Bombay High Court
Dr Vikramsinha Kakasaheb Jadhav And Anr vs Major Prakash Rajgonda Patil And Anr on 20 August, 2024
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 729 OF 2021
Dr. Balgonda S. Patil ..Petitioner
Versus
Prakash Patil & Ors. ..Respondents
WITH
CRIMINAL WRIT PETITION NO. 700 OF 2021
Dr. Vikramsinha Kakasaheb Jadhav & Anr. ..Petitioners
Versus
Major Prakash Rajgonda Patil & Anr. ..Respondents
__________
Mr. Niteen Pradhan a/w. Shubhada Khot, Shahen Pradhan, Ms.
Ameeta Kuttikrishnan, Danish Patel and Shambhavi Desai for
Petitioner in WP/700/2021.
Mr. Saurabh M. Railkar for Petitioners in WP/729/2021.
Major Prakash R. Patil (Respondent No.1 in person) in both WPs.
present.
Mr. Karansingh Rajput, appointed as an Amicus Curiae present.
Mr. Shrikant H. Yadav, APP for State/Respondent.
__________
CORAM : SARANG V. KOTWAL, J.
DATE : 20 AUGUST 2024
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PC :
1. In both these writ petitions, today a common order is
passed because the complaint, the impugned order of issuance of
process and the Revisional Court's order are common.
2. The Petitioners Dr. Vikramsinha Kakasaheb Jadhav and
Dr. Ramakant Bhimrao Kamble in Criminal Writ Petition No.700 of
2021 are the original Accused Nos.1 and 3 and the Petitioner Dr. B.
S. Patil in Criminal W. P. No.729 of 2021 was the original Accused
No.2 in R.C.C.No.36 of 2013 before the learned J.M.F.C., Miraj;
initiated through a private complaint by the Respondent No.1
herein.
3. Heard Mr. Niteen Pradhan, learned counsel for the
Petitioners in W.P. No. 700 of 2021, Mr. Saurabh Railkar, learned
counsel for the Petitioners in W.P. No.729 of 2021, Major Prakash
R. Patil, Respondent No.1, party-in-person, Mr. Karansingh Rajput,
Amicus Curiae and Mr. Shrikant Yadav, learned APP for the State.
4. The complaint was filed for taking action against the
accused for commission of offences punishable under sections
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304(A), 192, 464 and 201 of the I.P.C. The learned Magistrate
issued process only U/s.304(A) of the I.P.C. vide the order dated
10.05.2017. The Petitioners challenged that order before the
Sessions Judge, Sangli by two separate Revision Applications i.e.
Revision Application No.82 of 2017 and Revision Application
No.85 of 2017. Those two revision applications were rejected by a
common order dated 11.01.2021. Challenging both these orders,
the petitioners have approached this Court.
5. The complaint was in respect of an unfortunate death of
the complainant's nephew Shital Patil. At the end of December
2009 and in the initial week of January 2010, Shital suffered from
fever and common cold. Initially, he took the medicines from a
local doctor of village Dudhgaon. But since he developed other
complications like loss of energy, tingling sensation, numbness in
lower limbs and general weakness etc; therefore, he took
treatment from the petitioner Dr. B. S. Patil from 05.01.2010 to
24.01.2010. The numbness in the limbs aggravated and, therefore,
on the advice of the accused No.2 Dr. B. S. Patil he was taken to
the hospital of the accused No.1 Dr. Vikramsinha Jadhav at Miraj.
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The Accused No.3 Dr. Ramakant Kamble was working under Dr.
Jadhav who gave initial treatment by making provisional
diagnosis. In short, the case of the complainant is that, because of
the negligence of all these three doctors, Shital died on
09.02.2010. There are various allegations in the complaint under
the different heads viz. i) Delay in diagnosis and specific
treatment, ii) Negligence, causing death and initial
correspondence, iii) frequent extended absence of Dr. Jadhav, iv)
no follow up action after tracheostomy, v) prescriptions given from
08.02.2010 up to 11.02.2010 though, the patient had died on
09.02.2010, vi) over pricing of the medicines, vii) advice to shift
the patient to Pune/Mumbai, viii) not prescribing generic
medicines, ix) modification and making wrong entries in the
documents.
6. Apart from these main allegations, there were other
allegations of employing professionally unqualified doctors, non
supply of CCTV footage, delay in issuing medical documents etc.
