Cr.Misc. M 24224 of 2010 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYNA AT CHANDIGARH. Cr.Misc. M 24224 of 2010 Date of decision:20.8.2010 Dr. Usha Sethi Petitioner vs. Devinder Kumar Respondent Present: Mr. Abhishek Sethi, Advocate. M.M.S.BEDI,J. The petitioner is running a private hospital in District Kurukeshtra. She has filed this petition u/s 482 Cr.P.C. for quashing of private complaint dated 9.1.2002 (Annexure P-1) filed u/s 304 A IPC in the court of Judicial Magistrate Ist Class, Kurukeshtra as well as the summoning order dated 5.7.2005 (Annexure P-2) passed by the Judicial Magistrate Ist Class Kurukeshtra and the order dated 12.8.2010 (Annexure P-2) passed by Sh. Balbir Singh Sessions Judge, Kurukeshtra dismissing the revision petition against the summoning order. Respondent Devinder Kumar has filed a criminal complaint u/s 304-A IPC (Annexure P-1) against the petitioner and another surgeon Dr.R.P.Suri u/s 156(3) Cr.P.C. on the allegation that the petitioner and another Doctor had committed an offence u/s 304 A IPC by causing the death of his wife Kiran Devi. The contents of the complaint reads as follows:- “ The complainant respectfully submits as under:- Cr.Misc. M 24224 of 2010 -2- 1) That Smt. Kiran Devi, was legally wedded wife of complainant and Kiran Devi, gave birth to Ekta and Jaswen. When Jasween was in womb, Kiran Devi, felt the pain in her stomach, the complainant along with his wife Kiran Devi went to the clinic of accused No.1 of treatment on 02.12.2001, at about 4 PM. The accused No.1, taken the X- rays of Kiran Devi. Thereafter the accused No.1 asked the complainant and others that the delivery of wife of complainant is due and it cannot be taken place in normal conditions rather for delivery operation will be operated/ conducted upon. The complainant and others were not having no other alternative except to concede the suggestion of accused no.1. The accused no.1 has also given assurance to the complainant that she is having all facilities of operation and she herself arrange anaesthetist and other surgeon for her help for conducting the operation of Kiran Devi. After diagnosis the accused no.1 charged Rs.1500/- as charges of medical fee, medicines, lab tests etc. 2) That on 02.12.2001, Kiran Devi was taken into Operation theatre. At the time of operation, the accused No.1 and 2 and anaesthetist and Nurse were present. The complainant also asked the accused no.1 that he is willing to remain present in the operation theatre at the time of operation of Kiran Devi. The accused no.1 asked the complainant that they cannot allow any other person to remain present in the operation theatre at the time of operation, so that Cr.Misc. M 24224 of 2010 -3- complainant remained outside along with others. 3) That the accused no.1 asked the complainant and othes that operation is O.K. After operation Kiran Devi deceased remained in the Hospital upto 10.12.2001 up to 11 A.M. Thereafter Kiran Devi was discharged from the Hospital by the accused no.1 The accused no.1 stated that Kiran Devi is O.K. During the period 2.12.2001 to 10.12.2001 Kiran Devi feeling pain in her stomach. The accused no.1 was putting off the matter by saying that after operation generally it happens. The accused no.1 did not care to take the matter seriously rather handed over the treatment in the hands of nurse. After operation on 02.12.2001 the accused also left the Hospital to Delhi to see her relations and came back on 05-12-2001. 4) That on 10.12.2001 the complainant brought Kiran Devi along with her daughter Jasween, from Hospital at Village Budanpur Khalsa. On 12-12-2001 again the complainant along with Kiran Devi deceased came to the Hospital of accused no.1, for check up and asked the accused no.1 that Kiran Devi has acute pain in her stomach and she is not able to take anything and is unable to sleep. The accused no.1 gave pain killers tab to Kiran Devi and did not take the matter seriously rather put off the matter on one pretext or other and stated that she would come in normal condition in future. 5) That when the pain of Kiran Devi became more serious so the complainant brought Kiran Devi deceased in Sehgal Cr.Misc. M 24224 of 2010 -4- Hospital Karnal for checking on 13-12-2001 about 2 P.M. Dr. Sehgal had taken the Ultra sound of Kiran Devi, thereafter he made the report. Dr.Sehgal has given the report to the effect that Kiran Devi has been operated upon pre-mature and also opined that accurate treatment and medicines were not provided to Kiran Devi after operation and also said that there is carelessness and medical negligence on the part of concerned doctor. Dr.Sehgal felt that it is a case of emergency nature and he referred the patient Kiran Devi to P.G.I. Chandigarh on the same day. The complainant along with Kiran Devi reached in P.G.I. at about 8 P.M. On 13-12- 2001, after seeing the condition of Kiran Devi, she was got admitted in emergency ward. Doctors of P.G.I. Operated upon Kiran Devi on 13-12-2001 at about 12 P.M. Before operation of Kiran Devi Doctors of P.GI. also felt that there is