Bombay High Court
Dr. Bhagirath Bansilal Jaju vs The State Of Maharashtra, Through ... on 8 March, 2021
Bench: Z.A. Haq, Amit B. Borkar
APL197.16.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL) NO. 197 OF 2016
Dr. Bhagirath Bansilal Jaju,
Aged about 65 years, Occ. Medical
Practitioner, R/o. Near State Bank
ATM, Akola Road, Malegaon, tah.
Malegaon, Distt. Washim-444503. APPLICANT
----VERSUS---
1. The State of Maharashtra,
Through Malegaon Police Station,
District Washim.
2. Vinod s/o. Vitthalrao Chavan,
Aged about 38 years, Occ. : Business,
R/o. Near Purohit Petrol Pump,
Tah. Malegaon, District - Wardha.
3. Public Health Department of
State of Maharashtra through its
Secretary, Mantralaya, Mumbai -32.
4. Civil Surgeon, Civil Hospital,
Washim. NON-APPLICANTS.
Shri Ashish Chavan, Advocate h/f Shri Ashish P. Chaware Advocate
for the applicants.
Ms. Mayuri Deshmukh, APP for the non-applicant no.1.
Shri O.Y. Kashid, Advocate for non-applicant no.2.
CORAM : Z. A. HAQ AND
AMIT B. BORKAR, JJ.
DATED : 08.03.2021
ORAL JUDGMENT (PER : AMIT B. BORKAR, J.) :
1. By this application under Section 482 of the Code of
Criminal Procedure, 1973, the applicant has challenged
Charge-sheet, arising out of the First Information Report
No.134/2014 registered with the non-applicant no.1 - Police Station
for offences punishable under Sections 304-A of the Indian Penal
Code and proceedings bearing SCC No.694 of 2015 pending before
the Judicial Magistrate First Class, Court Room no.1, Malegaon.
2. The First Information Report came to be registered
against the applicant with the accusations that due to negligence of
the applicant, deceased Kavita Pramod Chavan died while she was
operated for curating and removing incomplete abortion. It is
alleged that during surgical procedure, proper care was not taken by
the non-applicant no.2 and due to excessive bleeding the victim
died on 26.7.2014.
3. The non-applicant no.1 carried out investigation and
the charge-sheet was filed before the Judicial Magistrate First Class,
Court room no.1, Malegaon. During the investigation, the
Investigating Officer contacted Civil Surgeon, Washim Dr. Surekha
Mendhe, who had given three different reports to the Investigating
Officer.
4. The applicant has, therefore, challenged filing of the
Charge-sheet by way of filing present application. This Court on
13.04.2016 issued notice to the non-applicants and on 16.11.2017,
this Court issued Rule and granted interim relief in terms of prayer
clause (C).
5. The non-applicant no.1, in pursuance of the notice of
this Court, has filed reply and stated that the Investigating Officer
called for report from Dr. Mendhe, Civil Surgeon, Washim who
stated that the victim was having incomplete abortion and
bleeding. It is stated in her report that curating was done in
emergency to save life of victim. It is stated that according to Dr.
Mendhe, the applicant has not neglected the patient. It is further
stated that the cause of death was due to hemorrhagic shock.
6. The applicant has filed rejoinder and affidavit and
stated that the applicant is registered under the Medical
Termination of Pregnancy Act. It is stated that the cause of death is
in consonance with the condition in which the victim was admitted
in her hospital. It is stated that it is not the case of gross negligence,
as per the judgment in the case of Jacob Mathew Vs. State of Punjab
and another, reported in 2005 ALL MR (Criminal) 2567.
7. The non-applicant no.4, who is Civil Surgeon of Washim
hospital has filed an affidavit. It is stated that Inspection Committee
of five Medical Experts have opined that the treatment given to the
victim by the applicant was adequate.
8. We have carefully considered the allegations in the First
Information Report and the affidavit filed by the non-applicant no.1
- Civil Surgeon. The opinion of the Enquiry Committee is that the
applicant has given proper treatment to the Victim. It is pertinent to
note that the Committee of the Medical Experts had not opined that
the applicant has committed gross negligence in providing
treatment to the victim.
9. To attract the criminal liability, it was necessary on the
part of the prosecution to bring on record the material of such
nature which proves gross negligence on the part of the applicant.
The Hon'ble Supreme Court in the case of Jacob Mathew (supra)
has categorically held that mere error of judgment is not sufficient
to attract criminal liability. The Hon'ble Supreme Court in the case
of Jacob Mathew in paragraph 49 held as under:
"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 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 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 practises. 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 W.L.R. 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 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 304A 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 304A 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 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".
10. In our opinion, in the facts of the present case, the
conclusions in Clauses 94 (6) and 94(7) in the judgment in the case
of Jacob Mathew (supra) are squarely attracted. There is no
allegation against the applicant that the applicant has done
something, which the medical professional in the ordinary senses
has not done and or failed to do. We are satisfied that the
ingredients of offence punishable under Section 304-A of the Indian
Penal Code are not fulfilled in the present case.
11. Therefore, in view of the judgment of the Apex Court in
the case of Jacob Mathew (supra), we are of the opinion that the
applicant has not committed gross negligence while providing
treatment to the victim. Therefore, we find that the continuation of
the proceedings against the applicant would amount to abuse of
process Court. Hence, we pass the following order:
ORDER
Charge-sheet in pursuance of First Information Report
No.134/2014 and consequent proceedings bearing SCC
No.694/2015 pending before the Judicial Magistrate First Class,
Court Room no.1, Malegaon against the applicant is quashed and
set aside.
Rule is made absolute in the above terms.
JUDGE JUDGE
Ambulkar
