Gauhati High Court
Page No.# 1/24 vs Kabir Dewan And Anr on 20 November, 2024
Page No.# 1/24
GAHC010302762019
2024:GAU-AS:11286
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./1457/2019
PRANAB KUMAR MEDHI
S/O- SRI HARKANTA MEDHI, R/O- AUGUST KRANTI PATH, ORNATE
ENCLAVE, JAYANAGAR, GHY, KAMRUP (M), ASSAM, PIN- 781022
VERSUS
KABIR DEWAN AND ANR.
S/O- NURUL ISLAM, R/O- H.NO. 89, SHANTIPUR, MASJID ROAD, GHY,
KAMRUP (M), PIN- 781009
2:THE STATE OF ASSAM
REP. BY THE P.P.
GOVT. OF ASSA
Advocate for the Petitioner : MR D DEKA, MR. N DEKA
Advocate for the Respondent : MR. S. DUTTA (R-1), MR. P MAHANTA (R-1),PP, ASSAM
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:::BEFORE:::
HON'BLE MRS. JUSTICE MITALI THAKURIA
Date of hearing : 01.08.2024
Date of Judgment & Order : 20.11.2024
JUDGMENT & ORDER (CAV)
Heard Mr. N. Deka, learned counsel for the petitioner. Also heard Mr. S.
Dutta, learned counsel for the respondent No. 1 and Mr. P. Borthakur, learned
Additional Public Prosecutor for the State respondent No. 2.
2. This is an application under Section 482 of the Code of Criminal Procedure,
1973 for setting aside and quashing of the Order dated 07.11.2019, passed by
the learned Sub-Divisional Judicial Magistrate (Sadar) - I, Kamrup(M) in
Complaint Case No. 3459c/2019 taking cognizance against the present petitioner
under Section 192/304(A)/316 of the Indian Penal Code, 1860 as well as the
entire proceedings thereof insofar as the petitioner is concerned.
3. The case of the petitioner, in brief, is that he is a MD in Medicine and
passed his MBBS Course in the year 2001 from the Gauhati Medical College
Hospital at Guwahati and currently pursuing DM, Nephrology in the Regional
Institute of Medical Science, Imphal in the State of Manipur. Prior to the joining
of the aforementioned super specialty course at Imphal, he was working in the
Apollo Hospitals, Guwahati as an Intensive Care Specialist.
4. The complainant/respondent No. 1 instituted the above referred Complaint
Case against the present petitioner along with other accused persons alleging
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negligence on their part which caused death of his wife Late Nasima Sultana,
who was pregnant at the time of her death. The complainant has arrayed the
present petitioner as accused No. 10 in the said Complaint Petition. But, it is
contended that on plain reading of the complaint petition, it is apparent that
there is no allegation leveled against the present petitioner except in paragraph
No. 13 of the complaint petition with regard to not making any attempt to
deliver the baby in the I.C.U. where the deceased was administered emergency
treatment as a patient.
5. The learned Trial Court below, after recording the deposition of the
complainant under Section 200 Cr.P.C. and also recording the statement of the
mother-in-law of the complainant as witness under Section 202 Cr.P.C., had
taken cognizance vide Order dated 07.11.2019, under Sections 192/304(A)/316
IPC, against the present petitioner as accused No. 10 along with others. But it is
stated that the petitioner never received any summons of the aforesaid case till
date and he only came to know about the issuance of summons against him
from the accused No. 11, who is his colleague. He also received the information
that the Apollo Hospitals declined to accept the summons in respect of him as
he is no longer employed in the said Hospital.
6. It is further stated that at the relevant point of time, the petitioner was
working as a doctor in the Apollo International Hospital Limited, Guwahati as a
Specialist in Critical Care Unit and was discharging his primary duty in the
Intensive Care Unit (I.C.U.), wherein he used to handle the emergency patients.
The I.C.U. of the Hospital has art facilities, including necessary medicines and
equipments. On 15.07.2018, at around 12.15 a.m. (Midnight), a patient was
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brought to the Apollo International Hospital as an emergency patient, who was
in unconscious state at that time, and hence, considering her condition, she was
directly admitted to the I.C.U. Accordingly, the team of doctors in the I.C.U.,
including the present petitioner along with accused Nos. 9 & 11, had started
treating the patient as per protocol which included administering Cardio
Pulmonary Resuscitation (CPR) amongst other as the patient had no palpable
carotid pulse. The CPR was administered for 4 times, however no signs were
shown, barring a faint recovery in between, which was shown to the family
members of the deceased. While the deceased was in I.C.U., she was provided
with best possible care and treatment, however the patient could not be
recovered and as such, she was declared death at about 1.15 a.m. on
15.07.2018.
