Bombay High Court
Nagorao Shivajirao Chavan vs The State Of Maharashtra on 28 January, 2025
2025:BHC-AUG:2403
919wp216-23J.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 216 OF 2023
Nagorao S/o Shivajirao Chavan,
age: 55 years, Occ: Government Service
as Civil Surgeon At Yeotmal,
Taluka and District Yeotmal. ...PETITIONER
(Original accused)
VERSUS
The State of Maharashtra,
through the Incharge,
Police Station Officer,
Shivajinagar Police Station,
Beed, Taluka and Dist. Beed. ...RESPONDENT
....
Mr. Rajendra Deshmukh Senior Advocate a/w Mr. R. G. Dodiya i/b
Mr. Devang Deshmukh, Advocate for the Petitioner
Ms. A. S. Deshmukh, APP for the Respondent-State
...
CORAM : Y. G. KHOBRAGADE, J.
RESERVED ON : 16.01.2025
PRONOUNCED ON : 28.01.2025
JUDGMENT :
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1. Rule. Rule made returnable forthwith. Heard the
matter finally with consent of both the sides at the stage of
admission.
2. The Petitioner has invoked jurisdiction of this Court
under Article 227 of the Constitution of India and takes exception
to the judgment and order dated 07.01.2023 passed by the
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learned Additional Sessions Judge, Beed in Criminal Revision
Application No. 106 of 2022, thereby affirmed the order of rejection
of discharge of Petitioner for offence under Section 304-A of Indian
Penal Code passed by the learned Judicial Magistrate First Class, Beed
on 21.12.2022 below Exh. 15 in SCC No.958 of 2018.
3. The facts giving rise to the present Petition are that, the
present Petitioner is a Medical Officer by profession. The Petitioner is
charge-sheeted for the offence punishable under Section 304-A of the
Indian Penal Code, 1860 (for brevity hereinafter to be referred as
"IPC") in Crime No. 256 of 2017 registered with Shivajinagar Police
Station, Beed on 27.07.2017, on the basis of Report lodged by the
informant namely Mr. Rafiyoddin Ajimoddin Shaikh, P.S.I attached
with Shivajinagar Police Station. The Informant alleged that, Smt.
Vaishali Vijay Bansode, the daughter of Smt. Kanta Sopanrao Mhaske,
was pregnant and she was admitted in Samant Hospital, Beed due to
stomach pain. At the relevant time, the Petitioner/accused was
attached with Government Civil Hospital Beed being a Civil Surgeon
and was consultant for delivery in "Samant Hospital". The Petitioner /
accused medically advised that, Smt. Vaishali Vijay Bansode is serious
and she has to undergo cesarean.
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4. Therefore, Smt. Kanta Mhaske, the mother of victim /
patient told the Petitioner/accused that, her daughter Vaishali
(Victim) was taking treatment from Dr. Shirpurkar and she wanted to
take her daughter to the said Doctor, but at that time the Petitioner /
accused told her not to waste time and it is necessary to conduct
cesarean immediately. Since, the petitioner terrified her, therefore,
the mother of the victim was compelled to admit her pregnant
daughter in Samant Hospital. Thereafter, the Petitioner accused
performed cesarean on the victim at 8:00 a.m., without obtaining
consent of mother of patient or relatives on any required forms. After
conducting cesarean, the Victim gave birth to twin male child.
Thereafter, the Petitioner / accused informed the mother of victim
that, her daughter (Patient) will be alright within a short time and he
left the hospital without informing physical condition of the patient.
However, at about 10.30 am., the patient was facing breathing
problem and heavy bleeding from the operated place, due to which
the patient was feel discomfort. Therefore, the patient's mother
contacted the Petitioner / accused and informed the condition of the
patient, but the Petitioner / accused informed her that, he is busy in
meeting in the Government Hospital, hence, he is unable to attend
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the patient. At about 01.30 p.m., the accused visited at Samant
Hospital but the patient (Vaishali) was shifted to the Government
Hospital, where she declared dead. Therefore, Smt. Kanta mother of
victim filed a complaint, on the basis of which, the Collector Beed
appointed the Medical Expert Committee by issuing a letter to the
Deputy Director Health, Latur.
5. Pursuant to said letter, the Deputy Director Health
Services appointed an Inquiry Committee. After due Inquiry, the
Medical Expert Committee submitted its Report under letter dated
03.07.2017 holding that, due to medical negligence on part of the
present Petitioner / accused death of Vaishali caused. After receipt of
Medical Expert Committee's report, a Crime No. 526 of 2017 was
registered against the present Petitioner / accused for the offence
punishable under Section 304-A of IPC.
