Delhi High Court

Dr. Vinod Gupta vs The State (Govt. Nct Of Delhi) on 12 August, 2009

Author: V.K.Shali

*              THE HIGH COURT OF DELHI AT NEW DELHI

+                   Crl. Revision Petition No.381/2009

                                          Reserved on : 22.7.2009
                                      Date of Decision : 12.8.2009

DR. VINOD GUPTA                                     ......Petitioner
                               Through:   Mr. L.S.Saini, Advocate

                                Versus

THE STATE (GOVT. NCT OF DELHI)          ...... Respondent
                      Through: Mr. Pawan Bahl, APP for
                               the State.
                               Insp. Yashpal Singh, P.S.
                               Sultan Puri.
CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                   YES
2.     To be referred to the Reporter or not ?        YES
3.     Whether the judgment should be reported
       in the Digest ?                                YES

V.K. SHALI, J.

1. This is a revision petition filed by the petitioner against the

order dated 25th March, 2009 passed by Sh.R.B.Singh

learned ASJ in case titled State Vs. Dr.Dhananjay Kumar

Etc. bearing FIR No.589/2008 P.S. Sultanpuri, Delhi

wherein the learned Magistrate has directed framing of

charges against the petitioner under Section 304-A IPC r/w

Section 27 of Delhi Medical Council Act.

2. Briefly stated the facts of the case are that on 3rd May,

2006, deceased Radhey Shyam was suffering from high

fever and vomiting. He went to one Dr. Dhananjay Kumar.

Dr. Kumar administered injection to Radhey Shyam. The

condition of Radhey Shyam instead of improving started

deteriorating and he developed rashes all over his body.

Radhey Shyam was taken to Manthan hospital a nearby

Nursing Home by his family members where he was

administered injections by Dr.Vinod Gupta, the present

petitioner. Since the condition of the patient did not

improve he was referred to DDU Hospital. The deceased

being taken to DDU hospital by his wife Smt. Savitri along

with Ram Niwas who was the owner of the hospital and one

more person Ram Niwas and that person got down midway

under the pretext of getting some money and in the process

by the time the deceased was brought to DDU hospital he

had already expired. A case under 304A IPC was registered

against Dr.Vinod Kumar and Dr.D.K.Maurya. After

investigation, the charge sheet was filed and the learned

Magistrate on 25th March, 2009 framed charges.

3. I have heard the learned counsel for the petitioner and

learned APP for the State. The main contention of the

learned counsel for the petitioner is that Dr.Vinod Kumar

could not be charged under Section 304A IPC as he did not

treat the patient at all. It was also urged that even if it is

assumed that the deceased was treated by Dr. Vinod

Kumar even then no case of medical negligence could be

made out because the petitioner tried his level best to save

the deceased. It is further urged that when the patient was

brought to the hospital, he had already expired. It was

contended by the learned counsel that at the time framing

of charge by the learned Magistrate has ignored the ratio of

the judgment in the case titled Jacob Mathew Vs. State of

Punjab & Anr. 2005 ACJ 1840 wherein the Hon‟ble

Supreme Court has categorically laid down the guidelines

for prosecuting the medical professionals for offences

involving criminal negligence. It was urged by the learned

counsel that the petitioner Dr.Vinod Gupta had taken due

care and attention while treating the patient and since his

condition had already deteriorated, the petitioner instead of

treating the patient referred him to DDU hospital.

4. As against this, the learned APP took this Court through

the supplementary statement of Smt. Savitri Devi, the wife

of the deceased, Surya Bhan, brother of the deceased and

Tilakdhari, father of the deceased. All the three witnesses

in their statements and supplementary statements

recorded on different dates have specifically attributed the

death of the deceased on account of medical negligence of

Dr.Vinod Gupta in not providing him timely and correct

medical aid.

5. It may be pertinent here to mention that after the death of

the deceased, Delhi Medical Council had conducted an

enquiry with the help of experts. It had examined number

of witnesses including the wife, the brother and the father

of the deceased apart from Ram Niwas the owner of

Manthan Hospital, Dr.Dhananjay Kumar and Dr.Vinod

Gupta. A copy of the said report of the Medical Council

clearly shows that the deceased who had suffered

anaphylactic reaction was administered injection Atropine

and injection Effcorlin by Dr.Vinod Gupta in Manthan

Hospital. This has been testified by Ram Niwas who is the

owner of Manthan hospital who has further stated that

Dr.Vinod Gupta was rendering his services to Manthan

Hospital as Consultant around the time when the incident

took place. As against this, Dr.Vinod Gupta denied his

association with Manthan hospital. He said that he visited

the said hospital on receipt of a call purely on

humanitarian ground and he also denied having

administered any treatment to the deceased. On the

contrary, he stated that at the time when the patient was

brought to Manthan hospital he had already expired and

that is why he was referred to the DDU Hospital.

6. The Medical Council in its report has opined that there was

an „anaphylactic reaction‟ and there was medical negligence

in the treatment and management of the case of the

deceased which resulted in his death. This clearly

established prima facie that there was medical negligence

on the part of Dr.Vinod Gupta in treating and managing the

patient which he was trying to cover up by simple denial of

the fact of having administered any treatment to the

patient.

7. At the stage of framing of charge, it is settled legal position

that if there is strong suspicion against the accused, a

charge has to be framed against him. The learned

Magistrate in the present case directed the charges to be

framed against the petitioner for having committed an

offence u/S 304A IPC and 27 of the Delhi Medical Council

Act on the basis of the statement of wife and other relatives

of the deceased and the report of the Medical Council.

8. I do not find that there was any impropriety, illegality or

incorrectness in the order dated 25.3.2009 passed by the

learned Magistrate directing the framing of the charge

against the petitioner under Section 304 A IPC for having

caused death both by negligence

9. Reliance placed by the learned counsel for the petitioner in

Jacob Mathew‟s case is totally mis-placed as the said

judgment lays down the guidelines as to how the cases of

criminal negligence and the consequent death having been

caused is to be registered against the doctors. The three

guidelines which are laid down are as under:-

"(1) A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor.

(2) The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in

government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam‟s test to the facts collected in the investigation.

(3) A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been leveled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld."

10. None of the guidelines seems to have been violated in the

present case. In any case, that is not the grievance of the

petitioner that any of the guidelines has been violated. The

grievance of the counsel for the petitioner is that there was

no medical negligence at all on the part of the petitioner as

the patient was not treated by the petitioner, Dr.Vinod

Gupta. It is totally misconceived and untenable in the light

of what has been stated above.

11. For the reasons mentioned above, the petition is totally

misconceived and the impugned order does not suffer from

any illegality, impropriety or incorrectness and the revision

petition is accordingly dismissed.