7. It is further stated that the respondent No. 1 had also approached the
State Human Rights Commission by filing a complaint and in connection with
the said case, the Apollo Hospitals, Guwahati had also furnished the reply in
reference to the said complaint and inquiry thereof to the Joint Director of
Health Services and narrated as to in what condition the patient was brought to
be treated at Apollo Hospitals, Guwahati. In the said reply, it was stated that the
patient was brought to be treated in the Hospital after she had cardiac arrest,
while she was in ventilation, when she had no pulpable carotid pulse and failed
emergency LSCS surgery and such, the petitioner could only administer
emergency treatment and hence there could not be any negligence on the part
of the petitioner.
8. The petitioner further stated that the allegation made in paragraph No. 13
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of the complaint against the petitioner and his colleagues at Apollo International
Hospital relates only for not causing delivery of the unborn child of the
deceased. The said allegation of the complainant has no basis and the
statement with regard to letting the unborn child died in dying mother's womb
and not causing emergency surgery is belied by the statement made by the
complainant himself in paragraph No. 20 of the complaint. The present
petitioner and his colleague doctors were not negligent in providing treatment to
the patient who was admitted in the I.C.U. and she was provided with all
possible and widely accepted treatments.
9. Mr. Deka, learned counsel for the petitioner, further submitted orally and
also through his written statement that the learned Court below without taking
any independent opinion from the competent Doctor had taken cognizance and
did not follow the direction passed by the Hon'ble Apex Court in case of Jacob
Mathews Vs. State of Punjab & Anr., reported in (2005) 6 SCC 1, and
hence, the order of taking cognizance against the present petitioner is liable to
be set aside and quashed. Further, the learned Trial Court below took
cognizance without applying its judicial mind and did not consider the entire
facts of the case and had mechanically issued process which is not at all
permissible in law. He further submitted that the allegations even if it is taken in
its entirety are not enough in the instant case to be tried under the alleged
Sections of law against the present petitioner. The petitioner being a Doctor, he
is duty bound to save life of a patient and he did all his capability and as per
procedure and protocol of the medicine science to save the deceased, but she
could not be saved due to her critical conditions and for that the present
petitioner cannot be harassed by filing case against him. More so, he submitted
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that for administering emergency treatment in an I.C.U. to a dying patient to
save a life would not make the petitioner guilty of any offence under IPC or any
other law and as such, the order of taking cognizance against the present
petitioner is liable to be set aside and quashed.
10. He further submitted that to constitute an offence under Section 316 IPC,
one has to do an act causing death by culpable homicide and by such act
caused the death of a quick unborn. But, in the present case, it is the admitted
position that the deceased had undergone LSCS surgery (for child birth) in
different hospitals and had been brought to the Apollo Hospital where the
petitioner had administered emergency treatment only and in no case, the
offence under Section 316 IPC is being made out prima facie against the
present petitioner to take cognizance under the said Section.
11. More so, he submitted that there is no allegation brought against the
present petitioner in the complaint to attract Section 192 IPC which is for
fabricating false evidence and in paragraph No. 22, it is clearly alleged that only
the accused Nos. 4 & 8 had fabricated false evidence as such, the learned Trial
Court below committed grave error and mistake while taking cognizance against
the present petitioner under Section 192 IPC. Further, to constitute an offence
under Indian Penal Code, mens rea is necessary and in the instant case since
the petitioner has treated the patient trying to save her life, there could not be
any mens rea for the petitioner and as such, the order of taking cognizance is
bad in law and liable to be set aside.
12. He further submitted that the learned Trial Court below also did not apply
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its judicial mind while taking cognizance against all the accused persons under
Section 316 IPC which would apply only in case wherein an attempt is made to
cause culpable homicide of a pregnant woman and resultantly death is caused
to quick unborn child.
