Smt.Dr. Indu Singh vs State Of U.P. And Another
2019 Latest Caselaw 4235 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 72
 
Case :- APPLICATION U/S 482 No. - 14600 of 2017
 
Applicant :- Smt.Dr. Indu Singh
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Samit Gopal
 
Counsel for Opposite Party :- G.A.,Dharmendra Singhal,Manoj Kumar Tiwari
 
Hon'ble Saumitra Dayal Singh,J.

1. Heard Shri G.S. Chaturvedi, learned Senior Advocate, assisted by Shri Samit Gopal, Advocate, for the applicant; Shri Dharmendra Singhal and Shri Manoj Kumar Tiwari, learned counsel for opposite party no.2 and Shri S.N. Mishra, learned AGA for the State.

2. This application under Section 482 Cr.P.C. has been filed to quash the order dated 27.03.2017 passed by the Additional Sessions Judge, Court No.14, Varanasi in Criminal Revision No. 305 of 2015 (Dr. Smt. Indu Singh Vs. State of U.P. & Anr.), by which the discharge application filed by the applicant under Section 245(2) Cr.P.C. has been rejected.

3. The facts giving rise to the present application fall in a narrow compass. The wife of opposite party no.2 was under treatment of the applicant who, admittedly, is a trained allopathic doctor, holding degree of M.B.B.S; M.D. in Gynaecology & Obstetrics. It is the admitted case between the parties that the wife of opposite party no.2 first visited the applicant on 5-6 October 2008 when she was diagnosed with fibroid uterus (with profused bleeding), she was admitted for a surgery for removal of uterus on 06.11.2008. The surgery itself was performed on 10.11.2008 and consequently biopsy report was received on 20.11.2008, disclosing malignancy in uterus. The patient was then discharged on 24.11.2008. She died on 31.12.2008.

4. The complaint then narrates that the applicant had practised gross negligence in the treatment offered by her to the patient, inasmuch as in the Pap Smear Test (P.S.T.) and Doppler Pelvis Test (D.P.T.), of which reports had been received on 10.10.2008 and 17.10.2008 respectively, malignancy had been suggested. However, the applicant acted negligently by disregarding those pathology test reports, recklessly operated upon the patient which resulted in the spread of the disease cancer causing her eventual death. Also, it has been stated in the complaint that while the patient was under the treatment of the applicant, the complainant had arranged a telephonic conference between the applicant and a physician Dr. I.S. Jain, who had suggested to the applicant to get further tests done, to rule out malignancy. Thus, in such circumstances, allegations have been made that the applicant gave false assurances to the patient and the complainant that there was nothing to worry about and the patient would recover post-surgery. However, upon her condition deteriorating, the patient had to be taken to another medical facility at Delhi, where the doctors expressed surprise as to why the patient had been operated upon when she was clearly suffering from cancer and should therefore have never been operated.

5. In support of the complaint, statement of the complainant was recorded under Section 200 Cr.P.C. Also, statements of eight other family members of the deceased were recorded under Section 202 Cr.P.C. They testified to the effect that the deceased had been treated by the applicant and also to the negligence as had been claimed by the complainant in his complaint.

6. Upon such complaint and on such statements being recorded, the learned Chief Judicial Magistrate, Varanasi, by his order dated 12.04.2012 summoned the present applicant. That order was challenged by the applicant by means of Application u/s 482 No. 14373 of 2012, which was disposed of by order dated 27.04.2012. While no interference was made with the summoning order, this Court had observed as below:

"Considering the facts and circumstances of the case and submissions made by the learned counsel for the applicant and the learned AGA, it is directed that in case the applicants moves an application under section 245(2) Cr.P.C. before the court concerned, through his counsel within 30 days from today, the same shall be heard and disposed of expeditiously in accordance with the provisions of law. Till the disposal of that application, no coercive steps shall be taken against the applicant.

With the above direction, this application is finally disposed of."

7. In view of that order passed by this Court, the applicant moved an application through counsel seeking discharge. That application was rejected. It was challenged in a revision before the learned Sessions Judge, which revision also came to be rejected by order dated 27.03.2017. These orders have been challenged by means of the present application.

8. Learned Senior Counsel for the applicant submits that no case of gross medical negligence is made out from a plain reading of the complaint and the statements recorded by the learned Magistrate, inasmuch as it is the complaint allegation that the deceased was suffering from medical ailment for which treatment had been offered by the applicant who is a specialised trained allopathy practitioner. The fact that the deceased did not survive despite treatment offered by the applicant, would not, constitute an act of medical negligence, merely because the applicant is alleged to have performed surgery on the deceased, though she was suffering from cancer.

