Bombay High Court
Dr. Abhishek S/O Vasantrao ... vs The State Of Maharashtra, Thr. ... on 6 July, 2017
Bench: Prasanna B. Varale
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THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION (APL) NO. 503 OF 2016
Dr. Pradeep s/o Sadashiv Wankhede,
Aged about 33 years,
Occ :- Medical Practitioner,
R/o : C/o: Milind Ramteke, Plot No. 21,
Shatabadi Nagar, Rameshwari Ring Road,
Nagpur. ... Applicant
VERSUS
(1) The State of Maharashtra,
Through P.S.O.,
P.S. Lakadganj,
District - Nagpur.
(2) Boni s/o Uttam Walde,
Aged about 30 years,
R/o : Sugat Nagar, Quarter No. 26,
L.I.G. Nari Road, Nagpur. ... Respondents
with
CRIMINAL APPLICATION (APL) NO. 505 OF 2016
Dr. Abhishek s/o Vasantrao Sondawale,
Aged about 35 years,
Occ :- Medical Practitioner,
R/o : 177, Vishram Nagar, Near Power Grid,
Post Uppalwadi, Nagpur. ... Applicant
VERSUS
(1) The State of Maharashtra,
Through P.S.O.,
P.S. Lakadganj,
District - Nagpur.
::: Uploaded on - 17/07/2017 ::: Downloaded on - 28/08/2017 09:13:26 :::
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(2) Boni s/o Uttam Walde,
Aged about 30 years,
R/o : Sugat Nagar, Quarter No. 26,
L.I.G. Nari Road, Nagpur. ... Respondents
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Shri R. M. Daga and Shri Rohan Malviya, Advocates for the applicants in
both criminal applications
Shri J. Y. Ghurde, A.P.P. for the State/respondent no. 1
Shri J. P. Junghare, Advocate for the respondent no. 2
-----------------------------------------------------------------------------------------------------------------------
CORAM : PRASANNA B. VARALE and
M. G. GIRATKAR, JJ.
DATE : 06/07/2017.
Common Judgment (Per : M.G. Giratkar, J)
Heard Shri Daga, learned counsel for the applicants,
Shri Junghare, learned counsel for the respondent no. 2 and
Shri Ghurde, learned Additional Public Prosecutor for the
State/respondent no. 1.
2. Rule. Rule made returnable forthwith.
3. Both the applications are filed by the Doctors for quashing
of First Information Report registered vide Crime No. 160/2016 by
Police Station, Lakadganj, Nagpur.
4. Respondent no. 2 lodged report in the Police Station,
Lakadganj on 16-5-2016. It is alleged in the report that his wife
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delivered son on 5-12-2015. On 30-12-2015, complainant admitted
new born child in the hospital of Dr. Bagade. Health of child was
deteriorated, therefore, on the advice of Dr. Bagade, child was admitted
in the hospital of Dr. Jaiswal on 1-1-2016. Said child was indoor
patient from 1-1-2016 to 7-1-2016. There was improvement in the
health of child, therefore, Dr. Jaiswal referred the said child to the
hospital of Dr. Bagade. Dr. Bagade admitted the said child and was
under his treatment till 10-1-2016. Dr. Bagade discharged the said child
from his hospital on 10-1-2016. Complainant taken his child to his
house.
5. In the night of 11-1-2016, complainant noticed that health
of his child was deteriorated, therefore, in the morning at about 5.30
a.m. on 12-1-2016, he had taken child to the hospital of Dr. Jaiswal. On
duty doctor at hospital of Dr. Jaiswal, namely, Shri Prafulla Khobragade
and Wankhede examined the child and gave prescription of medicine.
They advised to take the child to house. At about 9.10 a.m., health of
child was in a serious condition, therefore, complainant taken his child
to the Child Specialist Dr. Abhishek Sondawale. Dr. Sondawale
examined the child and told the complainant that child was in serious
condition, therefore, advised the complainant to take the child to the
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hospital of Dr. Jaiswal.
