Bombay High Court
Harshad S/O Pramod Topre vs Medical Council Of India, New ... on 23 June, 2021
Bench: V.M. Deshpande, Amit B. Borkar
1 15.Cr.W.P.No.404.2021-J
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO.404 OF 2021
Harshad S/o. Pramod Topre,
(Husband of Gayatri Harshad Topre)
Aged about 35 years, Occ.:- Service,
R/o. : Plot No.9, Chaiteshwar Nagar,
Wathoda Layout, Near Savita Bichayat
Centre, Kharbi, Nagpur - 440 034. ....PETITIONER
---- VERSUS ----
1. Medical Council of India, Aiwan-E-
Galib Marg, Kotla Road Opposite to
Mata Sundari College for Women,
Near I.T.O. New Delhi - 110002,
India.
2. Government Medical College &
Hospital, Nagpur, Through its
President/Dean, Hanuman Nagar,
Ajni Rd., Medical Chowk, Ajni,
Nagpur, Maharashtra 440003.
3. Regional Forensic Science
Laboratory, State of Maharashtra,
Dhantoli, Nagpur - 440012.
4. Nagpur Municipal Corporation,
Mahanagar Palika Marg, Civil Lines,
Nagpur, Maharashtra - 440 001.
5. Nandanwan Police Station, E 34,
Nandanwan Colony, Near
Nandanvan, Nagpur, 440 009.
6. Sakkardhara Police Station,
Sakkardara Square, Opposite
Indian Oil Petrol Pump, Sakkardara,
Nagpur.
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2 15.Cr.W.P.No.404.2021-J
7. Dhantoli Police Station, Police
Station Road, Congress Nagar,
Dhantoli, Opposite Hotel Green
City, Nagpur, Maharashtra, 440 012.
8. Abhi-Yog Hospital & Research
Centre, 481, Nehru Nagar,
Sakkardara Police Chowki Road,
Tiranga Chowk, Nagpur 440 009.
9. Health City Children's Hospital, 2nd &
3rd Floor, Vijay Bhavan, Lokmat
Building Square, Dhantoli, Nagpur -
440 012.
10. Seven Star Hospital, 324, 1, Great
Nag Rd., Jagnade Square, Nandanvan,
Nagpur, Maharashtra 440009.
11. Dr. Abhilasha Deshmukh MBBS,
DGO, Obstetrician & Gynaecologist
Laparoscopic and Infertility
Specialist, Reg. No. 2003/03/1034,
Plot No.481, Sakkardara, Police
Station Rd., Tiranga Square, Nagpur,
Maharashtra 440009.
12. Dr. Yogesh Deshmukh, M.B.B.S.,
M.S. (Orthopaedics), Plot No.481,
Sakkardara, Police Station Rd.,
Tiranga Square, Nagpur,
Maharashtra 440009.
13. Dr. Satkar/Kamlakar Pawar
(Anaesthetics), C/o. Abhi-Yog
Hospital & Research Centre, 481,
Nehru Nagar, Sakkardara Police
Chowki Road, Tiranga Chowk,
Nagpur 440 009.
14. Dr. Ashish Aakuj, M.B.B.S. DCH,
FCPS, Akhuj Health City Children
Hospital, 1st Floor, Rajkamal
Complex, Central Park Rd.,
Panchsheel Square, Dhantoli,
Nagpur, Maharashtra 440012.
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3 15.Cr.W.P.No.404.2021-J
15. Dr. Harshal Ingole, Pediatrician,
M.B.B.S. DCP, Plot No.196,
Nandanvan Rd., Shiv Nagar, Old
Nandanvan, Nagpur, Maharashtra
440009, Health City Children
Hospital.
16. Dr. Ashish Kubde (Gynic), Seven
Star Hospital Great Nag Rd., Jagnade,
Square, Nandanvan, Nagpur,
Maharashtra 440009. .... RESPONDENTS.
_________________________________________________________________________________________________________________________________
Ms. Sejal Lakhani h/f. Shri S. P. Bhandarkar, Advocate for the petitioner.
Shri S.S. Doifode, A.P.P. for the respondent Nos.2, 5 to 7/State.
_________________________________________________________________________________________________________________________________
CORAM : V. M. DESHPANDE AND
AMIT B. BORKAR, JJ.
DATE : 23.06.2021.
ORAL JUDGMENT : [PER: AMIT B. BORKAR, J.]
1. By this writ petition under Article 226 and 227 of the
Constitution of India, the petitioner who is husband of deceased and
father of deceased child is seeking a direction to initiate an
independent enquiry by CBI, CID or any specialized Government
Investigation Agency in relation to death of his wife and child
against the hospitals and doctors who were looking after deceased.
