GEORGE MASIH ) September 16, 2011 JUDGE pj