1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1235 OF 2010 Dr. Dashavatar Gopalkrishna Bade ..... Petitioner. v/s The State of Maharashtra ..... Respondent. Mr. P.D. Dalvi for the Petitioner. Mrs. R.V. Newton, APP for the State. CORAM: V. M. KANADE, J. DATE : 14TH JUNE, 2010 P.C.:- 1. By this Writ Petition which is filed under Articles 226 and 227 of the Constitution of India and under section 482 of the Criminal Procedure Code, Petitioner is challenging the judgment and order passed by the Judicial Magistrate, First Class, at Ichalkaranji, District Kolhapur dated 23/11/2009 and confirmed by the Additional Sessions Judge, Ichalkaranji in Criminal Revision Application No.56 of 2009 whereby application filed by the Petitioner for discharging him for the offence punishable under section 304-A of the Indian Penal Code, was dismissed by the learned Magistrate and the said order was confirmed by the Sessions Court. 2. Brief facts are as under:- 2 3. Petitioner is Medical Practitioner and has a Degree of M.D. Pediatric and he also owns his hospital at Ichalkaranji. He passed his M.B.B.S. in 1991 and, thereafter, completed his M.D in Pediatrician in 1994 and since then he is a Medical Practitioner. 4. On 22/09/2003, a child named Priyanka was admitted by her parents in his hospital and she was having high fever at the time of admission. They informed the Petitioner that she was having high fever from 11/09/2003 and was admitted at Indira Gandhi Memorial Hospital at Ichalkaranji where she took treatment till 17/09/2003 and, thereafter, was discharged. On 21/09/2003, since fever had reoccurred, she was admitted at Dr. Kurde Hospital at Ichalkaranji. Petitioner’s parents thereafter shifted her to Petitioner’s hospital on 22/09/2003. Petitioner had taken blood samples and the report confirmed that she was having Dengue fever and it was at the third stage and, therefore, Petitioner advised her parents to shift her to Niramaya Hospital. However, the patient died on 25/09/2003. 5. A complaint was filed by the maternal uncle of the deceased on 28/09/2003 in which it was alleged that there was negligence on the part of the Petitioner. He stated that sister of the patient who also was suffering from Dengue fever and was admitted at Mission Hospital at Miraj survived but her sister Priyanka who was admitted in Petitioner’s 3 hospital died. In view of the complaint filed by the maternal uncle of the deceased, all medical papers were sent to Civil Surgeon at Kolhapur and an opinion was taken by the Police as to whether there was any negligence on the part of the Petitioner in respect of death of Priyanka and in respect of the treatment given by the Petitioner. The Civil Surgeon sent report on 12/01/2004 in which he gave his opinion that it was difficult to give perfect opinion in respect of the query raised by the Police. He also observed that the statements given by the parents of the patient did raise some doubt regarding the treatment given by the Petitioner. In view of the report given by the Civil Surgeon, Police registered an offence under section 304-A of the Indian Penal Code vide C.R. No. 8 of 2004 and, thereafter, police papers were sent to the Judicial Magistrate, First Class, Ichalkaranji and the case was numbered as Criminal Case No. 777 of 2004. 6. Petitioner filed an application before the Trial Court seeking discharge on the ground that no offence was committed by the Petitioner. The said application was filed under section 245 of the Criminal Procedure Code. 7. The Trial Court heard the said application for discharge, perused the report submitted by the District Civil Surgeon and came to the conclusion that no case was made out for discharge by the Petitioner and, therefore, dismissed the application. While rejecting the Petitioner’s application, the learned Magistrate took into consideration the opinion given 4 by the Civil Surgeon. Petitioner challenged the said order by filing Revision Application. However, the Sessions Court considered the material on record and observed that there was a gross breach of the directions and norms laid down by the World Health Organization. He also observed that the Civil Surgeon had formed an opinion that it was a case of gross negligence and accordingly Revision Application was dismissed. Being aggrieved by the aforesaid orders, the present Petition has been filed by the Petitioner. 8. The learned Counsel for the Petitioner strongly urged that the patient was admitted in Petitioner’s hospital on 22/09/2003 and before that she was admitted at some other hospital on 11/09/2003 viz. Indira Gandhi Memorial Hospital. He submitted that the patient was in the said hospital till 17/09/2003 and, thereafter, the patient was discharged and was again admitted at Dr. Kurde Hospital on 21/09/2003. It is submitted that the patient was not under the control of the Petitioner from 11/09/2003 to 21/09/2003. It is submitted that, therefore, the observation made by the Sessions Court in respect of administration of 1200 ml. Saline and 250 ml. blood to the patient is concerning the period during which she was not in the Petitioner’s hospital. It is, therefore, submitted that the Petitioner could not be held responsible for the treatment which was given to the patient when she was not under his control. It is then urged by the Mr. Dalvi, the learned Counsel appearing on behalf of the Petitioner that both the lower Courts had erred in not 5 properly considering the report of the Civil Surgeon since he had stated that the case management undertaken by the petitioner was correct. However, there was an error of judgment on his part. It is further submitted by the learned Counsel for the Petitioner that the Indian Medical Association had gone through the case papers and