Jharkhand High Court

Dr. Umesh Kumar Pandey vs The State Of Jharkhand on 1 December, 2023

Author: Sanjay Kumar Dwivedi

Bench: Sanjay Kumar Dwivedi

                                     1

        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     Cr.M.P. No. 2226 of 2015

  Dr. Umesh Kumar Pandey                       ...... Petitioner
                    Versus
 1.The State of Jharkhand
2. Birsa Kachhap                            ......     Opp. Parties

CORAM:        HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                          ---------

For the Petitioner : Mr. Abhishek Kumar Dubey, Advocate For the State : Mr. Sunil Kumar Dubey, A.P.P. For the O.P. No.2 : Mrs. Richa Sanchita, Advocate ..............

06/Dated: 01/12/2023 Heard Mr. Abhishek Kumar Dubey, learned counsel for the

petitioner, Mr. Sunil Kumar Dubey, learned counsel for the State and Mrs. Richa

Sanchita, learned counsel for the O.P. No.2.

2. This petition has been filed for quashing the entire criminal

proceeding including order taking cognizance dated 20.01.2011 in connection

with Complaint Case No. 479 of 2008, pending in the Court of learned S.D.J.M.,

Ranchi.

3. The Complaint Case has been filed alleging therein that the father

of the complainant was admitted in G.C. Memorial Hospital on 05.12.2007.

It has further been alleged that father of the complainant was

initially under treatment of the petitioner who advised for some pathological

test.

It has further been alleged that various test of the father of the

complainant was done by Dr. Suman Dubey's Health Screen Pathology Centre

including blood test.

It has further been alleged that in the test report blood group of the

complainant's father was found to be 'B- Positive'.

It has further been alleged that complainant knew that his father's

blood group is 'A-Positive' and thus the complainant asked the petitioner for re-

examination of blood group or for the test in other pathological laboratory but

the petitioner refused the same and also abused the complainant.

It has further been alleged that the petitioner told to the complainant that

the patient needs urgent blood transfusion and for that the complainant was

asked to arrange for one unit blood.

It has further been alleged that blood of 'B-Positive' group was used for

blood transfusion resulting of which the patient became very serious and then

the petitioner asked the complainant to admit the patient in other hospital.

It has further been alleged that the patient was admitted to Guru Nanak

Hospital and thereafter he was admitted to Apollo Hospital where the patient

died due to the negligence made on the part of the petitioner and other co-

accused.

4. Mr. Abhishek Kumar Dubey, learned counsel for the petitioner

submits that the petitioner is a reputed medical practitioner running his clinic

in Kusai Colony, Doranda, Ranchi and throughout his career no single allegation

has been made against the petitioner. He submits that the petitioner is a

qualified surgeon. He submits that case is tried to be made out by saying that

the patient's blood group was A positive whereas B positive was transfused

upon the patient. He submits that the said pathological report is of another

pathology and allegation is that the petitioner has only transfused the blood

upon the patient. By way of relying death certificate contained in annexure-1

he submits that death was due to cardiorespiratory failure due to CAV, ART

and L.R.T.T. He submits that no case of negligence is made out in view of that

Section 304A of the I.P.C is not attracted however the learned court has taken

cognizance in that section.

5. The said argument is resisted by Mrs. Richa Sanchita, learned

counsel for the O.P. No.2 on the ground that allegation is made of transfusion

of Blood Group-B upon the patient and in view of that case of negligence is

made out. The case is under section 304-A of the I.P.C. is made out and the

learned court has rightly taken cognizance looking into solemn affirmation and

enquiry witnesses. She submits that the case of the O.P. No.2 is covered in the

light of judgment in the case of "Dr. Suresh Gupta Vs. Govt. of N.C.T. of

Delhi and Another" in Appeal (Crl.) 778 of 2004 decided on 04.08.2004.

She further relied in the case of " Post Graduate Institute of Medical

Education and Research, Chandigarh Vs. Jaspal Singh" (2009) 7 SCC

330. On these grounds she submits that the case is made out and in view of

that learned court has rightly taken cognizance.

6. In view of above submissions of the learned counsel for the

parties, the Court has gone through the materials on record and contents of

complaint case. The Court finds that the complaint was filed alleging therein

that during treatment the father of the O.P. No.2 left for his heavenly abode.

