Dr. Rajeev Lochan vs State Of U.P. And Another
2013 Latest Caselaw 4889 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved Judgment.
 
Criminal Misc. 482 Cr.P.C. Application No. 42744 of 2012.
 
Dr. Rajeev Lochan                                              ....    Applicant.
 
Versus
 
State of U.P. & another                                 .... Opposite Parties.
 
Hon'ble Ramesh Sinha, J.

1. By means of present 482 Cr.P.C. application, the applicant has prayed for quashing the charge-sheet dated 11.10.2012 submitted against the applicant under Section 326, 506 I.P.C. arising out of Case Crime No. 803 of 2012 under Section 326 I.P.C. at police station Quarsi, District Aligarh.

2. Counter and rejoinder affidavits have been exchanged between the parties.

3. Brief facts of the present case are that the complainant-Veer Singh (hereinafter referred to as 'opposite party no.2') lodged an F.I.R. against the applicant alleging that his mother Smt. Shanti Devi was having acute pain in her abdomen. On 17.4.2012, the opposite party no.2 got a check up of his mother in the Nursing Home of the applicant, namely, Ashirvad Nursing Home, Ramghat Road, Aligarh for getting her medically treated. Dr. Rajeev Lochan accused applicant referred for various test from 17.4.2012 to 5.5.2012 of the mother of opposite party no.2. The applicant informed the opposite party no.2 that the right kidney of his mother was affected and was not working properly, hence operation is required otherwise her life would be in danger. Thereafter, the applicant conducted the operation of the mother of opposite party no.2. After the operation, the condition of Smt. Shanti Devi, mother of opposite party no.2 started deteriorating and, therefore, on 7.5.2012, she was sent for dialysis to Varun Heart Centre, Aligarh and from 7.5.2012 to 20.5.2012 dialysis was done. From reports of different doctors the informant came to know that Dr. Rajiv Lochan accused-applicant has removed the kidney of left side instead of right side, hence the life of mother of opposite party no.2 was in danger. The opposite party no. 2 on coming to know about the said fact was busy in the treatment of her mother, hence some delay has occurred in lodging the F.I.R. against the applicant.

4. The F.I.R. of the case was registered under Section 326 I.P.C. by the opposite party no.2 which was registered as Case Crime No. 803 of 2012 police station Quarsi, District Aligarh. The investigation of the case was carried out by the police and charge-sheet was submitted under Section 326, 506 I.P.C. on 11.10.2012 against the applicant and cognizance of the offence was taken by the Magistrate on 29.10.2012.

5. Aggrieved by the impugned charge-sheet submitted against him and the cognizance order passed against him, the applicant has approached this Court by means of present 482 Cr.P.C. application for quashing of the same.

6. Heard Sri A.B.L. Gour, learned Senior Advocate assisted by Sri Shishupal Sharma, learned counsel for the applicant, Sri Satyaveer Singh, learned counsel for the opposite party no.2 and learned A.G.A. for the State

7. Learned counsel for the applicant submits that the applicant is M.S. (Surgery) of the year 1998 and is presently one of the top surgeons of not only the district, but also of the Commissionerate. The applicant performed almost two surgeries on a day and till date no complaint has been made against the applicant by any of his patients. He submits that the applicant performed the surgery of mother of opposite party no.2 to remove her right kidney. He further pointed that as per norms of surgery, applicant opened the right side of her loin which was the only place prescribed for removal of the right side kidney and after opening the right side loin (Retro peritoneal) which is back part of the abdomen, removed the right kidney.

8. He further submits that from the right side of the loin it is not possible to go to the left kidney, meaning thereby if the surgeon has opened the right side of the loin, he cannot go to the left side. He has drawn the attention of the Court that the posteriorly there is vertebral column containing spinal cord, which means that one cannot cross the middle line either anteriorly or posteriorly. He has also referred to the contents of Gray's book and Cunningham's Manual of Practical Anatomy which deals with the said aspect that after opening from the right side of the loin, whether the left kidney can be removed or not. He has further referred to the opinions of various doctors and top surgeons of the country and has referred to their opinion to the fact that the left kidney cannot be removed by opening the loin on the right side. He further pointed out that in the famous book on Anatomy known as Cunningham's Manual of Practical Anatomy, Volume-II, Thorex and Abdomen is very specific to the effect that if the right side kidney has to be removed, in that case opening will be done on the right side of the loin, but in rarest of the rare cases when the kidney is floating in that eventuality both the kidneys may lie on the same side of the body which is fleak of the cases, otherwise if the right kidney has to be removed right side back has to be opened and from there only the right side kidney has to be removed.

9. It was further argued that the kidney which was removed by the applicant was sent for pathology test regarding any malignancy in it and report of the same has been submitted on 8.5.2012 by Dr. Sanjay Agarwal, a copy of the same has been annexed as annexure-6 to the present application.

