IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.3796 of 2008 DR.SANJAY KUMAR SINHA & ORS Versus THE STATE OF BIHAR & ANR ----------- 3. 30.4.2010 This petition has been filed by the petitioners for quashing the order directing framing of the charges under certain Sections of the Penal Code and quashing the order passed on 20.11.2007 by Shri Brijesh Pandey, Judicial Magistrate Ist Class, Patna in Complaint Case No. 1523C of 2001. Some of the facts are admitted that the complainant was admitted by petitioner No.1 Dr.Sanjay Kumar Sinha into his clinic which is known as Arohi Clinic, situated in Phulwarisharif, Patna. It is also not denied that the complainant was admitted for treatment of some injuries which he sustained on his left leg on account of being injured by some stone boulders, some pieces of which remained embedded in the left leg of the complainant. The injury was painful and it was swollen as well. The complainant asked to get certain pathological tests conducted on his sample which included T.C.& D.C.,E.S.R. and blood sugar and his injury was to be dressed everyday. The level of blood sugar was very high and it is alleged that petitioner no.1 did not take any steps for controlling the level of sugar in his blood and continued 2 with his treatment and also operated his injury so as to draining pus out of it without taking proper medical steps for bringing the sugar level in the blood of the complainant to desired limits. As a result of the actions of petitioner no.1 by not administering the proper dosages of insulin the incision continued increasing so much so that it became quite painful for the complainant and dressing of the wound did have no effects. Lastly, the complainant felt cheated and felt that the Doctor had not taken due care and caution and had indeed acted negligently and maliciously in treating him. He, therefore, advised his son to move him out of the clinic. Accordingly, he was taken to the clinic of Dr. Janakdeo Prasad Sinha who referred him to a Physician, namely, Dr. Vijay Acharya who prescribed the proper treatment of sugar in his blood and after it was brought to permissible limits the left leg of the complainant was amputated. The complainant alleged that the amputation of the leg was only for saving his life which had resulted on account of negligent and careless acts of the petitioner Dr.Sanjay Kumar Sinha and his wife Dr. Smt. Neelam Sinha. It appears that after due enquiry on the petition of complainant the petitioners were summoned. A petition of similar nature was preferred by the petitioners earlier seeking quashing of the proceedings 3 through Misc. Petition No. 25512 of 2002, but that was dismissed as not pressed by order of this Court on 16.7.2004. It appears that the trial proceeded and it is not denied that some of the witnesses have also been examined under Sections 244 of the Cr. P.C. and after considering it, the impugned order was passed. It was contended by the learned Senior counsel, Shri Kanhaiya Prasad Singh, appearing for the petitioners that in the light of the Supreme Court decisions, firstly, rendered in Jacob Mathew Vs. State of Punjab reported in 2005 Cri. L. J. 3710, the prosecution of the petitioners ought to have been discontinued and the Magistrate ought to have refused framing of charges. It was further contended that in the light of the provisions of Sections 88 and 92 of the Indian Penal Code the acts complained of against the petitioners, specially, petitioner nos. 1 and 2 could not be said to constitute any offence and the whole prosecution appears malafide. Shri Singh also placed reliance upon yet another decision of the Apex Court rendered in Kusum Sharma and Ors Vs. Batra Hospital & Medical Research Center & Ors. reported in 2010(1) P.L.J.R. 197( S.C.) As against the above, learned counsel appearing for the complainant Shri Hare Krishna Kumar has submitted that there was a clear opinion rendered by Dr. 4 Janakdeo Prasad Sinha who checked the complainant up on 25.5.2001 and he found that the complainant, firstly, ought to have been treated by a Medical Practitioner so as to bringing down the sugar level in his blood. It was contended that this was the reason that Dr. Janakdeo Prasad Sinha referred the complainant to Dr. Vijay Acharya, a Physician who treated him for diabetes and after the sugar level was controlled, the amputation surgery was carried out by Dr. Janakdeo Prasad Sinha. It was contended that the complainant has stated in his petition of complaint that he had informed petitioner no.1 well in advance, on the very day when he met him that he was a diabetic but in spite of that no effort was made for properly treating the complainant for diabetes by giving insulin so as to draining out the pus which compounded and deteriorated the condition of the complainant‟s ailment so much so that he had to abandon the treatment given by petitioner no.1 and had to consult Dr. Janakdeo Prasad Sinha. It was contended that the statement of facts, as such, clearly indicated that there was good opinion from some other Doctor also as to how the treatment could have proceeded as regards the ailment of the complainant and that not being done in spite of being informed well in advance, it was a case where due care and caution could have been taken and the same not being applied the act was fully intentional and negligent 5 which was not in the interest of the patient, i.e., the complainant. The depositions of five witnesses who were examined under Sectin244 of the Cr. P.C. by the learned trial court were produced before me during the course of hearing by learned Senior counsel appearing for the petitioners. What is found on perusal of those depositions is that the witnesses have stated the facts in support of the allegation that in spite of being informed well in time about being afflicted with diabetes, the complainant was not properly treated so as to bringing down the sugar level and treatment was carried out and a surgery was also made so as to draining out the pus or to remove the muscles. One of the witnesses P.W. 2 