Delhi High Court
Dr.Ritu Rawat And Another vs Tej Singh And Others on 24 October, 2008
Author: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C.No.981/2007
% Date of decision : 24.10.2008
Dr.Ritu Rawat and Another ....... Petitioners
Through: Mr.Siddharth Luthra, Sr. Advocate
with Mr.Samarjit Pattnaik, Mr.Jai
Singh and Ms.Pallavi Sharma,
Advocates for the petitioner..
Versus
Tej Singh and Others ......... Respondents
Through : Ms.Rebecca John, Advocate for the
respondents.
SI G.S. Rawat, I.O., P.S. Sarita
Vihar.
CORAM :-
* HON'BLE MR. JUSTICE ANIL KUMAR
1. Whether reporters of Local papers may YES
be allowed to see the judgment?
2. To be referred to the reporter or not? YES
3. Whether the judgment should be reported YES
in the Digest?
ANIL KUMAR, J.
*
1. The petitioners, Dr.Ritu Rawat, Medical Superintendent,
Indraprastha Apollo Hospitals and Dr.Rajeev Puri, Consultant ENT seek
quashing of complaint in case No.495/1/2007 and orders dated 2nd
March, 2007 and 17th March, 2007 passed in the said complaint case
under Section 304(II)/304A/34 IPC.
2. The complainants are respondents No.1 & 2, grandfather and
mother of Late Aditya Pal who was suffering from Recurrent Laryngeal
Papillomatosis. He was undergoing treatment at Indraprastha Apollo
Hospital since November, 2004 and he underwent multiple laserisation
of his papillomata on 25th November, 2004, 7th March, 2005, 22nd April,
2005 and 28th July, 2005.
3. The respondents contended in their complaint that on 3rd
October, 2005 late Aditya Pal was again admitted in Indraprastha
Apollo Hospital and during the procedure one of the pulses caused a
luminescence in the airway leading to withdrawal of the procedure as
the deceased suffered laser burns in the airway and he was shifted to
ventilator support in Paediatric Intensive Care Unit (PICU). For the laser
burns during the procedure, he was stabilized initially in O.T and then
shifted to ICU for further management where he was put on mechanical
ventilator and allegedly started on IV antibiotics and vigorous
supportive care (inotopes and IV fluids).
4. The complainants have alleged that the child continued to remain
under the treatment till 26th October, 2005 on which day he ultimately
expired. It has been contended that the Trachestomy suction was
found to be blood stained and volume was increasing. The
complainants categorically asserted that the laser equipment operated
by petitioner No.2 and maintained by petitioner No.1 and other
accused, Indraprashtha Medical Corporation Limited and Anne
Moncure, Managing Director, was unfit and defective. It was
contended that its poor upkeep and maintenance along with deficient
knowledge in running the machine, both at the time of procedure
during its normal usage and after its mall-function during the course of
operation, caused serious burn injuries. Some of the relevant
allegations made in the complaint under Section 200 of Code of
Criminal Procedure against the petitioners are as under:-
"6. That the laser equipment operated by the accused
No.4 and maintained by accused Nos.1-3 was unfit and
defective. Its poor upkeep and maintenance along with
deficient knowledge in running the machine both at the
time of procedure during its normal usage and after its
malfunction during the course of operation caused serious
burn injuries leading to a hole in the traches of the child
Aditya Pal which led to further secondary complication and
his untimely death.
7. That the accused No.1 is a company running
Indraprastha Apollo Hospital and Accused No.2 is its
Managing Director whereas accused No.3 is its Medical
Superintendent and both the accused No.2 and 3 are
directly and vicariously responsible for the day to day
affairs, maintenance and upkeep of the hospital, its
equipments and further to ensure that the services being
rendered are upto the mark and of good standard quality as
per established medical norms.
8. That accused No.4 who performed the procedure was
criminally negligent and incompetent to carry the operation
of the given nature. Moreover, due to grossly negligent and
inapt handling of the situation, the child was not treated
properly and rather suffered serious injuries leading to his
death at his hands.
9. That even after the serious burn injuries which
resulted from culpable negligence at the hospital there was
dismal failure to take necessary care warranted by the
situation having arisen from lack of exercise of proper care
and due precaution incumbent on the accused. The child
was ignored, no proper treatment was offered and
eventually the child expired due to the acts and omissions
of the accused. In fact, the attending doctor lacked the kind
of skill required for handling such spoilt cases as also
requisite remedial treatment was not administered despite
the complainant having agreed and offered to bear all
possible expenses to save the most precious life of the only
son and the only hope of a widowed mother."
5. The respondents no.1 & 2 has categorically asserted that the
petitioner No.2 was grossly negligent and his inapt handling of the
situation, as the child was not treated properly and he suffered serious
injuries and even after that he was not looked after properly, ultimately
led to his death. The respondents are categorical that even after the
serious burn injuries which resulted from culpable negligence there was
dismal failure to take necessary care warranted by the situation having
arisen from lack of exercise of proper care and due precaution
incumbent on the accused. It was stated that no proper treatment was
offered resulting in the untimely death of the only son of respondent
No.2.
6. After the demise of Aditya Pal post mortem on his body was
conducted at AIIMS by a board consisting of Dr.Sudhir Gupta,
Associate Professor, Dr.B.L.Chaudhary, Senior Resident and
Dr.Raghvinder, Junior Resident who gave a post mortem report
No.1313/2005. The relevant observations of the post mortem report as
detailed in the complaint are as follows:-
"Alleged h/o death in Apollo Hospital while he was receiving
laser resection under general anesthesia.
Note: However, the alleged blast of laser machine, its model
and type, type of anesthesia used and clinical facts should
be evaluated by investigating agency.