13. Further, Mr. Deka relied on a decision of Hon'ble Allahabad High Court in
case of Jabbar & Ors. Vs. State, reported in AIR 1966 ALL 590, wherein in
paragraph Nos. 11, 12 & 13, it has been held that the offence under Section 316
consists of any action against the mother, which must be culpable of causing
culpable homicide and such action must result in the death of a quick unborn
child, which otherwise means that if a person assaults or does anything to a
pregnant lady knowing fully well that such an act may lead to culpable homicide
of the said lady, but the same results in the death of the quick unborn child,
only then, Section 316 IPC would be attracted.
14. But, here in the instant case, the Doctors of Apollo Hospitals, including the
present petitioner, were trying to save the patient who was admitted in the
I.C.U. in a very critical condition. There was no attempt to cause culpable
homicide or to cause hurt to the pregnant lady (deceased), rather the Doctors
were only trying to save the life of the patient who was admitted in the I.C.U. in
the critical condition.
15. In regards to Section 304(A) IPC, Mr. Deka further submitted that the
learned Sub-Divisional Judicial Magistrate (Sadar)-I, Kamrup(M) did not consider
the dictum of law laid down by the Hon'ble Apex Court in the case of Jacob
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Mathews (supra), wherein it has been held that a private complaint may not
be entertained unless the complainant produces prima facie evidence in the
form of a credible opinion by another competent doctor, preferably a doctor in
Government Service, to support the charge of rashness or negligence.
16. He further submitted that this Court in a case reported vide 2013 (4)
GLR 870 (Rajendra Prasad Hansaria Vs. Praveen Jain) also relied on the
judgment of Jacob Mathews (supra) and it has been held that unless the
complainant produced any prima facie materials before the Court in the form of
credible opinion of a competent doctor, no cognizance under Section 304(A) IPC
can be taken against a doctor.
17. Mr. Deka further relying on a decision of the Hon'ble Apex Court passed in
the case of V. Kishan Rao Vs. Nikhil Superspeciality Hospital, reported in
(2010) 5 SCC 513, submitted that the opinion of competent medical doctor is
necessary in the Court before taking cognizance of any case as the expert can
throw considerable light on the current state of knowledge in medical science at
the time when the patient was treated. However, in the instant case, the learned
Trial Court below had taken cognizance mechanically without going into the
merit of the case and also failed to consider the fact as to whether prima facie
any case is established against the present petitioner to take cognizance. More
so, the learned Court below did not felt necessary to take any opinion of the
medical expert before taking cognizance. The petitioner and the team of
Doctors of the Apollo Hospital, who were in duty of I.C.U., had provided all
required treatment to the patient as per the protocol and there was no
negligence on the part of the doctor and they tried their best to save the life of
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the patient/deceased.
18. Mr. Deka also cited a decision of Hon'ble Apex Court reported in (1998) 5
SCC 749 (Pepsi Foods Ltd. & Anr. Vs. Special Judicial Magistrate &
Ors.) and emphasized on paragraph Nos. 28 & 29 of the judgment wherein it
has been held that "summoning of an accused in a criminal case is a serious
matter. Criminal law cannot be set in motion as a matter of course. It is not that
the complainant has to bring only two witnesses to support his allegation in the
complaint to have the criminal law set into motion. The order of the Magistrate
summoning the accused must reflect that he has applied his mind to the facts
of the case and the law applicable thereto." It is further held that "the
Magistrate can discharge the accused at any stage of the trial if he considers
the charge to be groundless, but that does not mean that the accused cannot
approach the High court under Section 482 of the Code or Article 227 of the
Constitution to have the proceeding quashed against him when the complaint
does not make out any case against him and still he must undergo the agony of
a criminal trial.
19. Accordingly, he submitted that in the instant case also, it is seen that the
learned Trial Court below took cognizance of the case and issued summons to
the accused/petitioner along with others without applying his judicial mind and
only considering the statement made by the complainant under Section 200
Cr.P.C. as well as the mother-in-law of the complainant under Section 202 Cr.P.C.
The learned Trial Court below did not even find it necessary to call for any
medical expert opinion before summoning the present petitioner along with
others in the instant case.
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20. More so, he submitted that once the order of taking cognizance is set
aside and quashed for being illegal, there cannot be an order for remanding the
matter back to the Magistrate for taking fresh cognizance. There is no provision
in the Cr.P.C. which provide that after setting aside an order of taking
cognizance, the matter would be remanded to the Magistrate for taking fresh
cognizance. The law provides for appropriate remedy under such circumstances
and the complainant would be at liberty to avail such remedy.
