Dr. Baddam Grace Swaupa Charles vs Sri Mohammed Ali And Another

Telangana High Court

Dr. Baddam Grace Swaupa Charles vs Sri Mohammed Ali And Another on 3 May, 2024

         THE HONOURABLE SMT. JUSTICE K. SUJANA
     CRIMINAL PETITION Nos.1761 of 2020 & 1184 OF 2022


COMMON ORDER:

Since the issue involved in both the criminal petitions is one and the same, they are being heard together and are being decided by way of this common order.

2. These criminal petitions are filed under Section 482 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') to quash the proceedings against the petitioners/accused Nos.1, 3 and 4, in Criminal Petition No.1761 of 2020 and the petitioner/accused No.2 in Criminal Petition No.1184 of 2022, in C.C.No.39 of 2020 on the file of the learned Judicial Magistrate of First Class, Mahabubnagar District, registered for the offences punishable under Section 304-A read with 34 of the Indian Penal Code, 1860 (for short 'the IPC').

3. Brief facts of the case are that respondent No.2/de facto complainant lodged a complaint before the Police, II Town Police Station, Mahabubnagar District against the petitioners stating that since 2015 his wife is getting treatment regularly with petitioner No.1, who is a Doctor. On 23.08.2015, when his wife was suffering with maternity pains, he called petitioner No.1 2 SKS,J Crl.P.Nos.1761 of 2020 & 1184 OF 2022 and she advised to go to Amrutha Hospital, where a nurse has given an Injection to his wife and send them to house. On 24.08.2015, when his wife informed to him that she is getting bleeding, he informed the same to petitioner No.1 and then she advised him to admit his wife in Government Hospital where she gave birth to a male baby, but he died and since no doctor or nurse came to her and not given treatment to his wife, at about 1:00 pm, on the same day, his wife died at Government Hospital. It is further stated that due to the negligence of petitioner No.1, other hospital doctors and operation staff only his wife died. Basing on the said complaint, the Police registered a case in Crime No.240 of 2015 and after completion of investigation, they filed charge sheet before the learned Judicial Magistrate of First Class, Mahabubnagar District.

4. Heard Dr. Challa Srinivasa Reddy, learned counsel appearing on behalf of the petitioners as well as Sri Krishna Murthy Udayakula, learned counsel appearing on behalf respodnent No.1 and Sri S. Ganesh, learned counsel appearing on behalf of respondent No.2-State in both matters.

5. Learned counsel for the petitioners submitted that petitioners have taken good care to the deceased and they advised respondent No.2 to take the deceased to higher 3 SKS,J Crl.P.Nos.1761 of 2020 & 1184 OF 2022 hospital. In spite of the same he has not taken to the higher hospital and on the consent given by him in the said hospital, they conducted the surgery which is required to the deceased.

Therefore, there is no negligence on the part of the petitioners.

Learned counsel further submitted that there is delay of four years in taking cognizance, which is barred by limitation under Section 468 of Cr.P.C, as such prayed the Court to dismiss the petition.

6. On the other hand, learned counsel for respondent No.1 submitted that there is negligence on the part of the petitioners as they did not properly advised respondent No.1 and have not taken any care of the deceased, as such, the proceedings against the petitioners cannot be quashed and prayed the Court to dismiss the petition.

7. Having regard to the rival submissions made by both the learned counsel and having gone through the material available on record, it is to be noted that the complaint was given by respondent No.1, who is husband of the deceased, stating that due to the negligence of the petitioners only his wife and his baby were died. The prime submission of the petitioners is that they have taken all the care, given required treatment and informed the risk factor to respondent No.1. The further 4 SKS,J Crl.P.Nos.1761 of 2020 & 1184 OF 2022 contention of petitioner No.1 is that she has not advised to take to the deceased to Amrutha Hospital, but she advised respondent No.2 to take to the Government hospital. The petitioners further stated that the injection given by the nurse in Amrutha Hospital is a regular injection which is not harmful.

8. At this stage, it is pertinent to note the judgment of the Hon'ble Supreme Court in Jacob Mathew vs. State of Punjab and Another 1, wherein in paragraph Nos.48 to 52, it is held as follows:

48. 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 the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the 1 (2005) 6 Supreme Court Cases 1 5 SKS,J Crl.P.Nos.1761 of 2020 & 1184 OF 2022 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 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 6 SKS,J Crl.P.Nos.1761 of 2020 & 1184 OF 2022 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 case [(1957) 1 WLR 582 : (1957) 2 All ER 118 (QBD)] , WLR at p. 586 [ [Ed.: Also at All ER p. 121 D-F and set out in para 19, p. 19 herein.]] 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, 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 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 304- A IPC has to be read as qualified by the word "grossly".