deficiency in services treatment and medical negligence on the part of Doctors who operated upon Kiran Devi first time. P.G.I. Doctors could not save the life of Kiran Devi inspite of sufficient efforts. There is no negligence on the part of P.G.I doctors. Kiran Devi died on 14-12-001 at about 4 P.M. and her death had taken place on account of medical negligence of accused no.1 and 2 on account of premature operation of delivery of Kiran Devi. 6) That death of Kiran Kaur has occurred on account of premature delivery operation, medical negligence of accused as no proper treatment and services were rendered by the accused. There were great deficiencies in the Cr.Misc. M 24224 of 2010 -5- services of accused due to which Kiran Devi died. 7) That Kiran Devi deceased was aged 23 years and was doing all domestic work and maintaining all the house in all respects and children. Besides this she was maintaining the buffaloes and selling milk and also doing the work of sewing Embroidery and thus was earning more than Rs.10,000/- per month. After her death the complainant has been deprived off from married life, love and affection and the children have become unattended without mother. 8) That under the facts and circumstances sated above the accused are liable to pay compensation at the tune of Rs.4,50,000/- as compensations to complainant plus amount Rs.27,000/- incurred on medicine etc. The complainant made many requests to accused to pay the same but to no effect. 9) That in view of the facts and circumstances the accused has committed the offence u/s 304-A IPC at Kurukeshtra by operating the wife of the complainant negligently and against the rules of medical jurisprudence. There by causing the death of wife of the complainant at Ladwa, Distt. Kurukeshtra, within the jurisdiction of this Hon'ble court and this Hon'ble court has got jurisdiction to try this complaint. 10) That a fixed court fee of Rs.10/- is affixed on the complaint. It is, therefore, prayed that the complaint may kindly be sent to P.S.Ladwa U/S 156(3) Cr.P.C. for registration of case and investigation thereof or in the alternative the Cr.Misc. M 24224 of 2010 -6- accused may be summoned and tried and punished according to law.” The trial court recorded the statements of complainant Devinder Kumar as CW 1, Nirmala Devi mother of complainant as CW 2 and father of complainant Ramesh Chand as CW 3 reiterating the averments made in the complaint and deposing to the effect that the death of Kiran Devi wife of the complainant had been caused due to medical negligence of the petitioner and another Doctor. The complainant produced document i.e. death certificate 'Mark A', certificate of P.G.I. ' Mark B' and other documents 'Marks C & D' and the report of Dr.Rajiv S. Rana “Mark E & F and ultrasound report of Dr.Sehgal 'Mark H'. A police report u/s 202 Cr.P.C. was also called for by the summoning court. While preparing the said report u/s 202 Cr.P.C.,the police had recorded the statement of the petitioner to the effect that when the complainant's wife had approached Sethi Clinic on 2.12.2001, she had a pain for the last 3 days and was being supervised by a Dai. On examination, the petitioner had found that Bandl's Ring ( pathological retraction ring caused by obstructed labour due to excessive retraction of upper uterine segment due to over distended stretching) of the uterus had been formed, as such emergency operation was suggested after obtaining the consent of the father-in-law of the patient and on testing of the blood, it was found to be 4.5 mg, therefore, the attendants were asked to get four bottles of blood. They had agreed to supply the four bottles of blood. Thereafter, two Doctors were called, who were expert in the field. The caeserean operation was done and the patient was discharged on 10.12.2001. The arrangement of the blood was not made by the attendants of the patient. They were suggested by a Doctor from Karnal to go to PGI, Cr.Misc. M 24224 of 2010 -7- as such, the patient died on 13.12.2001 in the PGI. As per the report of the P.G.I., the death had been caused due to anemia and post operative septicemia. She further stated to the police that the patient had made an attempt for delivery at home for 3 days and that 3 / 4 bottles of blood were not arranged by the attendants of the patient. A similar statement of Dr.R.P.Suri was recorded, who had stated that the operation of the patient was required and that 4 bottles of blood were not arranged. The operation was successful regarding delivery. The statement of Ramesh Chand father-in-law of Kiran Devi was also recorded. Various documents were also procured by the concerned A.S.I. of Police Station Ladwa and a report was submitted to the effect that Kiran Devi had died on account of post- operative septicemia and anemia without mentioning any other reason of death regarding negligence. Learned counsel for the petitioner has vehemently argued on the line of statement made by the petitioner before the police to contend that it was a case of obstructed labour and that foetus being 32 weeks old