IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M-10111 of 2011 (O&M) Date of Decision: May 19, 2011 Dr. K.K. Locham . ….Petitioner Versus State of Punjab … Respondent CORAM: HON’BLE MR. JUSTICE ALOK SINGH 1. Whether reporters of local news papers may be allowed to see judgment? 2. To be referred to reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. Rajiv Atma Ram, Senior Advocate with Mr. Arjun Partap Atma Ram, Advocate, for the petitioner. Mr. K.D. Sachdeva, Addl. A.G., Punjab, for the respondent-State. Alok Singh, J. Present petition is filed seeking regular bail in case FIR No. 41, dated 20.02.2011, under Sections 304 of the Indian Penal Code, registered at Police Station, Civil Lines, Patiala. Record reveals that on 31.01.2009, a fire broke out in the Nursery Unit of Rajindra Hospital, Patiala, due to CRM M-10111 of 2011 which 4 infants who were being treated for jaundice on the phototherapy machine died of burns. His Excellency Government of Punjab vide order dated 31.01.2009 was pleased to appoint Justice K.C. Gupta (former Judge of this Court) to enquire into the incident of death of new born babies due to fire which broke out in the Gynae Department of Rajindra Hospital, Patiala. Justice K.C. Gupta, former Judge of this Court, vide his report dated 30.01.2010 has opined as under:- “There is a lack of supervision at every level. Professor K.K. Locham is Head of Pediatric Department as well as incharge of Nursery Unit. Being head he is liable vicariously for the grave negligence committed by his staff in their duty. Dr. K.K. Locham failed in his ability to see likely harm to be caused to the infants lying on platform of phototherapy unit by the falling or bursting of loose tubes in the sealing of the unit and did not provide any safeguard in the shape of fixing plastic seats or Plexiglas under the tubes to avoid possible harm to the infants. Being head and incharge of the unit, a legal duty was cast upon him to take all possible safety measures and to exercise due legal care and caution. Thus, he is also vicariously liable for grave negligence committed by the staff.” 2 CRM M-10111 of 2011 Justice K.C. Gupta has also opined that one fabricated phototherapy unit was available; the phototherapy has florescent tubes which cannot burst due to short circuit; the florescent tubes contain inert gases i.e. Combination of Krypton, Argon or Xenon which are not flammable; fire in the phototherapy machine had not taken place due to short circuit but had taken place as it was a night of extreme cold and by negligence the heater was kept by the staff very close to the phototherapy unit which made the heat to focus on the particular point on the cotton sheet or blanket which caught fire causing the breaking of tube which fell down on the infants lying on the platform and they were roasted; staff nurse on duty, the doctor on duty and the Class IV employee on duty were either sleeping or were away from the duty place and they are responsible for grave act of omission or commission of negligence. Record further reveals that on 31.01.2009, the day of incident, petitioner was not on duty, therefore, he was not suspended, while Principal, doctor on duty Dr. Neha Sharma, staff nurse on duty Rita and Class IV employee on duty Satya were placed under suspension for negligence in performance of their duties. The Secretary, Department of Research and Medical Education, Punjab, had issued letter dated 02.04.2010 to the Senior Superintendent of Police, Patiala, with copy to the Director General of Police enclosing a copy of 3 CRM M-10111 of 2011 the report of Justice K.C. Gupta. The Superintendent of Police (Operations), Patiala, submitted his report after enquiry that doctor on duty, nurse on duty, Class IV employee on duty were not sleeping, however, they all were present in the doctor’s room; that near the phototherapy unit a heater with heating element in dilapidated condition was there. He has further stated in his report that since Dr. Neha Sharma was doing M.D. and was on temporary duty in the Hospital, therefore, she is not guilty for the fire. The Superintendent of Police (Operations), Patiala, has also found in his report that Dr. K.K. Locham (present petitioner) is a head of Pediatric Department and he was knowing that the wiring system in the room was of poor standard and can cause loss of life at any time, but he did not made any efforts to improve the same, therefore, Dr. K.K. Locham, Nurse Reeta and Class IV employee Satya are guilty for causing death to 5 new born infants due to burning, therefore, are guilty for offence punishable under Section 304 of the Indian Penal Code. On 20.02.2011 almost two years after the date of incident, FIR was registered on the basis of the enquiry report of Superintendent of Police (Operations) and petitioner was arrested and he is in judicial custody since then. Learned Senior Advocate, appearing on behalf of the petitioner, has vehemently argued that on the fateful day, petitioner was not on duty. He has further argued that 4 CRM M-10111 of 2011 although S.P. (Operations) has found in his enquiry report that in the room the electric wire system was very poor quality which can cause loss of life, however, from the report of Justice K.C. Gupta, fire in the phototherapy machine had not taken place due to short circuit but was caused because heater was placed very close to the phototherapy unit which made the heat of the focus on the particular point on the cotton sheet or blanket which caught fire causing the breaking of tube which fell down on the infants lying on the platform resulting in the death of infants. Learned Senior Advocate has further argued that there is a difference between the report of Justice K.C. Gupta and the report of Superintendent of Police (Operations). Learned Senior counsel has further argued that since petitioner was not on duty on the date of incident and as per report of Justice K.C. Gupta, fire was not result of the short circuit and fire was caught because heater was put very close to the machine which could have been avoided by the doctor on duty and nurse on duty, therefore, present petitioner, being head of the Department cannot be said to be negligent in his duties. He has further argued that it was the duty of the doctor on duty i.e. Dr. Neha Sharma and nurse i.e. Rita, on duty, to keep the heater at safe distance and to monitor the heater and heating. He has further argued that Superintendent of 5 CRM M-10111 of 2011 Police (Operations) has wrongly exonerated Dr. Neha Sharma and has found petitioner guilty. In the opinion of this Court, since petitioner is in judicial custody w.e.f. 20.02.2011 and was not on duty on the date of incident i.e. 31.01.2009; it was prima facie duty of the doctor on duty and nurse on duty to remain present in the ward and to monitor the heater and phototherapy machine, therefore, there seems to be valid ground to enlarge the petitioner on bail. In the peculiar facts and circumstances of the present case, present petition is directed to be allowed. Let, petitioner be enlarged on bail on furnishing his personal bond and two sureties to the satisfaction of the learned Chief Judicial Magistrate, Patiala. It is clarified that any observation made herein before is solely for the purpose of disposal of this petition for bail and shall not be construed opinion on the merit of the case. May 19, 2011 ( Alok Singh ) vkd Judge 6