6. The Investigating Officer referred the dead body of
patient (Smt. Vaishali) for autopsy on 28.09.2016. After Postmortem
was conducted, the Medical Officer opined that death of deceased
caused due to "Disseminated Intravascular coagulation with Multi
organ dysfunction syndrome." The Investigating Officer recorded
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statements of the witnesses and after collecting sufficient material,
charge-sheet came to be filed against the present Petitioner for the
offence punishable u/s 304-A of IPC. The said charge sheet came to
be registered as summary Criminal Case No. 958 of 2018.
7. On 10.02.2020, the Petitioner accused filed Exh. 15,
Application under Section 239 of the Code of Criminal Procedure,
1973 and thereby prayed for discharging him in Crime No. 526 of
2017 (SCC No. 958 of 2018) on Ground Nos. A to J as described in
said Application.
8. On 21.12.2022, the learned Judicial Magistrate First
Class, Beed passed the order and thereby turned down the prayer of
the present Petitioner / accused for discharging him.
9. Being aggrieved by the said order, the Petitioner / accused
filed Criminal Revision Application No. 106 of 2022 before the
learned Sessions Judge, Beed. On 07.01.2023, the learned Additional
Sessions Judge, Beed passed the impugned order holding that, the
Petitioner / accused produced all the medical treatment papers of the
Government Hospital, but failed to produce medical papers pertaining
to Samant Hospital. Merely obtaining consent of the relatives of the
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victim (Vaishali), the Petitioner / accused could not absolve from his
responsibility to take care of his patient, and no license granted to
the Medical Practitioner to commit negligence while treating patient.
The Petitioner produced two contradictory reports of the Medical
Expert Committee in respect of the Medical negligence on part of the
Petitioner / accused. The learned Revisional Court further held that
the report of the Medical Expert dated 01.07.2017, issued by the
Experts Committee formed by the Deputy Director Health Services,
Latur, duly established as per the Government Resolution dated
26.03.2010, the Petitioner / accused is found negligent while treating
the deceased (Vaishali).
10. Further, another report dated 20.04.2018 filed by the
Committee of Superintendent, Swami Ramanand Tirth Rural
Government Medical College (for brevity "SRTRGMC"), Ambejogai is
not called by the Investigation Agency and the said report is not a
part and parcel of the charge-sheet. So also, the material available on
record are sufficient to frame the charges against the accused, hence,
the learned Revisional Court rejected the Revision.
11. The Petitioner / accused challenged the order dated
07.01.2023, passed by the learned Additional Sessions Judge, Beed in
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Criminal Revision Application No. 106 of 2022 on the ground Nos.
(VIII) to (XIV), which read as under.
VIII. That, the learned trial court has committed great error in
not appreciating properly the reported judgments cited for and on
behalf of the petitioner and thereby causing great prejudice, as in
the case of Jacob Mathew Vs. State of Punjab reported in 2005
AIR SC 3180, wherein the ratio is being laid down, which
substantiates the case of the petitioner. In fact, various other cases
have been referred to in the above said Jacob Mathew's case and
the petitioner craves leave to rely upon the above said
citations/reported judgments.
IX. That both the learned Courts below seem to have
lost sight of the subsequent inquiry report by Special Committee
thereby arriving at an incorrect conclusion, which has put the
petitioner at the receiving end.
X. That, perusal of the case papers of the deceased
Vaishali, which were filed before the learned trial court do indicate
that there was no negligence, moreover, no gross negligence on
the part of the petitioner, and therefore, the continuation of
criminal prosecution would be an abuse of process of law.
XI. That, the learned both the courts below ought to
have taken into account the subsequent report of the Committee
of the Medical Superintendent and its Members of the S.R.T.R.
Medical College, Ambajogai, which was very much constituted as
per the norms of the Government.
XII. That, there is no sufficient evidence to frame the
charge against the petitioner.
XIII. That, both the learned courts below ought to have
held that the report submitted by the Deputy Director of Health
Services, Latur, dated 01.07.2017 has no legal base and in fact, the
report submitted by the Medical Superintendent of S.R.T.R.
College, Ambajogai should have been considered and relied upon,
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being the correct report as per the Government Resolution, dated
31.01.2014.
XIV. That, in paragraph 23 of the impugned judgment
and order, passed by the learned Revisional Court, incorrect
observations and conclusions are being drawn in relation to the
Government Resolution, dated 31.01.2014 and which has caused
great prejudice to the petitioner, as the learned Revisional Court
seems to have not at all considered the issuance of subsequent
Government Resolution in its true letters and spirit.