10. It was urged by learned counsel for the applicant that taking the prosecution case on the face of it, the act of the applicant may be an error of judgment , therefore, no offence under Section 326, 506 I.P.C. is made out against the applicant. In this regard, he has submitted that no criminal intention has been attributed to the applicant for removing the left side kidney, hence he prays for quashing of the charge-sheet and order taking cognizance. In support of his submissions, he has placed reliance on the judgment of the Apex Court in the case of Jacob Mathew vs. State of Punjab & another reported in (2205) 6 SCC and has drawn the attention of the Court towards para 20 of the said judgment which is quoted hereinbelow:-

An often quoted passage defining negligence by professions, generally and not necessarily confined to doctors, is to be found in the opinion of Mcnair, J. in Bolam vs. Friern Hospital Management Committee, WLR at p. 586 in the following words:-

"Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art." (Charlesworth and Percy, ibid, para 8-02)

Per contra on the other hand, learned counsel for the opposite party no.2 states that the applicant had informed on the basis of pre-operated test which he got conducted that his mother's right kidney was not functioning properly and he advised him for its operation and the left kidney was normal and after the operation was conducted by the applicant, the mother of opposite party no.2 could not be cured of her ailment and from the day of operation till date she is on dialysis. The opposite party no. 2 from the reports of other doctors after the operation and from various investigations conducted by the said doctors came to know that the right kidney of his mother was still in its own place and the left kidney was taken out by the applicant.

11. He submits that as per the allegations made in para-6 of the affidavit filed in support of the present 482 Cr.P.C. application, the applicant himself has admitted that he has removed the right kidney of Smt. Shanti Devi, mother of opposite party no. 2. Incision was made on the right side but the left kidney was not found and the said kidney which was normal in functioning was taken our by the applicant and he has committed the offence under Section 326 I.P.C. for which a charge-sheet has been submitted against him and the cognizance taken by the learned Magistrate on the same is in consonance with law and the applicant is liable to be prosecuted for such offence.

12. In this regard, he has also pointed out that after lodging of the F.I.R. by the opposite party no.2 against the applicant, a Medical Board was constituted under the order's of Chief Medical Officer and Members of the Medical Board have submitted a report on 29.6.2012, who found that the applicant was fully responsible and guilty of removing the left side kidney of the patient Smt. Shanti Devi whereas right kidney was in its place in her body, a copy of the same has been annexure as annexed-C.A.1 to the counter affidavit. He has further pointed out that the applicant has deliberately not annexed the said report in the present 482 Cr.P.C. application which shows that he had committed a cognizable offence for which he is liable for prosecution before the court of law.

13. It was further urged that the mother of opposite party no.2 is fighting for her life and is still on dialysis and about Rupees Nine Lacs have been spent for which the opposite party no.2 has sold his household articles and has taken loans from his relatives. He further submits that due to the act of the applicant, the opposite party no.2 is facing great financial hardship as well as mental harassment and has further gone under depression due to ailment of her mother and financial hardship. He submits that it is not a case of negligent but he has committed an offence knowingly and intentionally. He further submits that the applicant is an influential person and is running a hospital and giving threats to opposite party no.2 through his muscle man to withdraw the present case, hence the present case is liable to be dismissed.

14. Considered the submissions advanced by learned counsel for the parties and perused the record. From a perusal of the record, it is apparent that the applicant has operated the mother of opposite party no.2 after various pre-operated test. In this regard, the ultrasound report of the mother of opposite party no.2 dated 24th April, 2012 is a relevant document in order to determine the act of the applicant. From the ultrasound of Ashopa Hospital, Agra shows that there was no unilateral fusion of kidneys. It is a categorical case of the applicant that he has removed the right kidney of the patient by opening the loin on the right side of the patient and further claims that after the operation the right kidney was sent for pathology test, a report of which has been submitted on 8.5.2012 which has been annexed as Annexure-6 to the affidavit. The report of the Medical Board dated 29.6.2012 shows that the right kidney which was not functioning properly was at its own place whereas the left kidney which was normal was missing from the body of the patient, hence the Board found that because of the act of the applicant, the patient was put on dialysis and further found that the applicant was responsible and guilty for the medical surgery which he has conducted and has further referred that matter to the concerned authorities for taking action against the applicant.

15. The argument of learned counsel for the applicant that the kidney of the patient was floating one, hence there was an error of judgment and at the most a simple lack of care of the part of the applicant, hence he cannot be prosecuted under Section 326, 506 I.P.C., does not find force as the applicant has been prima facie found responsible and guilty by the Medical Board which was constituted under the orders of the Chief Medical Officer. Moreover, pre-operated test and the ultrasound report of the patient dated 24th April, 2012 do not show that there was unilateral fusion of kidney, hence there was an error of judgment on his part to have left the affected kidney in the body and taken out the normal kidney for which he can be said to be negligent. In this regard the judgment of the Apex Court in the case of Martine F. D'Souza vs. Mohd. Ishfaq reported in (2009) 3 SCC 1 is necessary to be taken into account in which it was held that the criminal court concerned should first refer the matter to a competent doctor or committee of doctors specialized in the relevant field and when such a doctor of committee reports that there is a prima facie case of medical negligence, only then issue notice to the doctor or hospital concerned. In the instant case, the said requirement of the Apex Court's direction for getting report from the competent committee regarding the medical act of doctor has to be referred before prosecuting him and there is a report of the Medical Board which found the applicant responsible and guilty for his act. Due to the said act of the applicant, the patient was put on dialysis and till today she is stated to be on dialysis and the opposite party no.2 has to face financial hardship as well as mental distress due to the act of the applicant, hence at this stage it cannot be said that no offence against the applicant is made out. Hence no interference is called for by this Court either for quashing of the charge-sheet or the proceedings of the case against the applicant in exercise of its inherent power under Section 482 Cr.P.C.

16. The petition lacks merit and is accordingly dismissed.

Dated/- 05/08/2013

Shiraz.