Crl. Misc. No. M-13634 of 2009 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH Crl. Misc. No. M-13634 of 2009 Date of Decision: 19th October, 2011 Dr. Rekha Yadav ……… Petitioner Versus State of Haryana & another ………… Respondents ***** CORAM : HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr.Baldev Singh, Sr. Advocate with Mr. Deepender Singh, Advocate for the petitioner. Mr. Raja Sharma, AAG, Haryana. Mr. K.D.S. Hooda, Advocate for respondent No.2. **** AUGUSTINE GEORGE MASIH, J. This petition under Section 482 of the Code of Criminal Procedure has been preferred for quashing of FIR No. 1155 dated 3.10.1997 under Section 304-A IPC, Police Station City Gurgaon (Annexure P-1), order dated 8.8.2000 passed by Chief Judicial Magistrate, Gurgaon (Annexure P- 5), order dated 30.4.2009 passed by Chief Judicial Magistrate, Gurgaon (Annexure P-10) and the resulting proceedings pending before the trial Court at Gurgaon. Petitioner submits that a complaint was moved by respondent No.2- Raj Singh, wherein he alleged that his wife had died due to gross negligent act of the petitioner-Dr. Rekha Yadav and a Staff Nurse, Brij Bala FIR No. 1155 was registered on 3.10.1997 under Section 304-A IPC, Police Station City Gurgaon (Annexure P-1). On investigation, police report under Section 173 Cr.P.C. against the petitioner as also her co-accused namely Brij Bala, Staff Nurse was submitted on 31.3.1998. Charge was framed on 1 Crl. Misc. No. M-13634 of 2009 11.6.1998. Petitioner filed an application for discharge before the trial Court. In the meantime, petitioner filed Crl. Misc. No. 14793-M of 1998 under Section 482 Cr.P.C. for quashing of the FIR, which was disposed of by this Court vide order dated 7.8.1998 with a direction to the trial Court to adjudicate the question whether previous sanction was necessary under Section 197 Cr.P.C. before taking cognizance of the case. The application was directed to be disposed of within two months from the date of receipt of that order. The application of the petitioner was considered by the Chief Judicial Magistrate, who vide his order dated 9.11.1998, discharged the petitioner and the co-accused on the ground that there was no prosecution sanction under Section 197 Cr.P.C. from the competent authority and accordingly prosecution stood vitiated. Respondent No.2-Raj Singh Yadav preferred Criminal Revision before the Sessions Judge, which was dismissed on 11.1.2000 upholding the order passed by the Chief Judicial Magistrate. On receipt of sanction dated 9.11.1998 to prosecute the petitioner and the co-accused, an application dated 8.8.2000 was preferred, wherein the file from the records was summoned and notice was issued to the petitioner vide order dated 8.8.2000. Petitioner moved an application under Article 20(2) of the Constitution read with Section 300 and 468 Cr.P.C. for dropping the proceedings. The said application dated 26.3.2001 was based on the plea that the petitioner had already been discharged, which amounted to acquittal, as the said order of discharge dated 9.11.1998 was passed after the framing of charge and, therefore, could not again be prosecuted for the same offence, for which she had already been acquitted. The sanction which has been obtained from the competent authority was at the back of the petitioner and the same was not a speaking order and that there was a bar of taking cognizance against the applicant after a lapse of two years, as already three years had passed, the 2 Crl. Misc. No. M-13634 of 2009 said application was considered and dismissed by the Judicial Magistrate Ist Class, Gurgaon on 10.3.2004. This order along with the order dated 8.8.2000, vide which the petitioner was summoned and the resulting proceedings in the trial Court were challenged through a Criminal Misc. No.M-21155 of 2004, preferred under Section 482 Cr.P.C. for quashing the above two mentioned orders. In the said petition, all the grounds, taken in the application before the trial Court, which stood rejected vide order dated 10.3.2004, were taken and pressed. This Court while setting aside the order dated 10.3.2004 passed by the Chief Judicial Magistrate, Gurgaon remitted the case back on the limited question for consideration whether directions given in the case of Jacob Mathew vs. State of Punjab & Another 2005(3) RCR (Criminal) 836 would apply to the present case, as the directions have been issued after the passing of the impugned order by the trial Court and also whether the directions have been followed in the case in hand. The application of the petitioner was again considered by the Chief Judicial Magistrate, Gurgaon and vide his order dated 30.4.2009 after discussing in detail, all the grounds, which have been taken in the application dated 26.3.2001, dismissed the same, holding therein that the petitioner had not acted herself in the manner that in the given facts and circumstances of the case, a Medical professional in his ordinary sense and prudence would have acted and that hazard taken by the petitioner is of such a nature that injury resulted was most likely imminent, so the petitioner was prima facie guilty of rashness and gross negligence and the protection of Jacob Mathew’s case (supra) was not available to the petitioner. It is under these circumstances the present petition under Section 482 Cr.P.C. has been preferred. During the course of hearing learned senior counsel for the petitioner has only pressed the plea that the order dated 30.4.2009, passed by the Chief Judicial Magistrate, Gurgaon is not sustainable in the light of the law 3 Crl. Misc. No. M-13634 of 2009 laid down by the Hon’ble Supreme Court in the case of Jacob Mathew’s case (supra), wherein the Hon’ble Supreme Court has clearly and categorically held that in the case of a medical professional negligence additional considerations must apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment 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. He contends that the mens rea in the case of negligence would amount to an offence, which must be shown to exist. Referring to the report of the Board