Jadeja Jaydeepsinh Arjunsinh vs State Of Gujarat
2023 Latest Caselaw 4936 Guj

     R/SCR.A/12886/2021                                          ORDER DATED: 27/06/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CRIMINAL APPLICATION NO. 12886 of 2021

==========================================================
                          JADEJA JAYDEEPSINH ARJUNSINH
                                      Versus
                                STATE OF GUJARAT
==========================================================
Appearance:
MR VICKY B MEHTA(5422) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3,4
MR. DHAVAN JAISWAL, APP for the Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                    Date : 27/06/2023
                                     ORAL ORDER

1. The present petition is filed for seeking following

prayers:

"A) Your Lordships may be pleased to issue a writ of

certiorari or a writ in the nature of certiorari or any

other appropriate writ, order or direction by quashing

and setting aside the impugned communication dated

2.9.2019 sent with forwarding letter dated 3.9.2019

passed by the respondent No.4 and further be pleased

to direct the respondent No.4 to form a penal of expert

Medical Officers and to examine the medical case

papers of the sister of the petitioner and to send an

opinion/report with regard to the same within time

bound schedule;

R/SCR.A/12886/2021 ORDER DATED: 27/06/2023

B) any other and further relief/s which may be deemed

fit by this Honourable Court be granted."

2.1 Brief facts as per case of the petitioner in the

present petition are that the sister of the petitioner -

Mittalben was married with Ashoksinh Jhala at village

Jhanjhorka of Dhandhuka Taluka. The said village is

interior and remote and no proper medical facility is

available there. In the year 2017, the sister of the

petitioner - Mittalben suffered from severe stomach pain.

As stated earlier, since no proper medical facilities are

available at village Jhanjharka, the being brother had

called Mittalben for proper treatment. On 1.7.2017, test

was carried out whereby stone in the kidney of the sister of the petitioner was found. It is further the case

of the petitioner in the present petition that on 3.7.2017,

the sister of the petitioner again suffered from

unbearable stomach pain on account of the stone and

therefore, pursuant to the medical advice of Dr. Tushar

P. Shah (M.S. FMAS and FIAGES), on 3.7.2017, sister of

the petitioner was admitted in the Hospital of Dr.

Tushar P. Shah. Further reports were carried out

pursuant to the medical advice of Dr. Tushar P.Shah

R/SCR.A/12886/2021 ORDER DATED: 27/06/2023

and it was informed to the petitioner and his sister that

a surgery was required to be carried out to cure the

same. Therefore, on 12.7.2017, operation was fixed to be

carried out in the hospital of Dr. Tushar P. Shah. since

sister of the petitioner did not come out of

unconsciousness for a long period of time, the petitioner

had called Dr. Tushar P. Shah. He had medically

checked the sister of the petitioner and informed the

petitioner that the dose of anesthesia seems to have

been given more than required, on account of which the

patient is still unconscious. The petitioner was also

informed that further treatment is required to be taken

in Ahmedabad Medilink Hospital, wherein the patient

would be kept for nearly 24 hours on 13.7.2017 and on 14.7.2017, certain reports were carried out in Medilink

Hospital.

2.2 It is further the case of the petitioner in the

present petition that on 13.7.2017, Dr. Tushar P. Shah

had also advised to carry out M.R.I. of the patient.

Therefore, M.R.I. was carried out on 13.7.2017 at

Suryam. The expert had also examined the reports and

informed that one of the vain of the brain of Mittalben

R/SCR.A/12886/2021 ORDER DATED: 27/06/2023

is damaged and it was informed that if over dose of

anesthesia is given then such type of Medical

complication can take place. The petitioner was very

shocked to hear the above. It was also informed to the

petitioner anything can happen to his sister and there

are 80% chances that anything can happen. The

petitioner was also informed by Dr. Tushar P. Shah that

the patient is required to be kept for 3-4 months for

proper treatment since entire body after the neck of

Mittalben was paralyzed. The petitioner was also

informed that in this treatment, nearly Rs.4-5 lacs

expenditure would be incurred. At that time itself, hot

exchange of words took place between the petitioner and

Dr. Tushar P. Shah and at that time family members were also present. During the above exchange of hot

words, Dr. Tushar P. Shah admitted that the present

situation was on account of Medical negligence and he

owes the responsibility of this situation and therefore, he

showed ready and willingness to bear the expenditure on

a confirmation and assurance from the petitioner that no

police complaint would be filed by the petitioner for the

negligence.

R/SCR.A/12886/2021 ORDER DATED: 27/06/2023

2.3 It is further the case of the petitioner in the

present petition that later on 13.7.2017, Dr. Tushar P.

