IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-17013 of 2008 Date of decision: 19th February, 2009 Daljit Singh Gujral and others … Petitioners Versus Union Territory, Chandigarh … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Rajiv Atma Ram, Senior Advocate with Mr. G.S. Mann, Advocate and Mr. Daman Dhir, Advocate for the petitioners. Mr. Gaurav Chopra, Advocate for the complainant. Mr. Rajiv Sharma, Standing Counsel for U.T. Chandigarh. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present petition has been filed seeking quashing of the FIR No.316 dated 15.06.2008 registered at Police Station Sector 34, Chandigarh under Sections 107/114, 120-B, 191/192, 197, 338, 405/406, 419, 420, 464/465, 468, 470 IPC and Section 471 & 15(2)(3) of Indian Medical Council Act, 1956. FIR was registered as complaint (Annexure P-4) was instituted by Jagjit Singh Arora in the Court of Chief Judicial Magistrate, U.T. Chandigarh. The complaint was assigned to the Court of Judicial Magistrate (1st Class). On the complaint so filed, the Court of Judicial Magistrate (1st Class), Chandigarh, on 13th June, 2008 had passed order (Annexure P-6), which reads as under: Criminal Misc. No. M-17013 of 2008 “Arguments on complaint heard. This complaint was presented before the Ld. CJM and thereafter, it was assigned to this Court. Request has been made for referring the matter to the S.H.O. for investigation and registration of the case. I have heard Ld. Counsel for the complainant and gone through the case file carefully. The Ld. Counsel for the complainant argued in detail and relied upon Sh.Sakiri Vash vs. State of U.P. & Others 2008(1) RLR Criminal 392. After perusing the contents of the present file and hearing the submissions of the counsel, I find that is a fit case for referring to the Police. The complaint is entrusted to the concerned SHO for registration of the case and for conducting the investigation. The complaint is end under provision of Section 156(3) of Cr.P.C. It is directed that copy of this complaint be detained in the Court.” In the complaint, six persons were arrayed as accused. Three out of them were doctors namely, Dr.Jayant Bannerji, Medical Superintendent, INSCOL Multispecialty Hospital, Sector 34, Chandigarh (hereinafter referred to as, ‘the Hospital’); Dr.Paramjit Singh Mann, Resident Medical Officer of the Hospital and Dr.N.P. Singh, Consultant Physician of the Hospital. Accused No. 5 Ms.Alveen Samson is Assistant Nursing Superintendent, whereas accused No.2 and 3 namely, Daljit Singh Gujral and Ms.Nirmal Gujral are the Managing Director and Director of the Hospital, respectively. In the complaint, it has been stated by Jagjit Singh Arora complainant that his wife Mrs.Inderjit Arora approached Dr.Jayant Bannerji at his private clinic in Sector 8, Chandigarh on 4th August, 2005 for systematic medical check up and treatment for physical discomfort. She was referred by Dr.Bannerji to the Hospital, where he was discharging duties as a Medical Superintendent. In the Hospital, Mrs.Arora was admitted as a suspected case of Pulmonary Embolism. 2 Criminal Misc. No. M-17013 of 2008 Grievance of the complainant is that no scientific tests for diagnosing the disease were undertaken. She was not attended by any specialist and she was subjected to medical care of unqualified, unregistered doctors Quack for a period of hospitalization for about 22 hours at the Hospital. It is averred that due to inadequate attendance and medication, condition of Mrs.Arora worsened and she was injected highly potent TPA (Tissue Plassiminogin Activator) injection, costing Rs.81,600/-, meant for ACUTE Pulmonary Embolism, due to adverse affect of which, she was driven to the brink of death and for her worsening condition, pre- requisite requirement of Ventilator was not adhered to. It is stated that wrong medicine was administered. Condition of Mrs.Arora deteriorated, due to which, she had to remain hospitalized in ICUR of FORTIS for about two months and thereafter, for one month at PGI, which caused financial and mental agony to the family. It is stated that Mrs.Arora suffered because of money fleecing gimmick of Dr.Bannerji. Documents of treatment/ discharge slip in the hands