Bombay High Court
Dr. Rehan Abdul Khalique Khan And ... vs State Of Maharashtra on 20 January, 2022
Bench: S. V. Kotwal
1/7 03-ABA-135-22.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
ANTICIPATORY BAIL APPLICATION NO.135 OF 2022
Dr.Rehan Abdul Khalique Khan & Anr. .... Applicants
versus
State of Maharashtra .... Respondent
.......
• Dr.Abhinav Chandrachud a/w Mr.Tushar Sonawane a/w S. K.
Ali i/b. A.A. Siddiquie & Associates-, Advocate for Applicants.
• Mr.P. H. Gaikwad, APP for the State/Respondent.
CORAM : SARANG V. KOTWAL, J.
DATE : 20th JANUARY 2022
(through video conferencing)
P.C. :
1. The Applicants are seeking anticipatory bail in
connection with C.R.No.1018/2021 dated 23/12/2021,
registered with Shivaji Nagar Police Station, Mumbai, under
sections 304(2) r/w 34 of the Indian Penal Code.
2. Heard Dr.Abhinav Chandrachud, learned counsel for
the Applicant and Mr.P. H. Gaikwad, learned APP for the State.
Digitally
signed by
MANUSHREE
MANUSHREE V
V NESARIKAR
NESARIKAR Date:
2022.01.25
16:29:09
+0530
Nesarikar
2/7 03-ABA-135-22.odt
3. The FIR is lodged by one Smt.Shahajahan Ansari in
respect of death of her daughter Shabana. On 02/10/2020,
Shabhana had fever and bodyache. The informant was knowing
the Applicant No.2. He was their family doctor. The informant's
family used to take treatment from him. Therefore Shabana had
gone to the dispensary. On that day the Applicant No.2 was not
well. He was at home. The FIR mentions that the nurse Nafisa
who was present in the dispensary gave her injection in the
waist and gave some tablets. The FIR mentions that the
informant was knowing Nafisa since past 15 years. After 2 days,
Shabana was feeling uneasy at the spot where the injection was
given. The first informant's other daughter Afasna called Nafisa.
At that time, Nafisa advised them to apply ice on that spot and
also gave name of an ointment and tablets. Even after these
treatments her health deteroirated. On 08/10/2020 Shabana
was admitted in Mannat Hospital at Govandi. It is her case that
on that day the Applicant No.1 performed surgery on her waist
and removed the growth. However Shabana's health
deteriorated and she was sent to KEM hospital. She died in the
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KEM hospital during the treatment. On this basis the FIR is
lodged.
4. Learned counsel for the Applicant submitted that the
Applicant No.2 was admittedly not in the dispensary and at the
instance and insistance of the first informant, the nurse Nafisa
had given that injection. It is only in rare cases the injection was
likely to develop complications like setting of Gangrin. The
Applicant No.2 was not even present when the injection was
administered. Therefore it cannot be said that the Applicant
No.2 had knowledge of the consequences of administering the
injection which was administered behind his back. As far as,
Applicant No.1 is concerned, he did not actually perform the
surgery. It was performed by some other doctor. The Nursing
Home stood in his name and therefore he is also roped in as an
accused. Learned counsel submitted that in this background
custodial interrogation of the Applicant is not necessary. He
specifically relied on the observations of the Hon'ble Supreme
Court in case of Jacob Mathew Vs. State of Punjab & Anr., as
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reported in 2005 (6) Supreme Court Cases 1. In particular he
relied on the paragraph No.52 of the said judgment.
5. Learned APP opposed this application. He submitted
that the cause of death mentions as follows, "Septicemia
associated with right gluteal abscess in an alleged case of
intramuscular injection given for unknown fever and body ache
(unnatural)".
6. Learned APP therefore submits that the administration
of the injection was the direct cause. Both the Applicants are
doctor and therefore their knowledge of such consequence is
directly attributable. He further submitted that the investigation
has revealed that the nurse Nafisa had called the Applicant No.2
and on his advise had given injection. The nurse herself was
studied upto 9th standard and she had not taken training of
nursing. He submitted that the Nursing Home where the surgery
was performed, did not have requisite permisssion. It did not
have facilities like ICU, oxygen etc. Therefore the surgery should
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not have been performed. On this aspect Dr.Chandrachud
submitted that since the patient was in serious condition, she
had to be operated immediately because the gangrin was
spreading all over the body. Therefore there was nothing wrong
in performing emergency sugery. That does not mean that the
doctor was having knowledge that the surgery would
imminently result in death.
7. I have considered these submissions and in particular I
have taken into account the observations of the Supreme Court
mentioned in paragraph No.52 of Jacob's case (supra). In that
judgment it is observed that a doctor accused of rashness or
negligence, may not be arrested in a routine manner simply
unless necessary for furthering the investigation or for collecting
evidence or unless the investigating officer feels satisfied that
the doctor precceded against would not make himself available
to face the prosecution unless arrested. It is also observed that
the investigation officer should, before proceeding against the
doctor accused of rash or negligent act or omission, obtain an
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independent and competenent 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.
8. Learned APP on instructions submitted that this opnion
will be obtained and for that purpose he seeks time. At his
request, today I am adjourning the matter. However, considering
the observations made by the Hon'ble Supreme Court in the
judgement and taking into consideration submissions made on
behalf of the Applicants, today I am protecting the Applicants by
way of interim order.
9. Hence, the following order :
ORDER
(i) In the event of their arrest in connection
with C.R.No.1018/2021 dated 23/12/2021,
registered with Shivaji Nagar Police Station,
7/7 03-ABA-135-22.odt
Mumbai, till the next date, the Applicants
are directed to be released on bail on their
furnishing PR bond in the sum of
Rs.30,000/- (Rupees Thirty Thousand Only)
each, with one or two sureties each, in the
like amount.
(ii) This order shall operat till 03/03/2022.
(iii) Stand over to 03/03/2022.
(SARANG V. KOTWAL, J.)