The petitioner has also sought permission to constitute committee of
expert doctors to provide expert opinion in relation to discrepancies
and irregularities committed by the respondent Hospitals. The
petitioner has further sought registration of the First Information
Report against the respondents nos. 8 to 16 for gross negligence.
2. The case of the petitioner in short is as under :-
The wife of the petitioner was pregnant and her
medical condition was supervised by the respondent No.8 - Abhi-
Yog Hospital where respondent No.11 - Dr. Abhilasha was attending
her. It is alleged that on 07.07.2020, the respondent No.11 - Dr.
Abhilasha directed wife of the petitioner to report in the hospital at
8.00 p.m. for performing caesarian section. It is alleged that on
07.07.2020 prognosis of the wife of petitioner was prepared as
"Healthy Mother and Baby". The last checkup was done at 11.30
p.m. on 07.07.2020 and till then the wife of the petitioner was
normal. It is alleged that around 3.00 am. on 08.07.2020, labour
pain commenced and wife of the petitioner was in excruciating pain
but no assistance was provided by the staff of respondent No.8 -
Abhi-Yog Hospital and respondent No.11- Dr. Abhilasha was absent.
It is alleged that around 6.00 a.m., respondent No.11 - Dr.
Abhilasha arrived in the hospital and told the relatives of the
petitioner that there will be normal delivery. It is alleged that when
the petitioner went to bring hot water from the house, the condition
of his wife deteriorated, and she turned blue as normal delivery was
unsuccessful. It is alleged that at around 7.30 a.m. the child was
delivered through caesarian procedure and the petitioner was
permitted to see the mother and the baby. The respondent No.15 -
Dr. Harshal Ingole told the petitioner, he was blessed with a male
child but he disclosed that the baby did not cry and that his
condition is critical. It is alleged that the respondent No.8 - Abhi-
Yog Hospital decided to shift baby to respondent No.9 - Health City
Hospital and around 9.00 a.m. respondent No.14- Dr. Ashish Aakuj
told the petitioner that the condition of the child is critical and had
only 1% chance of survival. It is alleged that the petitioner was
told that the condition of his wife was critical and she had only 50%
chance of survival. It is alleged that on 10.30 p.m. on 08.07.2020
the petitioner received a call from respondent No.9 - Health City
Hospital that his child could not survive. It is alleged that in the
death summary report of the child, the sex of child was mentioned
as female when the child was male. It is alleged that on 09.07.2020
the wife of the petitioner died at respondent No.10- Seven Star
Hospital. It is alleged that in the Postmortem report of wife of the
petitioner, it was noted that there were blood clots in her uterus
alongwith decidual remnants. It is alleged that certificate issued by
the Government of Maharashtra showed gender of the child of
petitioner as male. It is stated that the petitioner on 15.07.2020
filed a police complaint against the respondent No. 8 - Abhi-Yog
Hospital with the respondent No.6 - Police Station. It is stated that
the petitioner on 18.07.2020 filed another police complaint against
the respondent No.9- Health City Hospital with the respondent No.7
- Police Station. It is stated that final Postmortem report showed
cause of death as "Postpartum Haemorrhage associated with
Disseminated Intravascular Coagulation" It is alleged that
Disseminated Intravascular Coagulation is a condition in which
small blood clots develop throughout the bloodstream, blocking
small blood vessels. It is stated that the petitioner received
communication from respondent No.6 stating that there was no
substance in the allegations of negligence made by the petitioner.
The petitioner has therefore filed present petition seeking the reliefs
as stated above.
3. We have heard Ms. Sejal Lakhani, learned Advocate for
the petitioner and Shri S.S. Doifode, learned Additional Public
Prosecutor.
4. It is submitted on behalf of the petitioner that there is
gross negligence committed by the respondent Nos.8 to 16. It is
submitted that the allegations in the complaint disclosed cognizable
offence and therefore, it was duty on the part of the respondent
Nos.6 and 7 to register offences against the respondent Nos.8 to 16.
It is submitted that the enquiry report of Expert Committee
submitted to the respondent No.6 - Police Station is not correct.
Learned Advocate for the petitioner invited our attention to the
chart referred in the petition to show that the report of enquiry
committee is incorrect. It is therefore, submitted that the petitioner
is entitled to the reliefs claimed in the petition.
5. The learned Additional Public Prosecutor submitted
that the Assistant Police Inspector of respondent No.6 - Police
Station after receipt of the complaint from petitioner, called upon
Civil Surgeon of the Government Hospital to constitute a committee
of experts and accordingly, committee of those experts was
constituted. He invited our attention to the report which is at page
155 of the petition. He submitted that the committee of experts as
per the judgment of Hon'ble Supreme Court in the case of Jacob
Mathew Vs. State of Punjab And Another reported in (2005) 6
SCC 1 sought opinion of experts committee before registration of
the First Information Report. He submitted that the committee of
experts unanimously stated that the respondent Nos.8 to 16 have
taken due care and caution while performing caesarian section of
the wife of the petitioner. He submitted that the committee of
experts found no negligence on the part of respondent Nos.8 to 16
and therefore, there is no need to grant relief in favour of the
petitioner.