Shah informed the petitioner that his sister is required

to be shifted at Jivraj Mehta Hospital. Therefore, on

14.7.2017, the sister of the petitioner was shifted to

Jivraj Mehta Hospital under the supervision of Dr.

Tushar P. Shah. It is further the case of the petitioner

in the present petition that on 19.7.2017, one surgery

was carried out of vain of the sister of the petitioner

and pipe was inserted. The sister of the petitioner was

kept on ventilator for 60-63 days under the medical

supervision of Dr. Tushar P. Shah. However, there was

no recovery and therefore, the petitioner had repeatedly

talked with Dr. Tushar P. Shah. However, every time, he had conveyed and assured that everything would be

fine. It is further the case of the petitioner in the

present petition that suddenly on 3.9.2017, the health of

the sister of the petitioner deteriorated and blood came

out from the urine. After perusing the reports, the

petitioner was informed that the urinal vain of the

patient was damaged and therefore, another surgery was

required to be carried out or else the patient would be

in critical condition. Therefore, the petitioner being

R/SCR.A/12886/2021 ORDER DATED: 27/06/2023

dejected had called Dr. Tushar P. Shah, however, it was

informed that Dr. Tushar P. Shah was not available. It

is further the case of the petitioner in the present

petition that on 19.9.2017, the sister of the petitioner

was discharged since there was no recovery and there

was no hope that the sister of the petitioner will recover

from paralysis. The petitioner states that the bill of

Rs.7,15,243/- of Dr. Jivraj Mehta was also paid. It is

further the case of the petitioner in the present petition

that today also, the petitioner has to incur heavy

medical expenditure. The petitioner had therefore, lodged

a complaint against Dr. Tushar P. Shah, his team and

Anesthetist whose name is not revealed to the petitioner

on 16.4.2018 before Sanand Police Station asking them to register a complaint and to carry out investigation in

this regard.

2.4 It is further the case of the petitioner in the

present petition that the petitioner personally inquired

with Sanand Police Station regarding the status of his

complaint. At that time, the petitioner was informed by

Sanand Police Station that a complaint could only be

registered if the medical team of civil hospital is formed

R/SCR.A/12886/2021 ORDER DATED: 27/06/2023

and they examine the medical reports and they are of

the opinion that this is a case of medical negligence. It

was also informed that since no penal is formed by civil

hospital FIR is not registered. Since the respondent No.3

did not register the FIR, the petitioner was constrained

to approach. this Honourable Court by filing Special

Criminal Application No.8386 of 2018. This Honourable

Court by order dated 17.10.2018 was pleased to dispose

of the said petition by issuing direction moreover in para

3 of the said order. Despite the above order passed by

the Honourable Court, the respondent No.3 has failed to

comply with the same. The petitioner had learnt that

since the opinion for the respondent No.4 has not been

received, FIR is not registered. However, this cannot be the reasons for not complying with the order passed by

this Honourable Court who had directed to act

accordingly within a period of four weeks from the date

of order. It is further the case of the petitioner in the

present petition that on 6.11.2018, there is internal

communication of respondent No.4 which states that the

opinion of Neuro surgeon /Neuro Physician as well as

urologist Doctor is required and no such specialist doctor

is available and therefore, further report from B.J.

R/SCR.A/12886/2021 ORDER DATED: 27/06/2023

Medical College is sought for.

2.5 It is further the case of the petitioner in the

present petition that respondent No.4 was required to

forward the expert report as soon as possible looking to

the seriousness of the case. However, considerable time

had passed but no proper steps were taken and the

order passed by the Honourable Court was not complied.

Thereafter, the petitioner once again approached this

Honourable Court by way of filing Special Criminal

Applicatino No.4918 of 2019. Earlier, this Honourable

Court issue notice by order dated 2.5.2019. Later on, by

order dated 7.8.2019, the said petition was withdrawn

with a liberty to take appropriate measures under the Code of Criminal Procedure, 1973 before the appropriate

competent Court. It is further the case of the petitioner

in the present petition that meanwhile unfortunately, on

account of Medical ailment and medical negligence, the

sister of the petitioner expired on 9.9.2019. Surprisingly,

when the respondents came to know that the medical

condition of the sister of the petitioner has deteriorated

and was admitted in hospital, the respondent No.4 by

communication dated 3.9.2019 informed the Police

R/SCR.A/12886/2021 ORDER DATED: 27/06/2023

Inspector of Sanand Police Station that, the committee

had examined the case papers of deceased Mittalben and

the panel has come to a conclusion that the surgery can

be associated with complications like spinal injury and

they have concluded that there was no medical

negligence. Now, in view of the aforesaid communication

dated 2.9.2019 passed by the respondent No.4, the

petitioner would not be in a position to even avail

alternative remedy. Even otherwise, the committee of

respondent No.4 has not at all scrutinized the documents

in proper manner and in a casual manner submitted a

report stating that there was no medical negligence. It

clearly appears that the penal of medical officers of

respondent No.4 has tried to save the skin of Dr. Tushar P. Shah and his medical team. Hence, this petition is

preferred.

