Bombay High Court
Sanjivani W/O. Prakash Punekar vs The State Of Maharashtra And ... on 6 April, 2023
Bench: Mangesh S. Patil, Abhay S. Waghwase
950.WP.62.22.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.62 OF 2022
SANJIVANI W/O. PRAKASH PUNEKAR
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Advocate for Petitioner : Mr. Murge Estling S.
APP for Respondents: Mr. R.V. Dasalkar
...
CORAM : MANGESH S. PATIL &
ABHAY S. WAGHWASE, JJ.
DATE : 06.04.2023
PER COURT :
The petitioner is the mother of the deceased and is seeking
registration of crime and investigation into her death which according to her
was caused due to medical negligence. She is praying for compensation as
well.
2. The learned advocate for the petitioner, on instructions, submits
that the petitioner would not pray for compensation and is interested in
registration of crime and its investigation.
3. The learned advocate for the petitioner would take us through
the papers. He would submit that the petitioner's daughter was taken to the
hospital of the medical practitioner Dr. Kutwal. He assured that she was
well and in spite of the insistence of the petitioner he flatly denied any need
to shift her daughter to a higher center. However, abruptly she was shifted
to the ICU in his hospital where some treatment was provided but he was
950.WP.62.22.odt
unable to recover the patient. He manged to shift her to Ashwini Hospital,
Solapur. It is alleged that the doctor from that hospital had told the
petitioner and her husband that the condition of the daughter had worsened
because of overdoes of medication. Unfortunately, the daughter succumbed
on 08.02.2020.
4. The learned advocate submits that immediately on 11.03.2020
a communication was made to the Civil Surgeon as also the Superintendent
of Police putting up all the grievances still their request fail on the deaf ears.
No steps were taken immediately to undertake necessary preliminary
inquiry. The police ought to have conducted inquiry but even that was not
done. A three member committee constituted by the Civil Surgeon
conducted a preliminary inquiry hurriedly. It is after a long persuasion that
the matter was considered by a committee of six members as per the
Government Resolution dated 26.03.2010. The learned advocate would
submit that the petitioner is left with no option but to solicit the direction
since it is a clear case of medical negligence.
5. The learned APP submits that though initially some preliminary
inquiry was conducted by a three member committee according to the
earlier policy, after realizing the error a six member committee as is
contemplated in the Government Resolution dated 26.03.2010 was
constituted. Even the petitioner and her husband were given an opportunity
to put up their grievance before the committee and after examining the
papers from the hospital of Dr. Kutwal and from Ashwini Hospital, Solapur
950.WP.62.22.odt
and also hearing the doctor from latter, the six member committee has
reached a conclusion that there was no medical indulgence. In view of such
a finding of the expert committee, no offence can be registered as is being
claimed by the petitioner. He would also point out that in fact, the
concerned Police Inspector of Tuljapur Police Station had taken the initiative
in getting the committee constituted and putting up the papers before it and
soliciting its opinion.
6. Indeed, we have all the sympathy with the petitioner who
happens to be the mother of the deceased who was a girl aged 18 year and
the only child of her parents.
7. However, we are guided by the rule of law laid down in the
matter of Lalita Kumari Vs. Govt. of U.P. and Ors.; AIR 2014 Supreme Court
187. Besides so far as the matter of medical negligence are concerned, the
judgment Jacob Mathew Vs. State of Punjab and Anr.; 2005 Crl.L.J. 3710
forms the basis for the State Government to device a policy for undertaking
a preliminary inquiry into the matters wherever there are allegations
regarding medical negligence.
8. Though erroneously, initially the matter was considered by a
three member committee constituted by the Civil Surgeon which submitted
its report on 15.05.2020 stating that the deceased had died due to
Pulmonary edema.
9. The matter has been reconsidered by a six member committee
which has reached an emphatic conclusion holding that there was no
950.WP.62.22.odt
medical negligence. Pertinently, not only the petitioner and her husband but
even the Dr. Feroz Sayyed from Ashwini Hospital, Solapur had appeared
before the Committee and after hearing all of them the objective decision
was taken.
10. Since it is a matter of alleged medical negligence, unless we
have something concrete which would belie the opinion of the expert
committee comprising of six members, merely on the basis of perception
being entertained by the petitioner we cannot reach to a conclusion that
there is some material to set the criminal law in motion.
11. The Writ Petition is dismissed.
(ABHAY S. WAGHWASE, J.) (MANGESH S. PATIL, J.)
habeeb