Ante-Mortem injuries over the body:
1.) Therepeutic (during the treatment)
Surgical trancheostomy wound of size of 1.5 cm x 4.5
cm red in color. Tracheostomy wound was packed
with a gauze piece.
2.) On dissection of neck and wind pipe severe burn
injury with granulation tissue, with charred tissue
material and carbon soot present from Oropharynx,
full supraglottis, larynx and tracheal wall upto C-7
vertebral level. One trachea-oesophageal fistula
present on posterior wall of trachea.
3.) Burn healed injury of size 004 x 4 cm present in
anterior surface of neck on right side. Another injury
(burn) seen 1 cm below injury no.20.5 cm x 0.3 cm.
4.) Healed burn maker on right cheek of size 5 x 1.5 cm
whitish in colour.
Other findings:-
1) Pleural Cavity: Serosanginous
fluid/oedematous/congested
2) Lungs: pus oozing on pressure
3) Burn healed injury of size 0.4 x 4 cm present in
anterior surface of neck on right side. Another injury
(burn) seen 1 cm below injury no.20.5 cm x 0.3 cm.
4) Healed burn mark on right cheek of size 5 x 1.5 cm
whitish in colour.
5) Other findings
i) Pleural Cavity: Serozanguinous
fluid/oedematous/congested. Pleural cavity is
jhilli kind of thing which surround lungs, when it
gets infected it discharge fluid (serosanguinous)
oedema is swelling, congestion is increase of blood
supply a normal body response.
ii. Lungs: Pus oozing on pressure (lung infection).
Cause of Death
Extensive ante-mortem laser burn injuries to:-
iii. Oropharnx
iv. Nasopharnx
v. Suppraglottis
vi. Larngeal Cavity
vii. Trachea upto cervical C-7 level
Resulting into R.T.I (Respiratory Track Infection),
Lung Infection with Septicaemia.
Opinion
The mentioned burn injury which is primary cause of
death was unwarranted. This speaks failure of taking
required precautions, care and skill in adopted
procedure.
This is res ispa loquitur/a case of gross medical
negligence
(common man language of Medical finding during the post
mortem)
Ante-mortem injury over body:-
1. Therapeutic (during treatment)
Surgical tracheostomy wound of size of 1.5 cm x 4.5
cm red in colour. Tracheostomy wound was packed
with a gauze piece."
7. The complainant further asserted that the reference was made to
Delhi Medical Council but the same was not dealt with properly and
since no action was initiated against the petitioners they filed the
complaint under Section 200 of Code of Criminal Procedure, 1973 and
sought action against the petitioners for complaints under Section
304(Part-II), 304A/34 IPC.
8. On 3rd March, 2007 the learned Metropolitan Magistrate passed
the following order:-
"Fresh complaint received by way of assignment. It be
checked and registered. I take cognizance.
Complainant with the learned counsel Sh.Puneet
Mittal. Heard. As it is submitted by the counsel that a
complaint was made to the SHO P.S.Sarita Vihar regarding
the death of child Aditya Pal due to gross medical
negligence of the accused persons but no action was taken
by the police. Issue notice to the SHO P.S.Sarita Vihar to
give the status report. The copy of the complaint is supplied
to constable Ratan.
Put up for 17.3.2007 at 2 PM at the request of the
counsel."
9. After the complaint was filed, the learned M.M directed the SHO,
P.S. Sarita Vihar to give the status report. After the post mortem report
the police had sought an opinion from All India Institute of Medical
Sciences, pursuant to which a board was constituted to examine the
laser machines and treatment papers of the deceased. The medical
board comprised of Dr.Sudhir Bahadur, Professor of ENT, Chairman;
Dr.Adarsh Kumar, Assistant Professor of Forensic Medicine, Member;
Dr.Biplab Mishra, Assistant Prop. of Surgery; Mr.S.K.Kamboj, Senior
Technical Officer and Dr.Raja Dutta, Department of Hospital
Administration which held various meetings on 12th June, 18th July,
25th July and 29th July, 2006. The medical board also sought few
clarifications from Dr. Sudhir Gupta who was the Chairman of the
board which had conducted post mortem on the body of the deceased.
The medical board also obtained the YAG Laser Systems MY30/MY60
which was evaluated by Sh.S.K.Kamboj, Senior Technical Officer. The
report dated 18th July, 2006 was given by a Senior Technical Officer of
the All India Institute of Medical Sciences stipulating that he had
received the laser machine Model No.Martine MY60 Serial No.MY-
600102951035 with its accessories on 15th June, 2006 for examination
from Sub Inspector Hari Prakash, Police Station Sarita Vihar, New
Delhi. On 17th July, 2006 machine was tested and it was found to be
functioning normally and all the accessories were also found to be
working properly and correct as per its functions.
10. The report dated 29th July, 2006 was given by All India Institute
of Medical Science by the Medical Board of All India Institute of Medical
Sciences consisting of Dr.Sudhir Bahadur, Professor of ENT; Dr. Adarsh
Kumar, Assistant Professor of Forensic Medicine; Dr. Biplab Mishra,
Assistant Professor of Surgery; Mr.S.K. Kamboj, Sr. Technical Officer
and Dr. Raja Dutta, Department of Hospital Administration. The
Medical Board in the said report stipulated that in view of the post
mortem report No. 1313/05 of the deceased and of the request of
Investigating Officer by letter No.NIL dated 5th June, 2006, few
clarifications were to be sought from Dr.Sudhir Gupta, Associate
Professor of Forensic Medicine, who was the Chairman of the Board
which had conducted the post-mortem and had held the case to be res
ipsa loquitur/a case of gross medical negligence and requested
Dr.Sudhir Gupta to attend the meeting on 18th July, 2006. Despite the
request of the Medical Board to Dr.Sudhir Gupta to appear, he did not
attend the meeting. Thereafter, the Board obtained the legible and
complete copy of post mortem report and after considering the post
mortem report and the report of technical examination of YAG Laser
System opined as under:-
"Apparently the patient suffered from recurrent laryngeal
papilloma. It is well known that this condition affects young
children and is treated by micro-laryngeal surgery using
conventional instruments or laser. There is some evidence
in literature to suggest that use of laser may result in fewer
recurrences. However, there is always an inherent risk in
using laser surgery and accidental laser fire is a known but
rare complication, even if the machine is functioning
normally (as appears to have happened in the instant case).
