[Cites 18, Cited by 0]
Bombay High Court
Dr Manju Percy Jilla vs The State Of Maharashtra on 7 March, 2026
2026:BHC-AUG:9532
CriRevn-192-2024+
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO. 192 OF 2024
Dr. Manju Percy Jilla
Age : 62 years, Occ : Medical Practitioner,
R/o Central Naka Road, Aurangabad. ... Petitioner
Versus
The State of Maharashtra
Through Ambad Police Station,
District Jalna. ... Respondent
WITH
CRIMINAL REVISION APPLICATION NO. 200 OF 2024
Dr. Gurupreet d/o Shobhasing Sandhu
Age 49 years, Occ : Service,
R/o : Plot No. 8, Limbewadi,
Sindhi Colony, Mitra Nagar,
Aurangabad. ... Petitioner
Versus
1. The State of Maharashtra
2. Shashikant s/o Namdeo Jadhav,
Age : 35 years, Occ : ____,
R/o : Sindhkhed Raja,
District : Buldhana. ... Respondents
.....
Mr. Nilesh S. Ghanekar, Advocate for the Revision Petitioner in
Criminal Revision Application No. 192 of 2024.
Mr. Amol N. Kakade, Advocate for the Revision Petitioner in Criminal
Revision Application No. 200 of 2024.
Mr. B. V. Virdhe, APP for the Respondent-State in Both Criminal
Revision Applications.
.....
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CORAM : ABHAY S. WAGHWASE, J.
Reserved on : 25.02.2026
Pronounced on : 07.03.2026
JUDGMENT :
1. Both Revisionists, who are medical practitioners, are
dissatisfied by the order dated 29.06.2024 passed by learned
Additional Sessions Judge, Ambad on applications Exhibits 15 and 25,
which were pressed into service for discharge by invoking Section 227
of Cr.P.C. i.e. to discharge them from offence under Section 304 r/w
34 of IPC.
2. Both Revisionists-original accused are chargesheeted by Ambad
Police Station for above offence and for the sake of ready reference,
the sum and substance of the prosecution case as reflected in para 15
of the charge sheet, is as under :
"15. Brief Facts of the Case (add separate sheet if
necessary) :
"On 18.03.2014, when Megha Tarde, r/o Kingaon,
was admitted at the Jilla Hospital, Aurangabad by the
informant and witnesses due to complaint of abdominal
pain, both the accused persons mentioned in column no.
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10 of the chargesheet performed telescopic laparoscopy
operation, due to which she suffered intestinal injury
causing hole/perforation and infection and she died on
22.03.2014 at 2.45 while under treatment. Both accused
had not taken due care while operating the deceased and
in spite of knowing that she had suffered hole/injury to her
intestine, they discharges her and thus, both accused being
responsible for her death, they are chargesheeted for
offence under Section 304 r/w 34 of IPC."
3. The above accusations emanate primarily from the FIR lodged
by one Shashikant Namdeo Jadhav, r/o Sindkhed Raja, District
Buldhana, wherein he alleged that, his sister Meghabai was being
treated for infertility at Jilla Hospital, Aurangabad. According to him,
on 18.03.2014, his sister underwent Laparoscopic surgery and also
got discharged and he took his sister to his place for rest. On
19.03.2014, his sister made complaint of abdominal pain and blotting
and was therefore taken to a local doctor at Sindhkhed Raja, namely
Dr. Bansod, who conducted sonography and based on its report,
informed that there is accumulation of water-like fluid after surgery
and he further suggested she to be taken back to the Jilla Hospital
where she was operated. Accordingly, all relatives took her to the Jilla
Hospital run by Revisionist Dr. Manju Jilla and made her known the
reports of Dr. Bansod and requested to take emergent steps for
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obtaining x-ray. According to him, apart from failing to take emergent
steps, there was negligence on the part of said lady doctor to refer his
sister to expert surgeon, as a result of which, condition of his sister
started deteriorating. On 21.03.2014, her condition deteriorated
further and thereafter she was referred to Dr. Warudkar and Dr.
Kandi. However, according to him, for proper treatment, he shifted
his sister to Max Hospital at 11.30 p.m. and on 22.03.2014 at 9.00
a.m., surgery was performed at Max Hospital, however, around 2.45
p.m., his sister expired. Hence, he lodged above report, holding above
both Revisionists responsible and sought action.
