CRM No.M-3728 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM No.M-3728 of 2008 Date of decision:- 23.11.2011 Dr. Javed Alam ...Petitioner Versus State of Punjab and another .... Respondents CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Vikas Behl, Advocate for the petitioner. Mr. Vishal Munjal, Addl. Advocate General, Punjab Mr. S.K.Chauhan, Advocate for Mr. Raj Mohan Singh, Advocate for respondent No.2. AUGUSTINE GEORGE MASIH, J. (ORAL) Prayer in this petition is for quashing of F.I.R. No.195 dated 04.08.2007 under Section 304 IPC registered at Police Station Banga District Nawanshahar (Annexure P-1). As per the petitioner, Section 304 IPC was deleted vide DDR No.21 dated 04.08.2007 and Section 304-A IPC stands added. It is the contention of the counsel for the petitioner that no FIR could be registered against the petitioner before the opinion of the Board of Doctors was obtained. His further contention is that the Board of Doctors in its opinion, which has been appended as Annexure R-1 dated 30.08.2007, has not opined that the petitioner was negligent in performing his CRM No.M-3728 of 2008 -2- responsibilities as a Doctor. His further contention is that the challan could also not be presented against the petitioner without the opinion of the Board of Doctors in the light of the judgment of the Supreme Court in the case of Jacob Mathew vs. State of Punjab and another, 2005(3) R.C.R. (Criminal) 836. He accordingly prays for quashing of the FIR. I have heard learned counsel for the petitioner and gone through the records of the case. The contention of the counsel for the petitioner that the FIR could not be registered against the petitioner without obtaining the opinion of the Board of Doctors as directed in Jacob Mathew's case (supra) is totally misplaced. In para 52 of the judgment it has been observed that the investigating officer should, before proceeding against the doctor accused of rash and 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 the Bolam test to the facts collected in the investigation. That opinion as has been referred to by the Hon'ble Supreme Court should indicate the negligence on the part of the Doctor which can only be done at the stage of investigation which has been done in the present case as is apparent from the opinion of the medical team constituted by the Civil Surgeon, Nawanshahr dated 30.08.2007 (Annexure R-1). A perusal of the Annexure R-1 indicates that there are four lapses which have been pointed out by the medical team constituted by the Civil Surgeon, Nawanshahar which are mentioned as points no.3, 4, 5 and 6 in the report which read as follows. CRM No.M-3728 of 2008 -3- “3. Following tests are required for conducting the procedure mentioned Hb BT, Ct urine C/E B-Scrutinize, RBS, ECG, X-ray chest through medical check up. 4. A trained qualified Anesthetist is required to be present at the time of conducting the above mentioned procedure. 5. In case of any complication during the procedure Dr.Javed Alam should have called an Anesthetist or Medical specialist to treat the complication immediately. 6. As per statement produced by Dr.Javed Alam routine resuscitative measures were taken to treat the patient before death however indoor file and consent form and proper bio data of patient was not recorded.” Thereafter clarification was sought by the Investigating Officer on the report, relevant parts of these clarifications are reproduced in paras 3 and 4 of the additional affidavit dated 30.3.2010 which read as follows:- “3. That the contents of para No.3 of the petition are totally wrong and incorrect and hence denied vehemently. Clarification regarding column No.3 of Report No.216, dated 30.8.2007, rendered by the members of the Medical Board, was sought and as per opinion of the Medical Board, the Tubal Insufflation Test (Rubin Test), referred to in this para of the petition, according to Text Book of Gynaecology by D.C.Dutta, 4th Edition, Chapter No.15, Page No.233, is inferior to other methods of Tubal patency tests and this test is not commonly CRM No.M-3728 of 2008 -4- done these days. For facility of kind appraisal, the gist of the said clarification rendered by the members of the Medical Board be reproduced herein below:- “Tubal Insufflation Test (Rubin Test). According to Text Book of Gynaecology by D.C.Dutta, 4th Edition, Chapter No.15 Page No.223, is inferior to other methods of Tubal Patency tests and, this test is not commonly done these days.” The Board of doctors while making the clarification regarding column No.3 of the report No.216, dated 30.8.2007, further observed as under:- “Even Standard Books like Novak's Gynaecology in Chapter 27 'Infertility' has not mentioned even the name of this test and states that 'Hysterosalpingography' is the initial diagnostic test used to assess tubal patency.” A juxtaposed study of the above extracted clarification rendered by the Board of Doctors, would tend to show that the petitioner misdirected himself while conducting the Tubal Insufflation Test (Rubin Test), which even as per the Text Book of Gynaecology by D.C.Dutta, 4th Edition, Chapter No.15, Page No.223, was interior to other methods of Tubal Patency Tests and this test was not commonly done these days and even the Standard Book like Novak's Gynaecology in Chapter 27, “infertility” has not mentioned even the name of CRM No.M-3728 of 2008 -5- this test and states that Hysterosalpingography was the initial diagnostic test used to assess Tubal Patency. Thus, the petitioner has been most rash and negligent in performing his duty as a professional doctor, which lead to the death of Surinder Kaur wife of complainant. There are prima-facie well constituted offences against the petitioner of his being grossly negligent in performing his duties as a professional doctor. After due investigation which was conducted in a most fair and unbiased manner, the Challan has already been presented in the Court and the learned trial court is already seized of the matter. The petition is malafide and has been filed simply to delay the proceedings in the trial. 4. That contents of para No.4 of the petition are totally wrong and incorrect and hence denied. As per opinion of the Board of doctors, which is being reproduced herein below for favour of kind appraisal, the petitioner should have called the Anesthetist or the Medical Specialist to deal with the complication immediately and his failure to do so, renders him liable for penal action:- “In column No.5, we have written that in case of any complications, during the procedure, Dr.Javed should have called an Anesthetist or Medical Specialist to treat the complication immediately, which means that an Anesthetist or Medical Specialist may not be required for routine procedure on a healthy patient but once there is CRM No.M-3728 of 2008 -6- some complication, during the procedure, these Specialists should have been called to deal with the complications. The books mention the procedure to be an outdoor procedure not requiring Anesthetist/Medical Specialist, but required in case of any complication.” which inter-alia means that the books so referred to in this para of the petition also recommend the calling of an Anesthetist or a Medical Specialist in case of complications during the procedure, which the petitioner failed to take, resulting in the death of the patient, Surinder Kaur wife of the complainant due to gross negligence on the part of the petitioner.” It cannot, therefore, at this stage, be said that there is no negligence on the part of the petitioner in performing his duty as a Doctor, which is expected of him. In the light of the above, the prayer made in the present petition cannot be accepted and,therefore, the petition stands dismissed. 23.11.2011 (AUGUSTINE GEORGE MASIH) poonam JUDGE