Nevertheless, there are standard laid down guidelines to
prevent and manage these complications."
11. On the basis of representation from the office of DCP
Headquarters, Delhi, forwarded by Government of NCT, a hearing was
given to the accused and the complainant/respondent No.1 and 2 by
the Delhi Medical Council and on the basis of these statements and the
record, a report dated 15th September, 2006 was also given. It was held
that laser spark which occurred in the airway at the time of surgery
which caused burn injuries in the airway though rare is known to occur
with the incidence of 0.5% to 1.5% in the USA. Delhi Medical Council
board of Dr.Praveen Khilani, Dr.K.Lathita and Dr.Sanjay Durari held
that post explosion treatment including treatment provided in PICU and
the ward was as per the standard treatment protocol. It further opined
that explicit/specific information about probability of such
complications during such procedures should be made available to the
patient in the consent form.
"It has been observed that the preoperative, intraoperative
and postoperative treatment provided to Master Aditya was
fully in consonance with the known standard protocol of
treatment in such cases. The laser equipment used was
also in working order as per inspection report dated
9.11.205. It was unfortunate that after having successful
laser resection in four consecutive occasions, accidental fire
occurred during the fifth session which resulted in laser
burn of the airway of Master Aditya leading to secondary
complications and he finally succumbed to them. After
going through all the records and also examining the
doctors associated with this case, the Council did not
observe any negligence in the management of the entire
episode. The laser spark which occurred in the airway at
the site of surgery and which caused burn injuries in the
airway, although very rare, is known to occur with the
incidence of 0.5% to 1.5% in the U.S.A. Post explosion
treatment including treatment provided in the PICU and the
ward was as per standard treatment protocol. However, it is
felt that explicit/specific information about probability of
such complications during such procedures should be
made available to the patient in the consent form. The same
may be recommended to the Government in all Delhi
hospitals.
12. The SHO filed the status report before the learned M.M on 17th
March, 2007. The SHO relied on opinion of the Board of Directors
constituted by All India Institute of Medical Sciences which was
obtained on account of adverse remarks regarding cause of death in the
post mortem report. According to the report, the Board of Doctors had
examined the laser machine and treatment papers of the deceased and
on inspection laser machine was found to be in normal working
condition. The SHO had also referred to the opinion obtained from
Delhi Medical Council which had opined that the case of the deceased
was of accidental burn. On the basis of these reports, it was stated that
the Doctor who had treated the patient is guilty for treatment procedure
even though the Medical Council of Delhi has not observed any
negligence in the management of the entire episode.
13. The status report was filed before the learned M.M along with the
report of the medical board and technical examination report. The
learned Magistrate after considering the status report and the
allegations made in the complaint and the post mortem report issued by
the medical board of All India Medical Sciences held that there is
sufficient material on record which suggests that there is a commission
of cognizable offence and, therefore, SHO P.S.Sarita Vihar was directed
to register the FIR by its order dated 17th March, 2007. The order dated
2nd March, 2007 and 17th March, 2007 along with the complaint are
challenged by the petitioners who are accused Nos.3 & 4 in the
complaint filed by respondent Nos.1 & 2.
14. The petitioners seek setting aside of order dated 2nd March, 2007
and 17th March, 2007 on the grounds that they are incorrect and bad in
law. It was also asserted that the learned M.M after taking cognizance
under Section 200 of the Criminal Procedure Code and issuing a
direction for filing of inquiry/status report under Section 202 of the
Criminal Procedure Code could not have reverted to the pre-cognizance
stage and issued directions under Section 156(3) of Cr.P.C by order
dated 17th March, 2007 and, therefore, the orders and procedures are
bad in law. The petitioners further asserted that the findings of the
post mortem relied upon by the complainant were preliminary in nature
and rather records a note that the investigating agency should examine
the machine and anesthesia and clinical facts and since the findings of
the post mortem board were not findings of the medical board
constituted later on and the opinion of Delhi Medical Council pursuant
to the representation from the office of DCP reflect that there was no
negligence and the death occurred due to unforeseen complications as
recorded in the medical literature, therefore, there is no justification for
filing the complaint or invoking Section 304(II) of IPC as the ingredients
of that provisions are not made out. The petitioners counsel contended
that the doctor‟s duty is to try and cure and there is no element of
certainty in the treatment. Since there is an absence of commission of
any cognizable offence the order dated 2nd March, 2007 and 17th March,
2007 ought not to have been passed.
15. Learned counsel for petitioners has relied on Jacob Mathew v.
State of Punjab & Another (2005) 6 SCC 1; Dr. G.S. Chandraker v. State
& Another (2007) 3 JCC 2407; Tula Ram and Others v. Kishor Singh
(1977) 4 SCC 459; Mohd. Yousuf v. Afaq Jahan (Smt.) & Another (2006)
1 SCC 627; State of Assam v. Abdul Noor and others (1970) 3 SCC 10;
Crl.M.C. No.831/2008 titled Dr.Narendra Nath v. State and Another
decided on 8th April, 2008; and S.K. Sinha, Chief Enforcement Officer v.