21. In this context, Mr. Deka relied on a decision of Hon'ble Apex Court passed
in the case of Adalat Prasad Vs. Rooplal Jindal, reported in (2004) 4 SCC
338, wherein it has been held that when a Magistrate takes cognizance of an
offence and issues process without there being any allegation, the order is
vitiated and there being no power of review or inherent power with the sub-
ordinate criminal Courts, the remedy against such order is Section 482 Cr.P.C.
Therefore, Mr. Deka submitted that there cannot be an order remanding the
matter to the learned Magistrate once the order of taking cognizance is set
aside and quashed.
22. Accordingly, he submitted that it is a fit case wherein the power under
Section 482 Cr.P.C. can be invoked for quashing and setting aside the order of
cognizance as well as the criminal proceeding against the present petitioner.
23. On the other hand, Mr. Dutta, learned counsel for the respondent No. 1,
submitted orally and through his written argument that in the instant case, the
entire trust of the complainant/respondent No. 1 is that the doctors at Apollo
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Hospitals completely overlooked the fact of existence of the unborn baby in the
mother's womb and did not make any attempt to save the baby, although the
situation of the mother was critical. The said fact is absolutely clear from the
statement given by the Apollo Hospitals before the Assam Human Rights
Commission, where there is not a single mention or whisper about the very
existence of the unborn baby in the mother's womb nor there is any statement
to show that if any attempt was made to save the baby. Further he submitted
that if there was any risk for operation in an emergency, the option would have
been given to the complainant as to whether he would opt for an attempt by
doctors to save the unborn baby.
24. Further he submitted that the factual assertion regarding absence of Fetal
Heart Rate of the unborn baby is completely missing in the pleadings of the
petitioner in the present criminal petition, though the same stand has been
taken in the connected Crl. Pet. No. 1460/2019 and as such, the absence is
clearly a vital omission leading to an inference of contradiction between the
versions of the 2 doctors. He further submitted that in that view of the matter
as to whether the unborn baby was in a position to be saved or not or whether
there was a risk to the life of the mother in case of an emergency operation, the
best can be determined by the opinion of an independent doctor or a committee
of doctors that can be obtained by the learned Trial Court below under Section
202 Cr.P.C. by directing the Investigating Officer in terms of the directions given
by the Hon'ble Supreme Court in the case of Jacob Mathews (supra).
25. Mr. Dutta further submitted that the unborn baby is a person within the
meaning of Section 304-A of the IPC whose death by a negligent act would
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make the accused liable for prosecution under the said Section of law. The
negligent act is when the accused in unmindful, oblivious, completely unaware
or totally overlooks the consequences of his negligent act leading to death, but
does not have any intention of causing death. Thus, in the instant case, the
doctors have overlooked the existence of unborn baby, which is a higher degree
of gross medical negligence, which is even higher than that of a lack of care and
protection.
26. Mr. Dutta further submitted that the statement made on behalf of the
petitioner that under Section 482 Cr.P.C., a complaint case cannot be remanded
to the Trial Court once the cognizance order is set aside, that the complaint case
gets quashed automatically once the order of cognizance is set aside and that
the Jacob Mathew's case casts the sole duty upon the complainant and not the
Court to submit a credible opinion from another doctor, is completely fallacious,
erroneous and absurd.
27. In this context, Mr. Dutta relied on a decision of a Full Bench of Hon'ble
Apex Court passed in Criminal Appeal No. 2063/2010 (Aruna & Anr. Vs.
Mukund & Ors.), wherein it has been observed that since no medical expert
opinion was taken while framing the charge, the Trial Court shall examine a
medical expert on behalf of the complainant and from an opinion as to whether
any charge is made out or not. Thus, it is absolutely clear that even after setting
aside of an order of framing charge, leaving aside even an order of cognizance,
a complaint case can still be proceeded with as there are sufficient powers
vested with the Trial Court under Section 202 Cr.P.C. to direct an investigation to
be caused by a Police Officer or by such person as he thinks fit.
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28. He further submitted that the judgment of the Hon'ble Supreme Court
nowhere lays down that such a complaint cannot be proceeded at all and that it
should be dismissed at the threshold if it is not accompanied with prima facie
evidence of medical negligence. More so the judgment of Jacob Mathew
(supra) says that such a complaint may not be entertained since in the very
next line, the judgment observes that " the investigating officer should, before
proceeding against the doctor accused of rash or negligent act or omission,
obtain an independent and competent medical opinion preferable 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."
