The High Court of Jharkhand quashed proceedings against two doctors accused under Section 304A IPC after it was alleged that their intentional omission caused the death of the deceased and held that that a private complaint may not be entertained unless the complainant has produced prima facie evidence in the form of a credible opinion given by another doctor to support the charge of rashness or negligence on the part of the accused doctor.
Brief Facts:
A complaint case was filed against the petitioners alleging that the deceased, father-in-law of the informant became critical of the intentional omission of the petitioners, who were attending to the deceased and neither the patient was referred nor any life supporting system, ventilation, etc was provided and further accused persons killed the father in law of the complainant by administering the drug and wrongfully gained the property and also extorted witness no.1 and caused death with the knowledge that their act will cause the death of the father in law of the complainant. The present petition was filed seeking quashing of f the entire criminal proceedings and the order taking cognizance whereby the court had taken cognizance under section 304A IPC.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the petitioner contended that only on the basis of the solemn affirmation and of the enquiry witness the learned court has taken cognizance under section 304A IPC and both the doctors treated the father-in-law of the informant in terms of the medical protocol, however, in course of treatment, the life of the father in law of the informant was not saved in spite of best efforts made by these doctors. Further, it was submitted that the complaint case was directly filed by the court ignoring the judgment in the case of Jacob Mathew vs the State of Punjab.
Contentions of the Respondent:
The learned counsel appearing on behalf of the respondent contended that neither of the complainants was treated by these doctors negligently and that is why the learned court has rightly taken cognizance further one of the doctors has not attended to the patient and subsequently he has passed away and thus the court has rightly taken cognizance under section 304A IPC.
Observations of the court:
The court referred to the complaint petition and stated that the only allegations made are that another petitioner by that time was not present in the hospital, but it is admitted in the complaint petition that the petitioner had attended to the patient, however, the life of the patient was not saved.
The court then referred to the judgement in Jacob Mathew vs State of Punjab wherein it was held that 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 and a doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him).
Further, the court referred to the judgment in Martin F. D’ Souza v. Md. Ishfaq wherein it was held that whenever a complaint is received against a doctor or hospital by the Consumer Fora (whether District, State or National) or by the criminal court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or the criminal court should first refer the matter to a competent doctor or committee of doctors, specialised in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the doctor/hospital concerned and stated that a private complaint may not be entertained unless the complainant has produced prima facie evidence in the form of credible opinion given by another doctor to support the charge of rashness or negligence on the part of the accused doctor.
The decision of the Court:
The court allowed the petition and quashed the entire criminal proceedings against the petitioners.
Case Title: Dr. Nirmal Drolia @ Nirmal Kumar Drolia and anr. vs State of Jharkhand and anr.
Coram: Hon’ble Mr. Justice Sanjay Kumar Dwivedi
Case No.: Cr.M.P. No. 3701 of 2017
Advocate for the Petitioner: Mr. Ankit Kumar and Mr. Ajay Kumar Sah
Advocate for the Respondent: Mr. Satish Kumar Keshri and Mr. J.N. Upadhyay
Read Judgment @LatestLaws.com
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