Videocon International Ltd. and Others (2008) 2 SCC 492, to contend
that there is no medical negligence attributable to the petitioner and
since the Magistrate had taken cognizance by order dated 2nd March,
2007, he could not proceed under Section 156(3) of the Criminal
Procedure Code and the option left with the Magistrate was to proceed
under Chapter 15 of the Criminal Procedure Code.
16. Per contra, learned counsel for the respondents No.1 and 2 has
relied on Sanjay Bansal & Another v. Jawaharlal Vats & Others Air
2008 SC 207 and Dilawar Singh v. State of Delhi AIR 2007 SC 3234 to
contend that for taking cognizance, the Magistrate must not only apply
his mind to the contents of the petition but after doing so must proceed
in a particular way as indicated in Chapter 15 and thereafter send it for
inquiry and report under Section 202. Where Magistrate applies his
mind not for the purpose of proceeding under the subsequent sections
of Chapter but for taking action of some other kind, e.g., ordering
investigation under Section 156(3), or issuing a search warrant for the
purpose of the investigation, it cannot be inferred that he had taken
cognizance of the offence. Learned counsel also relied on Mohanan v.
Prabha G. Nair and Another AIR 2004 SC 1719, to contend that the
respondents No.1 and 2 are entitled for full opportunity to produce
evidence before the Magistrate regarding the negligence of the doctor
which could be ascertained only by allowing the respondents to produce
evidence to negate the allegations by the petitioners.
17. It is no more res integra that negligence in law means a failure to
do some act which a reasonable man in the circumstances would do or
the doing of the same act which a reasonable man in the circumstances
would not do; and if that failure or the doing of the act results in injury,
then there is a cause of action. In an ordinary case, it is generally
judged by the action of an ordinary man, however, where special skill or
competence is required, the test is not the action of an ordinary man
but it is the test of the ordinary skilled man exercising and professing to
have that special skill. The duty of care required of a physician or a
surgeon or one possessing special skills was considered by McNair, J.,
in Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582
in the following terms:
"I must tell you what in law we mean by „negligence‟. In the
ordinary case which does not involve any special skill,
negligence in law means a failure to do some act which a
reasonable man in the circumstances would do, or the
doing of some act which a reasonable man in the
circumstances would not do; and if that failure or the doing
of that act results in injury, then there is a cause of action.
How do you test whether this act or failure is negligent? In
an ordinary case it is generally said you judge it by the
action of the man in the street. He is the ordinary man. In
one case it has been said you judge it by the conduct of the
man on the top of a Clapham omnibus. He is the ordinary
man. But where you get a situation which involves the use
of some special skill or competence, then the test as to
whether there has been negligence or not is not the test of
the man on the top of a Clapham omnibus, because he has
not got this special skill. The test is the standard of the
ordinary skilled man exercising and professing to have that
special skill. A man need not possess the highest expert
skill; it is well established that it is sufficient if he exercises
the ordinary skill of an ordinary competent man exercising
that particular art. I do not think that I quarrel much with
any of the submissions in law which have been put before
you by Counsel. Mr Fox-Andrews put it in this way, that in
the case of a medical man, negligence means failure to act
in accordance with the standards of reasonably competent
medical men at the time. That is a perfectly accurate
statement, as long as it is remembered that there may be
one or more perfectly proper standards; and if he conforms
with one of those proper standards, then he is not
negligent.
The test enunciated in Bolam (supra) was also followed and
approved by the Apex Court in Jacob Mathew (supra) in the following
terms:
24. The classical statement of law in Bolam case9 has been
widely accepted as decisive of the standard of care required
both of professional men generally and medical practitioners
in particular. It has been invariably cited with approval
before the courts in India and applied as a touchstone to
test the pleas of medical negligence. In tort, it is enough for
the defendant to show that the standard of care and the
skill attained was that of the ordinary competent medical
practitioner exercising an ordinary degree of professional
skill. The fact that a defendant charged with negligence
acted in accord with the general and approved practice is
enough to clear him of the charge. Two things are pertinent
to be noted. Firstly, the standard of care, when 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. Secondly, 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 point
of time on which it is suggested as should have been used.
The Supreme Court while approving the above test, in Suresh
Gupta and, later in Jacob Mathew also declared the test to be
applicable in cases of criminal negligence where a doctor is indicted of
having committed an offence, in the following terms:
"(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 and
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 the 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 or
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 of judging the
alleged negligence. So also, the stand 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 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 skill 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 or negligence.
(4) The test for determining medical negligence as laid
down in Bolam‟s case (1957) 1 WLR 582 hold 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,
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, 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".
The above, particularly (7) suggest that the threshold of
behaviour which would amount to criminal negligence is
not mere inaction or omission, or some error of judgment,
but something greater. The doctor who may be held liable
in tort, or under consumer law, may yet not be charged for
criminal negligence, on account of this higher standard of
culpability insisted upon by the decision.
18. In the circumstances, to establish medical professional negligence
under criminal law, it has to be demonstrated that the accused did
something or failed to do something which in the given facts and
circumstances no medical professional in his ordinary senses or
prudence would do or fail to do. In order to have a medical professional
negligence, therefore, the act of the accused doctor should be of such a
nature that the injury which resulted was most likely imminent. The
post mortem report dated 27th October, 2005 indicated that it is a case
of res ipsa loquitur/a case of gross criminal negligence and the burn
injuries which were the primary cause of death was unwarranted and
speaks of failure of taking required precautions, care and skill in the
adopted procedure.
