Dr. Bhushan S/O. Brijmohan Katta vs State Of Maharashtra Thr Police ...
2021 Latest Caselaw 4270 Bom

                                                                      Cri.wp225 of 2018.odt
                                              1

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

                   CRIMINAL WRIT PETITION NO.225 of 2018

PETITIONER :              Dr. Bhushan s/o Brijmohan Katta,
                          aged about 30 years, Occ : Resident Doctor,
                          R/o Asaid Colony, Amravati,
                          Tq. and District : Armavati.

                                  ...VERSUS....

RESPONDENTS :                 1. State of Maharashtra,
                                 through its Police Station Officer,
                                 Gadge Nagar Police Station,
                                 District : Amravati.

                              2. Dr. Arun s/o Ambadas Raut,
                                 aged 59 years, Occ : Medical Officer,
                                 [Civil Surgeon], Government Hospital
                                 Amravati, r/o Amravati,
                                 Tq. and District : Amravati.

-----------------------------------------------------------------------------------------------
     Mr. Anil Mardikar, Sr. Advocate with Shri S.G. Joshi, Advocate for petitioner
     Mr. S.M. Ghodeswar, Addl. P.P. for respondent no.1
     None for respondent no.2, though served

                               CORAM : SUNIL B. SHUKRE AND
                                       AVINASH G. GHAROTE, JJ.

Judgment reserved on                       : 17/02/2021
Judgment pronounced on                     : 09/03/2021

J U D G M E N T : (PER : AVINASH G. GHAROTE, J.)

1. Heard. Rule. Rule made returnable forthwith.

Cri.wp225 of 2018.odt

2. The present petition challenges the final report/charge-

sheet No.278 of 2017, for the offence under Section 304 read with

Section 34 of IPC, filed by the Police Inspector, Police Station Gadge

Nagar, Amravati, in which the present petitioner has been made an

accused. The F.I.R. leading to the charge-sheet was lodged on the

report of the Civil Surgeon, General Hospital, Amravati, on the

allegation that between the night of 28/5/2017 and early morning

of 29/5/2017, between 10:30 p.m. to 3:50 a.m. (3:50 a.m. of

29/5/2017 as per the post mortem report), there occurred

unfortunate demise of four babies, who were admitted in the

Neonatal Intensive Care Unit (hereinafter referred to as "the

NICU"), Department of Paediatrics at Dr. Punjabrao Deshmukh

Medical College, Amravati, due to wrong administration of an

injection by the nursing staff on duty, namely, sister Vidya Thorat,

who administered the drug "Potassium Chloride" instead of injection

"Calcium Gluconate", as prescribed. The complaint also named the

present petitioner, who was occupying the post of Junior Resident

Doctor at the relevant time and was stated to be absent and was

arrayed as an accused on the ground that he had not taken proper

care, due to which the unfortunate incident happened.

Cri.wp225 of 2018.odt

3. Mr. Anil Mardikar, learned Senior Counsel, for the

petitioner, submits, that filing of the F.I.R. as well as the charge-

sheet against the petitioner under Section 304 read with Section 34

of I.P.C. is clearly not justified on the face of it. He submits that it

was an admitted position that the petitioner though on duty, was not

present at the time of administration of the injection, and was

somewhere else at the relevant time. That what was prescribed was

the injection "Calcium Gluconate" to be administered to the babies,

instead of which, what was administered was the injection

"Potassium Chloride" (Kesol). He submits that the injection

"Potassium Chloride" (Kesol) was never prescribed by the petitioner,

as would be indicated from the clinical notes on record at page 211

and onwards. He invites our attention to the admission given by the

staff nurse, who was on duty at that time, namely, Vidya Bhanudas

Thorat, who had admitted her mistake in administering the injection

"Potassium Chloride" (Kesol) instead of "Calcium Gluconate", which

is on record at page 57. He further invites our attention to the

report of the fact finding Committee constituted for this purpose,

dated 31/5/2017, which also found that death of the four newborns

was possible by injection Kesol (Potassium Chloride) 2 CC IV, which Cri.wp225 of 2018.odt

is corroborated by the post mortem finding. He further invites our

attention to the CCTV footage visualization panchanama dated

30/5/2017, to submit that the admission as given by the on-duty

staff nurse is borne out therefrom. He, therefore, submits a perusal

of the entire charge-sheet and the material along with it as placed

on record, would indicate, that no case is made out against the

petitioner under Section 304 of I.P.C. The learned Counsel invites

our attention to the definition of "culpable homicide: as contained in

Section 299 and the Exceptions - 1 to 3 of Section 300 of the IPC

and submits, that the ingredients necessary for invoking the said

section are not made out against the petitioner. He submits that

there was no intention, or knowledge on part of the petitioner as is

necessary to attract Section 299 of I.P.C. and, therefore, no offence,

even if the entire charge-sheet is taken to be proved, can be made

out against the petitioner. He submits that, at the most, a

departmental action can be taken for his absence in the NICU at the

particular time on the given day; but in any case, the petitioner

cannot be charged with the offence under Section 304 of I.P.C.