of Doctors, constituted by the Chief Medical Officer, which has been placed on record as Annexure P-13, he contends that it has been opined that the patient had died because of atonic post partum haemorrhage and the lapse on the part of the petitioner, has been found that she did not arrange blood before delivery of the patient taking into view her anemic status and that it would have been better if the Medical Officer had gone along with the patient instead of the Lab. Technician, when the patient was referred to Safdarjung Hospital, Delhi. He emphasized upon the fact that the treatment given to the patient after detecting post partum haemorrhage was found by the Board to be appropriate and timely. On this basis he contends that offence under Section 304-A IPC is not made out against the petitioner. Relying upon the judgment of the Hon’ble Supreme Court in the case of Rakesh Ranjan Gupta vs. State of U.P. 1999(1) SCC 188 he contends that the delay on the part of doctor to attend on the patient cannot be said to be culpable negligence falling under Section 304-A IPC and it could be a case of civil 4 Crl. Misc. No. M-13634 of 2009 negligence and a suit preferred by respondent No.2-complainant for damages stands dismissed by the Civil Judge (Sr. Divn.), Gurgaon vide judgment dated 28.1.2011 (Annexure P-12). Reliance has also been placed on the judgment of the Delhi High Court in the case of Dr. G.S. Chandraker vs. State and another 2007(4) R.C.R. (Criminal) 434 where again it has been held that when the doctor was of the opinion that the patient should be referred to a hospital where proper equipment was available for that particular patient, non-accompanying the patient would not amount to gross negligence which would fall within the ambit of Section 304-A IPC. He on this basis contends prays for quashing of the impugned order dated 30.4.2009 (Annexure P-10) passed by the Chief Judicial Magistrate, Gurgaon. On the other hand, counsel for the respondents, State and the complainant, have submitted that the protection as granted and the directions given in Jacob Mathew’s case (supra) have been duly considered by the trial Court while passing the impugned order. He has produced the reference slip of the patient, which clearly shows that it was first written therein that the blood was not in stock but thereafter it was written that A+ (A positive) blood one unit given. Referring to the treatment chart and the Bed Head Ticket, it is contended that various injections are shown to have been administered to the patient but strangely enough first entry is dated 7.7.1996 at 10:30 A.M., which is followed by another injection at 10:00 A.M., thereafter 10:30 A.M., again two injections at 10:00 A.M., another injection at 10:15 A.M. and subsequent injection at 10:20 A.M. followed by two injections at 11:00 A.M. with another at 10:00 A.M. and further injection at 11:00 A.M. This is the sequence and seriatim entries in the treatment chart. Referring to the Blood Pressure and Pulse Rate Chart, which is also part of the challan, along with other referred documents above, he contends that the Staff Nurse has recorded the Blood Pressure at 10:0 A.M. as 90 mm Hg, 10:30 A.M. as 80 and 11:00 5 Crl. Misc. No. M-13634 of 2009 A.M. and 11:30 A.M. it is recorded ‘not recordable’. As regards the pulse at 10:00 A.M. it is recorded as 100 but 10:30 onwards it is mentioned as ‘not recordable’. Whereas in the reference slip it is recorded as 90, and the Blood Pressure is recorded as 90/70 mm Hg. at 11:50 A.M. when the patient was referred to Safdarjung Hospital, Delhi. On this basis it is contended that as a matter of fact, these entries have been made subsequently while no such injections were actually administered to the patient and this was done to save the skin. The Medical Board also has not taken this aspect into consideration while giving its opinion. It has merely gone by the injections which are stated to have been administered but the irregularity in the administration of these injections showing different times and not in sequence itself indicates that the Board was also influenced by the petitioner and an effort was made to save her. It is further contended that the standard procedure, which is expected and required by a Medical professional in the case of patients, as the present one, has been mentioned even by the Medical Board which has also not been followed by the petitioner and in case the same is not done, as per the summed up conclusions given by the Hon’ble Supreme Court in para 51 in the case of Jacob Mathew’s case (supra) where it has been held that if the acceptable practice to a medical profession of that day is followed by a doctor then he cannot be held liable for negligence, would not be available to the case of the petitioner as she had not done so even according to the Medical Board. As regards the dismissal of the civil suit which has been preferred by respondent No.2 - complainant, it is contended that against the said judgment dated 28.1.2011 of the Civil Judge (Sr. Divn.), Gurgaon, an appeal has been preferred where notice has already been issued to the petitioner and thus the findings recorded therein are not yet final. It is on this basis that a prayer has been made for dismissal of the present petition. I have heard counsel for the parties and have gone through the records of the case. 6 Crl. Misc. No. M-13634 of 2009 Facts as have been recorded above, are not in dispute and in the light of the sole contention raised by the counsel for the petitioner while attacking the order dated 30.4.2009 passed by the Chief Judicial Magistrate, Gurgaon, the aspect which needs to be considered is whether the case of the petitioner would fall within the conclusions summed up and recorded by the Hon’ble Supreme Court in the case of Jacob Mathew’s case (supra) in her favour or otherwise. It would, therefore, be beneficial at this stage to reproduce para 51 of the said judgment:- “51. 