19. The learned Magistrate has directed on the basis of the post
mortem report and the report of the Medical Board of All India Institute
of Medical Sciences and the report of Delhi Medical Council and other
materials for registering of an FIR. The petitioners are seeking quashing
of complaint against them on the basis of the report of All India
Institute of Medical Sciences and Delhi Medical Council and other facts
and circumstances. What will be the scope under Section 482 of the
Code of Criminal Procedure to quash the complaint filed against the
petitioners in the facts and circumstances? The legal position is well
settled that even at the stage of framing of charge the trial Court is not
to examine and assess in detail the material placed on record by the
prosecution nor is it for the Court to consider the sufficiency of the
materials to establish the offence alleged against the accused persons.
The Court prima facie has to see only whether the commission of
offence alleged has been made out against the accused person. It is also
well settled that in a petition under Section 482 of the Criminal
Procedure Code seeking quashing of complaint, the High Court should
not interfere with the order unless there are strong reasons to hold that
in the interest of justice and to avoid abuse of the process of the Court
the complaint or the charge framed against the accused need to be
quashed. An order quashing the complaint can be passed only in
exceptional and on rare occasion. The Apex Court in Meenakshi Bala v.
Sudhir Kumar & Ors, (1994) 4 SCC 142, had considered the question of
quashing of charge by the High Court in invoking its inherent
jurisdiction under Section 482 of the Criminal Procedure Code. In that
context the Apex Court made the following pertinent observations:-
"......To put it differently, once charge are framed under
Section 240 CrPC the High Court in its revisional
jurisdiction would not be justified in relying upon
documents other than those referred to in Sections 239
and 240 CrPC; nor would it be justified in invoking its
inherent jurisdiction under Section 482 CrPC to quash the
same except in those rare cases where forensic exigencies
and formidable compulsions justify such a course. We
hasten to add even in such exceptional cases the High
Court can look into only those documents which are
unimpeachable and can be legally translated into relevant
evidence. Apart from the infirmity in the approach of the
High Court in dealing with the matter which we have
already noticed, we further find that instead of adverting to
and confining its attention to the documents referred to in
Sections 239 and 240 CrPC the High Court has dealt with
the rival contentions of the parties raised through their
respective affidavits at length and on a threadbare
discussion thereof passed the impugned order. The course
so adopted cannot be supported; firstly, because finding
regarding commission of an offence cannot be recorded on
the basis of affidavit evidence and secondly, because at the
stage of framing of charge the Court cannot usurp the
functions of a trial court to delve into and decide upon the
respective merits of the case."
20. In another decision State of M.P v. S.B.Johari & Ors, (2000) 2
SCC 57 the Supreme Court adverting to the question of quashing of
charges in the light of the provisions contained in Section 227 & 228,
401 & 397 and 482 of the Criminal Procedure Code had not favoured
the approach of the High Court in meticulously examining the materials
on record for coming to the conclusion that the charge could not have
been framed for a particular offence. The Apex Court while quashing
and setting aside the order passed by the High Court had made the
following observations:-
...After considering the material on record, learned Sessions
Judge framed the charge as stated above. That charge is
quashed by the High Court against the respondents by
accepting the contention raised and considering the details
of the material produced on record. The same is challenged
by filing these appeals.
In our view, it is apparent that the entire approach of the
High Court is illegal and erroneous. From the reasons
recorded by the High Court, it appears that instead of
considering the prima facie case, the High Court has
appreciated and weighed the materials on record for coming
to the conclusion that charge against the respondents
could not have been framed. It is settled law that at the
stage of framing the charge, the court has to prima facie
consider whether there is sufficient ground for proceeding
against the accused. The court is not required to appreciate
the evidence and arrive at the conclusion that the materials
produced are sufficient or not for convicting the accused. If
the court is satisfied that a prima facie case is made out for
proceeding further then a charge has to be framed. The
charge can be quashed if the evidence which the prosecutor
proposes to adduce to prove the guilt of the accused, even if
fully accepted before it is challenged by cross-examination
or rebutted by defence evidence, if any, cannot show that
the accused committed the particular offence. In such case,
there would be no sufficient ground for proceeding with the
trial.
21. From the decisions of the Supreme Court it is, therefore, apparent
that the law is well settled that in exercise of inherent powers, the High
Court should take great care before embarking to scrutinize the
FIR/chargesheet/complaint. In deciding whether the case is rarest of
rare cases to scuttle the prosecution in its inception, it first has to get
into the grip of the matter whether the allegation constitute the offence.
It must be remembered that an FIR is only an initiation to move the
machinery and to investigate into cognizable offence. In the present
case on the basis of the material produced including the post mortem
report holding that it is a case of medical negligence and taking into
consideration the report of the board constituted by All India Institute
of Medical Sciences and Delhi Medical Council, the learned Magistrate
has only directed registering of an FIR. At this stage it is not the
function of this Court to weigh all the pros and cons of the prosecution
case or to consider necessary or strict compliance of the provisions
which are considered mandatory and the effect of its non compliance or
to accept the report of the medical board and Delhi Medical Council in
preference to the post mortem report. The learned counsel for the
respondents No.1 & 2 has categorically contended that the opinion of
the medical board is based on the inspection done of the laser machine
after a considerable period after the fire was caused during the
operations in October, 2005 and on the basis of alleged examination it
could not be concluded conclusively that the equipment was
functioning normally at the time the procedure was carried out on the
deceased. It is only in the rarest of the rare cases of mala fide initiation
of the criminal proceeding to wreak private vengeance by filing a
complaint or FIR which in itself does not disclose at all any cognizable
offence, that the Court may embark upon the consideration thereof and
in such cases the exercise of the power under Section 482 of the
Criminal Procedure Code would be justified. In State of Bihar v.
