Gujarat High Court
Rahul Bharatkumar Shah vs State Of Gujarat on 15 December, 2023
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R/CR.RA/537/2015 JUDGMENT DATED: 15/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 537 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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RAHUL BHARATKUMAR SHAH
Versus
STATE OF GUJARAT
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Appearance:
MR. SUDHIR NANAVATI, SR. ADVOCATE WITH MR. SURAJ A
SHUKLA(7185) for the Applicant(s) No. 1
MS DIVYANGNA JHALA APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 15/12/2023
ORAL JUDGMENT
1. This Revision Application is filed challenging the order
dated 10th August, 2015 passed by learned 9th Additional
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Sessions Judge, Surat in Sessions Case No.383 of 2014 passed
below Exh.4 rejecting the application preferred by the present
applicant praying to discharge for the offence punishable under
Sections 304 Part-II and 114 of the Indian Penal Code.
2. At the outset, it is required to be noted that though in the
First Information Report (FIR) and in the charge-sheet, names of
two accused were mentioned wherein, the present applicant was
accused No.1 and it was informed by the learned Senior
Advocate, Mr.Sudhir Nanavati, appearing with Mr.Suraj Shukla,
learned advocate for the petitioner that trial has not been
proceeded qua other accused, vide an order dated 14.9.2015, as
this Court has granted the interim relief in terms of paragraph
No.12(C) staying the proceedings in this revision application,
which is filed by the accused No.1 only.
3. It is the case of the prosecution that present applicant No.1
is the Doctor by profession - ENT Surgeon having his Hospital,
namely, Parshwa Hospital situated at Udhna, District: Surat. One
FIR came to be filed being I-C.R.No.226 of 2013 by Mr.A.S.Rajput,
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the then Police Inspector of Udhna Police Station, Surat against
the present applicant and other accused, namely, Kalusinh @
Raju Kanusinh Parmar for the offence punishable under Sections
304 Para-II and 114 of the Indian Penal Code on 19.11.2013. It
was alleged in the FIR that deceased, namely, Prakash
Dashrathbhai Pavar, on 14.6.2012 consulted the applicant at his
Hospital complaining pain in his ear. After check-up, he was
informed that surgery is to be performed in his ear. As the
applicant installed microscope machine in Vardhman Hospital,
the deceased was asked to be operated in Vardhman Hospital,
for that deceased consented and deceased was operated on
14.7.2012. The operation performed between 2.30 p.m. to 6.30
p.m. on 14.7.2012 and it was successful. Thereafter, deceased
Prakash Dashrathbhai Pavar was fully conscious and started
responding to verbal commands and was well oriented to time,
place and person. It was further alleged in the FIR that at 10.00
p.m. when applicant herein was not present and ward boy,
namely, Kalusinh Parmar had given him 5 injunctions at a time in
his vain, namely, (1) Pantoprazole (2) Fytobact (3) Dexona (4)
Ehasyl and (5) Emset. That thereafter, health of the deceased
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became deteriorated and he was facing trouble in breathing and
movements of the body was sluggish. Applicant was informed by
the Ward Boy. Applicant reached to the Hospital and deceased
was taken to the emergency ward and thereafter to other
Hospital, namely, K.P. Sanghvi Hospital in the ambulance where
he died at 11.50 p.m. on the very day. Initially, the accidental
death was declared under Section 174 of the Code of Criminal
Procedure.
3.1 The Police Officer, thereafter, had called for the
Postmortem Report and cause of death certificate wherein it is
found that:
"No positive finding at autopsy, negative
chemical analysis report and negative
histopathalogical and microbiology
analysis report, so cause of death is
obscured and possibility of death due to
anaphylactic reaction of drug cannot be
ruled out.
3.2 The said certificate was issued by Dr. Shri Chandresh
Tailor, Dr. Ganesh Govekar and Dr. Chirag Gajera but in the said
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certificate the signature of the Professor Head Dr. Ganesh
Govekar was not there thus, again a cause of death certificate
was issued with the signature of Professor Head Dr. Ganesh
Govekar, wherein it was stated that :-
"cause of death cannot be commented due to
negative chemical analysis report, negative
histopathological and microbilogical report
and no positive findings at autopsy."
