IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.45387 of 2007 (DR.) BINDESHWAR JHA BINDU Versus STATE OF BIHAR ----------- 3. 16.03.2009 Heard leaned Counsel for the petitioner and the learned Counsel for the State. The petitioner is aggrieved by rejection of his application under Section 227 Cr.P.C. for discharge in Tisiauta PS Case No. 28 of 2001/Sessions Trial No. 193 of 2005 pending before the Court of Additional Sessions Judge (F.T.C. V) Vaishali by order dated 7.9.2007. Tisiauta PS PS Case No. 28 of 2001 was lodged on 10.6.2001 under Sections 307, 326, 323, 448, 341, 147 & 148 of the Penal Code originally. Subsequently during investigation Section 304A came to be added when name of the petitioner also figured as an accused. He is not one of the originally named accused persons who indulged in the assault. The injured Sipahi Roy was initially taken to one Dr. Janki Roy on 10.6.2001 for treatment. On 17.6.2001 the injured was brought to the Primary Health Centre at Jandaha where the petitioner who is a MBBS was posted as the Medical Officer. He is alleged to have attended and operated upon the injured and then referred him for specialized treatment to PMCH on 28.6.2001. Contrary to his advice, the family members of the injured took him to another Dr. Gonour Sah, a private Medical Practitioner where the injured finally was deceased on 9.7.2001. During investigation the petitioner has been made an accused allegedly for reasons of medical negligence under Section 304A of the Penal Code. - 2 - The Deputy Superintendent of Police at the stage of supervision has opined that the petitioner did not have the ultrasound and x-ray of the injured done before operating upon the injured. This was a negligence on his part which resulted in death of the injured. It is not in controversy before this Court that neither Dr. Janki Roy who treated the injured first nor Dr. Gonour Sah to whom the injured was taken later have been made an accused for any alleged medical negligence causing death of the injured. Learned Counsel for the petitioner urged that the petitioner is a MBBS and also holds qualification of having done his houseman ship in surgery. A specific statement has been made in paragraph 23 of the application that he is a Medical Officer and has also worked as General Surgeon in the Department of General Surgery in DMCH Laheriasarai. The petitioner in fact never operated on the injured but only drained the puss from the infected wound caused by the assault. The injured was brought for treatment in the Primary Health Centre at Jandaha. The petitioner had duly informed the police of the nature of injury caused to the patient that he was treating. The family members of the injured have generally stated that the petitioner allegedly operated on the deceased but have not made any allegation of negligence. The Deputy Superintendent of Police at the stage of supervision has made the petitioner an accused without any foundation of alleged medical negligence when those who treated the deceased prior and subsequent to the petitioner find no reference. - 3 - Learned Counsel for the State opposing the application submitted that during investigation witnesses have stated that the petitioner operated on the deceased. The Deputy Superintendent of Police during supervision has opined that there was negligence inasmuch as prior to the operation the petitioner did not have the x-ray and ultrasound of the deceased done. The petitioner was not a qualified surgeon. Learned Counsel for the State from the materials in the case diary acknowledges that for one week after the assault the relatives of the deceased kept him for treatment before one Dr Janki Roy. The allegations are that due to assault with a knife the intestine had spilled out. None of the family members of the deceased have made any allegation of any medical negligence on the part of the petitioner with regard to any alleged operation. The materials collected during investigation are clearly lacking in the nature of treatment given by Dr. Janki Roy to the injured. If the intestine of the deceased had spilled out and his relatives preferred to have him attended elsewhere for one week and came to the petitioner thereafter the petitioner is surely not answerable for the ills that may have been committed by Dr. Janki Roy., During investigation no materials have been collected as to the nature of the operation allegedly carried out by the petitioner and the location of the premises where operation had been done. This becomes important in the background of contention of the petitioner that he never operated upon the deceased but only drained out the puss from the wound. - 4 - Learned Counsel for the State is not in a position to point out any material from the case diary of the investigation done by the Investigating officer from the Government Hospital with regard to the nature of the treatment given to the deceased by the petitioner at the Primary Health Centre and the condition in which he was brought to the Primary Health Centre. To this Court, the Deputy Superintendent of Police was not a person trained in the medical science, proficient in matters of medical treatment to decide of the manner in which the petitioner should have proceeded with the treatment, more so when the injured himself had preferred to go elsewhere for treatment first, not to follow the advice of the petitioner for specialized medical treatment at PMCH Patna and on the contrary chose to go to another private Medical Practitioner at Jandaha where he was ultimately deceased. The law with regard to prosecution of a medical professional for negligence under Section 304A of the penal Code was considered by the Supreme Court in AIR 2004 SC 4091 (Dr. Suresh Gupta Vrs NCT Delhi & anr.) when it was opined that negligence had to be “gross” in nature for fixing criminal liability on the doctor under Section 304A of the Penal Code. The importation of the word „gross‟ was doubted when the matter was referred to a larger Bench of three Judges Bench as reported in AIR 2005 SC 3180 (Jacob Mathew Vrs State of Punjab & another). The Supreme Court held that the term „negligence‟ had different connotations in civil law and criminal law. On a discussion of the law and the limits of liability for medical - 5 - negligence, the conclusion summed up in Para 49 of the judgement runs as follows:- “49. We sum up our conclusions as under;- (1) Negligence is the breach of a duty caused by 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. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by justice G.P.Singh), referred to hereinabove, holds good. Negligence becomes actionable or account of injury resulting from the act of omission amounting to negligence attributable to the person sued. The essential components of negligence are three: „duty‟, „breach‟ and „resulting damage‟. (2) Negligence in the context of medical profession necessarily calls for a treatment with difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgement or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is - 6 - whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, 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 that particular time (that is, the time of the incident) at which it is suggested it should have been used. (3) 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 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 cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. (4) The test for determining medical negligence as laid down in Bolam‟s case (1957) 1 WLR 582, 586 holds good in its applicability in India. - 7 - (5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of means rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution. (6) The word „gross‟ has not been used in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be „gross‟. The expression „rash‟ or „negligent acts‟ as occurring in Section 304A of the IPC has to be read as qualified by the word „grossly‟. (7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor would be of such a nature that the injury which resulted was most likely imminent. (8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.” - 8 - The Supreme Court noted with anguish that the prosecution of doctors (Surgeons and Physicians) being subjected to criminal prosecution were on the increase. That the Investigating Officer and the private complainant cannot always be supposed to have adequate knowledge of medical science so as to determine whether the act of the professional amounts to rash or negligence under Section 304A of the Penal Code. At Para 51 of the judgement the Supreme Court opined on the consequence of reckless prosecution against the medical professional in the relevant extract as follows:- “51. …………. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered in his reputation cannot be compensated by any standards” And observed in Para 53 of the judgement of the manner in which inter alia the Investigating Officer should proceed before indicting a medical professional which this Court considers apt to quote hereinafter. “53. Statutory Rules or Executive Instruction incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Government in consultation with the Medical Council of India. So long as it is not done, we propose to law down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private - 9 - 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 negligence on the part of the accused doctor. 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 Bolam‟s test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been leveled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.” In the facts of the present case it has been noticed that the deceased suffered intestinal injury. His relatives preferred to take him to another doctor where he was attended for one week. Obviously the deceased did not live for one week with his intestine hanging out. Whatever it may be, he was brought to the petitioner when his relatives were not satisfied of his initial treatment. The petitioner is sought to be made answerable for those who gave the initial treatment when the person who gave this initial treatment is not sought to be questioned. The Deputy Superintendent of Police who may be proficient in criminal - 10 - investigation, certainly does not have an expertise of the nature of the treatment as a medical professional which the deceased required. Quite obviously therefore the case diary contains no material of the condition of the deceased when he came to the petitioner for treatment, much less from the records of a government hospital. The ipse dixit of the Deputy Superintendent of Police seeks to indict the petitioner. This is what the Supreme Court interdicts. This Court has already noticed above that the injured chose not to follow treatment of the petitioner requiring specialized attention at the PMCH but chose to go to another private medical practitioner where he was ultimately deceased. The petitioner did all that he was required to do. He attended to the injured, then opined for specialized medical treatment of the injured. The injured refused to follow the advice. The petitioner is sought to be made answerable for the same. This Court in the nature of the prosecution and the law as laid down by the Supreme Court finds it difficult to sustain the prosecution of the petitioner in Tisiauta PS Case No. 28 of 2001 cor4responding to Sessions Trial No. 193 of 2005 pending before the Additional Sessions Judge (F.T.C.-V) Vaishali. The order dated 7.9.2007 rejecting his application under Section 227 Cr.P.C. is set aside. The entire prosecution of the petitioner stands quashed. This application is allowed. Snkumar/- (Navin Sinha,J.)