On above report, Ambad police carried out investigation and on
its completion, chargesheeted both accused for offence under Section
304 r/w 34 of IPC and they were sought to be tried vide Sessions Case
No. 100 of 2021 before the Court of Additional Sessions Judge,
Ambad.
Both medical practitioners preferred Exhibits 15 and 25 seeking
discharge under Section 227 of Cr.P.C. on various grounds. However,
by order dated 29.06.2024, learned Additional Sessions Judge turned
down above both applications. Hence, instant revisions by invoking
Section 397 of Cr.P.C.
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Criminal Revision Application No. 192 of 2024
4. Learned counsel Mr. Ghanekar would, at the outset, highlight
the qualifications, achievements and length of medical practice of the
Revision Petitioner and would submit that, she is a most experienced
medical practitioner in this region. Pleading innocence, he would
point out that there is no denial that sister of informant was being
treated for infertility at her hospital. But according to him, Revision
Petitioner had not performed any medical procedure or any surgery
on deceased lady patient. That, merely because she runs the above
hospital where deceased lady got admitted and took treatment, she
too is impleaded as an accused.
5. He pointed out that the medical record maintained by the
hospital shows that deceased lady was diagnosed of history of Portal
Cavernoma but was taking treatment for infertility and was desirous
of conception. That, the lady patient was admitted in the hospital on
18.03.2014 and after admission, formalities like pre-operative
evaluation, required pathological tests, obtaining informed concent,
were completed and only on above evaluation and finding her fit to
face surgery, Dr. Gurupreet Sandhu (Petitioner in Criminal Revision
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Application No. 200 of 2024) conducted laparoscopy. Its clinical notes
are maintained in the hospital. He pointed out that, lady patient was
also discharged on the same day and taken home by informant as her
general condition was stable.
6. He further pointed out that, subsequently, while at home, lady
patient complained of abdominal pain and on consulting local Doctor,
they again came on 19.03.2014 and all necessary evaluation was
again done to find the cause of abdominal pain. That, there was no
negligence or deliberate delay in evaluating the patient. According to
learned counsel, from the FIR at the instance of brother itself, it is
clear that they, on their own accord, decided to shift deceased to Max
Hospital even when two experts were consulted and medication was
prescribed. That, lady patient was admitted at Max Hospital. Doctor
of said hospital was offered with necessary medical history and
medical case papers maintained by the hospital of Revisionist
regarding surgery dated 18.03.2014. That, second surgery was also
performed at Max Hospital and not at her hospital and as such, it his
submission that, it is unreasonable to attribute negligence and death
to the Revision Petitioner who had no role in either treating or
conducting any operative procedure. That, she had also not
participated or assisted during the laparoscopy. According to him,
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admittedly informant's sister died at Max Hospital, that too after two
to three days of discharge from Petitioner's hospital, and therefore her
implication is patently absurd.
7. He further pointed out that, here, cause of death is reported to
be "Peritonitis in post-operative case of Exploratory Laparotomy for
intestinal perforation following Laparoscopy". According to him, what
this medical phrase means is, some perforation and internal bleeding,
but it is attributable to various reasons and not mere laparoscopy or
surgical procedure.
8. According to him, as required, committee has evaluated entire
case papers, medical papers and had tendered report regarding above
cause of death and opined that, "the second surgery, i.e. Exploratory
Laparotomy, was conducted five days after the first surgery, due to
which she suffered infection. Had the patient been operated at the
earliest with Exploratory Laparotomy with Colostomy, her death
could have been avoided". He pointed out that, above committee
comprise of three medical experts and their opinion is not about any
negligence, leave aside gross negligence. That, these experts had
merely rendered opinion that surgery ought to have been performed
at the earliest, however, he added that since being readmitted to the
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hospital from 19.03.2014, all proper evaluation procedure was
undertaken to understand the cause of abdominal pain. That, experts
were also engaged in the said procedure and there was no delay
whatsoever. Rather, he reiterated that, lady patient was shifted from
their hospital and taken to Max Hospital where Exploratory
Laparoscopy was done and the lady patient died thereafter and, as
such, implication of petitioner is unwarranted. He also invited
attention of this Court to the report of Government Medical College
and Hospital, Aurangabad dated 26.10.2025 wherein it has been
opined that, "... during operation at Max Hospital, perforation to the
intestine was observed. Cause of perforation cannot be specifically
stated as to whether it was during surgery at Jilla Hospital, or due to
pre existing intermittent fever, or due to patient's intestinal cancer.