Cri.wp225 of 2018.odt

4. Learned Additional Public Prosecutor Mr. S.M.

Ghodeswar for the respondent no.1 supports the prosecution and

opposes the prayer. As we were not satisfied with the reply of the

State in this matter, therefore, by an order dated 1/12/2020, we had

directed the filing of a proper reply, which was reiterated in the

order dated 8/1/2021, in pursuance to which, additional reply has

been filed on record on 20/1/2021.

5. Mr. S.M. Ghodeswar, learned A.P.P. submits that there is

no dispute that the petitioner was duty officer in the NICU, in which

capacity, it was the duty of the petitioner, to ensure that proper

drugs were administered, in which he submits the petitioner failed.

Learned A.P.P. further invites our attention to the report of the

Committee, dated 31/5/2017, which recommended the action

against the petitioner. He submits that the entire record of the

charge-sheet indicates a criminal negligence on part of the petitioner

and, therefore, he is being correctly prosecuted for the offence

punishable under Section 304 of I.P.C. He, thus, submits that the

petition is clearly misconceived and is liable to be dismissed.

Cri.wp225 of 2018.odt

6. With the help of learned Senior Counsel Mr. Anil

Mardikar and Mr. S.M. Ghodeswar, learned A.P.P, we have gone

through the charge-sheet as placed on record.

7. It is not disputed that, on the fateful day, the petitioner

though on duty as a Junior Resident Doctor, was not present in the

NICU at around 10:30 p.m. It is also not disputed that it is the staff

nurse Vidya Bhanudas Thorat, who had administered the injection

Kesol (Potassium Chloride) (IV), which resulted in the fatality of the

four newborns. A perusal of the OPD case papers and the continuing

sheets dated 28/5/2017 (page 214) points out that what was

prescribed to be administered was an injection of "Calcium

Gluconate", as is indicated from the entry dated 28/5/2017. The

reply of the respondent no.1 does not dispute this position. The

reply at page 299 categorically states that Dr. Kaustubh Deshmukh

and Dr. Rushikesh Ghatol had prescribed the "Calcium Gluconate"

injection. It is, thus, clear that the petitioner was not the person who

had prescribed the injection "Calcium Gluconate", which is to be

administered muscularly. It is further apparent from the reply that

the injection "Potassium Chloride" is not administered muscularly, Cri.wp225 of 2018.odt

i.e., through an injection, but through IV saline after diluting it not

less than 50 times its volume with Sodium Chloride Intravenous

Infusion (0.9% w/v). It is further an admitted position that

"Potassium Chloride" is an emergency drug injection and is kept in

the emergency kit, whose custody is with the in-charge sister of the

NICU. The procedure, as stated in the reply for receiving drugs, was

that the drug was prescribed by the on-duty doctor, after which, the

on-duty nurses used to give the medicines as per the prescription

after taking entry in the general order book, which injections were

to be given under the observation of on-duty doctor of the NICU. In

the instant matter, on a query being made as to how did the

injection "Potassium Chloride" came to be taken out, the position is

clarified by letter dated 16/7/2017 (Annexure - R-5) by the Head of

Paediatric Department, Dr. Punjabrao Deshmukh Hospital and

Research Centre, Amravati, which states that, in the NICU, the

injections "Potassium Chloride" were kept for patients admitted on

an earlier point of time and the one used by the nurse Vidya Thorat,

was a leftover injection. It is further stated therein that the leftover

injections are to be used in the event of emergency. The above

position would, therefore, indicate that the petitioner had no role to Cri.wp225 of 2018.odt

play in the entire matter, either of prescribing the drug, storing the

same or of administering the same.

8. A perusal of the CCTV footage visualization

panchanama dated 30/5/2017 (record page 133) indicates that, on

28/5/2017, between 8:00 p.m. to 9:30 p.m., in the night, a lady

doctor had checked the newborn babies. At 9:38 p.m., the doctor

and nurse were looking over the newborn babies and nurse Vidya

Thorat was seen filling up the syringe from the medicine bottle and

thereafter, administering the injection to the newborns. From 9:42

to 9:46 p.m., the CCTV footage shows the nurses taking care of the

newborns. The CCTV footage further shows, the petitioner, coming

to the NICU at 11:47 p.m. of 29/5/2017, and having checked the

newborns. There was some commotion noticed between the doctors

and nurses at that time.