6. The complainant taken his child in the hospital of Dr.
Jaiswal. On duty Doctor Bhoot examined the child and declared him
dead. Complainant lodged the report on 16-5-2016 alleging that Dr.
Wankhede who examined the child in the hospital of Dr. Jaiswal not
admitted him and Dr. Sondawale not given medical treatment and,
therefore, due to their negligence, his child died.
7. Before registration of crime, police obtained the report
of Medical Board. Medical Board came to the conclusion that
Dr. Wankhede not admitted the child in the hospital of Dr. Jaiswal,
Dr. Sondawale not given treatment and, therefore, they have committed
the mistake.
8. On the report of the complainant, crime was registered
against Dr. Sondawale and Dr. Wankhede. In both the applications,
they have challenged the registration of crime against them by Police
Station, Lakadganj. It is contended by both the Doctors that they had
not given any treatment to the child. As per the contention of Dr.
Wankhede, he advised complainant to admit the child in the hospital of
Dr. Jaiswal but instead of admitting the child, the complainant had
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taken back child to his house. It was specifically written in the
prescription given to the complainant. He had not given any medical
treatment and, therefore, he is not negligent.
9. Dr. Sondawale has submitted that he is running his child
clinic at his house. He used to give medical treatment on O.P.D. basis.
There is no any emergency facility in his hospital. When he examined
the child, his condition was serious. Child was getting the treatment of
Dr. Jaiswal, therefore, he referred the child to the hospital of Dr.
Jaiswal. It is contended by Dr. Sondawale that he had not given
medical treatment, therefore, he is not negligent while discharging his
duty as a Doctor.
10. Shri Daga, learned counsel for the applicants submitted that
both the Doctors are wrongly prosecuted by the complainant. There
was no any intention on the part of both the Doctors. While prosecuting
for the offence, there should be mens rea. Learned counsel Shri Daga
has submitted that both the Doctors acted in good faith. Dr. Sondawale
not given any medical treatment. He only referred the child to the
hospital of Dr. Jaiswal because the said child was under the treatment of
Dr. Jaiswal and Dr. Bagade. Therefore, it cannot be said that Dr.
Sondawale was negligent while discharging his duty as a Doctor.
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11. Shri Daga, learned counsel has submitted that as per the
report, on duty Doctor Shri Wankhede and Assistant Doctor of Dr.
Jaiswal, namely, Shri Khobragade both examined the child. Dr.
Khobragade is not prosecuted. Learned counsel Shri Daga has
submitted that Dr. Wankhede not given any medical treatment. As per
the report, prescription was given by Dr. Wankhede. It is not submitted
by the complainant along with the report. Shri Daga, learned counsel
has submitted that Dr. Wankhede advised the complainant to admit his
child but instead of admitting, he had taken back his child. Therefore,
it cannot be said that Dr. Wankhede was negligent while discharging
his duty as a Doctor.
12. Learned counsel Shri Daga submitted that Medical Board
without calling both the Doctors submitted its report to the police. In
the report, it is stated that Dr. Wankhede not admitted child in the
hospital, therefore, he has committed mistake. Dr. Sondawale not given
treatment, therefore, he has committed mistake.
13. Learned counsel Shri Daga has submitted that to prosecute
a Doctor for the offence punishable under Section 304-A of the Indian
Penal Code, it is necessary to show that there was gross negligence on
the part of Doctor. In support of his submissions, he relied on the
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decision of Dr. Sou Jayshree Ujwal Ingole Vs. State of Maharashtra
and Anr. reported in 2017 ALL MR (Cri) 2652 (S.C.). At last, learned
counsel Shri Daga has submitted that Dr. Sondawale and Dr. Wankhede
are falsely implicated in the crime by the complainant, therefore, prayed
to quash and set aside the impugned order.
14. Shri Ghurde, learned Additional Public Prosecutor has
strongly supported the registration of crime against both the Doctors.