The allegations are made that wrong blood group was transfused and in view

of that the petitioner was shifted to Guru Nanak Hospital, Ranchi thereafter he

was transferred to Abdur Razzaque Ansari Memorial Weavers Hospital ( Apollo

Hospital Group). Further death certificate contained in Annexure-1 suggests

that death was due to cardiorespiratory failure due to CAV, ART and L.R.T.T.

This is not a case that the patient left for his heavenly abode in the hospital of

the petitioner. The patient was subsequently shifted to Guru Nanak Hospital,

Ranchi as well as Abdur Razzaque Ansari Memorial Weavers Hospital ( Apollo

Hospital Group). The death certificate has been issued by Abdur Razzaque

Ansari Memorial Weavers Hospital ( Apollo Hospital Group). Thus the death of

the patient has not occurred in the hospital of the petitioner who happens to be

surgeon.

7. In the case of "Jacob Mathew Vs. State of Punjab and

Another" (2005) 6 SCC 1 it has been held in para 48, 49, 50, 51 and 52 as

under:-

"48. We sum up our conclusions as under:

(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 & Dhirajlal 4 Cr.M.P. No. 2196 of 2014 (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 of 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 for judging the alleged negligence. So also, the standard 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 skills 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 of negligence.

(4) The test for determining medical negligence as laid down in Bolam case, holds 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 304- A 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 304-A 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.

49. In view of the principles laid down hereinabove and the preceding discussion, we agree with the principles of law laid down in Dr. Suresh Gupta case and reaffirm the same. Ex abundanti cautela, we clarify that what we are affirming are the legal principles laid down and the law as stated in Dr. Suresh Gupta case. We may not be understood as having expressed any opinion on the question whether on the facts of that case the accused could or could not have been held guilty of criminal negligence as that question is not before us. We also approve of the passage from Errors, Medicine and the Law by Alan Merry and Alexander McCall Smith which has been cited with approval in Dr. Suresh Gupta case1 (noted vide para 27 of the Report).

Guidelines -- Re: prosecuting medical professionals

50. As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by the police on an FIR being lodged and cognizance taken. The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to a rash or negligent act within the domain of criminal law under Section 304-A IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered to his reputation cannot be compensated by any standards.

51. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasise the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefer recourse to criminal process as a tool for pressurising the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.

52. Statutory rules or executive instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. 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. 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 the Bolam test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld."

8. The said judgment was followed in series of judgments by the

different High Courts including Jharkhand High Court in Bhushan V. State of

Maharashtra and Ors; MANU/MH/0777/2021 and in Biswajith

Bandopadyay and Ors. V. The State of Jharkhand and Ors;

MANU/JH/1662/2019.

9. In the case of Martin F. D'Souza V. Md. Ishfaq, (2009) 3 SCC

1 the Hon'ble Supreme Court has held in para 106 as under:-

106. 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 the criminal court should first refer the matter to a competent doctor or committee of doctors, specialised in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the doctor/hospital concerned. 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 case [(2005) 6 SCC 1 : 2005 SCC (Cri) 1369] , otherwise the policemen will themselves have to face legal action."

10. Admittedly, in the case in hand there is no preliminary enquiry

against the petitioner and so far medical negligence is concerned, in absence

of that the learned court has taken cognizance.

11. In Martin F. D' Souza (supra) the Hon'ble Supreme Court has

held that even in the consumer cases against the doctors notice is not

required to be issued at the threshold and only after obtaining the opinion of

the expert notice may be issued for medical negligence against the doctor. The

totality of the entire facts and the documents on the record cast shadow on

the role of the O.P. No.2.

12. An offence under section 304A I.P.C. is committed either by the

rash act or by the negligent act and in absence of any enquiry cognizance has

been taken which is against the mandate of law.

13. The judgment relied by Mrs. Richa Sanchita in Dr. Suresh

Gupta (supra) and in Post Graduate Institute of Medical Education

and Research (supra) there was enquiry report and thereafter the Hon'ble

Supreme Court passed the said order and in that case negligence was proved

and section 304A I.P.C. was attracted. In the case in hand, document on

record does not suggest that the petitioner has negligently treated the father of

the O.P. No.2.

14. In view of above discussions, the entire criminal proceeding against

the petitioner is abuse of process of the court. Accordingly, entire criminal

proceeding including order taking cognizance dated 20.01.2011 in connection

with Complaint Case No. 479 of 2008, pending in the Court of learned S.D.J.M.,

Ranchi, are quashed.