9. It is the statement of the present petitioner that ,on

28/5/2017, when he was present in the ward during night time,

around 10:30 p.m., the duty nurse came to him in the ward and

informed about deteriorating conditions of the newborns, Cri.wp225 of 2018.odt

whereupon he reached immediately in the NICU and started

resuscitation, however, the condition deteriorated. His co-junior

resident also came and started resuscitation of the other newborn.

The seniors were informed. At around 12:00 noon, he got a call

from the Gynaecology ward for an LSCS, due to which he was

required to go there.

10. What is further material to note is that the injection

"Calcium Gluconate" is required to be administered muscularly by

an injection, as against which, the injection "Potassium Chloride"is

to be administered Intravenously, after diluting it in the proportion

as stated above. The nurse on duty, namely Vidya Bhushan Thorat,

however, appears to have directly administered the injection

"Potassium Chloride" muscularly, which was the cause of the

untimely and unfortunate demise of the newborns.

11. An enquiry initiated by constitution of an enquiry

Committee headed by the Professor and Head of Department of

FMI, G.M.C, Akola, upon the orders of the Directorate of Medical

Education and Research (DMER), comprising of four doctors, all Cri.wp225 of 2018.odt

from G.M.C, Akola, gave its report on 31/5/2017. The conclusion is

rendered by the Committee in its report dated 31/5/2017. It is

worthwhile to note that the Committee observed that, although

Doctors should be available for 24 hours in the NICU, still the

petitioner, who was an on-duty doctor, was absent at the time of the

incident. The Committee further found that the four newborn babies

that succumbed in the incidents had been prescribed injection

"Calcium Gluconate" and three other newborns who were not

affected were not on injection "Calcium Gluconate" (Kesol). In view

of the fact that the petitioner, being an on-duty Junior Resident

Doctor, was not present in the NICU at the fateful time, the

Committee recommended action against the petitioner also, as a

result of which, the F.I.R, was lodged, which included the name of

the petitioner.

12. Now if we consider the offence registered against the

petitioner and others vide Crime No.346 of 2017 at Police Station,

Gadge Nagar, Amravati, we would find that even though the

petitioner was not present in the NICU at the relevant time, an

offence punishable under Section 304 r/w. 34 of I.P.C. has been Cri.wp225 of 2018.odt

registered against him. In fact, the crime so registered in the matter

does not reveal incorporation of any other offence, except for the

one under Section 304 of the I.P.C., as provided in the Indian Penal

Code. The offence punishable under Section 304 of the I.P.C. is an

offence of culpable homicide not amounting to murder and so, if we

are to examine the correctness or otherwise of registering this

offence against the petitioner, we have to make a beginning with

what is considered as culpable homicide in the Indian Penal Code.

It is defined in Section 299 of the Indian Penal Code and it reads

thus :

Section 299 of the I.P.C. defines culpable homicide as under :-

"299. Culpable homicide. - Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

Explanation 1. - A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death. Explanation 2. - Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting Cri.wp225 of 2018.odt

to proper remedies and skilful treatment the death might have been prevented.

Explanation 3. - The causing of the death of child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born."

13. A bare perusal of the above referred definition would

indicate that heart of an offence of causing death lies in doing an act

intentionally or with knowledge. If the act done is coupled with

intention, the intention must be of either causing death or causing

such bodily injury as is likely to cause death. But, if the facts and

circumstances of a given case show that the act has been done with

the knowledge then the knowledge must be of the character and

degree that the person doing the act knows that by such an act, he is

likely to cause death. Thus, the culpable homicide would require

doing of an act either with the intention or the knowledge as

elaborated just now. Since possession of the knowledge of the

nature explained in Section 299 of the I.P.C. can also lead to

constituting the act of culpable homicide, in a given case, even an

omission to do an act, which if done would prevent the death,

would amount to culpable homicide, if the omission of such nature Cri.wp225 of 2018.odt

leads to death. The concept could be explained further, but, in the

context of the factual setting here, it is not required and therefore,

we would avoid it to restrict the length of the Judgment. But, at the

cost of repetition, we would say that the proposition that we are

putting forward here is that, for something to be regarded as

culpable homicide as contemplated under Section 299 of the Indian

Penal Code, there must be an act or omission coupled with the

intention or knowledge as contemplated in Section 299 of the I.P.C.

on the part of the person and if there is no such act or omission,

there would be no offence of culpable homicide. If there is no

offence of culpable homicide, further questions as to whether it

amounts to murder as defined under Section 300 or it does not

amount to murder as envisaged in Section 304 of the I.P.C. would

not arise.

