1 Cri.WP No.100/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.100/2010 Dr.Nirmala w/o Ramprasad Bajaj Age: 46 Yrs., occu. Household and Medical Practitioner, R/o Beed Road, Majalgaon, Tq. Majalgaon, Dist. Beed. - PETITIONER VERSUS 1) The State of Maharashtra Through Police Station, Majalgaon, Tq. Majalgaon, District Beed. 2) Rekha w/o Dattatraya Lole Age: 30 Yrs. occu. Household, R/o Wadawani, Tq.Wadawani, District Beed. - RESPONDENTS ***** Mr.SK Chavan, Adv. h/for Mr. VD Salunke, Advocate for Petitioner; Mr.VH Dighe, APP for State. Mr.DP Pokharkar, Adv. for Resp.No.2. ----- CORAM : K.U.CHANDIWAL, J. DATE : 4th March, 2011. JUDGMENT: 1) Heard. Rule, returnable forthwith. By consent of parties, heard finally. 2) The petitioner prays for quashment of 2 Cri.WP No.100/2010 proceedings and also the orders in Criminal Revision Application No.22/2008 and to discharge from the offence punishable under Section 304(A) of Indian Penal Code in S.C.C.No.149/2007. 3) The factual details are, as under, - (i) Pooja, aged three years, was suffering due to ailment, she was taken to the hospital of Dr.Bajaj. The petitioner treated Pooja. Since there was no improvement, Pooja was again taken to Dr. Bajaj’s Clinic on 6.10.2004 at around 8.00 to 8.30 a.m. She was admitted at the hospital. As directed, medicines/injections were bought from the nearby dispensary. At about 12 noon, mother of Pooja insisted petitioner/Dr.Mrs.Bajaj for shifting Pooja to another hospital, however, she was informed that Pooja needed observations for two days. In the night of 6.10.2004 at about 11.30 p.m., some injections were prescribed, which were purchased by the parents of Pooja, it was injected to Pooja and the petitioner. Dr.Mrs.Bajaj left. It is alleged that after administering the injection, Pooja was stretching her limbs and was thirsty, demanding water. Consequently, her mother went upstairs to call petitioner/Dr.Mrs. Bajaj to attend Pooja as she was gasping. However, the petitioner did not come down to attend Pooja and informed, she would attend Pooja in the morning. Consequent upon the 3 Cri.WP No.100/2010 aggravated physical plight of Pooja, in the night at around 1.30 a.m. (7.10.2004), Pooja breathed her last. She was thereafter taken by the petitioner to another room. Insistence by her parents to give signature on papers were denied. Pooja’s death was immediately communicated by Dr.R.G.Bajaj to Police Station, Majalgaon. Post mortem was carried, recorded as accidental death No.35/2004 at Police Station, Majalgaon. (ii) Owing to such sad incident, a complaint was filed against the petitioner – Dr.Nirmala Bajaj and her husband on 5th April, 2004 before the learned JMFC; where investigation in terms of Section 156(3) Cr.P.C. was directed. (iii) The learned JMFC dismissed the complaint. Consequently, Criminal Revision No. 10/2006 was preferred by the complainant before the Ad hoc Additional Sessions Judge at Majalgaon. By order dated 21.11.2006, revision was allowed partly and process under Section 304(A) of IPC was directed against the petitioner. On 2.11.2006, V.N.Shejul, Police Inspector, Police Station, Majalgaon, lodged a report at Police Station, Majalgaon against the accused/petitioner – Dr.Mrs.Bajaj and consequently, offence under Section 304(A) of IPC was registered vide Crime No.256 of 2006. 4 Cri.WP No.100/2010 Thereafter charge sheet was filed, cognizance was taken, summons were issued. (iv) The petitioner moved an application for discharge to the learned JMFC, who rejected the same on 18.11.2008. It was challenged in the revision before the learned District Judge and the learned District Judge, by order under challenge dated 18.1.2010, rejected the revision. 4) Mr.Chavan, learned Counsel for the petitioner, after reading the recitals in the complaint; opinion of the medical officer dated 27.9.2006, submits that in the light of Section 33 of the Maharashtra Medical Practitioners Act, 1961 prosecution is not desirable as the action can be initiated by the Competent Authorities. 5) In order to stress his submissions, learned Counsel relied to the judgment of this Bench in the matter of Dr. Prasanna s/o Sudhakarrao Deshmukh & Ors. Vs. State of Maharashtra & Anr. - ( 2009 All MR (Cri.) 2395); judgment of the Hon’ble Apex Court in the matter of Malay Kumar Ganguly Vs. Dr.Sukumar Mukherjee & Ors. - (2009 All SCR 2039), and submitted that there was no criminal intention on the part of the petitioner in causing death of Pooja. A mere deviation from normal professional practice is 5 Cri.WP No.100/2010 not tantamount to evidence of negligence, and more particularly the medical negligence. The Hon’ble Lordships of the Apex Court in the matter of Malay Kumar Ganguly, have observed in paragraphs 158 to 160, “negligence” and particularly “medical negligence, what amounts to”, the substance is as under, - “ Negligence is the breach of a duty caused by the 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. Negligence means "either subjectively a careless state of mind, or objectively careless conduct. It is not an absolute term but is a relative one; is rather a comparative term. In determining whether negligence exist in a particular case, all the attending and surrounding facts and circumstance have to be taken into account." Negligence is strictly nonfeasance and not malfeasance. It is the omission to do what the law requires, or the failure to do anything in a manner prescribed by law. It is the act which can be treated as negligence without any proof as to the surrounding circumstances, because it is in violation of statute or ordinance or is contrary to the dictates of ordinary prudence.” 