He has submitted that after receipt of report from Medical Board, police
has registered crime. Both the Doctors were negligent while discharging
their duties and, therefore, prima facie offence punishable under Section
304-A of the Indian Penal Code is attracted.
15. Shri Junghare, learned counsel for the respondent no. 2 has
supported the action of the respondent no. 1 and submitted that
because of the negligence on the part of Doctors, complainant lost his
child, therefore, they are rightly prosecuted by the complainant by
lodging report. At last, he submitted that the applications are devoid of
merits, hence, liable to be dismissed.
16. There is no dispute that Dr. Sondawale is working as a
Child Specialist. Dr. Wankhede was working in the hospital of
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Dr. Jaiswal. As per the contents of the report, child of complainant was
admitted in the hospital of Dr. Jaiswal on 1-1-2016. Dr. Jaiswal gave
medical treatment till 7-1-2016. Complainant admitted his child in the
hospital of Dr. Bagade from 7-1-2016 to 10-1-2016. Dr. Bagade
discharged the child from his hospital on 10-1-2016. As per the report,
in the night of 11-1-2016, health of child was deteriorated. In the
morning of 12-1-2016 at about 5.30 Hrs., he had taken his child in the
hospital of Dr. Jaiswal. On duty Doctor Shri Wankhede and Assistant
Doctor Shri Prafulla Khobragade examined his child and given
prescription of some medicine. He advised him to take his child back.
As per the allegation in the report, Dr. Wankhede and Dr. Khobragade
not admitted the child in the hospital of Dr. Jaiswal. It is pertinent
to note that report itself shows that prescription was given by
Dr. Khobragade and Dr. Wankhede after examination of the child but
that prescription was not submitted with the report. Admittedly,
Dr. Wankhede not given any medical treatment to the child of
complainant.
17. As per report of Medical Board, medical treatment was
given in right direction. Medical Board has only observed that Dr.
Wankhede not admitted child in the hospital, therefore, he has
9 jg.apl.503&505.16.odt
committed mistake. Report does not show that Dr. Wankhede was
negligent while discharging his duty as a Doctor. This report also does
not show that Dr. Wankhede had given any wrong treatment.
Therefore, Dr. Wankhede cannot be held liable. It is pertinent to note
that complainant has stated in his report that Dr. Khobragade and Dr.
Wankhede both examined his child in the hospital of Dr. Jaiswal but he
prayed action against only Dr. Wankhede. Why complainant not made
any allegation against Dr. Khobragade is unexplained.
18. Dr. Wankhede not given any medical treatment. As per the
contention of Dr. Wankhede, he advised the complainant to admit the
child and it was specifically written in the prescription. But complainant
not produced the said prescription with the report. Report of Medical
Board also does not show any such prescription was brought before it.
Therefore, the contention of the complainant that Dr. Wankhede not
admitted his child and instead he directed him to take back is without
any substance.
19. In the case of Dr. Sondawale, he had only advised the
complainant to take his child in the hospital of Dr. Jaiswal. For the first
time, complainant had taken his child at about 9.10 a.m. on 12-1-2016
in the hospital of Dr. Sondawale. Dr. Sondawale examined the child
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and found that health was serious and, therefore, he advised the
complainant to take his child in the hospital of Dr. Jaiswal. Act of
Dr. Sondawale cannot be said to be negligent act because admittedly,
said child was getting treatment of Dr. Jaiswal and Dr. Bagade.
Therefore, looking to the condition, he advised the complainant to take
his child to hospital of Dr. Jaiswal because Dr. Jaiswal and Dr. Bagade
were knowing about the line of treatment given to the child.
Admittedly, Dr. Sondawale not given any medical treatment, hence,
Dr. Sondawale cannot be held liable for any medical negligence on his
part.