However, second time when patient was admitted at Jilla Hospital,
there was delay in taking decision of her re-operation. This delay may
be 'doctor's error of judgment', but there was no gross negligence".
9. Learned counsel sought reliance on various judgments of the
Hon'ble Apex Court and High Court on discharge as well as medical
negligence, and primarily focused on the judgment of Hon'ble Apex
Court in the case of Jacob Mathew. The citations relied and referred
are as under :
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1. Jacob Mathew v. State of Punjab and Others ,
MANU/SC/0457/2005.
2. Jayshree Ujwal Ingole v. State of Maharashtra and
Others, MANU/SC/0386/2017.
3. Annely Dlima v. Police Inspector, Agacaim Police
Station [Cri. WP No. 160 of 2018 decided on
27.02.2020 by the Division Bench of this Court at
Panaji].
4. P. Kanakadurgamma v. State, By Inspector of Police
[Cri. WP 3741 of 2005 decided on 12.07.2006 by the
High Court of Andhra Pradesh].
5. Dr. Pradeep s/o Sadashiv Wankhede v. The State of
Maharashtra and Another [Cri. Application (ALP) No.
503 of 2016 with connected matter decided on
06.07.2017 by the High Court of Bombay at Nagpur].
6. Ms. Ins. Malhotra v. Dr. A. Kriplani and Others [Civil
Appeal No. 1386 of 2001 decided by the Hon'ble Apex
Court on 24.03.2009.
7. Mrudla Suresh Deshpande v. The State of
Maharashtrai MANU/MH/0224/2001.
Criminal Revision Application No. 200 of 2024
10. Learned counsel Mr. Amol Kakade would adopt the above
submissions in support of relief urged for Revision Petitioner Dr.
Gurupreet Sandhu.
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11. In answer to above, learned APP would strongly resist the relief
and justify the order of trial court. According to him, there is
sufficient material/grounds for both, framing charge as well as
conducting trial. He also seeks reliance on the judgment of this Court
at Nagpur dated 17.12.2024 in Criminal Revision Application No. 210
of 2024 i.e. Dr. Pravashankar Sunilkumar Mishra v. State of
Maharashtra, reported in 2024 NCBHC-Nagpur 13869.
12. Before touching the merits, it would be profitable to give the
brief account of revisionary powers of this Court under Section 397 of
Cr.P.C. Though there are catena of judgments, the landmark
judgment of Amit Kapoor v. Ramesh Chander and another (2012) 9
SCC 460 is relied and the relevant observations therein are borrowed
and quoted as under :
"12. Section 397 of the Code vests the court with the
power to call for and examine the records of an inferior
court for the purposes of satisfying itself as to the legality
and regularity of any proceedings or order made in a case.
The object of this provision is to set right a patent defect or
an error of jurisdiction or law. There has to be a well -
founded error and it may not be appropriate for the court
to scrutinise the orders, which upon the face of it bears a
token of careful consideration and appear to be in
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accordance with law. If one looks into the various
judgments of this Court, it emerges that the revisional
jurisdiction can be invoked where the decisions under
challenge are grossly erroneous, there is no compliance
with the provisions of law, the finding recorded is based on
no evidence, material evidence is ignored or judicial
discretion is exercised arbitrarily or perversely. These are
not exhaustive classes, but are merely indicative. Each case
would have to be determined on its own merits".
13. Here, both revision petitioners are seeking discharge under
Section 227 of Cr.P.C. Therefore, it would also be desirable to give
brief account of the judicial precedent on discharge and a few
landmark judgments which still hold the field, are as under :
In Dilawar Balu Kurane v. State of Maharashtra , (2002) 2 SCC
135, the Supreme Court observed that, in exercising powers under
Section 227 of the Criminal Procedure Code, 1973, the settled
position of law is that the Judge, while considering the question of
framing charge under the said Section, has the undoubted power to
sift and weigh the evidence for the limited purpose of finding out
whether or not a prima facie case against the accused has been made
out and whether the materials placed before the Court disclose grave
suspicion against the accused which has not been properly explained
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to the Court. Only in such a case, the Court will be fully justified in
framing charge and proceed with the trial. On the other hand, if the
Judge is satisfied that the evidence produced before the Court gives
rise to some grave suspicion, then the Judge will be fully justified in
discharging the accused.