29. Mr. Dutta further submitted that in the instant case, the complainant does
not have access to any of the medical papers or documents relating to the
treatment given by the petitioners in the instant case. The petitioner has himself
not produced any of the said documents either in the instant proceeding or in
the proceedings before Human Rights Commission or the Assam State
Consumer Disputes Redressal Commission. Therefore, the complainant cannot
rely upon the petitioner to give a truthful disclosure of the events of the fateful
night or to furnish any of the documents so that he can approach another
doctor to submit an opinion based on them. More so, the independent medical
professional is not bound to give any opinion based on the request of the
complainant and in such a situation, the power only vested on the learned Trial
Court under Section 202 Cr.P.C. by calling for the relevant documents and
obtaining an expert opinion from an independent doctor or committee of
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doctors or by directing the police officer to conduct the same.
30. Mr. Dutta further submitted that it is a fact that there are numerous
instances as observed in various pronouncement of judgment by the Apex Court
long after the Jacob Mathew's case wherein it is observed that despite non-
availability of a medical opinion produced by the complainant himself, the Trial
Courts can call for an expert opinion under Section 202 Cr.P.C. which have been
relied upon by the Hon'ble High Courts for arriving at a prima facie findings
regarding the issue of medical negligence. He accordingly cited some decisions
of the various High Courts as follows:
(i) ILR 2017 MP 1762 [BC Jain (Dr) Vs Maulana Saleem]
(Madhya Pradesh High Court).
(ii) Dr P.A. Abdul Hakkim Vs. State of Kerala passed in Crl MC No.
3968 of 2013 (Kerala High Court)
(iii) Phool Singh Vs Dr Ranjit Ahlawat (2012 SC Online P & H
14826 (Delhi High Court), wherein also it is decided that the
medical negligence based on the opinion of a medical board
constituted under Section 202 CrPC, even though the complaint was
not accompanied by a medical opinion itself and the complainant
had only led his primary evidence.
(iv) Meenakshi Jain Vs. State & Anr. (2012 SC Online Del 3334)
wherein it is observed that the Trial Court has sufficient powers
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under the law to call for an expert opinion to satisfy itself for forming
a prima facie opinion regarding medical negligence.
31. Accordingly, relying on above referred judgments, Mr. Dutta submitted that
the power under Section 482 Cr.P.C. are to be exercised to prevent the abuse of
the process of the Court and for securing the ends of justice which are broad
and wide enough to direct the Trial Court to proceed under Section 202 Cr.P.C.
and as per the guidelines laid down by the Apex Court, since on the principle of
Actus Curiae Neminem Gravabit, no litigant or party shall suffer due to an error
committed by the Court and since the learned Trial Court readily took
cognizance without first obtaining an expert opinion under Section 202 Cr.P.C.;
therefore, even though the cognizance order is set aside, the complaint
proceeding shall be relegated back to the state of Section 202 Cr.P.C. where the
Trial Court can postpone the issuing of process and can still decide whether to
take cognizance based on the expert opinion.
32. In this context, he submitted that Section 460 (e) & 461 (k) Cr.P.C.
provides under which circumstances the cognizance order will be vitiated and in
one circumstance, the cognizance order will not vitiate the proceeding.
33. For ready reference, Section 460 (e) & 461 (k) Cr.P.C. are extracted
hereinbelow:
"460. Irregularities which do no vitiate proceedings.
- If any Magistrate not empowered by law to do any of the following things,
namely, - (e) to take cognizance of an offence under clause (a) or clause (b) of
sub-section (1) of Section 190.
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461. Irregularities which vitiate proceedings.
- If any Magistrate, not being empowered by law in this behalf, does any of the
following things, namely - (k) takes cognizance of an offence under clause (c) of
sub-section (1) of Section 190."
34. Accordingly, Mr. Dutta submitted that the error in order of taking
cognizance is curable and it also can be considered as an interlocutory order.