had passed miconion, which made the operation necessary. It was a case of severe anemia as the blood count was 4.5 mg when the operation was performed. The patient had been prescribed iron tablets. On 8th day stitches were removed and the patient was discharged on 10.12.2001. The patient died on 14.12.2001 in P.G.I. Reliance was placed on Affidavit Annexure P-8 dated 16.10.2004 of Dr.Kavita Jain, D.G.O., LMC, CHHC Radaur to the effect that the patient was severely anaemic and examination revealed Bandl's Ring. The operation of LSCS was justified due to risk conditions on account of anaemia and handling by Dai in aseptic conditions and on account of improper antenatal care. Learned counsel has further submitted that consent form Cr.Misc. M 24224 of 2010 -8- (Annexure P-6) was given by Ramesh Chand father-in-law of the patient, by virtue of which, he had given consent that out side surgeon be called and that 4 bottles of blood would be arranged and operation should be done. He relied upon the provisions of Section 88 I.P.C. to contend that the operation is conducted after obtaining consent. The Doctor cannot be held liable for medical negligence so long as he follows a practice, acceptable to the medical profession. He vehemently urged that, if seen in context to the parameters laid down in Jacob Mathew vs State of Punjab & Anr 200 A.I.R. 3180, it is not a case of medical negligence and that the private complaint cannot 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 pat of the accused Doctor. He also placed reliance on Martin F. D' Souza vs Mohd. Ishfaq 2009(2) R.C.R. (criminal) 64. He argued that the matter is pending before the Consumer Court and that law regarding medical negligence i.e. Bolam Rule if applied regarding the test in fixing negligence, the medical negligence cannot be attributed to the petitioner. He further vehemently argued that the test in fixing the negligence is the standard of the ordinary skilled doctor exercising and professing to have that special skill, but a doctor need not possess the highest expert skill. He reiterated the law regarding medical negligence contending that the Doctor is not criminally liable only if negligence is reckless and gross. He urged that it may be a case, in which the complainant may sue on civil side for liability under tort but it is not a case of criminal negligence. Learned counsel has submitted that the parameters of medical negligence for attracting Section 304-A IPC are as Cr.Misc. M 24224 of 2010 -9- follows:- “D. Indian Penal Code, Sector 304A- Medical negligence:- (1)When the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at the point of time on which it is suggested as should have been used. (2) An error of judgment on the part of a professional is not negligence per se. (3) No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. (4) 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. (5) To draw a distinction between the blameworthy and the blameless, the notion of mens rea has to be elaborately understood.” The medical negligence and guidelines, which as per the Jacob Mathew's case (supra) are as follows:- E. Indian Penal Code, Section 304 A- Prosecution of medical practitioners- Medical negligence & guidelines:- (1)Doctors can be prosecuted for an offence of which rashness or negligence is an essential ingredient, but they are to be protected from frivolous and unjust prosecutions. (2) Many a complainant prefers recourse to criminal process as a tool for pressuring the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against. (3) A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or Cr.Misc. M 24224 of 2010 -10- negligence on the part of the accused doctor. (4) The Investigating Officer, before proceeding against the doctor should obtain an independent and Competent medical opinion preferably from a Doctor in Govt. service. (5) A doctor may not be arrested in routine, unless his arrest is necessary for furthering the investigation or for collecting evidence or the Doctor would not make himself available to face prosecution unless arrested.” I have heard learned counsel for the petitioner at length and carefully gone through the complaint, the statements of complainant Devinder Kumar (CW 1), Rameh Chand father of complainant (CW 2) and mother of complainant Nirmala Devi (CW 3), made available by the counsel for the petitioner, the operational notes prepared in the hospital of the petitioner, the statements of the petitioner, recorded by the police and the other Doctor Dr. R.P. Suri and the statement of Ramesh Chand made before the police and the report u/s 202 Cr.P.C to determine whether it is a case of simple lack of care, an error of judgment or an accident or it is a case of negligence on the part of the petitioner of medical negligence or it was a case of reckless and gross negligence warranting prosecution of the petitioner for medical negligence. There is no doubt that the petitioner has got a reasonable competence and requisite skill being a professional doctor but the circumstances have to be considered in