In P. Vijayan v. State of Kerala, (2010) 2 SCC 135, the Supreme
Court has held that the Judge is not a mere post office to frame
charge, but the Judge should exercise his judicial mind and discretion
to determine whether a case for trial has been made out by
prosecution. It was further clarified that the Judge should be satisfied
that the evidence produced by the prosecution before the Court
discloses grave suspicion that the accused has committed the crime.
The Supreme Court has also laid down the following principles :
1. If two views are possible and one of them gives rise to
suspicion only as distinguished from grave suspicion, the
Trial Judge would be empowered to discharge the accused.
2. The Trial Judge is not a mere Post Office to frame the
charge at the instance of the prosecution.
3. The Judge has to merely sift the evidence in order to find
out whether or not there is sufficient ground for proceeding.
Evidence would consist of the statements recorded by the
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Police or the documents produced before the Court. It is to
be noted here that the Judge has to merely sift the evidence
on record and not go in depth of it in order to decide an
application for discharge.
4. If the evidence, which the prosecutor proposes to adduce to
prove the guilt of the accused, even if fully accepted before
it is challenged in cross - examination or rebutted by the
defence evidence, if any, 'cannot show that the accused
committed offence, then, there will be no sufficient ground
for proceeding with the trial.
5. It is open to the accused to explain away the materials
giving rise to the grave suspicion.
6. The Court has to consider the broad probabilities, the total
effort of the evidence and the documents produced before
the Court, any basic infirmities appearing in the case and so
on. This, however, would not entitle the Court to make a
roving enquiry into the pros and cons.
7. At the time of framing the charges, the probative value of
the material on record cannot be gone into, and the material
brought on record by the prosecution, has to be accepted as
true.
8. There must exist some materials for entertaining the strong
suspicion which can form the basis for drawing up a charge
and refusing to discharge the accused.
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In Amit Kapoor (supra), in paragraphs 17 and 19, the
Hon'ble Supreme Court has observed as under :
"Framing of a charge is an exercise of jurisdiction by the trial
court in terms of Section 228 CrPC, unless the accused is
discharged under Section 227 CrPC. Under both Sections 227
and 228 CrPC, the court is required to consider the "record of
the case" and the documents submitted therewith and, after
hearing the parties, may either discharge the accused or
where it appears to the court and in its opinion there is
ground for presuming that the accused has committed an
offence, it shall frame the charge. Once the facts and
ingredients of the section concerned exists, then the court
would be right in presuming that there is ground to proceed
against the accused and frame the charge accordingly. This
presumption is not a presumption of law as such. The
satisfaction of the court in relation to the existence of
constituents of an offence and the facts leading to that
offence is a sine qua non for exercise of such jurisdiction. It
may even be weaker than a prima facie case. (para 17)
At the initial stage of framing of a charge, the court is
concerned not with proof but with a strong suspicion that the
accused has committed an offence, which, if put to trial,
could prove him guilty. All that the court has to see is that the
material on record and the facts would be compatible with
the innocence of the accused or not. The final test of guilt is
not to be applied at that stage."
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In State of Karnataka v. M. R. Hiremath , (2019) 7 SCC 515, the
Supreme Court has observed that, at the state of considering an
application for discharge, the Court must proceed on the assumption
that the material which has been brought on record by the
prosecution should be true and the Court should evaluate the material
in order to determine whether the facts emerging from the material,
taken on its face value discloses the existence of the ingredients
necessary to constitute the offence.
In another case of State of Tamil Nadu v. N. Suresh Rajan ,
(2014) 11 SCC 709, adverting to the earlier decisions on the subject
of discharge, the Supreme Court observed that at the stage of
discharge, the probative value of the materials has to be gone into
and the Court is not expected to go deep into the matter. Whereas,
what is needed to be considered is whether there is a ground for
convicting the accused has been made out. To put it differently, if the
court thinks that the accused might have committed the offence on
the basis of the materials on record on its probative value, it can
frame the charge but for the conviction of the accused, the court
should come to the conclusion that the accused has committed the
offence. The court further observed that the law does not permit a
mini trial at the stage of discharge.