12. The learned counsel for the Petitioner placed reliance on
the following cases:-
(i) Jacob Mathew Vs. State of Punjab and Another, AIR 2005
Supreme Court 3180;
(ii) Martin F. D'Souza Vs. Mohd. Ishfaq, AIR 2009 Supreme
Court 2049;
(iii) Neeraj Sud and Another Vs. Jaswinder Singh (Minor) and
Another, 2024 SCC Online SC 3069.
13. Per contra, the learned APP supported the findings of
both the Courts below and canvassed that the Petitioner has not
denied that he was working as a Civil Surgeon with Government Civil
Hospital, Beed. The Petitioner accused has also not disputed the fact
that, on 27.09.2016, the patient pregnant lady (Vaishali) was
admitted in Samant Hospital and the accused was consultant for the
delivery. The Petitioner / accused has also admitted that, he
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performed cesarean on the patient Vaishali. The complainant Smt.
Kantabai Mhaske specifically alleged in her complaint that, on
27.09.2016, her married daughter, hospitalized in Samant Hospital,
Beed with history of stomach pain due to pregnancy. The Petitioner
accused terrified her to perform cesarean immediately as the patient
is serious. When the complainant told the present Petitioner about
taking medical treatment of her daughter with Dr. Shirpurkar and she
wanted to take her daughter for medical treatment to Dr. Shirpurkar.
But at that time, the accused told her not to waste time and it is
necessary to perform cesarean immediately and put under fear.
Therefore, the patient Vaishali was hospitalized in Samant Hospital on
advice of the present Petitioner / accused. Further, the Petitioner /
accused performed cesarean at about 08.00 a.m. After cesarean
patient gave birth to twin male child. Thereafter, the Petitioner
accused informed the mother of victim Vaishali that her daughter
(Patient) will recover in a short time and left the Hospital without
informing physical condition of the patient. However, at about 10.30
a.m., the patient was facing breathing problem, hence, the mother of
patient and his relatives contacted petitioner / accused on phone and
informed him about the patient's discomfort. Further there was lot of
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bleeding from the place of cesarean section, but the Petitioner /
accused informed her that, he is busy in the meeting in the
Government hospital therefore he is not able to attend the patient. At
about 01.30 p.m., the accused visited at Samant Hospital and shifted
the patient (Vaishali) at the Government Hospital where she was
declared as dead.
14. The learned APP further canvassed that the Medical
Expert Committee constituted by the State Government as per the
directions issued by the Supreme Court in the case of Jacob Mathew,
cited supra, and the Medical Expert Committee consisting Assistant
Director, Medical Superintendent has recorded the statements of
witnesses and also on examination of the Medical treatment papers /
reports as well as Postmortem report held that the present Petitioner /
accused has committed medical negligence and he is responsible for
death of patient Smt. Vaishali Bansode. Therefore, both the courts
below have considered the various case laws cited therein and
concurrently held that there are sufficient evidence and material to
frame the charge against the Petitioner / accused. Therefore prayed
for dismissal of the Petition.
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15. Needless to say that, the learned Senior Counsel for the
Petitioner relied on the case of (1) Jacob Mathew, (2) Martin F.
D'Souza and (3) Neeraj Sud, cited supra, however, on perusal of the
impugned judgment and order dated 07.01.2023, it appears that the
learned Additional Sessions Judge has well considered the ratios laid
down in the cited cases. The Petitioner has not denied that, at the
relevant time he was not working as Civil Surgeon with Government
Hospital, Beed. It has come on record that, Petitioner was also
working being consultant with Samant Hospital, Beed at the time of
admission of patient (Vaishali). It is not in dispute that patient
(Vaishali) was admitted in Samant Hospital on 27.09.2016 with
stomach pain due to advanced pregnancy. The present Petitioner /
accused gave advise to admit the patient in Samant Hospital and he
performed cesarean on the patient. After cesarean victim gave birth to
two male child.
16. The material placed along with charge sheet shows that
the Petitioner / accused performed cesarean on the victim at about
08.08 to 08.09 a.m. The present Petitioner informed the relatives of
the patient about delivery of two twin male child and he left to the
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general ward. Thereafter, at about 10.30 a.m., when the patient was
facing breathing problem and the mother of patient and her relatives
contacted the petitioner on phone about discomfort of the patient and
heavy bleeding from the place of cesarean, but the Petitioner /
accused replied that he is busy in meeting in the Government hospital
and unable to attend the patient. The material placed on record
shows that, at about 01.30 p.m., the accused visited at Samant
Hospital and the patient (Vaishali) was shifted at the Government
Hospital, Beed where she was declared dead.
17. In view of above facts and circumstances it prima facie
appears that, the present Petitioner medically treated and operated
the patient deceased Vaishali in Samant hospital, but due to excessive
bleeding, patient was facing breathing problem and was become
serious, hence, she was shifted to Civil Hospital, Beed where she was
declared dead.
