IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRIMINAL MISC.NO.63512 M OF 2005 DATE OF DECISION: JANUARY ,2007 Dr.Neera Garg .....Petitioner VERSUS State of Haryana and another ....Respondents CRIMINAL MISC.NO.9567 M OF 2006 Dr.Sudershan .....Petitioner VERSUS State of Haryana 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. R.S.Cheema, Sr.Advocate with Mr. J.S.Mehndiratta, Advocate, for the petitioner. Mr. Vikas Chaudhary, AAG, Haryana. Mr. V. K. Jindal, Advocate. ***** RANJIT SINGH, J. What is the extent of negligence, which would lead to a change of criminal mis-conduct against a doctor to make him answerable for a criminal Crl.Misc.No.63512 M of 2005 :{ 2 }: offence under Section 304-A IPC is the question which arise for determination in these two petitions? The above noted question has been raised in these two petitions through which the petitioners seek quashing of complaint dated 6.2.2002 made by Sudhakar Mittal, complainant (respondent No.2) on the basis of which, the petitioners, who are doctors, were summoned vide impugned order dated 18.7.2005. The issue has elaborately been considered and adjudicated by the Hon'ble Supreme court in Jacob Mathew Vs. State of Punjab and another, (2005) 6 SCC 1 and as such, would not require any detailed analysis of law. It is to be seen if the law, as settled by the Supreme Court, would rescue the present petitioners, the doctors, from criminal liability, for which they have been summoned to face trial. The petitioners, while relying upon the law laid down in Jacob Mathew's case (supra) have prayed for quashing of the complaint and the summoning order on the ground that the allegation of negligence or mis-conduct revealing criminal offence against the petitioners would not be made out as per the law settled in the case of Jacob Mathew. A few facts may be noticed, which lead to filing of the complaint and the summoning of the petitioners. The complainant, Sudhakar Mittal, is a practicing Advocate at Karnal. He filed a complaint on 6.2.2002 under Section 156 (3) Cr.P.C. for registration and investigation of a case under Sections 315, 304, 336, 34 IPC against the petitioners. The wife of the complainant, who was pregnant, was admitted to Neera Nursing and Maternity Home, Karnal on 14.1.2002 for delivery. It is alleged Crl.Misc.No.63512 M of 2005 :{ 3 }: that at about 7.00 P.M., the doctor suddenly declared the requirement of conducting a caesarian operation as water (excreta) had entered into the lungs of the baby. After caesarian operation, the lady gave birth to a female child. The baby was born at 7.20 P.M. and is stated to have suffered the breathing problem, about which Dr.Neera Garg was immediately informed. It is alleged that the accused-doctor did not attend the baby personally and left it to the staff nurse to check, saying that such problems were usual. Allegations further are that the child was not attended throughout the night by Dr.Neera Garg. When the complainant found the baby crumbling and his request for putting the baby on oxygen was not heard, he shifted the child to Mahabir Dal Hospital, Karnal around 8.00 A.M. From there, the child was shifted to Uttam Nursing Home as there was no provision for ventilator in Mahabir Dal Hospital. Referring to opinion of one Dr.Sarita Chatley of Uttam Nursing Home, the complainant asserts that the child should have been immediately put on ventilator when she suffered from such a great respiratory problem. The child ultimately breathed her last at 6.00 P.M. As per the complainant, the baby could not be saved as she remained unattended for about 15 hours and was not given the required medical treatment immediately after birth, which could have saved the child. It is maintained that the petitioners were bound to put the baby on ventilator and by not doing so have failed to perform their professional duties, revealing negligence in causing the death of newly born baby. This complaint, which was filed on 6.2.2002, was adjourned for consideration to 21.2.2002 and again ton 1.3.2002. On Crl.Misc.No.63512 M of 2005 :{ 4 }: this date, the complainant made a statement that he did not wish to proceed against petitioner-Dr.Sudershan and accordingly, gave her up. The case was then sent to Station House Officer, Police Station, Civil Lines, Karnal, under Section 156(3) Cr.P.C. with a direction to register a case and investigate the same. It is thereupon that FIR No.61 dated 19.3.2003 under Sections 315, 304, 336, 34 IPC was registered. After thorough investigation of the case, police submitted a cancellation report on 2.5.2002 on the ground that Dr.Neeram Garg was found to have checked and attended to the child properly and no allegation of negligence, inviting criminal offence, was made out against her. The Chief Judicial Magistrate, Karnal, however, issued notice to the complainant who filed a protest petition on 6.11.2004, making same very allegations as had been raised by him in the complaint. Thereafter, statement of complainant, Sudhakar Mittal, was recorded as CW1. Another Advocate, Sh.Subodh Gupta, appeared as CW2, and thereafter the Chief Judicial Magistrate, on 18.7.2005, issued process, summoning the present petitioners for an offence under Section 304-A read with Section 34 IPC. Aggrieved against this action of Chief Judicial Magistrate, the petitioners have filed the abovesaid two separate petitions, seeking quashing of the complaint as well as the summoning order. Strongly relying upon Jacob Mathew's case (supra), Mr.R.S.Cheema, counsel for the petitioners has contended that no prima-facie case is made out under Section 304-A IPC. This