SKS,J Crl.P.Nos.1761 of 2020 & 1184 OF 2022 (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.

49. In view of the principles laid down hereinabove and the preceding discussion, we agree with the principles of law laid down in Dr. Suresh Gupta case [(2004) 6 SCC 422 : 2004 SCC (Cri) 1785] and reaffirm the same. Ex abundanti cautela, we clarify that what we are affirming are the legal principles laid down and the law as stated in Dr. Suresh Gupta case [(2004) 6 SCC 422 : 2004 SCC (Cri) 1785] . We may not be understood as having expressed any opinion on the question whether on the facts of that case the accused could or could not have been held guilty of criminal negligence as that question is not before us. We also approve of the passage [ [Ed.:

The following is the said extract from Merry and McCall Smith: Errors, Medicine and the Law, cited with approval in Dr. Suresh Gupta case, (2004) 6 SCC 422 (at pp. 247-48 of the book):"Criminal 8 SKS,J Crl.P.Nos.1761 of 2020 & 1184 OF 2022 punishment carries substantial moral overtones. The doctrine of strict liability allows for criminal conviction in the absence of moral blameworthiness only in very limited circumstances. Conviction of any substantial criminal offence requires that the accused person should have acted with a morally blameworthy state of mind. Recklessness and deliberate wrongdoing, levels four and five are classification of blame, are normally blameworthy but any conduct falling short of that should not be the subject of criminal liability. Common-law systems have traditionally only made negligence the subject of criminal sanction when the level of negligence has been high -- a standard traditionally described as gross negligence.***Blame is a powerful weapon. When used appropriately and according to morally defensible criteria, it has an indispensable role in human affairs. Its inappropriate use, however, distorts tolerant and constructive relations between people. Some of life's misfortunes are accidents for which nobody is morally responsible. Others are wrongs for which responsibility is diffuse. Yet others are instances of culpable conduct, and constitute grounds for compensation and at times, for punishment. Distinguishing between these various categories requires careful, morally sensitive and scientifically informed analysis."]] from Errors, Medicine and the Law by Alan Merry and Alexander McCall Smith which has been cited with approval in Dr. Suresh Gupta case [(2004) 6 SCC 422 : 2004 SCC (Cri) 1785] (noted vide para 27 of the Report).

50. As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an 9 SKS,J Crl.P.Nos.1761 of 2020 & 1184 OF 2022 increase. Sometimes 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 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 Governments in consultation with the Medical 10 SKS,J Crl.P.Nos.1761 of 2020 & 1184 OF 2022 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 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 Bolam [(1957) 1 WLR 582 : (1957) 2 All ER 118 (QBD)] 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."

9. In the present case, the allegation levelled against the accused No.1 is that instead of attending the patient, she has advised the respondent NO.1 to take the deceased to Amrutha Hospital, where she has directed the Doctor to give TRAMDOL 11 SKS,J Crl.P.Nos.1761 of 2020 & 1184 OF 2022 injection to the deceased, whereas, the contention of accused No.1 is that she advised them to take the deceased to Government hospital and instead of going to Government hospital, the respondent No.1 took the deceased to Amrutha hospital where the nurse gave TRAMDOL injection, which is usual medicine to relive the pains but on the next day morning, the deceased complained about the bleeding due to which the respondent No.1 again called the accused No.1, as such, she advised him to take her to Government hospital.

10. As seen from the above narration, the only allegation against accused No.1 is that instead of attending the deceased personally, she gave advices. Therefore, it cannot be said that accused No.1 has acted negligently in this case.

11. That apart, the allegations levelled against accused Nos.2 to 4 are that they treated the deceased in negligent manner, whereas, the contention of the accused Nos.2 to 4 is that they already informed respondent No.1 about the seriousness and instructed him to take the deceased to the higher centre, therefore it cannot be said that they acted in negligent manner.

12. In view of the above, the allegations levelled against the petitioners for the offences punishable under Section 304-A 12 SKS,J Crl.P.Nos.1761 of 2020 & 1184 OF 2022 read with 34 of the IPC do not constitute and the proceedings against them are liable to be quashed.

13. Accordingly, these criminal petitions are allowed and the proceedings against the petitioners in C.C.No.39 of 2020, on the file of the learned Judicial Magistrate of First Class, Mahabubnagar, are hereby quashed.

Miscellaneous applications, if any pending, shall also stand closed.

_____________ K. SUJANA, J Date: 03.05.2024 SAI