Allahabad High Court
Raj Kumar Pal vs State Of U.P. Thru. Prin. Secy. ... on 26 May, 2023
Bench: Shree Prakash Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:37969
Court No. - 28
Case :- CRIMINAL APPEAL No. - 1055 of 2023
Appellant :- Raj Kumar Pal
Respondent :- State Of U.P. Thru. Prin. Secy. Home, Lko. And Another
Counsel for Appellant :- Vimal Shukla,Kaushal Kishore
Counsel for Respondent :- G.A.,Narendra Bahadur Singh
Hon'ble Shree Prakash Singh,J.
1. Counter affidavit filed today by the State is taken on record.
2. Heard Sri Vimal Shukla, learned counsel for the appellant, Sri Narendra Bahadur Singh, counsel for the opposite party no. 2, Sri Sushil Pandey, learned counsel for the State and perused the material placed on record.
3. Instant appeal has been filed with prayer to quashed/ Set aside the impugned chargesheet bearing No. 1/2022 dated 20-11-2022 and the summoning order dated 05-01-2023 u/s 304, 420, 201, 379,120B IPC. and 3(2) (V) SC/ST Act arising out from FIR No. 370/2022 P.S. Reosa District-Sitapur as well as case crime No. 370/2022 (State Vs. Ram Prasad Jaiswal).
4. Learned counsel for the appellant submits that he is innocent and has falsely been implicated in the instant matter. He next added that the present appellant is said to be posted as O.T. Technician at the time of the alleged incident. He added that the present appellant is trained as O.T. Technician and he usually remain available on call by hospitals. He added that so far as the present incident is concerned, he has no involvement at all and he did only his duty as O.T. Technician and the offence if any, committed would be on the part of the Doctors.
He added that the case of the present appellant is covered with the ratio of the judgment reported in (2005) 6 Supreme Court Cases 1 Jacob Mathew versus State of Punjab and another and has referred paragraph 48 of the aforesaid judgment.
5. Paragraph 48 of the aforesaid judgment is extracted as under:-
48. We sum up our conclusions as under:
(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: "duty", "breach" and "resulting damage".
(2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.
(3) A professional may be held liable for negligence on one of the 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. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
(4) The test for determining medical negligence as laid down in Bolam case,WLR at p. 586 holds good in its applicability in India.
(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 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".
(7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.
(8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law, specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.
6. Referring the aforesaid, he submits that the act of the present appellant is protected with the ratio of judgment aforesaid.
7. Thus, submissions is that the criminal proceeding against the present appellant may be quashed.
8. Learned counsel for the State and counsel for the opposite party no. 2 have vehemently opposed the submission aforesaid and submits that the factual issue is being raised by the present appellant, which can be decided by the trial court itself. They further added that this should be amount to mini trial and thus, the jurisdiction under 482 cannot be invoked at this Stage.
9. After the aforesaid argument learned counsel for the appellant submits that interest of justice would be sub-served if the present appellant is permitted to apply the discharge application before the trial court concerned and the same may be decided within stipulated period of time as may be fixed by this Court.
10. Learned counsel for the opposite party as well as the State has no objection to the submission aforesaid.
11. Considering, submissions of learned counsels of the parties, the appellant is permitted to move discharge application before the trial court within a period of fifteen days and if such an application is filed the same shall be considered and decided in light of the law laid down by the Apex Court reported in (2005) 6 Supreme Court Cases 1- Jacob Mathew versus State of Punjab and another (Supra) and further, the guidelines and instructions issued vide notification dated 26.09.2013 within further period of forty-five days from the date of this order.
12. With the aforesaid observations and directions, instant appeal is hereby disposed off.
Order Date :- 26.5.2023
Mayank