Court, while issuing notice of motion, stayed further proceedings before the trial Court. Reply has been filed on behalf of the State as well as the Crl.Misc.No.63512 M of 2005 :{ 5 }: complainant giving detailed background. It is disclosed by the State that after registration of a case on the basis of allegation made, the matter was thoroughly investigated and cancellation report was filed on 2.5.2002. It is clearly disclosed that no case is made out against petitioner, Dr.Neera Garg and in support of this, various reasons are mentioned which would indicate that the child was properly attended to at the hospital by Dr.Neera Garg. In reply filed in the connected petition filed by Dr.Sudershan, the State has brought out the fact that the complainant gave up Dr.Sudershan through his statement made on 1.3.2002. The petitioner in this case, accordingly has sought dismissal of the complaint qua her on this basis as well. Complainant-respondent No.2, however, has filed separate replies in both the cases. A preliminary objection is raised for dismissing the petition on the ground that earlier a Criminal Revision No.2000 of 2005 was filed, for same relief, which was dismissed as withdrawn with liberty to file petition under Section 482 Cr.P.C. Stating the present petitions to be nothing but second revision petitions, it is pleaded that the same would not be maintainable. Otherwise, it is pleaded that cancellation report was wrongly submitted by the Investigating Officer as he never approached the complainant for recording his statement. It is further pleaded that the Investigating Officer did not adopt a scientific approach to investigate the case properly and submitted cancellation report being swayed by the statements of doctors, who were none else but colleagues of the petitioners. The averments relating to the facts and other issues raised in the petitions have been denied and version, as put forward in the complaint, reiterated to urge that the Crl.Misc.No.63512 M of 2005 :{ 6 }: allegations made against the petitioners for negligence would be made out. Learned Senior counsel, appearing for the petitioners, has mainly raised two fold submissions, seeking quashing of the complaint and the summoning order. He would first contend that the complainant admittedly had invoked jurisdiction under Section 156(3) Cr.P.C. with the prayer for registration of an FIR against the petitioners, which was referred to by the Chief Judicial Magistrate to the police, leading to registration of the FIR. As per the counsel, the cancellation report was submitted by the police after thorough investigation, which could not have been ignored by the magistrate while summoning the petitioner. By referring to the impugned summoning order, the learned counsel would say that this material is completely ignored or not even referred to by the Chief Judicial Magistrate while summoning the petitioners, which would render the impugned order bad in law, rendering the same unsustainable. Mr.Cheema is very fair in pointing out that there are some judgments dealing with this aspect of the matter, in cases which were referred for investigation under Section 202 Cr.P.C. and there may not be any case in this regard where such a view is taken, when the matter is referred by the Magistrate under Section 156(3) Cr.P.C. This, as per the counsel, would not make any material difference as question to be considered would relate to reliance on police investigation as material while passing the summoning order. In this regard, Mr.Cheema would first refer to the case of Anil Kumar Sah and others Vs. Nagendra Singh, 1991 Crl.L.J. 421. In this case, it is observed by the Patna High Court that Magistrate, no doubt, is fully Crl.Misc.No.63512 M of 2005 :{ 7 }: competent to dis-agree with and not accept the report of the Investigating Officer but while doing so, he must indicate his reasons in this regard, which must be cogent and legitimate one. Finding that Magistrate had done so without considering the facts found by the Investigating Officer in his report, it was held that such an approach is improper and erroneous.Relevant observations of the Court are:- “ In the present case, the police case originally filed was found to be false and final report submitted and then in the complaint case, arising out of the protest petition, the investigation under Section 202 of the Code of Criminal Procedure again showed that the allegations are untrue. These features are not present in the aforesaid two reported decisions and obviously they do not apply to the present case. The Magistrate, no doubt, is fully competent to disagree with, and not accept the report of the Investigating Officer under Section 202 of the Code of Criminal Procedure but he must indicate the reasons for doing so and, needless to say, the reasons must be cogent and legitimate. Here the Magistrate without considering the facts found by the Investigating Officer in the report under Section 202 of the Code of Criminal Procedure, which indicated that the case is not true, has simply brushed aside the report for wholly extraneous reasons. Such an approach must be held to be improper and erroneous.” The learned counsel would also refer to the case of Daleep Singh Vs. Smt.Magan, 1996 Cri.L.J. 190 in this regard. In Crl.Misc.No.63512 M of 2005 :{ 8 }: this case also, the High Court of Rajasthan has opined that the Court has to consider the record and then arrive at its own conclusion whether a process should be issued or not and that result of enquiry under Section 202 Cr.P.C., is one such material, which the Magistrate is to take into consideration where