3.3 Thereafter, report was made to the Dean of New Civil
Hospital, Surat to give his final opinion regarding the final cause
of death, against which the report was given:-
"Generally anaphylactic shock and allergic
reaction can occur due to drugs of the
penicillin group which can also cause
death of a patient and negligent of a
doctor can be found if the same is given
in absence of a doctor".
3.4 Thereafter, for further clarification Head of Pharmocology
Department, Government Medical College, Surat was asked to
give his opinion and to give final cause of death by putting
several questions against which opinion dated 21.10.2013 has
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given by Dr.N.D.Katharia, as under:
"If the Penicillin Injection is given to a
patient without test dose than it might
create problem to breathe and both the
hands and legs may stretch."
3.5 On receiving this Report, FIR came to be lodged on 19 th
November, 2013 against the applicant and ward boy. It is
submitted that thereafter charge-sheet came to be filed under
Section 304 Part-II and 114 of the Indian Penal Code on
21.1.2014 and the same was culminated in to Sessions Case
being Sessions Case No.383 of 2014. It appears from the record
that thereafter settlement was arrived at between the parties i.e
applicant and the relatives of the deceased and applicant had
paid the amount of Rs.15 lacs for which settlement agreement
was executed, which was produced by the applicant at page
No.115 of the revision application dated 13.4.2015. On the basis
of the settlement, quashing petition was filed before this Court,
which was ultimately permitted to withdraw vide an order dated
27.4.2015 with a view to file the discharge application before the
learned trial Court. Thereafter, the applicant had approached to
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the learned trial Court by filing the application below Exh.4 under
Section 227 of the Code of Criminal Procedure praying to
discharge from the offences. Learned trial Court, after
considering the evidence placed in the charge-sheet and
considering the postmortem report, comes to conclusion that,
prima-facie, case is made out against the applicant No.1, and
without recording the evidence, it cannot be held that accused
was innocent and no case is made out against the applicant
No.1. Therefore, the application praying to discharge from the
charges came to be rejected vide an order dated 10.8.2015,
which is impugned before this Court.
4. It transpires from the record that vide an order dated
14.9.2015, interim relief granted while admitting the present
revision application in term of para 12(C) however, as stated
earlier, the trial Court had not proceeded with the trial for the
remaining accused in view of the pendencyi of this matter before
this Court.
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5. Heard Mr.Sudhir Nanavati, learned Senior Advocate
appearing for Mr.Suraj Shukla, learned advocate for the
petitioner and learned APP, Ms.Divyangna Jhala, for the
Respondent - State.
6. Mr.Sudhir Nanavati, learned Senior Advocate submitted
that no direct or indirect evidence is available to suggest that
present applicant is involved in the offence. Mr.Nanavati, learned
Senior Advocate further submits that injections was given
pursuant to the instructions given by the present applicant to the
ward boy and as the said injections was combination of penicillin
groups, therefore, no test dose is required. Mr.Nanavati, learned
Senior Advocate has submitted that only when injections of pure
penicillin group is to be given, then and then only the test doze is
required, therefore, the present applicant cannot be held liable
for the death of the deceased or cannot be held negligible in
absence of recommending test dose. Mr.Nanavati, learned Senior
Advocate further submits that the complaint is filed by the
Investigating Officer, however, the settlement has already been
arrived at between the parties and the amount of compensation
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is already paid to the relatives of the deceased, therefore, there
would be less chance of conviction. Mr.Nanavati, learned Senior
Advocate further submits that as far as in the case of medical
negligences are concerned, the burden upon doctor is only to
prove that he has opted standard medical procedure and had
done level best efforts to save the life of the deceased.
Mr.Nanavati, learned Senior Advocate further submits that
present applicant is the life time member of Indian Medical
Association and well known ENT surgeon in Surat city having
degree of Master in Surgery and practicing since more than 15
years and applicant did thousands of successful surgery and
there was no any allegation of negligence till date. Learned
Senior Advocate further submits that on bare perusal of the
entire charge-sheet, no role is made out against the present
applicant and therefore, in that case, trial would be the futile
exercise and unnecessary applicant had to pass the rigorous of
the trial. In view of the same, Mr.Nanavati, learned Senior
Advocate prays to allow the present application and to discharge
the applicant from the charges.
