1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 874/2006 1 Dr. Anand s/o Maroti Nikalje, Age : 37 years, Occu. Medical Practitioner, R/o R-8, Sector “C”, Saranagar, N-1, CIDCO, Aurangabad. 2 Dr. Vilas s/o Pundlikrao Magarkar, Age : 37 years, Occu. Medical Practitioner, R/o A-3, Siddhi Heights, Khivansara Nagar (West), Aurangabad. 3 Dr. Satish s/o Govindrao Pargaonkar, Age : 47 years, Occu. Medical Practitioner, R/o Govind, 59, Ulkanagari, Aurangabad. 4 Dr. Mrs. Suruchi w/o Sandeep Jaiswal (Malu), Age : 32 years, Occu. Medical Practitioner, R/o Row House No.6, Ratnashrey, New Shreynagar, Aurangabad. ...Applicants. Versus 1 The State of Maharashtra, through P.P. High Court, Bench at Aurangabad. 2 Mrs. Ayesha w/o Syed Ayyub, Age : 48 years, Occu. Business, R/o Plot No. 138, Motiwala Nagar, Aurangabad. Respondents. 2 Mr. S.G. Ladda, Advocate for applicants. Mr. S.G. Nandedkar, A.P.P. for respondent No.1 /State Mr. S.G. Chapalgaonkar, Advocate for respondent No. 2. CORAM : A.V. NIRGUDE, J. Date : 6th September, 2010. ORAL JUDGMENT:- 1. This criminal application is filed U/S. 482 Cr.P.C. for seeking quashing of the registration of the Crime No. I-11/2006 of Police Station, Jinshi, Aurangabad registered under Section 304-A, 337, 338, 201, 202 read with Section 34 of Indian Penal Code, against the applicants. 2. It is common ground that on the basis of the complaint lodged by one Ayesha w/o Ayyub dated 25/01/2006, the Police of Jinshi Police Station, Aurangabad registered the Crime on the same day against the present applicants and two more persons. The allegations made by the complainant in the F.I.R. are as under. Her brother one Riyaz Ahmed got himself admitted in the hospital of one Dr. Kapahtiya for removing certain implements planted in the bones of 3 his hand 5 years back during the surgical operation. Obviously, removal of such implement, required another surgical operation. Dr. Kapahtiya is a surgeon and with the help of Dr. Nagare who is anesthetist, planned a surgery on Riyaz, on 23/11/2005. Certain complications arose during the surgery and Riyaz suffered cardiac arrest. Dr. Nagare was seen giving Riyaz Ahmed vigourous cardiac massage but in vain. The patient was immediately shifted to Dhoot hospital where the present applicants were working as Doctors. They got the patient admitted and started conducting certain tests so as to decide the future line of action. It is alleged that the applicants took X-ray of chest of the patient. They then took blood test. They also obtained ECG and 2 dimension Eco cardiogram, alongwith color dopler test etc.. The patient however died after five days on 28/11/2010. One of the applicants, before admitting Riyaz Ahmed in the hospital, had advised management to lodge report as the hospital had received a case involving medico legal aspect. After the patient died, he was subjected to post mortem examination and the complainant noticed from the observations made in the post mortem report that Riyaz Ahmed had suffered fracture of ribs and puncture of lungs due to fractured ribs. The complainant alleged that the applicants did not notice the fracture of ribs and puncture of lungs, though they 4 had obtained X-rays of the patient’s chest. The complainant also alleged that the applicants were trying to conceal reports which would indict the other two accused, Dr. Kapahtiya and Dr. Nagare. As said above, on the basis of this complaint, the Police registered the crime on the same day. 3 On receipt of such a complaint, what is required to be done by the Police officers, is mentioned in the judgment of Supreme Court in case of Jecob Mathew versus State of Punjab and another reported in 2005 Supreme Court 3180(1). The Supreme Court laid down certain principles in respect of the cases involving medical negligence and then laid down guidelines in respect of prosecuting medical professional. Inter alia it is said in the guidelines that “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.” 4 In view of this guidelines, the Investigation Officer in this case before registration of the offence should have undertaken the step mentioned above. 5 But in this case, such step was not taken at all. I am therefore, inclined to set aside the registration of the offence as against the present applicant for the time being so that the Investigating Officer, on the basis of the complaint received by him would be able to take the above mentioned steps. The Investigation Officer after receiving the report/opinion from a Doctor in Government service qualified in the particular branch would be free to register once against an offence against the present applicants or any one of them. The Supreme Court further laid down, “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. ” 5 In view of these observations, even though the Investigation Officer eventually registers an offence against the present applicant or any one of them, he shall not cause arrest of the applicant/s in routine manner, unless such arrest is necessary for further investigation. In addition to this, the Investigation Officer in such a situation should give 72 hours’ notice before arresting the applicant/s. The application stands disposed. 6 6 This order is not passed on any application made by other two accused. However, while proceeding against them, the Investigation Officer should strictly follow guidelines laid down by Supreme Court in above mentioned case. Since the incident took place way back in November, 2005, it is now high time that the Investigation Officer should take steps quickly to complete the investigation. 7 It is further directed to the Investigation Officer that as far as possible, he should obtain afresh report in terms of the guidelines mentioned above. (A.V. NIRGUDE, J) ts k/ok