Rajendra Aggarwala, Criminal Appeal No.66 of 1996 decided on 18th
January, 1996 this Court had observed as under:-
"......It has been held by this Court in several cases
that the inherent power of the court under Section
482 of the Code of Criminal Procedure should be very
sparingly and cautiously used only when the court
comes to the conclusion that there would be manifest
injustice or there would be abuse of the process of
the court, if such power is not exercised. So far as the
order of cognizance by a Magistrate is concerned, the
inherent power can be exercised when the allegations
in the First Information Report or the complaint
together with the other materials collected during
investigation taken at their face value, do not
constitute the offence alleged. At that stage it is not
open for the court either to shift the evidence or
appreciate the - evidence and come to the conclusion
that no prima facie case is made out.
22. In the present case the post mortem report dated 27th October,
2005 held that it is a case of res ipsa loquitur/a case of gross criminal
negligence and the burn injuries which were the primary cause of death
was unwarranted and speaks of failure of taking required precautions,
care and skill in adopted procedure. These observations of the post
mortem report cannot be ruled out completely on the basis of the report
dated 18th July, 2006 of Senior Technical officer Sh.S.K.Kamboj and the
report dated 29th July, 2006 of the board constituted by All India
Institute of Medical Sciences holding that use of laser may result in
fewer recurrences and there is always an inherent risk in using laser
surgery and accidental laser fire is a known but rare complication, even
if the machine is functioning normally. What is also relevant is that the
medical board had requested Dr. Sudhir Gupta, Associate Professor of
Forensic Science, All India Institute of Medical Sciences who was the
Chairman of the board which had conducted the post mortem and had
given the report dated 27th October, 2005, to attend the meeting of the
board, however, Dr. Sudhir Gupta, it appears declined the same and
did not appear before the board. Thereafter the board had only
considered the legible copy of the post mortem report and has held that
the patient suffered from recurrent laryngeal papillomatosis and there
is some evidence in literature to suggest that use of laser may result in
fewer recurrences. Similarly, the Delhi Medical Council in its report
dated 15th September, 2006 although held that post explosion
treatment including treatment provided in the PICU and the ward was
as per standard treatment protocol, however, did not specifically negate
the observations of the board which carried out the postmortem and
which had held that it was a case of res ipsa loquitur/a case of gross
criminal negligence. This Court is not to consider the evidentiary value
of these reports and accept the reports of All India Institute of Medical
Sciences and Delhi Medical Council in preference to post mortem report
which is also by a board of All India Institute of Medical Sciences. It will
not be appropriate to give a finding at this stage on the basis of medical
evidence in the facts and circumstances of the case that there is no
medical negligence. The plea of the learned senior counsel for the
petitioners Mr. Luthra that the findings of the board which conducted
post mortem are only preliminary in nature and so the findings of board
constituted later on and the report of the Delhi Medical Council should
be taken as conclusive, cannot be accepted in the facts and
circumstances. It will be pertinent to consider that the Board which
conducted the post mortem had the body of the deceased who is alleged
to have died on account of medical negligence while the other Boards
did not have the advantage of examining the body of the deceased and
only on the basis of observations made in the post mortem report and
other material it has been opined that the fire could be accidental. At
this stage it is not open to this Court to shift through the evidence or
appreciate the evidence and reject some evidence and accept other
evidence and conclude that there was no medical negligence. On the
basis of inspection of the laser machine which was done considerably
after the incident and on the basis of said technical report of the laser
machine it cannot be concluded conclusively that the fire occurred on
account of malfunctioning of the machine not imputable to negligence
in maintenance and operation of the machine or because of some other
factors beyond the control of petitioners and other accused. In
Mohanan v. Prabha G Nair and Another AIR 2004 SC 1719, and
another relied on by the learned counsel for the respondents No.1 & 2 it
was held that the negligence of the Doctor could be ascertained only by
scanning the material and by the expert evidence. The Apex Court had
held that the High Court was not justified in quashing the complaint
especially in a case where culpability could be established only on
proper analysis of expert evidence and only by scanning the material
that may be adduced by the complainant. It was also held that the
complainant should have full opportunity to produce the material
before the Magistrate and quashing of complaint at the threshold is not
proper.
23. The judgments relied on by the petitioners are apparently
distinguishable. Though in Dr. Suresh Gupta (supra), it was held that
when a patient agrees to go for medical treatment or surgical operation,
every careless act of the medical men cannot be termed as "criminal",
however, in the present case the post mortem report dated 27th October,
2005 held that it is a case of res ipsa loquitur/a case of gross criminal
negligence and the burn injuries which were the primary cause of death
were unwarranted and speaks of failure of taking required precautions,
care and skill in adopted procedure. The Apex Court was of the view
that where a patient‟s death results merely from error of judgment or an
accident no criminal liability should be attached to it as even though
mere inadvertence or some decree of want of adequate care and caution
may create several civil liability it would not suffice to hold him
criminally liable. In the said case, the death occurred due to negligence
in performing of rhinoplasty. The cause of death was stated to be non
introduction of endotracheal tube of the proper size to prevent
aspiration of blood from wound in respiratory passage. It was held that
inherent power of the High Court under Section 482 of Criminal
Procedure Code for quashing criminal proceedings should be invoked
only in cases where on the face of the complaint or the papers
accompanying the same, no offence is made out for proceeding with the
trial. The Apex Court had laid down test to be adopted by the High
Courts in exercising its inherent powers under Section 482 for quashing
criminal proceedings as follows- "The test is that taking the allegations
and complaint as they are, without adding or subtracting anything, if
no offence is made out the High Court will be justified in quashing the
proceedings." In contra distinction to the judgment of the Supreme
Court, in the present case the post mortem report indicates that it is a
case of medical negligence and burn injuries which were the primary
cause of death were unwarranted and speaks of failure in taking
required precautions, care and skill. Though the independent Board
has requested Dr.Sudhir Gupta to appear before the Board, however,
the said doctor who conducted the post mortem did not appear before
the alleged independent Board and merely on the basis of the legible
copies of the post mortem report, the Board opined that there is always
an inherent risk in using laser surgeries and that accidental laser fire is
a known complication. The alleged independent Board of All India
Institute of Medical Science and Delhi Medical Council in their report
also do not absolve the petitioners conclusively.