20. In the above cited decision in the case of Dr. Sou Jayshree
Ujwal Ingole Vs. State of Maharashtra and Anr., Hon'ble Apex Court
has held that "the act of Doctor may be an error in judgment but is
definitely not a rash and negligent act contemplated under Section
304-A IPC." In the above cited judgment, Apex Court further held that
mere inaction of Doctor leaving deceased at night and not waiting for
Physician to turn up does not amount to rash and negligent act on her
part, therefore, appellant not guilty of criminal negligence.
21. In the case of Jacob Mathew Vs. State of Punjab & Anr.
reported in 2005 ALL MR (Cri) 2567 (S.C.), Hon'ble Apex Court has
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observed as under :
27. No sensible professional would intentionally commit an
act or omission which would result in loss or injury to the
patient as the professional reputation of the person is at stake.
A single failure may cost him dear in his career. Even in civil
jurisdiction, the rule of res ipsa loquitur is not of universal
application and has to be applied with extreme care and
caution to the cases of professional negligence and in
particular that of the doctors. Else it would be counter-
productive. Simply because a patient has not favourably
responded to a treatment given by a physician or a surgery
has failed, the doctor cannot be held liable per se by applying
the doctrine of res ipsa loquitur.
49. 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 available or simply because a
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more skilled doctor would not have chosen to follow or 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's case (1957) 1 WLR 582, 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
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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'.
(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.
22. In both the criminal applications, both doctors viz. Dr.
Sondawale and Dr. Wankhede were not given any opportunity of
hearing by the Medical Board. Medical Board in its report has submitted
that Dr. Wankhede committed mistake by not admitting child in the
hospital. Medical Board further observed that Dr. Sondawale not given
medical treatment and, therefore, he has committed mistake.
23. Report of Medical Board does not show that Dr. Sondawale
or Dr. Wankhede have committed any medical negligence. Negligence
14 jg.apl.503&505.16.odt
and mistake both are different things. Mistake is defined in Oxford
English Dictionary as "something which is not correct ....". In the
present case, complainant had taken child for the first time to
Dr. Sondawale. He examined child and found that child was in critical
condition, therefore, advised the complainant to take the child in the
hospital of Dr. Jaiswal because the child was under medical treatment
of Dr. Jaiswal and Dr. Bagade. Therefore, it cannot be said that he
has committed any mistake. Moreover, report does not show that
Dr. Sondawale has committed any negligence. Word 'negligence' is
interpreted by the Hon'ble Apex Court in the case of Jacob Mathew
Vs. State of Punjab & Anr. (cited supra).
24. As per the contention of Dr. Wankhede, he advised the
complainant to admit the child in the hospital and accordingly he
written the same on the prescription, but complainant did not admit his
child. As per the report, medical prescription was given by Dr.
Wankhede but it is not produced by the complainant. Therefore, there
is no substance in the contention of complainant that Dr. Wankhede not
admitted his child. Therefore, it cannot be said that he has committed
any mistake.
15 jg.apl.503&505.16.odt
25. For prosecuting Doctors, as per the judgment of Apex
Court, there should be a gross negligence on the part of Doctor while
giving medical treatment. In the present case, complainant not shown
any gross negligence on the part of Dr. Sondawale and Dr. Wankhede.
26. Prima facie, it is clear that Dr. Wankhede and
Dr. Sondawale both were not negligent while discharging their duty
as Medical PractitionerS. Hence, there is no any ingredients of offence
punishable under Section 304-A of Indian Penal Code. Therefore,
we are of the opinion that First Information Report registered vide
Crime No. 160/2016 by Police Station, Lakadganj, Nagpur against both
the applicants, namely, Dr. Pradeep Wankhede and Dr. Abhishek
Sondawale is liable to be quashed and set aside. Accordingly, we
allow both the criminal application viz. Criminal Application Nos. 503
and 505 of 2016 in terms of prayer clause (a) and quash and set aside
the First Information Report registered vide Crime No. 160/2016 by
Police Station, Lakadganj, Nagpur.
JUDGE JUDGE
wasnik