6. We have carefully considered the allegations in the
complaints filed by the petitioner with the respondent Nos.6 and 7 -
Police Station dated 15.07.2020 and 18.07.2020. On careful
consideration of the said complaints, it appears that the petitioner
has alleged that the respondent No.11 - Dr. Abhilasha was not
present in the night when the wife of the petitioner was having
pain. It is further alleged that in the certificate issued by the
Hospital, the child of the petitioner was shown as female when as a
matter of fact the child was male. It is therefore alleged in the said
complaints that the respondent Nos.8, 11 and 15 have failed to
perform their duties and have committed gross negligence due to
which the petitioner lost his wife and new born child. We have
scrutinized complaint dated 18.07.2020 filed with the respondent
No.7- Police Station. The petitioner has made similar allegations
which are made in complaint dated 15.07.2020.
7. At this stage, it would be necessary to note relevant
observations of Hon'ble Supreme Court in the case of Jacob
Mathew. The Hon'ble Supreme Court in paragraph Nos. 48 (5), (6)
and (7) has held as under :
"48. We sum up our conclusions as under :
(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 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. The Hon'ble Supreme Court in paragraph Nos. 50, 51
and 52 has held as under :
"50. As we have noticed hereinabove that the
cases of doctors (surgeons and physicians) being
subjected to criminal prosecution are on an
increase. Sometimes such prosecutions are filed by
private complainants and sometimes by the police
on an FIR being lodged and cognizance taken. The
investigating officer and the private complainant
cannot always be supposed to have knowledge of
medical science so as to determine whether the act
of the accused medical professional amounts to a
rash or negligent act within the domain of criminal
law under Section 304-A of IPC. The criminal
process once initiated subjects the medical
professional to serious embarrassment and
sometimes harassment. He has to seek bail to
escape arrest, which may or may not be granted to
him. At the end he may be exonerated by acquittal
or discharge but the loss which he has suffered in
his reputation cannot be compensated by any
standards.
51. We may not be understood as holding that
doctors can never be prosecuted for an offence of
which rashness or negligence is an essential
ingredient. All that we are doing is to emphasise the
need for care and caution in the interest of society;
for, the service which the medical profession
renders to human beings is probably the noblest of
all, and hence there is a need for protecting doctors
from frivolous or unjust prosecutions. Many a
complainant prefers recourse to criminal process as
a tool for pressurising the medical professional for
extracting uncalled for or unjust compensation.
Such malicious proceedings have to be guarded
against.
52. 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 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."
9. It appears that in pursuance of the observations of the
Hon'ble Supreme Court, the Assistant Police Inspector of respondent
No.6 - Police Station had called upon Civil Surgeon, Government
Hospital, Nagpur to constitute a committee of experts to look into
the allegations of negligence made by the petitioner. The expert
committee of six members in its detailed report has categorically
opined that they have not found any negligence in the treatment
provided by the respondent - Hospitals while carrying out medical
treatment on the wife of the petitioner. It is further stated by the
committee of experts that on the basis of documents available with
them, they found all the facilities available with the respondent
No.8 - Abhi-Yog Hospital for the purpose of carrying out emergency
and elective caesarian section. The Committee also found that the
injection Bupivaccaine 0.5% (heavy) 2cc has been administered
properly. The Committee opined that the expert pediatrician found
proper medicines were administered to new born child and he could
not find negligence in the treatment. On careful scrutiny of the
committee of experts constituted by Civil Surgeon, we are of the
opinion that the respondent Nos.6 and 7 were justified in not
registering the First Information Report against respondent Nos.8
to 16.
10. The Hon'ble Supreme Court in the case of Jacob
Mathew (cited supra) has observed that though the doctors are not
immune from legal proceedings in the event of their negligence in
discharging their professional duties, in the interest of the society, it
is necessary to protect doctors from frivolous and unjust
prosecution. It is further observed that 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. It is observed that 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 the Bolam test to the facts collected in the
investigation.
11. In the facts and circumstances of the present case, the
petitioner has failed to demonstrate that the opinion of the
committee of experts constituted by the Civil Surgeon, Nagpur
suffers from any illegality or in any manner not according to law. In
absence of concrete material to discard opinion of experts in the
field, the prayer sought in the petition cannot be granted.
12. We are satisfied that the opinion of body of experts
relied upon by the investigating agency is legal and proper.
13. There is no merit in the petition. The petition is
dismissed.
JUDGE JUDGE
RGurnule