24. The present complaint, prima facie, does not seem to be a case of
abuse of process of Court or of such forensic exigencies and formidable
compulsion justifying quashing of complaint. In the entirety of the case
the petitioners have failed to make out a rare case in which this Court
should exercise its jurisdiction under Section 482 of the Criminal
Procedure Code and quash the complaint.
25. The other contention of the petitioner is that on 2nd March, 2007,
the learned Magistrate had taken cognizance and so could not direct the
SHO to register the FIR by order dated 17th March, 2007. On
consideration of the relevant provisions of the Criminal Procedure Code
it is clear that before it can be said that cognizance has been taken of
any offence under Section 190(1)(a) of the Criminal Procedure Code, it
must be apparent that the Magistrate has not only applied his mind to
the contents of the complaint but he has done so for the purpose of
proceeding in a particular way under Section 200 and thereafter for
sending it for inquiry and report. However, whenever a Magistrate
applies his mind for taking action of some other kind like investigation
under Section 156(3) or for issuing a search warrant for the purpose of
investigation, such application of mind is not for the purpose of
proceeding under Section 200 and therefore it cannot be said that he
had taken cognizance of the offence for the purpose of proceeding under
Chapter XV.
26. The Apex Court in the case of R.R. Chari (supra) had held that
before a Magistrate takes cognizance of any offence under Section
190(1)(a), he must apply his mind to the contents of the complaint for
the purpose of proceeding in a particular way as indicated in
subsequent provisions of the chapter XV and thereafter send it for
inquiry and report u/S-202. However, when the Magistrate applies his
mind not for the purpose of proceeding under the subsequent
provisions of the chapter but for taking action of some other kind, e.g.,
ordering investigation under Section 156(3) or issuing a search warrant
for the purpose of investigations, he cannot be said to have taken
cognizance of the offence. Perusal of the order dated 2nd March, 2007
makes it amply clear that the learned Magistrate had applied his mind
mainly for the purpose of ordering investigation under Section 156(3) of
the Criminal Procedure Code. In the said order the Ld. Magistrate had
directed the SHO P.S. Sarita Vihar to file the status report on the
complaint that had been filed by the respondents 1 & 2 at the said
police station pursuant to which the report was filed by SHO, dated 17th
March, 2007 and thereafter after perusing the status report and other
material and hearing the arguments, the concerned SHO was directed
to register FIR and investigate the matter.
27. The Apex Court in R.R. Chari (supra) had referred to Supdt. &
Remembrancer of Legal Affairs, W.B. v. Alani Kumar AIR 1950 (37)
Calcutta 437, where it was held that `taking cognizance‟ has not been
defined in the Criminal Procedure Code. The Apex Court in Supdt. &
Remembrancer of Legal Affairs, W.B. (supra) held as under:-
"What is taking cognizance has not been defined in the
Crl.P.C & I have no desire to attempt to define it. It seems
to me clear however that before it can be said that any
Mag.has taken cognizance of any offence u/S.190 (1)(a)
Crl.P.C he must not only have applied his mind to the
contents of the petition but he must have done so for the
purpose of proceeding, in a particular way as indicated in
the subsequent provisions of this Chap., proceeding
u/s.200 & thereafter sending it for inquiry & report
u/s.202. When the Magistrate applies his mind not for the
purpose of proceeding under the subsequent sections of
this Chap. but for taking action of some other kind e.g.
ordering investigation...u/S.156(3), or issuing a search
warrant for the purpose of the investigation he cannot be
said to have taken cognizance of the offence."
28. In the complaint filed by the respondents no.1 & 2 they had
stated that a complaint was filed by them to the police and had
produced the copies of statements recorded by the police. They also
reproduced the relevant extract of the post mortem report indicating
that it is a case of res ipsa loquitur/a case of gross criminal negligence.
The Magistrate did not record the statements of the complainant and of
other witnesses. The word `may‟ in Section 190 of the Criminal
Procedure Code cannot be read to mean `must‟ that is if a complaint is
filed, the Magistrate must take cognizance, if the facts stated in the
complaint discloses the commission of any offense. A complaint
disclosing cognizable offences may well justify the Magistrate sending
the complaint under section 156(3) to the police for investigation. A
Magistrate taking cognizance of an offense on a complaint filed before
him u/S-200 of the Cr.P.C is obliged to examine the complainant on
oath and the witnesses present at the time of filing the complaint. In the
present case the Magistrate has not examined the complainant on oath
and therefore it cannot be said that the Magistrate has taken
cognizance under Section 200 of Cr.P.C. This is also true that for
purposes of enabling the police to start investigation it is open to the
Magistrate to direct the police to register an FIR as registration of an
FIR involves only the process of entering the substance of the
information relating to the commission of the cognizable offence in a
book kept by the officer in charge of the police station as indicated in
Section 154 of the Cr.P.C and to investigate the matter further.