Deo Kumar, who appears to be the son of the complainant, has stated that his father went to Janakshila Nursing Home which was run by Dr. Janakdeo Prasad Sinha and an opinion was rendered by him that the injury had taken a very bad turn and that required the left leg of the complainant to be amputated. Thereafter, he referred the complainant to Dr. Vijay Acharya for treating the complainant for diabetes and after that treatment when the sugar level was brought to the permissible limit, a surgery was carried out on 30.5.2001. Section 88 of the Indian Penal Code reads as under:- 6 “ Act not intended to cause death, done by consent in good faith for person’s benefit:- Nothing which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm.” On perusal of the above provision what appears is that an act which could not be done intentionally to cause any harm to a person and is, rather, done in good faith so as to benefiting the person whose death had ultimately resulted may not be an offence. What appears from the above provision is the act should be done in “good faith”. „Good faith‟ has been defined by Section 52 I.P.C. as follows:- “ Good faith”:- Nothing is said to be done or believed in “good faith” which is done or believed without due care and attention.” The above provision may indicate that nothing done without due care and attention could be said to be in good faith. If we put it affirmatively then what follows is that the act done in good faith could be indicated by showing that the act which was done by a person was done after taking due care and after having given proper attention. Doing anything with due care and attention contemplates that the doer of such an act had considered all pros and cons of the act as regards its impact or its ultimate result. It also visualizes that all possible precautions on all 7 precautions available or contemplated be taken or applied in doing that act. In such a case here a defence of taking due care and paying proper attention has been taken, the facts indicting taking due care and paying proper attention should be presented before the court for its consideration. If, the act appears not done with due care and attention it could always be said done in bad faith. The Supreme Court decision in Jacob Mathew case( Supra) has referred to the provisions of Sections 88 and 92 of the Indian Penal Code. In that particular judgment the Apex Court went to consider the ramifications of a complaint petition or the F.I.R. which could be presented under the circumstances as appear filed in the present case. It has been held that mere negligence in spite of having applied due care and caution could not be constituting an offence. Thus, the application of due care and caution has to be shown in a case of present nature. If the facts of the present case is considered in the light of the decision in Jacob Mathew (Supra) then what could be found is that petitioner No.1 Dr. Sanjay Kumar Sinha was informed in advance by the complainant that he was a diabetic. But, what appears is that no attempt was made to administer proper medical care. Some tests were of course recommended which indeed included a test for measuring sugar level in the blood of the complainant 8 but in spite of having received the report, the petitioner does not appear consulting or referring the matter to a medical practitioner so as to giving proper treatment for the high sugar level which was the case with the complainant. He continued with the treatment of dressing and also appears giving surgical incision to drain out the pus or for removal of any malignant muscle fiber. This appears coming out of the allegation of the complaint petition as also from the evidence of the witnesses whose evidence I have referred to just above. The condition of the complainant was worsening and that compelled him to abandon the treatment given by petitioner no.1 and to consult another doctor, i.e., Dr. Janakdeo Prasad Sinha. As I have already indicated petitioner no.1 was informed well in time. This clearly indicates that petitioner No.1 Dr.Sanjay Kumar Sinha could not be said to have applied due care and caution and, as such, could not be said to have acted in good faith in treating the complainant. As regards Dr. Smt. Neelama Sinha, petitioner no.2, except one line in the evidence of the witnesses that she was also present when the complainant was being checked up, there is absolutely no material showing her participation in diagnosing the disease and administering treatment. I find her prosecution completely an abuse of the process of the court. As such, the 9 prosecution of Dr. Neelam Sinha is fit to be quashed and, accordingly, the order directing framing of charge against petitioner No.2 is hereby quashed. Likewise, petitioner No. 3, Jitendra Ram has also been directed to be charged but again there is complete lack of evidence as to whether he could be was attributed the negligent act which was absolute part of the act of petitioner no.1 so as to be roped in the commission of the offence. His prosecution, to me, also appears completely an abuse of the process of the court on the facts of the present case. As such, the order in respect of Jitendra Ram for framing charge is also quashed. It was contended during the course of hearing that some of the offences could not be constituted against petitioner no.1 on the facts or evidence available. I do not want to go into that detail inasmuch as the same could be considered at the time of final hearing of the case by the learned trial Magistrate. I want to suggest to the learned Magistrate who could be hearing the trial that argument be considered by him when he sits up to write the judgment. Besides, I could advise him not to be influenced by any observation appearing intentionally or unintentionally in the present order which may influence the merits of the case against petitioner no.1. The prayer of petitioner no. 1 is dismissed with the above observation. 10 In the result, this petition is partly allowed in the terms indicated above. Kanth/A.F.R. ( Dharnidhar Jha, J.)