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6.1 Learned advocate, relies on the decision rendered by the
Hon'ble Apex Court in the case of M.A.Biviji V/s. Sunita and
others reported in 2023 SCC Online SC 1363 and judgment
referred by the High Court of Kerala in the case of
Dr.Balachandran V/s. State of Kerala reported in 2023
LiveLaw (Ker) 61 and submitted that it is natural that there
shall always be different opinions including contesting views
regarding the chosen line of treatment, or the course of action to
be undertaken in such circumstances just because a doctor opts
for a particular line of treatment but does not achieve the
desired result, they cannot be held liable for negligence provided
that the said course of action undertaken was recognized as
sound and relevant medical practice. Mr.Nanavati, learned Senior
Advocate further submits that to hold medical practitioner liable
for negligence, a higher threshold limit must be met. It is to be
ensured that these doctors are focused on deciding the best
course of treatment as per their assessment rather than being
concerned about possible prosecution or harassment that they
may be subjected to in high-risk medical situations. Mr.Nanavati,
leaned Senior Advocate further submits that to safeguard these
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medical practitioners and to ensure that they are able to freely
discharge their medical duty, a higher proof of burden must be
fulfilled by the complainant. Mr.Nanavati, learned Senior
Advocate submits that prima-facie from the material collected
during investigation not an iota of evidence is made out with
regard to the involvement of the applicant and therefore, he
prays to discharge the applicant from the charges.
7. On the other side, Ms.Jhala, learned APP submits that
learned trial Court, after considering the evidence collected
during the investigation, comes to the conclusion that prima-
facie case is made out against the applicant and without
recording the evidence, it is difficult to come to the conclusion
that no case is made out against the applicant and therefore,
order passed by learned trial Court dismissing discharge
application is just and proper and no interference is required.
8. Considering the submissions advanced by the learned
advocates for the respective parties and considering the material
of the charge-sheet, it transpires that the surgery was performed
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successfully between 2.30 to 6.30 p.m on 14.7.2012. Thereafter,
deceased was taken into the hospital ward where he was
declared fit and conscious. At night hours, around 10 o'clock,
the applicant was not present, at that time, ward boy,
namely,Kalusinh Parmar who is serving with the present
applicant came to the ward and gave one tablet, namely,
ampicillin + and started one bottle of Glevo (Inj. Levofloxacin)
Thereafter, in the vain, 5 injections given, namely, (1)
Pantoprazole (2) Fytobact (3) Dexona (4) Ehasyl and (5) Emset.
within 5 minutes only, the deceased was feeling difficulty in
breathing and movement of body was sluggish. Subsequently, he
was referred to the K.P. Sanghvi Hospital where he declared
dead at 11.50 p.m. in the night. The last certificate which was
issued dated 21st October, 2013, by Dr.N.D.Katharia, stating that
5 injections given at a time one after another without test dose
in that case there are chances of creating problem in breathing
and both the hands and legs may stretch.
9. The judgment which is relied by the learned Senior
Advocate, Mr.Sudhir Nanavati would not help to the applicant in
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the present case as in the said judgment, it is held that during
the treatment if any complications arrive and Doctor had opted
for a particular line of treatment, Doctor cannot held liable. In the
present case, it is undisputed fact that operation was performed
successfully. The patient was declared fit and even able to walk
in the Hospital premises and on giving the injunctions in vain, his
condition become deteriorated, therefore, the said judgment
would not came for the rescue in the present case to the
applicant.
10. Learned Senior Advocate Mr.Nanavati fairly admitted that
said instructions for giving the injections was given to the ward
boy by the present applicant. Therefore, accused No.2 cannot be
held liable. In view of the statement made by the learned senior
Advocate for the applicant, it is further required to be noted that
as per the report submitted by the Dr. N.D. Katharia, dated 5 th
August, 2013, in answer to the questions put by the Investigating
Officer with regard to the reaction which was done whether it is
possible with the injections, which was given to the patient or
not. Doctor replied that there are chances of allergic reactions on
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giving all these injections immediately, however, fact that
chances are 4 patients out of one lac. From the statement of
the witnesses, staff members who were present at the time of
incident in the Hospital, it reveals that accused No.2 was working
with the present applicant and after surgery was completed, he
was available for post operation treatment. After the operation,
the deceased was fit and able to walk in the Hospital premises. If
the 5 injunctions which was given one after the other in the vain,
his health became deteriorated. From the communication dated
2.1.2013, addressed by the Department of Forensic Medicine &
Tosicology, Government Medical College and New Civil Hospital,
Surat,it reveals that because of the injections which was of
penicillin group and there are all chances of having allergic
reactions on giving this injection and therefore, it is stated in the
said communication that if the said injection is given without
supervision of the Doctor then the Doctor can be held liable.