The gist of the allegations against the petitioners made by the
complainant was that, firstly, Dr. Jadhav did not arrive at proper
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diagnosis. Ultimately when he was convinced that the patient
should be treated for G. B. syndrome, it was felt necessary to
carryout surgery for tracheostomy. It was performed by Dr. Dorkar.
The allegations are made by the complainant that the instructions
given by Dr. Dorkar were not followed. The Respondent No.1, who
appears as a party in person, submitted that the immediate cause
of death was, not taking proper care after tracheostomy surgery.
On these aspects, the allegations were made and the complaint
was filed.
7. The learned Magistrate recorded verification on
21.02.2013. Vide the order dated 18.04.2013, the learned
Magistrate directed the Miraj city police station to conduct an
enquiry U/s.202 of the Cr.p.c. and submit its report. The learned
Magistrate was of the opinion that, prior to issuance of process,
such enquiry would serve the interest of justice. Accordingly, P. I.
Miraj City police station submitted his report on 10.03.2015. It is
annexed at Exhibit-F to the W. P. No.700 of 2021. It refers to the
various issues raised in the complaint and the answers given by the
accused. The police officers sought opinion from the office of the
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Civil Surgeon, Sangli. The Civil Surgeon along with other three
doctors i.e. Dr. A. N. Sase, Dr. B. S. Koli and Dr. S. M. Patankar
gave a report that, Shital was suffering from weakness in the limbs
because of fever. Accordingly, the medical tests were conducted
and the diagnosis was made that he was suffering from G. B.
Syndrome. In that direction, the treatment of immunoglobulin,
endotracheal intubation, respiration support, tracheostomy, cardiac
resuscitation was given. It was opined by the committee that the
patient died because of the complications created resulting from
G.B. syndrome in the nature of autonomic disturbances. It was
categorically mentioned that there was no medical negligence seen
and that the medical record was properly kept. The police
submitted their own report U/s.202 of the Cr.p.c. along with the
committee's report.
8. The learned Magistrate was not satisfied with the scope
of the enquiry made by the committee and, therefore, vide the
order dated 26.07.2016, relying on the Judgment of the Hon'ble
Supreme Court in the case of Jacob Mathew Vs. State of Punjab
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and others1, formed a committee consisting of Civil Surgeon,
Government Hospital, Sangli and Dean of Medical College and
Government Hospital, Miraj, to enquire into the facts of the case
and the questions raised by the police inspector, Miraj City police
station and to submit their report. After that order, the committee
was formed and, a fresh report was submitted to the Court and
again it was specifically opined that, none of the petitioners had
committed any medical negligence resulting in the death of the
deceased. Only it was observed that, there were some short
comings in the noting made by Dr. Jadhav, but that particular
aspect did not fall within the scope of enquiry conducted by the
said committee. After this committee's report was submitted, the
learned Magistrate passed his impugned order dated 10.05.2017
issuing summons against the petitioners U/s.304(A) of the I.P.C.
9. In paragraph-8 of that impugned order, the learned
Magistrate observed that, from perusal of the documents on
record, it seemed that accused Nos.1 to 3 were reckless or
negligent in some procedures of the treatment. It was further
1 2005 SCC 1
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observed that, after perusal of the report of the committee, it
revealed that the accused were negligent in doing the treatment to
Shital Patil, though, the committee reached to conclusion that
accused were not negligent.
10. This particular order was challenged before the
revisional court, as mentioned earlier and the Revisional Court
dismissed the revision applications. However, in paragraph-21, the
learned Revisional Judge mentioned thus:
"To sum up, without going to the merits and demerits
of the complaint filed by respondent No.1, I hold that
to interfere the order of issue process passed by the
learned Magistrate would be illegality, as such I hold
that the impugned order needs no interference by this
Court while exercising the powers u/s. 397(1) of
Cr.P.C."
The petitioners have challenged both these orders
before this Court.
11. The learned counsel appearing for the petitioners
submitted that the complaint could not have been filed without
there being an expert's opinion as required by the guidelines
issued by the Hon'ble Supreme Court in the case of Jacob Mathew
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(supra). They relied on paragraphs-48 to 52 of the said Judgment;
which read thus:
"48. 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 herein
above, 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,
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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 practices. 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 case2 W.L.R. at p. 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
2 Bolam v. Frien Hospital Management Committee
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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.