9. Second, it has been submitted, in any case, the applicant being a trained medical practitioner, fully authorized to perform the surgery of the nature performed by her on the deceased, the general exceptions under Section 6 IPC would have to be read into the allegations of offence under Section 304A IPC and if that is done, then, in the entirety of the facts and circumstances, the ingredients of the offence alleged would never stand made out as the applicant had not acted with any mala fide or other intent or with gross neglect or recklessness but that she had acted only with the intent of curing the medical condition being suffered by the deceased. In that regard, reliance has also been placed on a decision of the Supreme Court in the case of Vadilal Panchal Vs. Dattatraya Dulaji Ghadigaonker & Ors., AIR 1960 SC 1113.

10. Third, it has been submitted that in any view of the matter, it being a case of medical negligence, the principle laid down by the Supreme Court in the case of Jacob Mathew Vs. State of Punjab & Anr., AIR 2005 SC 3180, would apply and that the private complaint lodged by opposite party no.2 could not have been proceeded with, in absence of any prima facie evidence in the form of a credible opinion given by any competent doctor in support of the charge of rashness or negligence on part of the applicant. Inasmuch as no statement under Section 202 Cr.P.C. had been recorded of any competent doctor to establish that basic ingredients of the offence alleged being made out, the applicant is liable to be discharged at this stage.

11. Shri Dharmendra Singhal, learned counsel for opposite party no.2, on the other hand, would submit that the summoning order dated 12.04.2012 is a detailed order, challenge to which raised by the present applicant, had failed before this Court. The applicant did not carry the matter any further and therefore, for the purpose of summoning, the prima facie ingredients of the offence have to be treated to have been made out. In this light, it has been submitted that allowing the discharge application at the same stage under Section 245 (2) Cr.P.C. would practically amount to review of the summoning order which procedure is not permissible and, therefore, the learned Magistrate has not erred in rejecting the discharge application at this stage.

12. Elaborating his submissions further, Shri Singhal would submit, in such circumstances, the only stage when the application of discharge may be claimed by the applicant would be after evidence is received under Section 244 Cr.P.C. and not earlier. As to the scope of enquiry and the judgement of the Supreme Court in the case of Jacob Mathew Vs. State of Punjab & Anr. (supra), he submits, there is no hard and fast rule laid down under the Cr.P.C. as to the manner in which the Magistrate may conduct an enquiry before summoning the accused persons in a complaint case. It is not mandatory for the Magistrate to summon on the basis of any particular form of evidence being led in the shape of expert opinion or otherwise. Upon receiving the complaint, after recording the statements under Section 200 Cr.P.C., the learned Magistrate may record such statement under Section 202 Cr.P.C. that may lead to his prima facie satisfaction as to the commission of offence. To that extent, the observation made by the Supreme Court in the case of Jacob Mathew Vs. State of Punjab & Anr. (supra) is stated to be not-binding, inasmuch as the direction, if any, is clearly contrary to the scheme of the Act which would prevail by virtue of Section 4 Cr.P.C.

13. He has relied on Rajendra Rajoria Vs. Jagat Narain Thapak & Ors., AIR 2018 SC 1229 to submit, that, at present, the learned Magistrate had only to be satisfied as to grounds to proceed against the applicant and not as sufficiency of grounds to convict her. The complaint and the statements do bring out prima facie satisfaction as to commission of offence by the applicant.

14. Learned AGA has also advanced submissions to the same effect. According to him, there is no prejudice being caused to the present applicant at this stage. Offence alleged are bailable and the applicant may thereafter have full right of defence and the trial may be allowed to proceed.

15. Having heard learned counsel for the parties and having perused the record, in the first place, it has to be accepted that the summoning order passed against the applicant has attained finality, inasmuch as specific challenge raised to that order failed before this Court. However, in view of the order passed by this Court, as has also been noted above, it is clear that this Court had itself provided that the applicant may seek discharge in terms of Section 245 (2) Cr.P.C. The said order was also not challenged by opposite party no.2. In view of the above, it cannot be said that the applicant had lost her right to seek discharge under Section 245 (2) Cr.P.C., merely because the summoning order has been upheld. Further arguments advanced by learned counsel for opposite party no.2, that if the discharge application were to be allowed at this stage, it may amount to review of the summoning order, also appears to be too technical to be accepted. Inasmuch as the accused had not been heard at the stage of seeking discharge, he may be permitted to raise submissions, may be only on the basis of case diary material or on the basis of law laid down by the Courts, nevertheless that remains a valuable right which the statute gives to the accused persons. It may be exercised even before evidence is led. In any case, in the facts and circumstances of the present case, this Court had specifically provided for such remedy and that order was also not challenged by opposite party no.2. Therefore, there is no inherent defect in consideration of the discharge application moved by the applicant.