From the undated communication addressed to the Police
Inspector, Udhna Police Station from the Sardar Vallabhbhai Patel
Paramedical and Institute, it reveals in para-3 that accused had
completed the training course and injection is to be given is the
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responsibility of Senior staff and the Doctor.
11. This Court has considered the law laid down by the Hon'ble
Apex Court in the case of State of Bihar V/s. Ramesh Singh
reported in AIR 1977 SC 2018. In para-4, it is observed as
under:-
"Under section 226 of the Code while opening
the case for the prosecution the Prosecutor
has got to describe the charge against the
accused and state by what evidence he
proposes to prove the guilt of the accused.
Thereafter comes at the initial stage the
duty of the Court to consider the record of
the case and the documents submitted
therewith and to hear the submissions of the
accused and the prosecution in that behalf.
'The Judge has to pass thereafter an order
either under section 227 or section 228 of
the Code. If "the Judge consider that there
is not. sufficient ground for proceeding
against the accused, he shall discharge the
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accused and record his reasons for so doing",
as enjoined by section 227. If, on the other
hand, "the Judge is of opinion that there, is
ground for presuming. that the accused has
committed an offence which-
(b)is exclusively triable by the Court, he
shall frame in writing a charge against the
accused'-', as provided in section 228.
Reading the two provisions together in juxta
position, as they have got to be, it would be
clear that at the beginning and the initial
stage of the trial the truth, veracity and
effect of the evidence which the Prosecutor
proposes to adduce are not to be meticulously
judged. Nor is any weight to be attached to
the probable defence of the accused. It is
not obligatory for the Judge at that stage of
the trial to consider in any detail and weigh
in a sensitive balance whether the facts, if
proved, would be incompatible with the
innocence of the accused or not. The standard
of test and judgment which is to be finally
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applied before recording a finding regarding
the guilt or otherwise of the accused is not
exactly to be applied at the stage of
deciding the matter under section 227 or
section 228 of the Code. At that stage the
Court is not to 'see whether there is
sufficient ground for conviction of the
accused or whether the trial is sure to end
in his conviction. Strong suspicion against
the accused, if the matter remains in the
region of suspicion, cannot take the place of
proof of his guilt at the conclusion of the
trial. But at the initial stage if there is a
strong suspicion which leads the Court to
think that there is ground for presuming that
the accused has committed an offence then it
is not open to the Court to say that there is
no sufficient ground for proceeding against
the accused. The presumption of the guilt of
the accused which is to be drawn at the,
initial stage is not in the sense of the law
governing the trial of criminal cases in
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France where the accused is presumed to be
guilty unless the contrary is proved. But it
is only for the purpose of deciding prima
facie whether the Court should proceed with
the trial or not. if the evidence which the
Prosecutor proposes to adduce to prove the
guilt of the accused even if fully accepted
before it is challenged in cross-examination
or rebutted by the defence evidence, if any,
cannot show that the accused committed the
offence, then there will be no sufficient
ground for proceeding with the trial. An
exhaustive list of the circumstances to
indicate as to what will lead to one
conclusion or the other is neither possible
nor advisable. We may just illustrate the
difference of the law by one more example. If
the scales of pan as to the guilt or
innocence of the accused are something like
even at the conclusion of the, trial, then,
on the theory of benefit of doubt the case is
to end in his acquittal. But, if, on the
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other hand, it is so at the initial stage of
making an order under section 227 or section
228, then in such a situation ordinarily and
generally the order which will have to be
made will be one under section 228 and not
under section 227".
12. Thus, in view of the above decision and discussion, the
impugned order does not suffer from any illegality, irregularity or
impropriety and the Revision is liable to be dismissed.
Accordingly, this revision application stands rejected. Rule
discharged. Interim relief,if any, stands vacated.
(M. K. THAKKER,J)
ASHISH M. GADHIYA