such a report had accompanied the statements of the complainant and witnesses and while ignoring the same, a cognizance was taken. It was held to be tantamounting to abuse of the process of the Court and the impugned order was termed unsustainable. The relevant observations are as under:- “12. In Jagdish Ram's case (supra), this Court has held that the record which has been submitted by the police is a material placed on the record and it is the duty of the Court to consider that record and then to arrive at its own conclusion whether in such a case, process should be issued against the accused or not and that if the Magistrate has not looked into such material and issued process then it amounts to abuse of the process of the Court and grave miscarriage of justice. It is true that a Magistrate is not debarred from taking cognizance on a complaint merely on the ground that he earlier declined to take cognizance on the police report as has been held in Gopal Vijay Verma's case 1983 SCC (Cri) 110 (supra) and followed by this Court in Janki Prasad's case 1991 Crl LR 705 (supra) but it is the bounden duty of the Magistrate to consider the allegations made in the complaint and the statements of the complainant under Crl.Misc.No.63512 M of 2005 :{ 9 }: Section 200, Cr.P.C. and witnesses under Section 202, Cr.P.C. as also the result of the inquiry or investigation, if any under Section 202, Cr.P.C. and if he is of the opinion that prima facie an offence is made out then he is competent to take cognizance against the accused and issue process and in case, if he is of the opinion that there is no sufficient ground for proceeding then he shall dismiss the complaint. 13. In the case on hand, the learned Magistrate has not at all considered the report of the S.H.O., P.S., Sardar Shahar dated 24-10-1987, which was accompanied with the statements of the complainant and her witnesses. As mentioned earlier, the report was sent for by the Magistrate by sending a copy of the criminal complaint. Thus, the said report constituted material under Section 202, Cr.P.C. Consideration of the material under Section 202, Cr.P.C. is not an empty formality. Such consideration cannot be done in a perfunctory or mechanical manner or by adopting a superficial approach. Therefore, non- consideration of the aforementioned material under Section 202, Cr.P.C. ignoring the same and taking cognizance is tantamount to abuse of the process of the Court and on this ground, the impugned order cannot be sustained.” In addition, reliance has also been placed on an order passed by this Court in Crl.Misc.No.50886 M of 2004 (K.A.S.Parmar and others Vs. Manisha Chaudhary) decided on October 30,2006. Crl.Misc.No.63512 M of 2005 :{ 10 }: A perusal of the impugned summoning order would show that no reference has been made to the cancellation report submitted by the police when the case was referred to the police by the Chief Judicial Magistrate under Section 156(3) Cr.P.C. Section 156 (3) is an enabling provision in regard to the power of police officer to investigate cognizable cases. Any police officer, even without the order of a Magistrate can investigate any cognizable case and in this background Section 156(3) makes a provision that any Magistrate empowered under Section 190 may order such an investigation as above mentioned. Once the matter is referred by the Magistrate to the police for investigation under Section 156(3) and report is submitted pursuant thereto, the same certainly would be a material, which is to be considered. Magistrate apparently would lack power to take cognizance of an offence on the basis of a private complaint that has resulted in submission of a negative report under Section 173 consequent upon reference under Section 156(3) Cr.P.C., where he accepts such a report. Reference in this regard may be made to P.V.Krishna Prasad Vs. K.V.N.Koteswara Rao and another, 1991 CRL.L.J. 341. Section 202 Cr.P.C. has made it obligatory on the Magistrate that before summoning the accused, he shall enquire into the case himself or direct investigation to be made by the police officer. Mr.Cheema is justified in submitting that difference between Sections 202 and 156 Cr.P.C. would be in regard to investigation of non-cognizable and cognizable cases and otherwise these provisions would operate identically. He, as such, would not be unjustified in relying upon law laid down in Anil Kumar Sah's case and Daleep Singh's case (supra). Once the matter has been referred to police for Crl.Misc.No.63512 M of 2005 :{ 11 }: investigation by a Magistrate, then any report submitted by the police would be a material, which is required to be taken into consideration. It may still be ignored but where this is not taken into consideration, it would indicate non-application of mind or improper adjudication of the case, rendering the impugned order unsustainable being erroneous or improper. It was also pointed out that in a complaint filed by the complainant, he had made a specific prayer before the Magistrate for sending his complaint under Section 156(3) Cr.P.C. for registration and investigation of the case. His prayer in this regard was:- “It is, therefore, prayed that the S.H.O., P.S. Civil Lines, Karnal may kindly be directed to send the complaint u/s 156 (3) Cr.P.C. for registration and investigation of the case under Section 315, 304, 336 read with Section 34 IPC, in the interest of justice and observance of Rule of Law.” On this basis, it was submitted that result of investigation submitted pursuant to the abovesaid prayer of the complainant was bound to be taken into consideration and could not