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14. Keeping in mind the above settled legal position, on sifting the
chargesheet with limited purpose, the chronology of events that
emerges from medical papers is as under :
• 21.01.2014 - Deceased Megha Dnyaneshwar Tarde, aged 23
years, was being treated for infertility at Jilla Hospital,
Aurangabad. As per the history recorded, the deceased was a
diagnosed case of Extra Hepatic Portal Vein Obstruction
(EHPVO) since 2009.
• 18.03.2014 - Deceased underwent a laparoscopic surgical
procedure conducted by Dr Gurupreet Sandhu at Jilla
Hospital. She was later on shifted to bed and further
discharged on the same day.
• 19.03.2014 - Post operation, on the next day at Sindhkhed
Raja, District Buldhana, deceased complained of abdominal
pain. Medical papers record the presence of the abdominal
fluid. Therefore, the deceased was re-admitted at about 7:00
p.m. at the Jilla Hospital.
• 20.03.2014 - At around 9:00 a.m., deceased was seen by Dr.
Gurupreet Sandhu and her condition was mentioned as fair,
she was afebrile.
• 21.03.2014 - At around 4 p.m., patient (now deceased)
complained of pain in the abdomen. As per the second
opinion of Dr Nusrat Farooqi, the patient was advised CT scan
of the abdomen which revealed evidence of peritonitis. The
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deceased was considered for Exploratory Laparotomy and was
referred for immediate surgery to Government Medical
College and Hospital, Aurangabad. On the request of the
patient, she was referred to the Max Super Speciality Hospital
by Dr Manju Jilla, who spoke with Dr, Navin Kasliwal,
surgeon at Max Super Speciality Hospital, where she was
examined at 11:00 p.m.
• 22.03.2014 - The Exploratory Laparotomy was performed for
intestinal perforation at 9:00 a.m. However, at 3:00 p.m., the
patient died at Max Super Specialty Hospital.
15. Thus, on study of medical papers, admission of deceased Megha
for Laparoscopic surgery in the hospital of Revision Petitioner Dr. Jilla
is of 18.03.2014 and she underwent the same. Medical papers show
that on the same day, she was also discharged and taken home by
informant brother. Again she was brought back and re-admitted on
account of complaint of abdominal pain on 19.03.2014 and on
21.03.2014 she was advised to be taken to the Government Medical
Hospital, but on decision of informant and family members, she was
taken to Max Super Speciality Hospital and admitted there on the
night of 21.03.2014. In this Max Super Speciality Hospital, she
underwent "Exploratory Laparotomy" for intestinal perforation at
09.00 a.m. in the morning of 22.03.2014 by the Doctors of the Max
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Super Speciality Hospital and unfortunately in the afternoon around
3.00 p.m., Megha succumbed. Inquest panchanama also shows that,
death has taken place in Max Super Speciality Hospital.
16. Charge sheet shows that, initially AD was registered on
16.04.2014, however, FIR at the instance of brother is apparently
lodged on 17.04.2015 i.e. after more than a period of one year.
During AD inquiry, statements of husband, in-laws and other relatives
were recorded on 18.04.2014 and they all in unison stated that they
had no complaint against anyone for the death of Megha and it was
due to abdominal pain. Such statements are already forming part of
chargesheet.
Subsequently, on receipt of report from brother after a year or
so, crime is registered and investigation seems to have been
undertaken by police on accusation of commission of offence under
Section 304 r/w 34 of IPC. Section 304 IPC, for ready reference, is
reproduced as under :
"304. Punishment for culpable homicide not amounting
to murder.--
Whoever commits culpable homicide not
amounting to murder shall be punished with
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imprisonment for life, or imprisonment of either
description for a term which may extend to ten years,
and shall also be liable to fine, if the act by which the
death is caused is done with the intention of causing
death, or of causing such bodily injury as is likely to
cause death;
or with imprisonment of either description for a
term which may extend to ten years, or with fine, or
with both, if the act is done with the knowledge that it is
likely to cause death, but without any intention to cause
death, or to cause such bodily injury as is likely to cause
death."
It is fairly settled position that for proving offence of 304 of IPC
it is incumbent upon prosecution to establish that firstly, accused
caused death, and secondly it was done with intention of causing
death or bodily injury or with knowledge that the act is likely to cause
death.
The Hon'ble Apex Court in the case of Anbazhagan v. State
Represented by Inspector of Police (2024) 20 SCC OnLine SC , lucidly
summed up the principles to be considered while dealing with case
involving Section 304 IPC which encompasses Part I as well as Part II.