49. In view of the principles laid down herein above and
the preceding discussion, we agree with the principles of
law laid down in Dr. Suresh Gupta's case3 and re-affirm
the same. Ex abundanti cautela, we clarify that what we
are affirming are the legal principles laid down and the
law as stated in Dr. Suresh Gupta's case. We may not be
understood as having expressed any opinion on the
question whether on the facts of that case the accused
could or could not have been held guilty of criminal
negligence as that question is not before us. We also
approve of the passage from Errors, Medicine and the Law
by Alan Merry and Alexander McCall Smith which has
been cited with approval in Dr. Suresh Gupta's case (noted
vide para 27 of the report).
3 Suresh Gupta (Dr.) v. Govt. Of NCT of Delhi, (2004) 6 SCC 422
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Guidelines - Re: prosecuting medical professionals
50. As we have noticed herein above 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 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
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 emphasize 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 pressurizing 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
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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's 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."
12. They submitted that, in the present case, not once, but
on two separate occasions, two separate committees have given
their independent opinion that there was no negligence
attributable to either of these petitioners and, therefore, according
to the learned counsel, the order of issuance of process was not
correct. The learned counsel also referred to the facts mentioned in
the complaint to contend that, all these facts on the face of it do
not show any offence committed by the petitioners. Though, there
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are large number of allegations, process was issued only
U/s.304(A) of the I.P.C. and in that behalf, the committees' reports
were not against the accused/petitioners.
13. As against these submissions, the Respondent No.1 who
appeared as a party in person, submitted that the negligence
referred to in Jacob's case (supra) is about the negligence
attributable to the doctors. The discussion is in respect of the
medical negligence. However, in the present complaint, the
allegations are in respect of occupational negligence. He submitted
that the petitioners had failed to take the basic precautions which
any person of ordinary prudence would take in such cases. The
petitioners were directly responsible for the death of his nephew
Shital Patil. He submitted that, he made a lot of efforts before
filing of the complaint. He approached the Civil Surgeon, he
approached the Medical Council, but nobody gave any response to
his request to give report. Therefore, he was helpless and in such
situation he filed this complaint based on his own study and
making out a case of medical negligence. He submitted that,
immediate cause of death was not taking precaution in
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tracheostomy procedure performed by Dr. Dorkar. According to the
complainant, Dr. Dorkar had instructed to deflate the balloon for
five minutes, every four hours and there had to be regular suction.
But it was not done. Dr. Dorkar had also instructed that he should
be informed immediately in case of complication, but even that
was not done; ultimately leading to death of Shital. He submitted
that steroids were given to the patient and insulin's high dose was
given which was not required. No tests were performed to
determine the level of sugar. He submitted that, all this is nothing
but the case of medical negligence.
14. Mr. Rajput, the learned amicus curiae submitted that,
though the learned Magistrate has opined that, according to the
committee, there was no negligence, this has to be read in the
context of other paragraphs of the impugned order passed by the
learned Magistrate. There is a reference to the committee's report
and the observation made by the learned Magistrate holding that
the accused were responsible for committing the offence of
negligence amounting to Section 304(A) of the I.P.C. was correct.
He submitted that, though, in the last paragraph of the revisional
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Court's order there is mention that, without going to the merits
and demerits of the case, he was passing that order, the entire
discussion shows that the revisional court had applied his mind.
15. I have considered these submissions. At this stage, there
are two reports of two separate independent committees assuming
importance. The respondent No.1 wants to refer various literature
in the medical field in respect of symptoms, syndromes, and
complications resulting into death of his nephew Shital. At this
stage, there is substance in the submissions on behalf of the
petitioners that the learned Magistrate's order of issuance of
process runs contrary to the specific opinions expressed by the
committees. The Revisional Court has expressed that he was
passing the order without going to the merits and demerits of the
complaint. That approach will have to be tested. Considering the
above discussion, it is clear that the matter requires consideration.
The petitioners have made out a case for admission of these writ
petitions. The contentions raised by both the parties will have to
be decided at the final hearing stage. Therefore, beyond the above
discussion, at this stage, it is not necessary to give positive findings
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on the arguments advanced by both the parties.
16. Hence, the following order:
ORDER
i) Issue Rule in both these writ petitions.
ii) Call record and proceedings.
iii) Hearing of the petitions is expedited.
iv) Till the decision of these petitions, there shall be
ad-interim relief in terms of prayer clause (e) in
Criminal W. P .No.700 of 2021 and prayer clause
(b) in Criminal W. P .No.729 of 2021.
(SARANG V. KOTWAL, J.)