of Dr.Bannerji were relied upon. Another grievance was that Dr.Paramjit Singh Mann was not registered with Medical Council of India or any State Medical Council, therefore, he is to be termed as a Quack. It is stated that the medicines prescribed and administered by the doctors were neither required nor necessary. In the instant petition filed for quashing of the FIR, it has been stated that in the Hospital, when Mrs.Arora was admitted, she was examined by Dr.Bannerji. Blood test, ultrasound, Doppler and D-Dimer test were conducted and thereafter, on 2nd August, 2005, Mrs.Arora was re- examined by a team of highly qualified doctors comprising Dr.Jayant 3 Criminal Misc. No. M-17013 of 2008 Bannerji, MBBS, MD Medicine; Dr.Sudhir Saxena, MBBS, MD and Dr.Ashutosh, MBBS, MD Anesthesia. Counsel for the petitioners has relied upon the observations made by the Medical Council of Punjab, who conducted an inquiry and had absolved Dr.Bannerji of any medical negligence. The portion relied upon by the petitioner reads as under: “The doctor has adopted standard medical protocol and procedure in treating and referring the patient. From the record submitted and on the basis of opinion of Dr.Jagmohan Verma, Dr.Rupinder Singh and Dr.N.P. Singh at no stage medical negligence has been proved against Dr.Jayant Bannerji.” I have perused the complaint (Annexure P-4) and the FIR (Annexure P-7). Primarily, without any expression on the merits of the case, complaint and FIR show medical negligence on the part of the petitioners. In these circumstances, it was imperative for the Magistrate to first follow the guidelines laid by the Hon'ble Apex Court in ‘Jacob Mathew v. State of Punjab’, 2005 (6) SCC 1. The Magistrate had mechanically invoked the provisions of Section 156(3) Cr.P.C. and had sent the complaint to the police. Mr. Gaurav Chopra appearing for the complainant has stated that besides medical negligence, other offences are also made out, as Dr.Paramjit Singh Mann was not registered with the Indian Medical Council and therefore, can be termed as a quack. This matter should have been given serious consideration by the Judicial Magistrate (1st Class), whether he should have proceeded under Section 190 IPC or Section 202 IPC. Furthermore, if he thought that recourse is to be taken under Section 156(3) Cr.P.C., then he should have considered the allegations levelled in the complaint, guided by the ratio of 4 Criminal Misc. No. M-17013 of 2008 law laid in Jacob Mathew’s case (supra). It has been held in Jacob Mathew’s case (supra) as under: “50. As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by police on an FIR being lodged and cognizance taken. The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to rash or negligent act within the domain of criminal law under Section 304-A of IPC. 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. 51. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against. 52. Statutory rules or executive instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or 5 Criminal Misc. No. M-17013 of 2008 criminal negligence is an ingredient. 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 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 levelled 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.” Consequently, order (Annexure P-6) passed by the Judicial Magistrate (1st Class) on 13th June, 2008, whereby complaint was sent for the registration of FIR, is quashed along with the FIR (Annexure P-7). However, the complainant shall appear before the Judicial Magistrate (1st Class), Chandigarh, where complaint (Annexure P-4) was lodged. Guided by the principles of law laid in Jacob Mathew’s case (supra), Judicial Magistrate (1st Class), Chandigarh shall formulate fresh opinion, whether to proceed with the matter under Section 190 IPC or Section 202 IPC, or under Section 156(3) Cr.P.C. 6 Criminal Misc. No. M-17013 of 2008 Anything said herein shall not be construed as an expression on merits of the case and all arguments will be available to the complainant to urge before the Court of Judicial Magistrate (1st Class), Chandigarh. With these observations, present petition is disposed off. [KANWALJIT SINGH AHLUWALIA] JUDGE February 19, 2009 rps 7