18. On face of record, it further appears that, as per the
Government Resolution dated 26.03.2010 and 31.01.2014, the State
Government has issued directions and formed the Medical Expert
Committee as per the judgment and order passed by the Hon'ble
Supreme Court in the case of Jacob Mathew cited (supra). From the
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Medical Expert Committee's Report dated 03.07.2017 which is part
and parcel of the charge-sheet, it appears that the Medical Expert
Committee after considering all medical papers, diagnosis paper of
the deceased, postmortem report as well as considering the oral
submissions of the witnesses i.e. Dr. P. R. Lodh, Medical Officer, Sub
District Hospital, Kej, Dr. Shankar Kashid, Medical Officer, Beed and
the Petitioner opined that due to medical negligence of the present
Petitioner, death of patient Vaishali caused.
19. The learned counsel for the Petitioner invited my
attention to the Medical Expert's Report dated 20.04.2018, issued by
the Committee consisting of Dr. S. V. Birajdar, Dr. R. V. Kachare, Dr. S.
S. Chavan, Dr. Sanjay Bansode. However, said report is not a part and
parcel of the charge-sheet and the Petitioner has not clarified under
what circumstances, the said report has been obtained.
20. Needless to say that, the material brought on record
shows that, the Investigating Officer had submitted proposal for
medical opinion and the Deputy Director of Medical Health Services
appointed a committee of the experts in the medical field.
Accordingly, the Medical Expert Committee submitted its' Report and
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opined that death of patient caused due to medical negligence on the
part of the accused. However, the Deputy Director appointed another
Expert Committee of the Medical Officer from District Beed, where
the accused was working as District Civil Surgeon at the relevant
time. The Report of second Medical Expert Committee is contrary to
the first Medical Expert Committee's Report dated 03.07.2017. On
considering first Medical Expert Committee's Report dated
03.07.2017, it appears that, the Petitioner / accused committed
medical negligence whereas another report i.e. report dated
20.04.2018 is contrary to the first report. However, the another
medical Expert Committee's report (dated 20.04.2018) is not a part
and parcel of the charge-sheet, therefore, the said report cannot be
considered while framing the charge.
21. Section 239 of Code of Criminal Procedure, 1973
provides as under;
"If, upon considering the police report and the documents
sent with it under Section 173 and making such examination, if
any, of the accused as the Magistrate thinks necessary and after
giving the prosecution and the accused an opportunity of being
heard, the Magistrate considers the charge against the accused
to be groundless, he shall discharge the accused, and record his
reasons for so doing."
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22. In the case of Century Spinning & Manufacturing Co.
Vs. State AIR 1972 SC 545, it has been held that if there is no
ground for presuming that the accused has committed an offence,
the charge must be considered as groundless, which is same thing
as saying that there is no ground for framing the charges, this
necessarily depends on the facts and circumstances of each case and
the Magistrate is entitled and indeed as a duty to consider the entire
material referred to in Section 239 of the Code of Criminal
Procedure.
23. However, in case-in-hand, the present Petitioner is facing
the summons trial and the provisions of Section 239 of the Code of
Criminal Procedure, 1973 is applicable to only to the warrant case.
24. Further, as per the provisions of Section 239 of Code of
Criminal Procedure, 1973, if the learned Magistrate considers that the
charges leveled against the accused are groundless, in that event, the
accused may be discharged. However, in case-in-hand, as discussed
above it appears that material available on record is sufficient to
frame the charge against the Petitioner. The charge cannot said to be
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groundless, hence, the accused is not entitled for discharge u/s 239
of the Code of Criminal Procedure, 1973.
25. Needless to say that, in case-in-hand, there is strong
suspicion about committing medical negligence on part of the
Petitioner because on 27.09.2016, the deceased Vaishali was admitted
in Samant hospital for delivery due to stomach pain as she was
pregnant and the present Petitioner conducted delivery by performing
cesarean section, thereafter, the Petitioner stitched the same,
however, due to excessive bleeding from the cesarean place, physical
health of the patient get worsened and she was shifted to the Civil
Hospital, Beed where she was declared died. The Petitioner has not
claimed that he has not performed medical surgery being the
consultant. Therefore, the material evidence collected by the
Investigating Officer produced along with charge sheet is sufficient to
frame the charge against the accused for the offence punishable
under Section 304 A of the Indian Penal Code. Therefore, I do not
find any substance in the present Petition. Hence, Criminal Writ
Petition is dismissed. Rule is discharged.
[ Y. G. KHOBRAGADE, J. ]
HRJadhav
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