29. Steps involved in investigation under Section 156 of the Cr. P.C
have been elaborated in Chapter XII. The investigation starts pursuant
to an entry made in the book which is kept by the officer in charge of
the police station and end up with the report filed by the police as
indicated in Section 173 of Cr.P.C. The investigation contemplated in
this chapter can be started by the police even without the order of
Magistrate. If the Magistrate has not taken cognizance under Section
200 and has ordered an investigation under Section 156 (3) then such
an investigation is not different from the investigation which is started
by the police on its own. However, investigation envisaged in Section
202 contained in Chapter XV is different from the investigation
contemplated under section 156 of the Cr.P.C.
30. The Apex Court had held in Superintendent and Remembrancer
of legal Affairs West Bengal (supra) that when the Magistrate applies his
mind not for the purpose of proceeding under Chapter XV but for taking
action of some other kind e.g ordering investigation under Section
156(3), he cannot be said to have taken cognizance of offence. The
complaint came up before the Magistrate on 2nd March, 2007 and he
issued notice to the SHO Police Station Sarita Vihar and directed him to
give the Status report. On the basis of status report and considering
various reports filed by the police, it was held by the Magistrate that
there is commission of offence and a thorough investigation is required
and therefore, directed SHO by his order dated 17th March, 2007 to
register the FIR and investigate the matter. In the circumstances
inevitable inference is that the Magistrate on the first date when the
matter came up before him did not apply his mind for the purpose of
taking cognizance but he took cognizance for the purposes of
considering whether the matter should be investigated by the police
under Section 156 (3) of the Cr.P.C
31. In Sanjay Bansal and Another v. Jawaharlal Vats and Others
2004(4) JCC 3257, the Supreme Court held that for a proper and fair
investigation of the case informant is entitled to a notice and an
opportunity to be heard at the time of consideration of the report. It
was further held that the Magistrate can ignore the conclusion arrived
at by the investigating office and independently apply his mind to the
facts emerging from the investigation and take cognizance of the case, if
he thinks fit, in exercise of his powers under Section 190(1)(b) and
direct the issue of process to the accused. The Supreme Court had held
that the function of the Magistrate and the police are entirely different
and the Magistrate cannot impinge upon the jurisdiction of the police
by compelling them to change from their opinion so as to agree with his
view. However, the Magistrate is not deprived of the power to proceed
with the matter and there is no obligation on the Magistrate to accept
the report, if he does not agree with the opinion formed by the police.
32. In Gopal Das Sindhi and Ors. v. State of Assam & Anr., AIR 1961
SC 986, the Apex Court while dealing with the question whether the
Magistrate had taken cognizance or not had held as under:
7. When the complaint was received by Mr Thomas on
August 3, 1957, his order, which we have already quoted,
clearly indicates that he did not take cognizance of the
offences mentioned in the complaint but had sent the
complaint under Section 156(3) of the Code to the Officer
Incharge of Police Station Gauhati for investigation. Section
156(3) states "Any Magistrate empowered under Section
190 may order such investigation as above-mentioned." Mr
Thomas was certainly a Magistrate empowered to take
cognizance under Section 190 and he was empowered to
take cognizance of an offence upon receiving a complaint.
He, however, decided not to take cognizance but to send the
complaint to the police for investigation as Sections 147,
342 and 448 were cognizable offences. It was, however,
urged that once a complaint was filed the Magistrate was
bound to take cognizance and proceed under Chapter XVI
of the Code. It is clear, however, that Chapter XVI would
come into play only if the Magistrate had taken
cognizance of an offence on the complaint filed before
him, because Section 200 states that a Magistrate
taking cognizance of an offence on complaint shall at
once examine the complainant and the witnesses
present, if any, upon oath and the substance of the
examination shall be reduced to writing and shall be
signed by the complainant and the witnesses and also
by the Magistrate. If the Magistrate had not taken
cognizance of the offence on the complaint filed before him,
he was not obliged to examine the complainant on oath and
the witnesses present at the time of the filing of the
complaint. We cannot read the provisions of Section 190 to
mean that once a complaint is filed, a Magistrate is bound
to take cognizance if the facts stated in the complaint
disclose the commission of any offence. We are unable to
construe the word „may‟ in Section 190 to mean „must‟. The
reason is obvious. A complaint disclosing cognizable
offences may well justify a Magistrate in sending the
complaint, under Section 156(3) to the police for
investigation. There is no reason why the time of the
Magistrate should be wasted when primarily the duty to
investigate in cases involving cognizable offence is with the
police. On the other hand, there may be occasions when the
Magistrate may exercise his discretion and take cognizance
of a cognizable offence. If he does so, then he would have to
proceed in the manner provided by Chapter XVI of the
Code. Numerous cases were cited before us in support of
the submissions made on behalf of the appellants. Certain
submissions were also made as to what is meant by "taking
cognizance." It is unnecessary to refer to the cases cited.
33. In the circumstances and for the aforesaid reasons it is not
appropriate to infer that the Magistrate had taken cognizance for the
purpose of proceeding under chapter XV of the Cr.P.C. The Magistrate
had only taken cognizance for the purposes of investigation by the
police under section 156 (3) of the Cr.P.C. Therefore the order dated
17th March, 2007 of the Magistrate directing the SHO Police Station
Sarita Vihar to register the FIR and investigate the matter cannot be
faulted on the grounds as has been raised by the petitioners.
34. Therefore, in the present facts and circumstances, the complaint
filed by the petitioners cannot be quashed nor the orders dated 2nd
March, 2007 and 17th March, 2007 can be set aside. The petition is
therefore, dismissed. The parties are however, left to bear their own
costs. Trial Court record be sent back forthwith.
October 24, 2008. ANIL KUMAR, J.
„Dev‟
