IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.26229 of 2007 DR. PRAKASH CHANDRA VERMA, SON OF LATE NAGENDRA NATH VERMA, RESIDENT OF MOHALLA-RAJENDRAPURI, KALAMBAGH ROAD, P.S. KAZI MOHAMMADPUR, DISTRICT-MUZAFFARPUR. ……………………………………………………………………PETIITONER. Versus 1. THE STATE OF BIHAR. 2. SHYAM KISHORE SAO, SON OF LATE MANGAL SAO, VILLAGE AND P.O. LACHUAR, P.S. SIKANDARA, DISTRICT-JAMUI. ……………………………………………………OPPOSITE PARTIES. ----------- For the Petitioner : M/s. Kanhaiya Prasad Singh, Senior Advocate and Dhruba Mukherjee, Advocates. For the State : Mr. Jharkhandi Upadhyay, A.P.P. For O.P. No.2 : Mr. Prakash Mahto, Advocate. ------------ O R D E R 4. 7.11.2008. The petitioner, one of the F.I.R. named accused of Sikandara P.S. Case No.214 of 2006 , has prayed for the quashing of the order dated 10.3.2007/12.3.2007 passed therein by the learned Chief Judicial Magistrate, Jamui, whereby he has been pleased to take cognizance against this petitioner for offence under Sections 304/34 I.P.C. and has directed for issuance of process. An additional prayer has been made for quashing of the charge sheet dated 28.2.2007 of the aforesaid Sikandara P.S. case. Briefly stated, the prosecution story is that one Shyam Kishore Sao, impleaded herein as O.P. No.2, submitted a written report to the Officer Incharge of Sikandara P.S. on 25.11.2006, inter alia, alleging that he had brought his maternal nephew (bhagina), - 2 - Yogendra Kumar, to the accused-petitioner on 21.11.2006 for treatment and after examining him the petitioner had suggested a surgery to be performed on the patient. Some medicines were also prescribed which were brought and thereafter the petitioner alongwith his compounders performed the operation. It is alleged that in course of the operation the patient started screaming loudly wherepon the informant rushed to see his bhagina but the accused-petitioner abused the informant and also pushed him out. It is alleged that at the relevant time the petitioner was reeking with the smell of alcohol. It is further alleged that being helpless, he called the mother of the patient, Urmila Devi, Shyam Sundar Sah and Munna Ansari, who had accompanied the informant from the village and they also saw Yogendra Kumar screaming loudly and the accused-petitioner was performing the operation under the influence of alcohol and that too without the patient being subjected to anaesthesia. It is further alleged that after sometime the petitioner came out and asked the informant and others to see the Bhagina and on seeing him they found him to be dead. The allegation is that the petitioner and his colleagues had intentionally caused the death of Yogendra Kuar under the influence of alcohol and on the plea of treatment. It is further alleged that after the informant had received the death certificate from the petitioner on the next day and while going away with it when he reached near the Sikanadara Chowk, the protector of the petitioner, Suman Yadav alias Sumo, came from behind and on the pretext of seeing the certificate fled away with it and handed over to the petitioner and when the - 3 - petitioner asked for the certificate from the petitioner he refused to handover the same. The delay in filing the written report is attributed to the mental condition of the informant and of the members of the family of the deceased being busy with his last rites. It has been submitted on behalf of the petitioner that the entire prosecution story is false and based on after thought and had been filed only with the intention of harassing the petitioner due to village politics and also extorting undue and illegal compensation from him. A grievance has been raised against the delay of four days in filing the written report. In this connection, it was submitted that the patient was suffering from highly tender strangulated inguinal hernia and bilateral hydrocele and died even before the operation could be performed and the informant as also his colleagues without any hue and cry took away the dead body as they did not want any post-mortem to be done on the dead body. It is also submitted that the informant with ulterior motive had suppressed the material fact inasmuch as after examining the patient the petitioner had referred him to the PMCH, Patna, or any other higher centers since the condition of the patient was very serious but the informant and his colleagues had refused to take the patient to PMCH and requested the petitioner to perform the operation at their risk showing complete faith on him and the requisite bond from them had been obtained. It is said that these facts would be available from the prescription dated 21.11.2006 given by the petitioner and from paragraph 54 of the case diary. - 4 - The defence of the doctor is that being faced with the situation and having subscribed to the oath and with the guardians of the patient not ready to remove the patient to PMCH he, as a doctor, was bound to attend and make attempts to ameliorate the sufferings of the patient. The allegation of the death of the patient having been caused due to the petitioner being under the influence of alcohol at the time of operation has also been denied since no such allegation has been made against him earlier when he had examined the deceased or talked to the attendants during the pre-operative stage. It goes without saying that there is well settled law that mere accident cannot be evidence of negligence. Similarly, it is also settled that no sensible professional would intentionally commit an act of omission or commission which would result in loss or injury to the patient as the professional reputation of that person would be at stake. Gainful reference may be made to the case of Jacob Mathew Vs. State of Punjab, reported in 2005(4) PLJR 213(SC) where their Lordships have held that simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur. Paragraphs 29 and 30 of the said judgment are also relevant and may be quoted herein: “Para-29. A Medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly - 5 - make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. A surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient. Para-30. If the hands be trembling with the dangling fear of facing a criminal prosecution in the event of failure for whatever reason-whether attributable to himself or not, neither a surgeon can successfully wield his life saving scalpel to perform an essential surgery, nor can a physician successfully administer the life saving dose of medicine. Discretion being better part of valour, a medical professional would feel better advised to leave a terminal patient to his own fate in the case of emergency where the chance of success may be 10%( or so), rather than taking the risk of making a last ditch effort towards saving the subject and facing a criminal prosecution if his effort fails. Such timidity forced upon a doctor would be disservice to the society.” There is yet another aspect of the matter. For an act of negligence amounting to an offence the element of mens rea must be shown to exist and in an act of criminal negligence a degree of negligence required is much higher. Where the negligence is neither gross nor of a higher degree it may be a good ground of liability in tort. The Hon’ble Apex Court in the case of Jacob Mathew (Supra) sought to point out the fastening of liability under the civil law and criminal law and observed that “to hold the existence of criminal - 6 - recklessness or criminal negligence he shall have to be found out that the recklessness of such a degree is to amount to taking hazard knowing that the hazard was of such degree that injury was most likely eminent. The element of criminal liability is introduced by the accused having run the risk of doing such an act without recklessness and indifference to the consequences. Professional may be held liable for negligence on one or two finding either he was not possessed of the requisite skill which he professed to have possessed or he did not exercise with reasonable competence in a given case the skill which he did possess. No such allegation has been attributed to the petitioner in the instant case. Due regard being had to the facts and the circumstances of the case and the discussions made above, continuance of the criminal proceeding would be an abuse of the process of the court. Accordingly, the application is allowed and the order taking cognizance, so far as the petitioner is concerned, is hereby quashed. P.S. (Abhijit Sinha,J)