three reputed doctors have given a report that treatment in question given by the Petitioner was quite satisfactory. It is submitted that this report was not taken into consideration. It is submitted that even the Civil Surgeon had not stated that the Petitioner was grossly negligent while giving treatment to the patient. He invited my attention to the impugned orders passed by both the Courts below. He also invited my attention to the statements of witnesses examined on behalf of the prosecution. Prosecution examined 7 witnesses before framing of charge and they were thoroughly cross-examined by the Counsel for the accused. The learned Counsel for the Petitioner relied upon two judgment of the Apex Court; one in Jacob Mathew vs. State of Punjab and another1 and other in Kusum Sharma and Others vs. Batra Hospital and Medical Research Centre and Others2. He submitted that in Jacob Mathew (supra), the Apex Court has laid down guidelines regarding circumstances under which criminal prosecution could be launched against the doctor and in Kusum Sharma (supra), the concept of negligence was considered by the Apex Court. 1 (2005) 6 SCC 1 2 (2010) 3 SCC 480 6 9. The learned APP appearing on behalf of the State, on the other hand, invited my attention to the observations made by Civil Surgeon regarding the treatment given to the deceased by the Petitioner. He also submitted that both the courts below had applied their mind and had come to the conclusion that case for discharge was not made out by the Petitioner. 10. After having heard the learned Counsel for the Petitioner and the learned APP at length, I am of the view that no case is made out by the Petitioner for interfering with the concurrent findings recorded by both the lower courts while exercising writ jurisdiction of this court and also inherent jurisdiction under section 482 of the Criminal Procedure Code. Even otherwise also, no case is made out for discharge by the Petitioner. 11. Before I take into consideration the rival submissions, it will be relevant to consider the scope of the application filed under sections 227 and 228 of the Criminal Procedure Code. The law on this point is quite well settled. There are several judgments of the Apex Court in which the standard of test, proof and judgment which is to be applied at the stage of deciding the matter under section 227 and 228 of the Criminal Procedure Code has been laid down. The Apex Court in State of Bihar vs. Ramesh Singh1 has very succinctly laid down the said test and it will be profitable to reproduce the exact words used by the Apex Court in the said case in 1 AIR 1977 SC 2018 7 para 4 of its judgment which reads as under:- “4. Under S. 226 of the Code while opening the case for the prosecution the prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either under S. 227 or S. 228 of the Code. If “the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing”, as enjoined by S. 227. If, on the other hand, “the Judge is of opinion that there is ground for presuming that the accused has committed an offence which - ......... ........ ........ ....... ........ (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused”, as provided in S. 228. 8 Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under S. 227 or S. 228 of the Code. At that stage, the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial 9 stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by 10 one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt, the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under S. 227 or S. 228, then in such a situation ordinarily and generally the order which will have to be made will be one under S.228 and not under S.227.” From the conspectus of the judgments delivered by the Apex Court on this point, it is thus clear that in exercising jurisdiction under section 227, the judge has to consider broad probabilities of the case, total effect of the evidence and documents produced and find out whether prima facie case against the accused has been made out. It is further held that the judge should not make a roving inquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. It has been further held that standard of test, proof and judgment regarding guilt or otherwise of the accused is to be applied at the stage of deciding the matter under section 227. 12. Keeping in view the aforesaid principles, it will be 11 necessary to examine whether both the courts below are justified in dismissing the application for discharge filed by the Petitioner. Before I do so, it will also be necessary to refer to two judgments of the Apex Court on which reliance has been placed by the learned Counsel appearing on behalf of the Petitioner. In the case of Jacob Mathew (supra), the Apex Court has laid down the guidelines for the purpose of initiating prosecution against the doctor for the offence punishable under section 304-A. In the said case, the facts were that the father of the complainant was a cancer patient and who was very old was admitted in the hospital. He was at the advanced stage of terminal cancer and was experiencing breathing difficulties at about 11 p.m and at that time oxygen cylinders were not available in the hospital. Unfortunately, the patient died. The Apex Court held that at the most hospital could be held responsible for nonavailability of the oxygen cylinders but no prosecution could be launched against the doctor under section 304-A. The Apex Court also took into consideration the parameters of the Bolam test laid down in Bolam vs. Friern1 So far as this judgment is concerned, the Apex Court has laid down the guidelines in paragraphs 50, 51 and 52 of the judgment which read 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 1 (1957) 2 ALL ER 118 (QBD) 12 