Dr. Mohammed Amin Afzal S/O. ... vs State Of Maharashtra Thr. Police ...
2021 Latest Caselaw 599 Bom

                                                    1             J-APL-164-18 (1).odt

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     NAGPUR BENCH, NAGPUR

             CRIMINAL APPLICATION (APL) NO.164 OF 2018

 1. Dr. Mohammed Amin Afzal
    s/o Mohammed Yasin,
    Aged - 35 years, Occpn. Doctor.

 2. Dr. Sayyed Tausin w/o Mohd.
    Amin Afzal,
    Aged - 33 years,
    Occpn. Doctor,

      Both R/o Mominpura, Balapur,
      Tq. Balapur, Distt. Akola.                                 ... APPLICANTS

      // V E R S U S //

 1. State of Maharashtra,
    Through Police Station Officer,
    Police Station, Balapur,
    Distt. Akola.

 2. Dr. Digambar Bulbule,
      Medical Officer,
      Public Health Centre,
      Balapur, Tq. Balapur,
      Distt. Akola.                                           ... RESPONDENTS
 -------------------------------------------------------------------------------------------
 Shri S. V. Sirpurkar, Advocate for applicants.
 Shri S. D. Sirpurkar, Additional Public Prosecutor for Non-
 applicant No.1 - State.
 -------------------------------------------------------------------------------------------
                                CORAM: Z.A. HAQ & AMIT B. BORKAR, JJ.

DATED : 12/01/2021.

ORAL JUDGMENT : (PER AMIT B. BORKAR, J.)

1. Heard.

2. Rule. Rule is made returnable forthwith.

2 J-APL-164-18 (1).odt

3. This is an application filed under Section 482 of the

Code of Criminal Procedure challenging First Information Report

No.54/2018 dated 5.2.2018 registered with the non-applicant

no.1 - Police Station, for offences punishable under Section 304-A

of the Indian Penal Code read with Sections 3 and 6 of the

Bombay Nursing Home Registration Act read with Section 33 of

the Maharashtra Practitioners Act, 1961.

4. The First Information Report came to be registered

against the applicants with the accusation that the applicants

without permission from the Competent Authority carried out

pregnancy of the Victim and due to negligence of the applicants,

the victim died. It is alleged that the applicants were directed not

to admit patient but, still the applicants carried out pregnancy of

the Victim. The non-applicant no.2, therefore, filed complaint with

the non-applicant no.1. The impugned F.I.R. was, therefore,

registered at the instance of the non-applicant no.2.

5. The applicants have, therefore, approached this

Court by way of the present application and this Court on

19.4.2018 issued notice to the non-applicant no.2. This Court, by

3 J-APL-164-18 (1).odt

way of an interim relief, directed that Charge-sheet should not be

filed against the applicants.

6. The non-applicant no.1 filed reply and stated that

the Committee headed by the Collector, the Civil Surgeon and

other Officers conducted inspection and verification of the hospital

of the applicants and found deficiencies in the hospital of the

applicants. Therefore, the applicants were restrained from

admitting patients. It is submitted that in spite of the said order,

the applicants admitted patients i.e. Victim - Shaba Firdoz on

6.8.2017 and after the delivery, she suffered continuous bleeding

and due to lack of proper facility and equipment, the life of the

Victim could not be saved.

7. The applicants filed their rejoinder and stated that

the applicants were granted permission to run hospital on

21.8.2017. It is also stated that the applicants have not operated

deceased Victim in their hospital, as their hospital remains closed

on Sunday. It is further stated that their license came to be

cancelled vide letter dated 25.10.2017, which was not cancelled

due to alleged negligence. It is further stated that as per the

Government Resolution dated 26.3.2020, the First Information

4 J-APL-164-18 (1).odt

Report cannot be filed without getting permission from the said

Committee.

8. We have carefully considered the contents of the

First Information Report and reply filed by the non-applicant no.1.

The offence registered against the applicants is under Section 304-

A of Indian Penal Code. From the contents of the First Information

Report, there are no specific allegation regarding alleged gross

negligence committed by the applicants. The allegation in the First

Information Report is to the effect that the death of the deceased

was caused due to lack of facilities in the hospital. The Supreme

Court in the case of Jacob Mathew Vs. State of Punjab reported

in (2005) 6 SCC 1. In paragraph no.48 (6) and (7) has held as

under:

"(6) The word 'gross' has not been used in Section 304-A of 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 of the 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

5 J-APL-164-18 (1).odt

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".

9. There are no allegations of gross negligence in the First

Information Report and also there is no allegation that no medical

professional in his ordinary senses and prudence would have done

or failed to do the acts allegedly not done by the applicants.

10. The next offence alleged against the applicants is under

Section 33 of the Maharashtra Medical Practitioners Act, 1961 (for

short "Act of 1961"). We have considered Section 33 of the Act of

1961. The applicants have produced alongwith the application

copies of their Registration Certificate with the Maharashtra

Council of Indian Medicine. Therefore, the ingredients of Section

33 of the Act of 1961 are not fulfilled.

11. Another offence alleged in the First Information Report

is non-compliance of Section 3 of the Maharashtra Nursing Home

Registration Act. The non-compliance of Section 3 of the said Act

is made punishable under Section 6 of the said Act. The

applicants in their rejoinder have produced on record permission

6 J-APL-164-18 (1).odt

granted by the District Civil Surgeon, Akola, subject to the

conditions stated in the said order. Therefore, the ingredients of

Section 6 of the said Act are not fulfilled.

12. Taking overall view of the matter, we are satisfied that

the continuation of proceedings against the applicants would

amount to abuse of process of the Court. We are satisfied that

ingredients of the offences alleged against the applicants are not

fulfilled. Hence, the First Information Report registered against

the applicants deserves to be quashed and set aside.

13. We, therefore, pass the following order:

First Information Report No.54/2018 dated 5.2.2018

registered with the non-applicant no.1 - Police Station for offences

punishable under Section 304-A of the Indian Penal Code read

with Sections 3 and 6 of the Bombay Nursing Home Registration

Act read with Section 33 of the Maharashtra Medical Practitioners

Act, 1961, is quashed and set aside.

Rule is made absolute in the aforesaid terms.

             JUDGE                                               JUDGE

 Ambulkar