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 on account of injury resulting from the act or 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 a 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 judgment 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 7 Crl. Misc. No. M-13634 of 2009 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 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 W.L.R. 582, 586 holds good in its applicability in India. (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, 8 Crl. Misc. No. M-13634 of 2009 the element of mens 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 304-A 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 act’ 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 should 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.” In the light of the conclusions drawn by the Hon’ble Supreme Court, which have been reproduced above, there can be no dispute that for a negligence to amount an offence, the element of mens rea must be shown to exist and 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. In the context of medical professional to infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. Simple lack of 9 Crl. Misc. No. M-13634 of 2009 care, an error of judgment or an accident, has been held to be not proof of negligence on the part of medical professional and 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. However, failure to take precaution would be gross negligence if such precautions were expected to have been taken which the ordinary experience of men has found to be sufficient. This would follow from conclusion No.2. As per conclusion No. 7, a medical professional can be prosecuted for negligence under criminal law where it is shown that he 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 and the hazard taken by the doctor should be of such a nature that the injury which resulted was most likely imminent. When seen in the light of above two conclusions, the facts of this case would reveal that the act of the petitioner falls within these conclusions. As per the report of the Medical Board (Annexure P-13) itself at the time of admission of the patient at 10:50 P.M. on 6.7.1996 in Government Hospital, Gurgaon, when she was examined by Dr. Rekha Yadav-petitioner, it was observed that the patient was anemic. Action which was required was estimation of Hb., blood grouping of patient, urine examination, pre-arrangement of blood for any problem at the time/afterward of delivery. Relatives to be informed for arrangement of blood in any case. Although, as per the report, investigation advised but none was got conducted and the blood also was not arranged nor were the relatives informed for 10 Crl. Misc. No. M-13634 of 2009 arrangement of blood. The standard procedure, which was required to be followed in the case of a patient being anemic has thus been flouted by the petitioner and, therefore, prima facie would be liable for negligence, which would fall within the summary 2, as referred to above. It has come in the report that the cause of death was bleeding from atonic post partum haemorrhage, which clearly can be attributed to the negligence on the part of the petitioner. It has been observed that the blood grouping, arrangement of blood and other tests were conducted after 10:00 A.M. on 7.7.1996 by which the petitioner as per Bed Head Ticket when the fact of atonic post partum haemorrhage had already been conducted at 9:30 A.M. in the morning, the petitioner was required to arrange blood in advance as the patient was anemic but that was not done. Although, ‘A positive’ blood group was available, but when the reference was made to Safdarjung Hospital, Delhi, petitioner recorded therein that blood was not in stock. It appears that this was recorded after 10:30 A.M. When the Lab. Technician, Anil Yadav refused to give such a report or endorse the same, he was asked to bring one unit blood after conducting the blood grouping, it was at that stage blood canula was inserted for giving blood, this obviously was after 10:30 A.M., which also suggests that the injections which are shown to have been given to the patient were not actually given. Reference at this stage to the treatment chart, which is the part of the challan, would further fortify that what has been asserted by the respondents may be correct as various injections were shown to be given not according to the ascending time period but have been inserted wherever the space was found available which is to fill up the lacuna in the treatment given. This aspect has also not been gone into by the Medical Board. This obviously would be a question of evidence to be decided by the Court at a later stage. 11 Crl. Misc. No. M-13634 of 2009 That apart, as per the statement dated 9.9.1996 of the Staff Nurse, who is a co-accused, enquiry which was conducted by the department, she has stated that on 7.7.1996 at about 9:40 P.M. the patient made complaint of pain, she gave tablet of paracetamol to her and she was going to call Dr. Rekha Yadav, who was on duty. She met Dr. Rekha Yadav-petitioner, on the way who started quarreling for almirah despite her being asked to see the patient first, but instead she continued with the arguments. She went lateron, by that time the condition of the patient deteriorated. It would not be out of way to mention here that a male child was born to the patient at 9:15 A.M. on 7.7.1996 and after delivery she had started bleeding and there was an emergency. Response of the petitioner is unbecoming of a medical professional whose priority has to be the patient. In view of the above, it can safely be said that the act of the petitioner prima facie appears to be of rashness and gross negligence and no medical professional in his ordinary senses and prudence would have conducted in a manner as the petitioner had. The standard practice acceptable to the medical profession was not followed by the petitioner and hazard taken by the petitioner is of such a nature that the injury which resulted was most likely imminent and she did not exercise with reasonable competence skill which she possessed of and failed to act in the manner in which any medical professional would have done. In view of the above, I do