THE HON'BLE Dr. JUSTICE G. RADHA RANI
CRIMINAL PETITION No.11225 of 2013
ORDER:
This petition is filed by the petitioner-accused under Section 482 Cr.P.C. to quash the proceedings in CC No.132 of 2012 on the file of Judicial Magistrate of First Class, Miryalaguda.
2. The case of the petitioner in brief was that he was a registered Medical Practitioner in Miryalaguda Town, Nalgonda District. He completed his MBBS from Osmania University in 1983 and further completed Diploma in Child Health from Osmania University in the year 1986. He got registered his name in the Indian Medical Association and obtained valid certificate from the District Registering Authority, Nalgonda District under the Registration of Allopathic Private Medical Care Establishments Registration Act, 2002. He was having a hospital in the name and style of Archana Hospital in Doctors Colony, Miryalaguda. On 24.11.2010 at 8.00 PM, the respondent No.2-defacto complainant lodged a report against the petitioner stating that on 23.11.2010 at noon hours, she brought her son, aged 3 ½ years, to the petitioner's hospital as he was suffering with fever and consulted the petitioner for treatment. The petitioner prescribed laboratory tests and after verifying the lab reports, prescribed medicines, injections and syrups to the boy. The de facto complainant purchased the medicines from Sai Durga Medical Agency and the compounder of the petitioner gave injection to their son. They went home and at 9.00 PM when the de facto complainant Dr.GRR,J 2 CrlP.No.11225 of 2013 administered medicines to her son, he started vomiting and motions and made hue and cry, as such, she brought her son to the clinic of the petitioner. The hospital staff informed the petitioner, but he refused to visit the hospital as it was already late night. While they were shifting the boy to another hospital, on the way the boy expired. The de facto complainant contended that due to the negligence of the doctor, her son died. Basing on the above complaint, I-Town police of Miryalaguda registered a case in Crime No.238 of 2010 under Section 304-A IPC. After collecting the prescription given by the petitioner and after subjecting the boy to PME, charge sheet was filed against the petitioner-accused under Section 304-A IPC.
3. Heard the learned counsel for the petitioner and the learned Public Prosecutor.
4. Learned counsel for the petitioner submitted that the allegations made against the petitioner by the de facto complainant were false and frivolous. They were made only to harass the petitioner. Prior to registering the above case, the petitioner lodged a complaint against the relatives of the deceased boy for damaging the hospital, furniture and manhandling the hospital staff, which was registered as Crime No.237 of 2010 under Section 143, 448, 427, 341 and 323 read with 34 IPC on 24.11.2010 at 12.00 Noon. Suppressing the above facts, the de facto complainant got registered the false case without any material. The allegations made in the complaint were not supported by any medical evidence. The cause of death mentioned in Dr.GRR,J 3 CrlP.No.11225 of 2013 the PME report would disclose that it was due to Aspiration Pneumonitis which would show that due to respiration problem, the boy died. The cause of death was different from that of the allegations levelled by the de facto complainant against him. He was a bonafide medical practitioner and could not be found fault with the death of the boy. The complaint was lodged only to cause loss to his reputation. The police without following the guidelines issued by the Hon'ble Apex Court in Jacob Mathew v. State of Punjab1 mechanically filed the charge sheet and prayed to allow the petition.
5. Learned Public Prosecutor contended that the petitioner had not exercised proper care in providing treatment to the deceased boy. No duty doctor was available at his hospital when the deceased boy was brought in critical condition and requested to allow the trial Court to proceed with the trial and prayed to dismiss the petition.
6. Perused the record. The record would disclose that on a complaint given by the respondent No.2-de facto complainant, the mother of the deceased boy, the police registered a case against the petitioner-accused for being negligent in treating the boy, aged 3 ½ years and registered crime for the offence under Section 304-A IPC. The petitioner filed Crl.P. No.6684 of 2011 for quashing the proceedings in the said Crime and this Court dismissed the said petition on 05.08.2011 and directed the police to investigate the case 1 (2005(6) SCC 1) Dr.GRR,J 4 CrlP.No.11225 of 2013 as per the guidelines envisaged by the Hon'ble Apex Court in Jacob Mathew's case (supra).
7. As per the guidelines issued by the Hon'ble Apex Court in Jacob Mathew's case (supra), it was held that:
"Guidelines -- re: prosecuting medical
professionals
50. As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by 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 rash or negligent act within the domain of criminal law under Section 304-A of 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 in 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 emphasize 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 noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefers recourse to criminal process as a tool for pressurizing 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 Governments 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 Dr.GRR,J 5 CrlP.No.11225 of 2013 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 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. 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.
8. Thus, the Hon'ble Apex Court observing that indiscriminate prosecution of medical professionals for criminal negligence is counter-productive and does no service or good to society, advised the Investigating Officers before proceeding against the doctor accused of rash or negligent act or omission, to 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.
9. Para-24 of the same Judgment refers to the Bolam's case wherein it was held that:
"The classical statement of law in Bolam's case has been widely accepted as decisive of the standard of care required both of professional men generally and medical practitioners in particular. It has been invariably cited with approval before Dr.GRR,J 6 CrlP.No.11225 of 2013 Courts in India and applied to as touchstone to test the pleas of medical negligence. In tort, it is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that a defendant charged with negligence acted in accord with the general and approved practice is enough to clear him of the charge. Two things are pertinent to be noted. Firstly, the standard of care, when 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. Secondly, 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 point of time on which it is suggested as should have been used."
It was also held that:
"A mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence. So also an error of judgment on the part of a professional is not negligence per se."
10. Thus, as per the guidelines issued by the Hon'ble Apex Court, the Investigating Officer should have obtained the opinion of a Paediatrician from Government Hospital to ascertain whether the medicines prescribed by the petitioner was having any relation to the cause of death of the deceased boy. Though the investigating officer had mentioned in the charge sheet that the Crl.P. No.6684 of 2011 was dismissed by the Hon'ble High Court and directed him to follow the guidelines of the Hon'ble Apex Court in Jacob Mathew's case, he failed to obtain the opinion of the competent and independent medical professional in the said branch from the Government Service.
As such, continuation of proceedings against the petitioner - accused is considered as an abuse of process of law.
Dr.GRR,J 7 CrlP.No.11225 of 2013
11. Accordingly, the Criminal Petition is allowed, quashing the proceedings in CC No.132 of 2012 on the file of the Judicial Magistrate of First Class, Miryalaguda, against the petitioner.
Miscellaneous petitions pending, if any, shall stand closed.
_____________________ Dr. G. RADHA RANI, J November 09, 2021 KTL