context to the allegations in the complaint and the material, which is available on the record. It is not disputed that the petitioner is a professional, running a hospital, owed a duty towards her patients of due care. Whether there has been any breach of duty by the petitioner and whether on account of the said breach of duty, the death of Kiran Devi had taken place, are various points for determination, required to be considered to determine Cr.Misc. M 24224 of 2010 -11- negligence. Learned counsel for the petitioner has contended that it was not the petitioner, who had conducted the operation but it was surgeon Dr. R.P. Suri, who had operated upon the patient. There are a number of questions, which are required to be determined during the course of trial in order to find out whether an operation of anemic patient with 4.5 gm was a valid decision; whether the consent of the attendant would absolve the petitioner of all the liabilities; whether mere appearance of Bandl's Ring was sufficient enough for the decision of operation; whether the attendants were actually explained the expected complications; whether the patient suffered only on account of the non availability of the blood, which was to be supplied by the attendants; whether the liability of medical negligence can be evaded merely on the ground that anemic patient was not supplied blood by the attendants while the patient was in hospital; whether the patient had been properly operated upon; whether the patient had not been discharged in a healthy condition; whether the opinion of the Doctor at Karnal and the opinion of the Doctors of PGI are not sufficient enough to arrive at a conclusion that the treatment given was not up to the mark, in accordance with the standard norms and procedures; whether the complaint is based upon misguided suspicion; whether the parameters of medical negligence are prima facie established. All the above said questions cannot be adjudicated upon for the purpose of quashing of the complaint against the petitioner. The petitioner may have a very good defence warranting acquittal or the benefit of doubt but the parameters for quashing of a complaint or an FIR have been laid down by the Apex Court in State of Haryana & Ors vs Ch. Bhajan Lal and Ors AIR 1992 SC 604. The said parameters laid down Cr.Misc. M 24224 of 2010 -12- that a complaint or an FIR can be quashed, if it falls in any of the following parameters:- “1) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (2)Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act ( under which criminal proceeding is instituted) to the institution and continuance of the proceedings and/ or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (3) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior move for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. The report u/s 202 Cr.P.C. is merely accumulation of the facts collected and cannot be read to the benefit of the petitioner in any manner. Besides this, whether the accused can be joined by the police at the time of preparation of the report u/s 202 Cr.P.C. is debatable. Besides this, the report u/s 202 does not protect the petitioner in any manner. On the basis of the material, it cannot be said to be a mere recklessness and not a case of high degree so as to fall in the “gross” negligence. No doubt, the summoning order, passed by the trial court is a non speaking order and it ought to have passed a detailed speaking order, taking into consideration Cr.Misc. M 24224 of 2010 -13- the entire material before it but at the same time the revisional court also evaded the scrutiny of the preliminary evidence, for which reason the said exercise has to be done by this court to find out whether any prima facie case of negligence is made out. Applying the test of Bhajan Lal's case (supra), I am of the considered opinion that it is not a case, in which unrebutted allegations in the complaint could be said to constitute no offence. It is not a case, which could be said to be filed merely with a mala fide intention. It is also not a case where the allegations on the face of it appear to be absurd or improbable. The scope of interference in the exercise of powers u/s 482 Cr.P.C. after the dismissal of the revision petition is also very meager but since the revisional court had also observed that the remedy for the petitioner was to invoke the inherent jurisdiction of this court, as such, in the interest of justice the allegations in the complaint along with the other material have been taken into consideration. Learned counsel for the petitioner had been given a fair opportunity to bring his argument within the ambit of the parameters laid down in Bhajan Lal's case (supra) but counsel has not been able to satisfy this court that the instant petition is merely an abuse of the process of the court or that the interference at this stage is required for quashing of the complaint and the summoning order. In view of the above detailed discussion, no ground for interference is made out. Dismissed. August 20 ,2010 ( M.M.S.BEDI ) TSM JUDGE