Explaining the difference between both, it has been highlighted that,
the first Part of Section 304 comes into play "when there is guilty
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intention", whereas second Part would apply when there is no such
intention but there is "guilty knowledge". Essence of mens rea is also
highlighted for attracting the above offence.
17. As regards to qualification of both revision petitioners is
concerned, it is emerging that each of the petitioners possess
following educational qualification :
Dr. Manju Jilla - M.D. (OBST. & GYNAE.)
Dr. Gurumeet Kaur - M.B.B.S.
D.G.O.C.P.S.
The Aurangabad Municipal Corporation has issued Certificate
of Registration to Jilla Hospital since 24.07.1985.
18. Thus, there is no dispute that, the hospital run by Dr. Manju
Jilla is an approved and recognized maternity hospital wherein
Revision Petitioner Dr. Gurupreet Sandhu is engaged as a Doctor and
from their academic acquisitions, they both seem to be qualified and
experienced medical practitioners.
19. On carefully going through the papers, as regards to Revision
Petitioner Dr. Manju Jilla is concerned, there is nothing to show that
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since admission of deceased Megha, she herself conducted any
procedure over deceased and it is so apparent from the clinical notes
which are part of charge sheet. Procedure of Laparoscopy is shown to
be performed by Dr. Gurupreet Sandhu and hospital case papers, i.e.
pre and post operation, are at her instance. But again, after
conducting Laparoscopy on 18.03.2014, informant had taken
discharge of his sister and had been to his native and on next day,
when there was complaint of abdominal pain, there, local doctor
seems to have been consulted, who opined formation of fluid and re-
directed them to the hospital of Dr. Jilla. Admittedly, since
19.03.2014 to 21.03.2014, lady patient was in the Jilla Hospital and
treated conservatively. Informant brother has merely attributed delay
in obtaining x-ray and conducting necessary tests. He alleges that
necessary steps were not taken for referring his sister to an expert.
Papers which are part of chargesheet show that, expert by name
Dr. Gopanpallikar initially examined Megha and advised color
Doppler. On 21.03.2014 one surgeon Dr. Nusrat Farooqui was called
for second opinion, who advised CT scan and on receipt of report of
CT scan, decision about Exploratory Laparotomy surgery was taken
and for want of post operation ICU backup, it seems to have been
decided to refer the lady patient for immediate surgery to
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Government Medical College and Hospital, Aurangabad. Accordingly,
a referral note was also prepared on 21.03.2015 addressed to Dr.
Warudkar, Head of the Department of Surgery at said Govt. Medical
College and Hospital. However, it seems that for proper treatment,
informant/brother of deceased and relatives seems to have in stead
shifted her to Max Super Speciality Hospital.
Papers show that, deceased was admitted in Max Super
Speciality Hospital on 21.03.2014 at around 11.00 p.m., wherein all
clinical notes of previous diagnosis, treatment and details of
laparoscopy done five days back were noted by Dr. Ritesh Sony, also a
surgeon. Treatment seems to have immediately commenced upon
admission and necessary pathological tests were being got done.
Thereafter, patient seems to have been seen by Dr. Navin Kasliwal
and call of undertaking Exploratory Laparotomy seems to have been
taken by him too, and the same seems to have been accordingly done
at 09.00 a.m. on 22.03.2014. After said procedure, notes show that,
patient did not recover. However, Max Hospital has maintained
papers of consent prior to Exploratory Laparoscopy and relatives have
signed over consent forms which show that they were made aware of
the prognosis of the patient.
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20. Thus, what is emerging from above discussion is that, after
discharge from Petitioner's hospital, second procedure was done at
Max Hospital. Consequently, material in the charge sheet suggests
involvement of another hospital after discharge from Petitioner's
hospital. As regards to involvement of Dr. Manju Jilla is concerned,
there is nothing in the charge sheet for participating in Laparoscopy
done on 18.03.2014. Apparently, it was done by Dr. Gurupreet
Sandhu, but she too seems to be well qualified and experienced
surgeon and after her procedure, lady patient was discharged and
taken at native by her brother.