16. As to the scope of enquiry and the decision of the Supreme Court in Jacob Mathew (supra), it was a case of medical negligence claimed by the complainant, alleging that his father Jiwan Lal had been admitted to a hospital but when his condition deteriorated and he called for the doctor on duty, the call was attended with delay and that the oxygen cylinder, which was connected to the equipment to ease the breathing of the patient, was found to be empty. By that time, the error was corrected, the patient collapsed and died. It was in such facts, the Supreme Court considered the scope of medical negligence after comparing the same with the tortuous liability under the civil law. It was observed, while under the civil law, the amount of damages incurred is determinative of the extent of liability, in criminal law it is not the amount of damages but the amount and degree of negligence that is determinative of the liability. The essential ingredients of the mens rea also could not be excluded from consideration when the charge before a criminal court consists of criminal negligence. The Supreme Court held that the moral culpability of recklessness in a criminal prosecution resides in the proximity of the reckless state of mind to the state of mind present when there is an intention to cause harm. Thus, it was concluded, to hold existence of criminal rashness or criminal negligence, it would 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 decree that the injury was most likely imminent.

17. As to the negligence by professionals, the Supreme Court held that a professional may be held liable for negligence on one of 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 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.

18. The Supreme Court also took note of the law regarding general exceptions as would be applicable to medical practitioners in Jacob Mathew Vs. State of Punjab & Anr. (supra) and thereafter concluded as below:

"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."

19. It is, thus, seen that in the case of complaint alleging medical negligence, the Supreme Court has laid down the law providing for the manner in which the preliminary enquiry may be made by the Magistrate or Investigating Officer before he may proceed to issue process against the medical practitioner on a charge of medical negligence. Such directions appear to have been made plainly in view of the earlier observations made by the Supreme Court as to the difference between criminal negligence and civil negligence. A harder test having been laid down to be satisfied in the case of criminal negligence, directions were issued to the Medical Council of India to itself lay down the standards to be applied in all such cases. Till such directions are issued, certain interim arrangements had been provided whereby, on a complaint, it has been made mandatory that a prima facie evidence be placed before the Magistrate as prescribed by the Supreme Court being a credible opinion given by another competent doctor. Such evidence would necessarily have to arise in the shape of statement recorded under Section 202 Cr.P.C., as there is no other mode permissible.

20. Admittedly, in the present case, the applicant is possessed of requisite skills to perform the surgery. Also, no guidelines have yet been framed by the Medical Council of India. No statement of any competent doctor has been recorded under Section 202 Cr.P.C. The statements that have been recorded are only of the relatives of the deceased, who had no expertise in this matter. The mandatory principle laid down by the Supreme Court is that no such private complaint be entertained unless expert evidence of the nature described has come on record. It has not been complied. Thus, the applicant is right in contending that the learned court below has erred in rejecting the discharge application.

21. In view of the clear principle laid down by the Supreme Court in Jacob Mathew (supra) that a private complaint for medical negligence may not be entertained in absence of prima facie evidence in the form of credible opinion by another competent doctor, it is difficult to allow the prosecution to proceed any further. Though this Court had upheld the summoning order despite absence of such evidence, however, it would not mean that the principle laid down by the Supreme Court could be ignored or may not be considered while deciding the discharge application. The stage of discharge under Section 245(2) Cr.P.C. being to test whether the complaint is groundless, the learned Magistrate had to ensure compliance of law laid down by the Supreme Court at this stage as well. Thus, he could only have allowed the opposite party no.2 one opportunity to bring on record such evidence. Unless such procedure was adopted, it would result in an anomalous situation where the binding law laid down by the Supreme Court in the case of Jacob Mathew (supra) would remain to be applied on a mere technicality - of the summoning order having been upheld by this Court. Such a situation cannot be allowed to exist.

22. As to the other submissions advanced by learned Senior Counsel of the applicant, based on the general exceptions, it has to be noted that it would remain a matter to be considered by the learned Magistrate while considering the discharge application whether any general exception being claimed by the applicant is established on the facts brought before the learned Magistrate. Though, in light of law laid down by the Supreme Court in the case of Vadilal Panchal (supra) in principle, it is open to the Magistrate to examine whether the exceptions would apply, however, no observation may be made at this stage as to whether such exception was/were available in the facts of the case as that would remain in the realm of the learned Magistrate to consider, in the entirety of facts and circumstances of the case, in light of the material brought before him.

23. In view of the above, the present application is allowed. The order dated 27.03.2017 passed by the Additional Sessions Judge, Court No.14, Varanasi in Criminal Revision No. 305 of 2015 is set aside and the matter is remitted to the learned court below to pass fresh order in accordance with law.

24. It is clarified that it shall remain open to the applicant to produce such witness in terms of the judgement of the Supreme Court in the case of Jacob Mathew (supra), as the applicant may desire to produce. In the event of such evidence being brought, the learned Magistrate may remain alive to the situation as may arise and, if necessary put such question to that witness as may appear necessary to him to form his satisfaction in terms of test laid down in that judgment. He shall thereafter, proceed to decide afresh the discharge application filed by the applicant, on it's own merits.

Order Date :- 8.5.2019

AHA/Abhilash