have been ignored. I see substance in the submission made by counsel for the petitioners. The point of view raised by the counsel tends to seek support from the judgments in Anil Kumar Sah's case, Daleep Singh's case and K.A.S.Parmar's case (supra). The action of the Magistrate in not taking into consideration the relevant material submitted before him in the form of police investigation as a cancellation report was bound to receive consideration under law and none consideration thereof has led to an abuse of the process of the Crl.Misc.No.63512 M of 2005 :{ 12 }: Court and would call for interference in the impugned order. Learned counsel for the petitioners, would also be justified in submitting that even otherwise the facts in these cases would not be sufficient to attract the provisions of Section 304-A for making the petitioners liable for criminal negligence while performing their duties as doctors. He has referred to in detail to the judgment in Jacob Mathew's case (supra), which would now regulate the legal aspect relating to the negligence on the part of a doctor to attract the provisions of Section 304A IPC. Jacob Mathew's case (supra) was referred to a larger Bench, doubting the view expressed in Dr.Suresh Gupta Vs. Govt. of N.C.T. of Delhi and another, 2004 (3) RCR (Criminal) 925. In Dr.Suresh Gupta's case (supra), the Hon'ble Supreme Court has held that “for this act of negligence he may be liable in tort but his carelessness or want of due attention and skill cannot be described to be so reckless or grossly negligent as to make him criminally liable.” While referring the case of Jacob Mathew (supra) to a larger Bench, the referring Bench observed that “negligence or recklessness being gross is not a requirement of Section 304A and in case Dr.Suresh Gupta's case (supra) is allowed to rule the field, then word “gross” shall have to be read in Section 304A IPC for fixing criminal liability, an approach, which cannot be countenanced. The Reference Bench also observed that different standards for judging the criminal negligence or recklessness could not be applied to doctors and others and if it is so done, it will amount to doing violence to the plain and unambiguous language of Section 304A. It is in this context that the Hon'ble Supreme Court in Jacob Mathew's case (supra) took up the issues and has now finally settled Crl.Misc.No.63512 M of 2005 :{ 13 }: the same, approving the view taken in Dr.Suresh Gupta's case (supra). The Hon'ble Supreme Court has referred to the requirement of judging negligence as a tort and then noticed the distinction between the negligence as a tort and as a crime. It is observed that to fasten liability in criminal law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in civil law. Reference in this regard was made to the case of R. Vs. Lawrence, 1982 AC 510, where Lord Diplock spoke, reiterating his opinion in R. Vs. Caldwell, 1982 AC 341, and dealt with the concept of recklessness as constituting mens rea in criminal law. His Lordship's observations are:- “Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the Section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting `recklessly' if, before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognised that there was such risk, he nevertheless goes on to do it.” The Hon'ble Supreme Court examined the aspect in detail and drew distinction between the civil and criminal liability in this Crl.Misc.No.63512 M of 2005 :{ 14 }: regard. It was observed that in order to hold the existence of criminal rashness or criminal negligence, it shall have to be found out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The judgment of Riddell Vs. Reid, 1942 (2) All ER 161 was noticed to say that there is a clear distinction between “simple lack of care” incurring civil liability and “very high degree of negligence” which would be required in criminal cases. It was accordingly opined that the factor of grossness or degree does assume significance while drawing distinction in negligence actionable in tort and negligence punishable as a crime. It was further held that to be punishable as a crime, the negligence has to be gross or of a very high degree. Having so determined, the Supreme Court also went into the question of negligence by professionals. In this regard reference was made to the opinion of McNair, J. in Bolam Vs. Friern Hospital Management Committee, (1957) 1 WLR 582, which is as under:- “[W]here you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill... It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.” Crl.Misc.No.63512 M of 2005 :{ 15 }: It was further noticed that Bolam test has continued to be well received by every shore it has touched as neat, clean and a well-condensed one, which has been widely accepted as decisive of the standard of care required by professional before the courts in India as well. This can be so made out from the following observations:- “24. The classical statement of law in Bolam case has been widely accepted as decisive of the standard of care required both of professional men generally and medical practitioners in particular. It has been invariably cited with approval before the courts in India and applied as a touchstone to test the pleas of medical negligence. In tort, it is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that a defendant charged with negligence acted in accord with the general and approved practice is enough to clear him of the charge. Two things are pertinent to be noted. Firstly, the standard of care, when assessing the practice as adopted, is judged in the light of knowledge available