such prosecutions are filed by private complainants and sometimes by the 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 a rash or negligent act within the domain of criminal law under Section 304-A 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 to 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 emphasise 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 13 noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefer recourse to criminal process as a tool for pressurising 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 Government 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 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 14 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 the Bolam1 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 investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.” It is necessary to see whether the above observations are followed by the prosecution before initiating or filing complaint against the Petitioner herein. 13. In Kusum Sharma (supra), an appeal was filed against the order passed by the National Consumer Disputes 1 Bolam vs. Frien Hospital Management Committee, (1957) 1 WLR 582 : (1957) 2 ALL ER 118 15 Redressal Commission. In the said case also, in para 89, the Apex Court laid down the criteria which is to be taken into consideration while deciding whether the medical professional is guilty of medical negligence and laid down certain principles which must be kept in view. In para 90 of the said judgment, the Apex Court has observed as under:- “90. In our considered view, the aforementioned principle must be kept in view while deciding the cases of medical negligence. We should not be understood to have held that doctors can never be prosecuted for medical negligence. As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind.” In the said case, the question before the court was, whether National Consumer Disputes Redressal Commission was justified in dismissing the application filed by the appellant seeking compensation from the doctor. In the present case, after the complaint was filed against the Petitioner, Investigating Officer obtained the opinion of District Civil 16 Surgeon, Kolhapur and, thereafter, recorded the statements of witnesses. Panchanama was prepared and the charge- sheet was filed. The Trial Court while considering the application for discharge filed by the Petitioner, took into consideration the observations made by the Civil Surgeon in the report and on the basis of the said opinion, the Trial Court came to the conclusion that it was sufficient to come to the conclusion that the the accused had committed negligence while giving treatment to the deceased. The Sessions Court also in para 11 of its judgment has made the following observations. “11. In the present case, it is observed by the Civil Surgeon that deceased was aged 8 years and weighing about 20 kgs and excess fluid was administered to her and administration of 1450 ml. Fluid was fatal. In my opinion, considering these facts, the learned Judicial Magistrate, First Class has issued the process.” In para 10, the Sessions Court has distinguished the case on which reliance was placed by the Petitioner. Para 10 reads as under:- “10. I have perused the facts of the case on which the Petitioner is relying. 17 In that case, there was a contrary opinion submitted by the Special Medical Board. The members of the Board have expressed contradictory opinion. In that case, majority members of the Board gave opinion that the presence of the fluid and clotted blood in the respiratory passage as observed in the Post Mortem Report, was due to trickling of decomposition, bloody fluid and some clots were present in the nostril from the site of incision in the nose. In view of the contrary opinion and the view formed by the majority members of the Medical Board, benefit was given to the accused in that case.” 14. In my view, both the Courts below have applied their mind to the facts of the present case and also took into consideration the ratio of the judgment on which reliance is placed by the Petitioner and have come to the conclusion that case for discharge was not made out at this stage. In my view, there is no infirmity in the findings recorded by both the courts below. There is sufficient material on record to indicate, prima facie, that there was negligence on the part of the Petitioner. The standard of test which is to be applied by the court while considering the material on record 18 at the final hearing of the case and at the stage of framing of charge is different and at the stage of framing of charge even if a strong suspicion against the accused is raised on the basis of material before the court, the court is expected to dismiss the application for discharge, whereas, at the final hearing of the trial, after the evidence is adduced after framing of charge, if the case is not proved beyond the reasonable doubt and the suspicion is raised on the basis of material on record then, in such a case, accused is entitled to get a benefit of doubt. The test, therefore, which is to be applied for the purpose of assessing the evidence and material on record at the stage of framing of charge is diametrically opposite to the test to be applied at the final hearing of the trial. There cannot be any manner of doubt regarding the ratio of the judgments on which reliance is placed by the Petitioner. It has to be borne in mind, however, that facts of each case are different and these tests are to be applied in each cases according to the facts of the said case. There is, therefore, no substance in the submissions made by the learned Counsel appearing on behalf of the Petitioner. Writ Petition is, therefore, dismissed. (V.M. KANADE, J.) 19