6 Cri.WP No.100/2010 6) It is well-settled principle, the jurisprudential concept of negligence have different shades in civil and criminal law. The negligence in civil law may not necessarily be an established affair in criminal law. 7) Criminal medical negligence can be prosecuted in terms of Section 304(A) of IPC. Section 304(A) of IPC contemplates thus, - “304(A) Causing death by negligence.- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." 8) The requirement is, there should be existence of duty, breach in discharge of duty, resulting in death. 9) The Hon’ble Lordships also observed, Doctors increasingly must engage with patients during treatments especially when the line of treatment is a contested one and hazards are involved, standard of care in such cases will involve the duty to disclose to patients about the risks of serious side effects or about alternative treatments. 7 Cri.WP No.100/2010 10) Mr.Chavan submits that post-mortem notes and the report of Chemical Analyzer do not support the theory of injecting a poisonous substance. There was no poison to the skin around the injection side or in viscera. Emphasis should not be given to the opinion of medical officer, Rural Hospital, Majalgaon, as the said Medical officer had no reason and occasion to check and treat Pooja, nor was he aware of her actual physical plight. The bonafides could be seen as husband of the petitioner has informed the police immediately about death of Pooja, which was recorded in the Station Diary. 11) The record illustrate the prescription to procure the injection was on a letter-head of Shri Ganesh Clinic, Majalgaon, run by the petitioner and her husband Dr. R.G.Bajaj. The prescription illustrated, the petitioner is B.Sc. (OT) D.H.M.S. bearing registration No.12815. Consequently, she was not qualified medical practitioner in allopathy and competent to inject a patient. In spite of she being lacking requisite medical qualifications, she insisted and kept Pooja as in-door patient under her control. The medical papers though are prepared under the signatures of her husband, apparently they are prepared later on in one stroke. This 8 Cri.WP No.100/2010 is even opined by the Medical Officer of Primary Health Center in his opinion dated 27.9.2006. Due care, as was expected of the petitioner to save the victim, though she was gasping and her condition was deteriorating, was not taken. She was not referred to child specialist. If the injection in question was of expiry date, it could not be expected from the patient or her parents to know the same, but it was bounden, be- all and end-all duty of the petitioner to verify the date of expiry of medicines/injection and then to inject. None of the events illustrate that husband of the petitioner was in-charge of the patient, but entire treatment was administered under the control and domain of the petitioner. This illustrate, that there was no tinkle to adherence of minimum duty from the petitioner. 12) In the matter of Jacob Mathew Vs.State of Punjab and Anr. - 2005 (7) SBR 568, the Hon’ble Lordships have observed, - “ “ 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 9 Cri.WP No.100/2010 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 can not be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.” 13) To revert back to the observations of the Medical Officer in his letter dated 27.9.2006, I find he has clearly pointed that it was not in the competence of the petitioner to practice in allopathy as she has no requisite expertise in the field. In the case papers, it was referred, the patient was in “semi-conscious” condition. If it was so, the petitioner should not have administered Temptal Syrup orally to such a patient, as the patient had no such capability and capacity to inhale it. If there was Malaria with Encephalitis, however, injection, viz. Nivaquin 50 m.g., was administered, which was improper dosage. The conclusions drawn by the Medical officer of Rural Hospital, Majalgaon dated 27.9.2006, even if not taken as a basis, however, the overall survey illustrate that there is primary evidence against 10 Cri.WP No.100/2010 the petitioner to proceed in terms of Section 304(A) of IPC. The rejection of Discharge application by the learned JMFC and confirmed by the learned Sessions Judge, need not be questioned by exercising of powers under Section 482 of Cr.P.C. The petition lacks merit, dismissed. Rule discharged. sd/- ( K.U.CHANDIWAL ) JUDGE bdv/ fldr.11.3.11 Authenticated copy (BD VADNERE,PS)