Dr.Manoj Kumar vs The State Of U.P.& Another.
2015 Latest Caselaw 5166 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Heard learned counsel for the applicant, learned State Counsel and perused the relevant material on record as well as counter affidavit filed by opposite party no.2. None is present on behalf of opposite party no.2.

This petition under Section 482 Cr.P.C. has been preferred for quashing the charge sheet of case no.1289/06, State v. Dr.Manoj Kuar; Crime no.220/05, under Section 304-A I.P.C., P.S.Ghazipur, District Lucknow, pending in the Court of Special C.J.M. (Customs), Lucknow and also for quashing the proceedings pursuant to filing of the charge sheet including the bailable warrant issued on 26.9.2006.

This Court vide order dated 8.11.2006 issued notice to opposite party no.2 calling for filing objection/counter affidavit, if any, within four weeks. Rejoinder affidavit, if any, was directed to be filed within one week thereafter. The Court also passed interim order staying the proceedings of the case including issuance of warrant.

It is pertinent to disclose the prosecution case: Briefly stated, the informant Abhay Singh(a practising Advocate in the Courts at Lucknow, as averred in para 17 of the application) lodged F.I.R. on 1.5.2005 at 13:30 hours regarding the incident which had taken place on 30.4.2005 at about 11:00 p.m.-12:00 night. It was stated in the F.I.R. by informant Abhay Singh that on 28.4.2005 his son suddenly got ill; informant's wife took him to Jwala Nursing Home, near Munshipulia, Ring Road, Lucknow; the doctor of the Nursing Home attended the patient, prescribed medicines and advised for X-ray and blood test; the informant paid the amount which was asked; the condition of the boy on 30.4.2005 at 11:00 p.m. got deteriorated and informant's wife again took him to Nursing Home where the doctor of the Nursing Home did not open the door and refused to extend medical treatment. It is further stated in the F.I.R. that the informant on 30.4.2005 had gone to attend the marriage of his cousin sister; informant's son on 30.4.2005 at about 12:00 night died due to negligence of the doctor of Jwala Hospital.

The investigating officer took up the investigation and recorded the statements of the informant, informant's wife, Smt.Rekha Devi(mother of the deceased), witness Nandu, son of Rampal Gupta; witness Ram Singh son of Sant Ram and witness Ram Saran Gaur, son of Bharat Prasad under Section 161 Cr.P.C.

The postmortem on the body of the deceased was conducted on 2.5.2005 and as per opinion of the doctor who conducted the postmortem, the cause of death was - 'death due to septicemia as a result of acute lung disease'.

Learned counsel has vehemently submitted that there is no evidence on record to make out a case against the applicant under Section 304-A I.P.C. It is submitted that the only allegation as levelled in the F.I.R. and in the statement of the informant recorded under Section 161 Cr.P.C. is against Jwala Hospital, D-2226 Indira Nagar, Lucknow. The informant has not named the applicant in the first information report nor in his statement recorded under Section 161 Cr.P.C., though it is natural that he must have been informed, the name of doctor, by his wife, Smt. Rekha Devi, in whose statement under Section 161 Cr.P.C., name of Dr.Manoj Kumar finds place that he did not open the door and refused to extend medical treatment and due to his negligence, the child died in front of the hospital. There is hearsay evidence in this regard given by witnesses Nandu and Ram Singh. Witness Ram Saran Gaur is the only witness who is said to have accompanied Smt. Rekha Devi to the hospital and he has corroborated the evidence that Dr. Manoj Kumar did not open the door and refused to give medical treatment, as such, due to negligence and not getting treatment, the boy expired.

Learned counsel states that the whole story has been concocted by the informant for pressurising the applicant to extract uncalled for or unjustified compensation. It is admitted that wife of the informant, Smt.Rekha Devi had come to Jwala Hospital along with her child on 29.4.2005, though her child had got ill on 28.4.2005, as mentioned in the F.I.R. The doctor of the Hospital attended the child, Aditya Kumar, aged about one and a half years and prescribed medicines for him and advised for blood-test and X-ray of the chest. The prescription of Jwala Hospital is annexed as Annexure CA-1 to the affidavit filed by informant-opposite party no.2. The prescription (Annexure CA-1) also indicates that the child was prescribed Coscopin Paed. Syr. on 30.4.2005 and X-ray of chest was found to be normal and nothing abnormal was detected.

Learned counsel states that the allegation made by Smt.Rekha Devi, mother of the deceased that she had visited the hospital on 30.4.2005 at about 11:00 p.m. along with her neighbour, Ram Saran is totally false, as averred in para 14 of the application. The hospital provides 24 hours' emergency. One more aspect of the matter for consideration is that the applicant, who is the proprietor of the Nursing Home, would come himself at 11:00 P.M., so late in night, to open the doors of Nursing Home and refuse to attend his own patient, who was attended a day before and on the same day, as borne out from the prescription (Annexure CA-1), and was provided medical treatment. This allegation against applicant, he being proprietor of the Nursing Home, has been levelled with some ulterior motive, may be for some financial gains. There is no allegation in the F.I.R., nor in the statement of any witness that there was any negligence on part of the applicant or any other doctor of the Hospital in attending the child on 29.4.2015 or prescribing the medicines. The child was properly attended and was prescribed the required medicines.