35. He further relied on a decision of Hon'ble Apex Court rendered in V
Kishan Rao Vs. Nikhil Super Speciality Hospital [(2010) 5 SCC 513] and
emphasized on paragraph Nos. 35, 36 & 37, which reads as under:
"35. The three Judge Bench in Dr. J. J. Merchant (supra) accepted the position that it
has to be left to the discretion of Commission "to examine experts if required in an
appropriate matter. It is equally true that in cases where it is deemed fit to examine
experts, recording of evidence before a Commission may consume time. The Act
specifically empowers the Consumer Forums to follow the procedure which may not
require more time or delay the proceedings. The only caution required is to follow the
said procedure strictly." [para 19, page 645 of the report] [Emphasis supplied]
36. It is, therefore, clear that the larger Bench in Dr. J. J. Merchant (supra) held that
only in appropriate cases examination of expert may be made and the matter is left to
the discretion of Commission. Therefore, the general direction given in para 106 in
D'Souza (Supra) to have expert evidence in all cases of medical negligence is not
consistent with the principle laid down by the larger bench in paragraph 19 in Dr. J. J.
Merchant (supra).
37. In view of the aforesaid clear formulation of principles on the requirement of
expert evidence only in complicated cases, and where in its discretion, the Consumer
Fora feels it is required the direction in paragraph 106, quoted above in D'souza
(supra) for referring all cases of medical negligence to a competent doctor or
committee of doctors specialized in the field is a direction which is contrary to the
principles laid down by larger Bench of this Court on this point. In D'souza (supra) the
earlier larger Bench decision in Dr. J. J. Merchant (supra) has not been noticed."
36. Accordingly, it is submitted that as per the opinion of the Hon'ble Apex
Court either to call for or not to call for an expert opinion in cases of medical
negligence, depending upon the nature of the negligence, similarly the explicit
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and vested laid down powers of the Criminal Courts under Section 202 Cr.P.C. to
call for an expert opinion in cases where the complainant is not able to produce
an expert opinion, should naturally be deemed to have been upheld.
37. Mr. Dutta further submitted that in case of Jacob Mathews (supra), the
Hon'ble Apex Court also observed that the modality of getting an expert opinion
through the Investigating Officer in cases where the Criminal Courts cannot
readily entertain a complaint case in the absence of a Medical Opinion produce
on behalf of the complainant himself.
38. He further relied on another decision of Hon'ble Supreme Court passed in
Martin F. D' Souza Vs. Mohd. Ishfaq (AIR 2009 SC 2049) and
emphasized on paragraph No. 117 of the judgment, which reads as under:
"117. We, therefore, direct that whenever a complaint is received against a doctor or
hospital by the Consumer Fora (whether District, State or National) or by the Criminal
Court then before issuing notice to the doctor or hospital against whom the complaint
was made the Consumer Forum or Criminal Court should first refer the matter to a
competent doctor or committee of doctors, specialized in the field relating to which the
medical negligence is attributed, and only after that doctor or committed reports that
there is a prima facie case of medical negligence should notice be then issued to the
concerned doctor/hospital. This is necessary to avoid harassment to doctors who may
not be ultimately found to be negligent. We further warn the police officials not to
arrest or harass doctors unless the facts clearly come within the parameters laid down
in Jacob Mathew's case (supra), otherwise the policemen will themselves have to face
legal action."
39. Thus, Mr. Dutta submitted that it is a fit case to be remanded back with a
direction to the learned Court below to obtain an independent medical opinion
preferably from a Doctor of Government Service qualified in the branch of
medical practice who can normally be accepted to give impartial and unbiased
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opinion. He accordingly submitted that even in absence of the expert medical
opinion, the cognizance order is irregular, the matter may be remanded to
conduct enquiry under Section 202 Cr.P.C. and the issue of process may be
postpone accordingly.
40. I have considered the submissions made by the learned counsels for both
sides and also perused the materials placed on record.
41. It is the case of the petitioner that he is no way connected in the alleged
offence and there is no allegation brought against him except in paragraph No.
13 of the complaint petition wherein it is alleged that the present petitioner,
along with the team of doctors at I.C.U., did not make any attempt to deliver
the baby of the deceased who was admitted for emergency treatment. The
learned Trial Court below took cognizance of the offence against the present
petitioner along with other only recording the statement of the complainant
under Section 200 Cr.P.C. and also recording the statement of the mother-in-law
of the complainant as witness under Section 202 Cr.P.C. without obtaining any
expert medical opinion before taking cognizance against the present petitioner.
