Dr. Satish Midha @ Satish Kumar ... vs State Of Jharkhand
2023 Latest Caselaw 2280 Jhar

                                                      1                  Cr.M.P. No. 2196 of 2014


                      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                Cr.M.P. No. 2196 of 2014
                     Dr. Satish Midha @ Satish Kumar Midha       ... Petitioner
                                            -Versus-
                1.   State of Jharkhand
                2.   Md. Hussain                                 ... Opposite Parties
                                              -----

CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner : Mr. Pandey Neeraj Rai, Advocate Mr. Rohit Ranjan Sinha, Advocate Mr. Akchansh Kishore, Advocate Mr. Saurabh Sagar, Advocate Mr. Mohit Mukul, Advocate For the State : Mrs. Ruby Pandey, A.P.P.

            For O.P. No.2               : Mr. Amarjit Sinha, Advocate
                                          Mr. Jayant Kumar Pandey, Advocate
                                              -----

04/13.07.2023        Heard Mr. Pandey Neeraj Rai, learned counsel for the petitioner,

Mrs. Ruby Pandey, learned counsel for the State and Mr. Amarjit Sinha,

learned counsel for opposite party no.2.

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

proceedings, including the order dated 25.03.2014, whereby the learned

court has been pleased to take cognizance against the petitioner under

Section 304-A of the Indian Penal Code in Protest Complaint Case

No.2324/2012, pending in the court of the learned Judicial Magistrate,

Ranchi.

3. Mr. Pandey Neeraj Rai, learned counsel for the petitioner submits that

the petitioner is a practicing Doctor of Ranchi city and he is specialized in

Gastroenterology. He submits that for the death of the son-in-law of

opposite party no.2, Chutia P.S. Case No.135/2012, dated 24.06.2012

corresponding to G.R. No.3547/2012 was registered against the petitioner

and after investigation, the police has submitted final report on 25.10.2012

as untrue and, thereafter, opposite party no.2 filed Protest Complaint Case

No.2324/2012 in which the learned court has been pleased to take

cognizance under Section 304-A of the Indian Penal Code against the

petitioner. He further submits that initially the son-in-law of opposite party

no.2 was treated in Jharkhand Hospital at Kantatoli, Ranchi and, thereafter,

the Doctor who attending him, advised to go for higher specialized centre

and, accordingly, the son-in-law of opposite party no.2 was brought to Guru

Nanak Hospital, Ranchi, where, he was admitted for treatment and for four

days, the treatment was going on and, thereafter, the health was

deteriorated and he left for his heavenly abode. He also submits that the

Doctor has taken all care and has provided the treatment and in spite of his

best efforts, the life of son-in-law of opposite party no.2 was not saved. He

further submits that the learned court has taken cognizance without looking

into the guidelines issued by the Hon'ble Supreme Court in Jacob Mathew

v. State of Punjab; [(2005) 6 SCC 1] . On these grounds, he submits

that the entire criminal proceedings may kindly be quashed.

4. On the other hand, Mr. Amarjit Sinha, learned counsel for opposite

party no.2 submits that proper treatment was not provided and that is why

the son-in-law of opposite party no.2 has left for his heavenly abode. The

protest complaint case was filed by opposite party no.2 and the learned

court has rightly taken cognizance. He further submits that the case is

pending since 2012 and unnecessarily, opposite party no.2 is being

harassed.

5. Mrs. Ruby Pandey, learned counsel for the State submits that the

police has investigated the matter and submitted final form and, thereafter,

on protest petition, the learned court has taken cognizance against the

petitioner.

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

parties, the Court has gone through the contents of the complaint petition

as well as the order taking cognizance. It is an admitted fact that son-in-law

of opposite party no.2 was initially treated at Jharkhand Hospital, Kantatoli,

Ranchi where he was advised to go to specialized centre and, thereafter, the

patient was brought to Guru Nanak Hospital, Ranchi, where, he was

admitted and treatment was started.

7. It is also an admitted fact that the son-in-law of opposite party no.2

was alive for four days and the treatment was going on.

8. In the solemn affirmation before the learned court, the complainant

has also disclosed that for four days, the treatment was going on and,

thereafter, his son-in-law has left for heavenly abode.

9. Further, the police has investigated the matter thoroughly and

thereafter filed final form. The learned court has taken cognizance on the

protest petition. If such a situation was there, at least prima facie material

was required to be disclosed in the order taking cognizance as final form

was submitted in favour of the petitioner, but that is lacking in the case in

hand.

10. It is well-settled that in a case of medical negligence, the preliminary

enquiry with regard to said negligence is a must, as has been held by the

Hon'ble Supreme Court in Jacob Mathew (supra). Paragraphs 48, 49, 50, 51

and 52 of the said judgment are quoted hereinbelow:

"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

(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."

11. The said judgment has been followed in series of judgments by the

different High Courts including the 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.

12. The Hon'ble Supreme Court in Martin F. D'Souza v. Mohd. Ishfaq;

[(2009) 3 SCC 1] has held in paragraph 106 which is quoted hereinbelow:

"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, otherwise the policemen will themselves have to face legal action."

13. Admittedly, there is no preliminary enquiry against the petitioner, so

far as medical negligence is concerned and in absence of that the learned

court has taken cognizance.

14. Summoning the person is a serious thing which has been held by the

Hon'ble Supreme Court in Pepsi Foods Ltd. v. Special Judicial

Magistrate; [(1998) 5 SCC 749] in paragraph 28 of the said judgment,

which is quoted hereinbelow:

"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations 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. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

15. In view of the above facts, reasons and analysis, the Court finds that

to allow the proceedings to go on, will amount to abuse of process of law.

Accordingly, so far as the petitioner is concerned, the entire criminal

proceedings including the order taking cognizance dated 25.03.2014,

pending in the court of the learned Judicial Magistrate, Ranchi is quashed.

16. Accordingly, this petition is allowed and disposed of.

17. Pending I.A., if any, is disposed of.

(Sanjay Kumar Dwivedi, J.) Ajay/