14. In the present case, as could be seen from the facts

discussed earlier that, at the relevant time, the petitioner was not at

all present in the NICU and so, there is no question of the petitioner

doing any act with the requisite intention or knowledge. There

would also not be any question of the petitioner omitting to do any Cri.wp225 of 2018.odt

act with such intention or knowledge as is required under Section

299 of the I.P.C., unless, ofcourse, the facts and circumstances had

shown that the petitioner had deliberately avoided his presence in

the NICU with the intention that death of the infants had thereby

been facilitated or with the knowledge that such death had likely to

be facilitated. In this case, there is neither any allegation made

against the petitioner on these lines nor is there present any

material collected during the course of investigation, from which

such an inference in a prima facie manner could be drawn.

15. All that is alleged in the present case is that though the

petitioner was on duty, he was not physically present in the NICU at

the fateful moment. No material has been placed before us that

whenever an injection has to be administered, it must be done

under the supervision of the doctor on duty at the NICU. There is

no allegation made against the petitioner that the nurse who

administered the fatal doses of injection to the infants, had informed

the petitioner that she was going to administer the injections and

had requested the petitioner to remain personally present near the

beds of the infants so that administration of those doses could be Cri.wp225 of 2018.odt

monitored by the petitioner, but the petitioner refused to pay heed

to such request. In fact, we must put it on record here that in spite

of our repeated requests to the Investigating Officer to place before

us the rules or regulations or Standard Operating Procedure or

protocol, if any, regarding the procedure to be adopted for

administration of injections to the infants admitted in the ICU with a

view to know about the nature of duty of the doctor in the NICU as

regards administration of injections by the staff nurses, nothing was

placed before us. This must have been owing to the fact that no

such protocol or S.O.P. exists and that personal supervision and

monitoring by a doctor may not have been envisaged in any rule or

S.O.P. where trained nurses are employed, they having the

competence and authority to administer injections without the

supervision of any doctor. It then follows that this is a case wherein

apart from absence of any blameworthy act, there being no act

whatsoever done by the petitioner, there is also missing the element

of culpable omission on the part of the petitioner, there being no

duty in him to personally monitor the administration of injection by

a trained nurse which absence of duty led to no breach of duty by

the petitioner. This would enable us to hold that on the three Cri.wp225 of 2018.odt

parameters of Jacob Mathews vs. State of Punjab and another, 2005

ALL MR (Cri) 2567 (SC) namely : (i) duty to take care, (ii) breach

of duty and (iii) consequential damage, this case fails to attract any

criminal offence, much less offence of culpable homicide not

amounting to murder. We make it clear here that in recording such a

finding, we have only considered the criminal dimension of the case

insofar as it relates to the petitioner and we have not dealt with civil

dimension of the case involving such issues as of damages, civil

liability, departmental action and so on, in any manner.

16. It is, thus, apparent that there is absolutely no material

available on record showing, prima facie, that offence of culpable

homicide not amounting to murder punishable under Section 304 of

I.P.C. is constituted against the present petitioner. Continuation of

these proceedings against the present petitioner, in the present

circumstances, would clearly be an abuse of process of law, which

cannot be permitted.

17. We are mindful of the guidelines laid down in State of

Haryana and others Vs. Bhajan Lal and others, 1992 Supp (1) SCC Cri.wp225 of 2018.odt

335, in para 102 thereof relating to quashing of F.I.R. In the instant

case, considering the allegations as leveled against the petitioner, of

his absence in the NICU at the relevant time, would, even if

everything as mentioned in the charge-sheet was presumed to be

true, at the most, may lay a blame of dereliction of duty at his

doorstep, for which Departmental action can always be taken by the

authorities, as has been reported to have been done in the case of

Dr. Nistane, Professor and Head of Department of Paediatrics, who

was absent without sanctioned leave on the fateful day. The material

in the charge-sheet is certainly not indicative of the petitioner

having prima facie committed an offence under Section 304 of I.P.C.

We are, thus, of the view that continuation of the proceedings

against the petitioner would clearly be an abuse of the process of

law, which would always be unsustainable in law.

18. The petition is, therefore, liable to be allowed. In the

circumstances, the charge-sheet No.278/2017 for the offence under

Section 304 read with Section 34 of IPC as against the present

petitioner is quashed and set aside. The writ petition is allowed and

disposed of accordingly.

Cri.wp225 of 2018.odt

Rule is made absolute in the aforesaid terms.

    (AVINASH G. GHAROTE, J.)               (SUNIL B. SHUKRE, J.)




Wadkar



               Digitally signed
               by Shailendra
  Shailendra   Wadkar
  Wadkar       Date:
               2021.03.11
               17:43:30 +0530