The petitioner being the doctor was working in the Apollo International Hospital,
Guwahati as a specialist in Care Unit and his primary duty was in the I.C.U. to
provide treatment to the patient in the I.C.U. including all necessary medicines
and equipments. The patient was brought in the hospital in an unconscious
state and hence, considering the health condition of the deceased, she was
immediately admitted in the I.C.U. wherein the present petitioner, along with
the accused Nos. 9 & 11, had started treating the patient as per protocol which
included administering Cardio Pulmonary Resuscitation (CPR) amongst other as
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the patient had no palpable carotid pulse. But, even after best effort of the team
of doctors of the I.C.U. and after best possible treatment, the patient could not
be recovered and as such she was declared dead on 15.07.2018, at about 1.15
a.m. The only allegation brought against the present petitioner is for not
causing delivery of the unborn child of the deceased, but it is contended that
the present petitioner along with the team of doctors were not negligent in
providing treatment to the patient who was admitted in the I.C.U. and she was
provided with all possible and widely accepted treatments.
42. As per the petitioner, the statement made by the complainant under
Section 200 Cr.P.C. as well as the statement made by the mother-in-law of the
complainant under Section 202 Cr.P.C. are not at all sufficient to take cognizance
against the present petitioner without obtaining any expert opinion/medical
opinion. But, from the order of taking cognizance, it is seen that the learned
Trial Court below took cognizance against the present petitioner along with
some others under Sections 192/304(A)/316 IPC without following the dictum of
law laid down by the Hon'ble Apex Court in case of Jacob Mathews (supra)
and without obtaining any medical/expert opinion from any competent doctor or
government doctor before taking cognizance against the petitioner along with
the others who are the doctors of the Apollo Hospital.
43. It is further the case of the petitioner that Section 192 IPC does not attract
against the present petitioner as there is no statement in the complaint in
regards to fabricating false evidence and the same allegation is only brought
against the accused Nos. 4 & 8. More so, it is also the case of the petitioner that
ingredient of Section 316 IPC also does not attract against the present petitioner
Page No.# 20/24
as there was no culpable mentality to cause death of the deceased and her
quick unborn baby. The petitioner, along with his team of doctors in the I.C.U.,
tried their level best to save the life of the patient and it cannot be expected for
delivery of a baby when they were busy in providing emergency treatment to
the patient who was brought in a very critical condition for which she had to be
admitted directly in the I.C.U.
44. On the other hand, it is the case of the respondent that the learned Trial
Court below rightly took the cognizance of the offence after recording the
statement of the complainant as well as after recording the statement of the
mother-in-law of the complainant under Section 202 Cr.P.C. Further it is the case
of the respondent that the doctors of the Apollo Hospital completely overlooked
the fact of existence of unborn baby in the mother's womb and did not make
any attempt to save the baby although the situation of the mother was critical.
The statement made by the doctors before the Human Rights Commission also
clearly indicates that there is no whisper about the very existence of the unborn
baby in the mother's womb nor there is any statement that if any attempt was
made to save the baby. Thus, there was no evidence as to whether the unborn
baby was in a position to be saved or not or whether there was a risk of the life
of the mother in case of an emergency operation is not mentioned by the
doctors of the Apollo Hospital. Thus, the doctors completely overlooked the
consequences of their negligent act leading to death which constitute basically
the lack of due care and protection and it is the case of higher degree of gross
medical negligence, which is even higher than that of a lack of care and
protection.
Page No.# 21/24
45. As per the respondent, the unborn baby is also a person within the
meaning of Section 304(A) IPC whose death by negligent act would make the
accused liable for prosecution under the said section of law. However, it is the
case of the respondent that the case may be remanded back as without the
proper medical opinion of the expert doctors in that filed or competent doctors,
the cognizance order may be irregular but it cannot vitiate the trial and even
after the rejection of the cognizance order, the matter may be remanded back
to the learned Trial Court below to enquire the matter from the stage of Section
202 Cr.P.C. by constituting a proper medical board or directing the police officer
to get an information by constituting a proper medical board.
46. It is an admitted fact that the learned Court below took cognizance
against the present petitioner only recording the statement of the complainant
under Section 200 Cr.P.C. and the statement of the mother-in-law of the
complainant under Section 202 Cr.P.C. without going into the other details of the
case or without obtaining any expert opinion/medical opinion to ascertain as to
whether there was negligence on the part of the doctors of the Apollo Hospital
wherein the petitioner was also working as a specialist in Intensive Care Unit.
