Amit Verma vs State Of U.P. & Another
2015 Latest Caselaw 3046 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
AFR
 
Court No. -23
 

 
Case :- 	APPLICATION U/S 482 No. - 15839 of 2015
 

 
Applicant :- 		Amit Verma
 
Opposite Party :- 	State Of U.P. & Another
 
Counsel for Applicant :- 		Saurabh Sachan, A.K. Sachan
 
Counsel for Opposite Party :- 	Govt. Advocate
 

 
Hon'ble Pramod Kumar Srivastava,J.

1. This application u/s 482 CrPC. has been filed for quashing the proceedings of criminal case no. 1948/2015 (State Vs. Amit Verma and others) u/s 304-A, 336, 337, 338 IPC, crime no. C-11/2009, P.S. Nazeerabad, district Kanpur Nagar pending in the court of ACMM-II, Kanpur Nagar.

2. The case crime no. C-11/2009 was registered after allowing of application u/s 156(3) CrPC. of the complainant Rizwan Khan. After completion of the investigation, police had submitted the charge-sheet against the applicant for the aforesaid offences, on the basis of which criminal case no. 1948/ 2015 was registered and proceeded against him. After his appearance, the accused-applicant requested for discharge, and relied on case of 'Jacob Mathew Vs. State of Punjab'. After hearing his request for discharge was rejected by the trial court and charge for offences u/ss 336, 337, 338, 304-A IPC were framed. Then applicant-accused moved present application u/s 482 CrPC. for quashing the entire proceedings of the aforesaid case no. 1948/2015 pending against him.

3. The prosecution case in brief was that applicant Amit Verma and four others doctors, namely, Dr. Rajan Luthra, Dr. B.K.Gupta, Dr. J.P. Singh and Dr. Sanjay Gupa are carrying on their medical profession in Kanpur Medical Center, and Dr. P.K. Singh is in-charge of Blood-Bank of G.S.V.M. Medical College, Kanpur Nagar. On 06.11.2009 complainant's wife Yasmin Begam was admitted in Kanpur Medical Center, where her treatment started under the supervision of Dr. Rajan Luthra and Dr. B.K.Gupta. After sometime they had asked complainant to arrange blood from Blood-Bank of G.S.V.M. College and gave written a slip for bringing blood of O+ blood group. On 07.11.2009 and 08.11.2009 blood brought by the complainant from G.S.V.M. Medical College Blood-Bank and was administered in the body of Yasmin Begam. On 08.11.2009 the bottles of blood brought by the complainant was handed over in said hospital and was administered to Yasmin Begam without properly testing and matching it with the blood of patient. When said blood was administered, the condition of patient started deteriorated suddenly. Then administration of blood was stopped, and on testing it was found that said blood was of 'B+' group instead of 'O+' group. Due to such administration of wrong group of blood, kidney and other organs of the body of the Yasmin Begam were damaged and died on 08.11.2009 at about 05:00 pm. in evening. For her death the doctors Rajan Luthra, Dr. B.K. Gupta, P.K. Singh and staff of Blood-Bank as well as Dr. Piyush Mishra, Dr. J.P. Singh and Dr. Sanjay Singh are responsible because their negligence and administration of wrong blood without testing resulted in death of Yasmin Begam. Out of two bottles brought from the Medical College Blood-Bank, one bottle was administered and other bottle supply no. 26906 was not administered. When complainant reported the matter to police, his report was not lodged. Then after given information to SSP, he had moved application u/s 156(3) CrPC., on the basis of which FIR was lodged.

4. Heard learned counsel for the applicant, learned AGA on behalf of opposite party no.1/ State respondents and Sri S.K.Verma, learned counsel for the opposite party no. 2.

5. A perusal of the record reveals that though FIR was lodged against several doctors, but after the investigation charge-sheet was submitted against two persons, namely, Dr. Amit Kumar Verma and Dr. Swapnil Gupta who had been found guilty of administration of blood on different blood group which was not matching with the blood group of the deceased Yasmin Begam. It was found during investigation that they had not taken care to check as to whether blood of correct group was being administered or not, and thus acted negligently due to which blood of mismatched group was administered to victim resulting in her death. Thereafter, the trial court on the basis of available evidences had charged those two accused Dr. Amit Verma and Swapnil Gupta for the offence punishable u/s 304-A, 336, 337, 338 IPC.

6. A copy of the record of the court below was filed by the applicant's side which, inter alia, has the copy of the death certificate (Annexure no. 3 to the application), which reads as under:

"Death Certificate

NO.0983This is the certity that Ms/Mr Yasmin

S/o. D/o. W/o, Mr. Rizwan aged 28 R/o Pukharayah

who was admitted under care of Dr. Pyush Mishra, Rajan Luthra on Nov 09 November09suffering from Gastrotitis pregnancy detected on 08 November 09

Expired on 09-11-2009 at 5:05 p.m. due to Mismatched blood transfusion- ATN cardio respiratory impair.

Date 09-11-2009	    	      Signature of attending doctor"
 
7. During investigation of other evidences, the Investigation Officer, who had submitted the charge-sheet, also reached to inference of a case of medical negligence on the part of the applicant and his companion doctor.
 

8. Learned counsel for the applicant contended that this is a case of alleged medical negligence which could not be proved unless specific medical opinion from the competent doctors is taken. He contended that for the offfence of such medical negligence, the prosecution of a doctor is not possible without medical opinion; therefore the proceeding before the trial court, in offence of such alleged medical negligence is nothing but the abuse of the process of the Court because in absence of expert medical opinion in tretment of the victim, doctor-accused cannot be held guilty or punished.

9. Learned counsel for the applicant relied on Jacob Mathew Vs. State of Punjab and another ,(2005) 6 SCC 1, in which, Apex Court had held as under:

"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 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."

10. I am in agreement with the ruling and directions of Hon'ble Apex Court as above. When there is a complaint for criminal prosecution of a doctor then complainant must produce prima facie evidence before the court in form credible opinion given by another competent doctor to support the charges of medical negligence or rashness in treatment on the part of concerned doctor. In present case, a perusal of the records filed by the applicant with this petition alongwith the copy of death-certificate as above are prima facie proof of the fact that the victim Yasmin Begam was under treatment in Kanpur Medical Center, where applicant and companion doctor were attending her, and they had administered blood of mismatched group due to which she died. The prima facie proof of mismatched blood transfusion, resulting in failure of vital organs and cardio-respiratory impair, is apparent from the death-certificate issued by the Kanpur Medical Center itself where the applicant doctor was attending the victim. This appears to be a prima facie evidence of the offence for which the applicant and his companion doctor is being prosecuted in court below. Such prosecution, at this stage cannot be termed as abuse of process of court. Neither this argument is acceptable at present that proceedings in the court below would not secure the ends of justice. Since the evidence collected during the investigation appears to be prima facie proof of medical evidence on the part of attending doctors, therefore the said proceedings before the trial court must continue to reach its logical conclusions. Therefore the grounds mentioned in application for exercise in inherent jurisdiction for quashing the proceedings of the court below are not sufficient. As such, this application u/s 482 CrPC is hereby dismissed.

Order Date :- 09.10.2015

Sanjeev