21. Here, postmortem findings suggest death due to "Paritonitis in
post-operative case of Exploratory Laparotomy for intestinal
perforation following Laparoscopy" which, in common language,
means perforation/bleeding to intestine. Prima facie, there is no
evidence of bleeding since discharge from Jilla Hospital dated
18.03.2014. Local doctor has, on sonography, recorded a finding
about accumulation of fluid/water. As stated above, second procedure
is shown to be done at Max Hospital, after which deceased reportedly
died. Consequently, there is no material to directly connect both
Petitioners with the death of Megha. Even Expert Committee's
opinion does not show any "gross" negligence in conducting
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Laparoscopic procedure or that said procedure itself had led to
Paritonitis.
22. At this juncture, it would be fruitful to refer to the judgment of
Hon'ble Apex Court in the case of Jacob Mathew (supra), which is
invariably leaned upon by Courts while dealing with cases of medical
negligence, wherein in paragraph 48, the Hon'ble Apex Court has
summed up its conclusions on several issues of law on medical
negligence, which are borrowed and reproduced 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 hereinabove,
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
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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, 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 fall 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
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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 case, 1957 1 WLR 582, 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 IPC,
yet it is settled that in criminal law, negligence or
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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."
Finally, in paragraph 50 of Jacob Mathew (supra), the Hon'ble
Apex Court has prescribed guidelines in matters of prosecution of
medical professionals. In this paragraph, the Hon'ble Apex Court has
noted that, cases of doctors (surgeons and physicians) being subjected
to criminal prosecution are on rise. Sometimes such prosecutions are
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filed by private complainants and sometimes by the 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 304A 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.
From the conclusions recorded by the Hon'ble Apex Court in
Jacob Mathew (supra), it is clear that 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 come into play. A case
of occupational negligence is distinct from one of professional
negligence. A mere lack of care or an error of judgment or an
accident, is not a proof of negligence on the part of a medical
professional. (emphasis supplied) So long as a doctor follows a
practice acceptable to the medical profession of that day, he cannot
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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.
23. In the light of above settled position and on reverting to the
case in hand and on revisiting the expert committee's opinion, it is
emerging that, both reports do not specifically or pin-pointedly
attribute death due to any "gross" negligence in surgery conducted on
18.03.2014. Since admission of deceased in the hospital of Revision
Petitioner on 19.03.2014, no procedure of whatever nature was done
in the said hospital. Allegations are of not heeding to the request of
informant to conduct x-ray examination. Therefore, taking above
material into consideration, apparently there does not seem to be a
case of medical negligence, leave aside "gross" negligence.
24. To sum up, no role whatsoever is shown to be played by
Revision Petitioner Dr. Manju Jilla in conducting any procedure like
Laparoscopy. Her participation is not shown at the time of said
procedure. As regards to Revision Petitioner Dr. Gurupreet Sandhu is
concerned, after said procedure conducted by her, patient was
discharged and initially taken home, then brought back on
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19.03.2014, but again thereafter, there is no procedure at her hands.
Rather, second procedure is done at distinct hospital with which
neither of the Petitioners have any concern. Apparently, death has
occurred after second procedure at Max Hospital.
25. Even papers show that, informant brother has set law into
motion almost after a year or so. As stated above, in earlier
statements during AD inquiry, these very persons, i.e. husband, in-
laws and other relatives, did not blame either of the Petitioners for
the death. Rather, they attributed it to abdominal pain. Surprisingly,
one year thereafter, in subsequent statements on lodgment of FIR,
they are attributing negligence to both Revision Petitioners. However,
in view of the above observations of the Hon'ble Apex Court in Jacob
Mathew (supra) and also bearing in mind the essential ingredients for
attracting Section 304 IPC which are reflected in the case of
Anbazhagan (supra), here, none of the ingredients are shown to be
existing in the entire chargesheet. In the totality of above discussed
facts and circumstances, it is a fit case for discharge. Hence, both
Revision Petitioners succeed. Accordingly, following order is passed :
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ORDER
I. Both the Criminal Revision Applications are allowed.
II. The common order dated 29.06.2024 passed by Additional
Sessions Judge, Ambad below Exhibits 15 and 25 in Sessions Case
No. 100 of 2021, is hereby quashed and set aside.
III. The Applications Exhibits 15 and 25 filed in Sessions Case No.
100 of 2021 stand allowed. Both the Revision Petitioners stand
discharged from offence under Section 304 r/w 34 of IPC in
Sessions Case No. 100 of 2021 (Crime No. 77 of 2015 registered
at Ambad Police Station, District Jalna).
IV. The Criminal Revision Applications are accordingly disposed off.
[ABHAY S. WAGHWASE, J.]
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