3. Heard learned advocate Mr. Vicky B. Mehta for the

petitioner and learned APP Mr. Dhavan Jaiswal

appearing for the respondent - State.

4. Learned advocate Mr. Vicky B. Mehta for the

petitioner has submitted that on earlier occasion, the

R/SCR.A/12886/2021 ORDER DATED: 27/06/2023

Courts have directed respondent - authority to look into

the matter and follow the judgment of the Hon'ble Apex

Court in the case of Lalitakumari versus Gov. of U.P.

reported in (2008) 7 SCC 164, and no F.I.R. is filed. He

has further submitted that where there is specific

allegation made against the concerned Dr. Tushar P.

Shah and his medical team as the patient who is sister

of the petitioner, received serious medical complications

during her treatment and the petitioner is repeatedly

alleging that there is medical negligence and due to that

he has lost his sister. He has further submitted in the

operation, which is performed for the removal of the

stone, the entire complications is occurred due to medical

negligence. He has further submitted that he is challenging in the present petition essentially

communication dated 2.9.2019 by which it was informed

by the concerned authority i.e. R.M.O. No.29/2019 as well

as 39 of 2019 to the concerned Police Inspector, Sanand

whereby R.M.O. has informed the police authority that

there is specially constituted team of the doctors, who

have examined the grievance made by the present

petitioner thoroughly and had come to the conclusion

that there was non-medical negligence and therefore,

R/SCR.A/12886/2021 ORDER DATED: 27/06/2023

being aggrieved by the same, he has preferred the

application and therefore, he has prayed to allow this

petition.

5. Per contra, learned APP Mr. Dhavan Jaiswal

appearing for the respondent - State has drawn my

attention towards the opinion given by the specially

constituted committee of doctors viz., Dr.Shrenik Shah,

who is Head of the Department and Professor Urology

Department, Civil Hospital, Ahmedabad, and Dr. Shailesh

Shah, HOD of Prof. Anaesthesia, Civil Hospital,

Ahmedabad as well as Dr. Kamlesh Upadhyay, HOU and

Prof. General Medicine, Civil Hospital, Ahmedabad, who

had opined after going through the necessary materials and also examining the case in detail at P.C.N.L Surgery

which was performed by the concerned doctor that

P.C.N.L. surgery can be associated with complication like

spinal injury and above injuries can lead to dissection of

vertebral artery. Some of these complications may require

intensive care for further management which has been

provided in this case. Therefore, it was concluded that

there was no medical negligence by the panel of doctors.

Pursuant to that, the Police Inspector, Sanand has

R/SCR.A/12886/2021 ORDER DATED: 27/06/2023

received the communication and therefore, the allegation

made by the petitioner herein is by and large satisfied

by scrutiny which is undertaken by the panel of the

doctors - special constituted committee. He has also

submitted that otherwise also, if there is no case made

out by the petitioner herein which requires further

investigation in the matter. He has also submitted that

the prayers made in the present petition is also found

misconceived in view of the specific opinion given by the

medical authority, and therefore, he prayed that no case

is made out to exercise powers by this Court either

under Article 226/227 of the Constitution of Indian or

Section 482 of the Criminal Procedure Code.

6.1 I have considered the rival submissions made at the

bar. I have also considered the earlier order passed by

this Court. This Court has permitted the present

petitioner to withdrawn the present petition and as per

last order dated 7.8.2019 of this Court, the petition is

withdrawn by the petitioner with a permission to

approach the appropriate competent Court to take

necessary measures under Section 36, 154, 156(3) and

200 or any other provisions of the Code of Criminal

R/SCR.A/12886/2021 ORDER DATED: 27/06/2023

Procedure, 1973, which was not availed by the petitioner

and on receipt of such communication, merely challenging

that communication, by asking further investigation with

specially constituted committee, is found highly

unwarranted and unjustified. The Courts are not meant

for satisfying the personal grudges and grievances merely

on apprehension and suspicion by ignoring the opinion

given and more particularly, the specially constituted

team of the experts.

6.2 In view of this, no valid ground or reason is made

out by the petitioner to grant any relief. On the

contrary, filing of such petition amounts to taking

disadvantage of the procedure of law by making such allegation with a view to gain misplaced sympathy in

favour of the petitioner.

7. With above observation, the present is disposed of

as not entertained.

(SANDEEP N. BHATT,J) DIWAKAR SHUKLA