47. Thus, it is seen that before taking cognizance, the learned Trial Court
below did not try to get any opinion from the medical expert to assess as to
whether the patient along with her child in the womb died due to negligence of
the petitioner along with the other accused persons, who were providing
treatment to the deceased in the I.C.U. However, it cannot directly be held as to
whether there was any negligence on the part of the doctors in providing proper
treatment to the patient who was admitted in the I.C.U. in a critical condition.
Page No.# 22/24
In the same time, it also cannot be denied that the prime duty of the team of
doctors of the I.C.U. was to save the life of the patient who was admitted in a
critical condition in the I.C.U. More so, it may not be possible for the doctors to
conduct operation of the patient who was in critical condition with a child in her
womb.
48. To fulfill the ingredient of Section 316 IPC, a person has to do an act
against the mother with the knowledge that such act may cause death of a
pregnant woman and such action must result in the death of a quick unborn
child.
49. Section 316 IPC provides as under:
"316. Causing death of quick unborn child by act amounting to culpable homicide.--
Whoever does any act under such circumstances, that if he thereby caused
death he would be guilty of culpable homicide, and does by such act cause the death
of a quick unborn child, shall be punished with imprisonment of either description for a
term which may extend to ten years, and shall also be liable to fine."
50. As relied by Mr. Deka, learned counsel for the petitioner, the decision of
Hon'ble Allahabad High Court in case of Jabbar (supra) [AIR 1966 ALL 590],
it has been held that the offence under Section 316 IPC consists of any action
against the mother, which must be culpable of causing culpable homicide and
such action must result in the death of a quick unborn child, which otherwise
means that if a person assaults or does anything to a pregnant lady knowing
fully well that such an act may lead to culpable homicide of the said lady, but
the same results in the death of the quick unborn child, only then, Section 316
Page No.# 23/24
IPC would be attracted.
51. Thus, there has to be a culpable mentality to cause death of a woman and
in that process, if the quick unborn dies in the mother's womb, the person may
be held guilty under Section 316 IPC. But, here in the instant case, it is seen
that there was no men area on the part of the petitioner or the other doctors to
cause death of the pregnant woman, rather they were providing the treatment
to the patient and during that process, the patient died along with her child in
the womb. However, the present petitioner, along with the other team of
doctors, may be negligent in providing treatment to the patient while she was in
the I.C.U., but on that ground it cannot be directly held that the accused
petitioner is guilty under Section 316 IPC. Thus, there is no material found
against the present accused/petitioner to take cognizance under Sections
192/316 IPC.
52. In view of the entire discussion made above and also in view of the
decisions as relied by the learned counsels for the petitioner as well as for the
respondent and further for the ends of justice, this Court is of the opinion that
the matter may be remanded back to the learned Trial Court below to enquire
the matter under Section 202 Cr.P.C. obtaining a medical/expert opinion from
the competent doctors or board of doctors who are competent and can give an
unbiased opinion in that regard. The doctors of the any Government Hospital
can be authorized to constitute the medical board and to examine and verify all
the documents to examine as to whether proper care was taken in the I.C.U.
while the patient was admitted in a critical condition.
Page No.# 24/24
53. Thus, for the reasons state above, the impugned order dated 07.11.2019,
passed by the learned Sub-Divisional Judicial Magistrate (Sadar) - I, Kamrup(M)
in Complaint Case No. 3459c/2019, taking cognizance against the present
petitioner under Section 192/316 of the Indian Penal Code, 1860 insofar as the
present petitioner is concerned, is hereby set aside and quashed. The matter is
remanded to the Trial Court for further enquiry under Section 202 Cr.P.C and to
obtain opinion of a doctor either constituting a Medical Board or from competent
doctor and/or directing the police officer to obtain a proper medical opinion by
constituting a Medical Board in terms of the law laid down by the Hon'ble
Supreme Court in the case of Jacob Mathew (supra) and thereafter to form an
opinion whether cognizance under Section 304(A) IPC is made out or not
against the present petitioner. However, needless to say, the Trial Court shall not
be influenced by any observation made by this Court in the present judgment
and order. The matter to be decided strictly in accordance with law on the basis
of evidence and after hearing both the sides.
54. In terms of above, this criminal petition stands partly allowed and
disposed of.
JUDGE
Comparing Assistant