Learned counsel states that even if the facts of the case are proved, it would not make out a case of criminal rashness or negligence on part of the accused applicant. In support of his contention, learned counsel has relied upon the decision of Hon'ble the Supreme Court reported in Jacob Mathew v. State of Punjab and another, reported in 2005 Supreme Court Cases (Cri) 1369 - in sub-paras (5) and (6) of paragraph 48, it has been held as under :

"(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".

Further, in para 14 of the report, it has been held as under :

"14. In order to hold the existence of criminal rashness or criminal negligence it shall have to be found out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The element of criminality is introduced by the accused having run the risk of doing such an act with recklessness and indifference to the consequences. Lord Atkin in his speech in Andrews v. Director of Public Prosecutions [1937 AC 576 : (1937) 2 All ER 552 (HL)] stated: (All ER p. 556 C)

"Simple lack of care such as will constitute civil liability is not enough. For purposes of the criminal law there are degrees of negligence, and a very high degree of negligence is required to be proved before the felony is established."

Thus, a clear distinction exists between "simple lack of care" incurring civil liability and "very high degree of negligence" which is required in criminal cases. In Riddell v. Reid [(1942) 2 All ER 161 : 1943 AC 1 (HL)] (AC at p. 31) Lord Porter said in his speech --

"A higher degree of negligence has always been demanded in order to establish a criminal offence than is sufficient to create civil liability." (Charlesworth & Percy, ibid., para 1.13)"

Para 28 of the report reads as under :

"28. A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. ................."

The following extract from Merry and Mc.Call 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) reads as under:

"Criminal 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."

Paragraphs 15 and 17 also needs consideration. They read as follows :-

"15. The fore-quoted statement of law in Andrews [1937 AC 576 : (1937) 2 All ER 552 (HL)] has been noted with approval by this Court in Syad Akbar v. State of Karnataka [(1980) 1 SCC 30 : 1980 SCC (Cri) 59] . The Supreme Court has dealt with and pointed out with reasons the distinction between negligence in civil law and in criminal law. Their Lordships have opined that there is a marked difference as to the effect of evidence viz. the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man, beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment."

"17. In our opinion, the factor of grossness or degree does assume significance while drawing distinction in negligence actionable in tort and negligence punishable as a crime. To be latter, the negligence has to be gross or of a very high degree."

Para 51 of the report reads as follows :

"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."

In a decision reported in (2009) 1 SCC (Cri) 958, Martin F.D'Souza v. Mohd. Ishfaq, Hon'ble the Supreme Court has observed in paragraphs 103 and 104 as follows:

"103. ..... However, now what is often seen is that doctors out of fear of facing legal proceedings do not give first aid to the patient, and instead tell him to proceed to the hospital by which time the patient may develop other complications."

"104. Hence courts/Consumer Fora should keep the above factors in mind when deciding cases related to medical negligence, and not take a view which would be in fact a disservice to the public. The decision of this Court in Indian Medical Assn. v. V.P. Shantha [(1995) 6 SCC 651] should not be understood to mean that doctors should be harassed merely because their treatment was unsuccessful or caused some mishap which was not necessarily due to negligence. In fact in the aforesaid decision it has been observed (vide SCC para 22): (V.P. Shantha case [(1995) 6 SCC 651] , SCC p. 665)"

"22. In the matter of professional liability professions differ from other occupations for the reason that professions operate in spheres where success cannot be achieved in every case and very often success or failure depends upon factors beyond the professional man's control."

Looking into the facts of the case, I find that it is not a case where the doctor had administered a wrong medicine, which was not to be given. As opined by the Doctor, who conducted the postmortem, the child was already suffering from septicemia, which must have taken some time to develop and must have been at its last stage. There was absolutely no gross negligence on part of the applicant. There may be liability in civil law or may be not - this Court does not express any opinion on the same but since there is no criminal negligence of higher degree, in light of the observations of Hon'ble the Supreme Court in the decisions referred to herein above, no case under Section 304-A is made out against the applicant.

Accordingly, the application under Section 482 Cr.P.C. is hereby allowed. The charge sheet of case no.1289/06, State v. Dr.Manoj Kuar; Crime no.220/05, under Section 304-A I.P.C., P.S.Ghazipur, District Lucknow and the proceedings arising therefrom including bailable warrant issued on 26.9.2006 by Special C.J.M. (Customs), Lucknow are quashed.