Jharkhand High Court
Dr. Nirmal Drolia @ Nirmal Kumar ... vs The State Of Jharkhand And Another on 9 November, 2023
1
IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No. 3701 of 2017
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Dr. Nirmal Drolia @ Nirmal Kumar Drolia .... Petitioner
-- Versus --
The State of Jharkhand and Another .... Opposite Parties
With
Cr.M.P. No. 2640 of 2017
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Dr. Sanjay Mukherjee .... Petitioner
-- Versus --
The State of Jharkhand and Another .... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners :- Mr. Ankit Kumar, Advocate
Mr. Ajay Kumar Sah, Advocate
For the State :- Mr. Satish Kumar Keshri, Advocate
For the O.P.No.2 :- Mr. J. N. Upadhyay, Advocate
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5/09.11.2023 Both the cases are arising out of same complaint case as
well as the order taking cognizance that is why both the cases are heard
together.
2. Heard Mr. Ankit Kumar and Mr. Ajay Kumar Sah, the learned
counsels for the petitioners, Mr. Keshri, the learned counsel for the
respondent State and Mr. J.N. Upadhyay, the learned counsel appearing
on behalf of the O.P.No.2.
3. These petitions have been filed for quashing of the entire
criminal proceedings pertaining to C.P.Case No.2528 of 2014 including
the order taking cognizance dated 30.06.2017 whereby the learned court
has been pleased to take cognizance under section 304A IPC, pending in
the court of learned Judicial Magistrate, First Class, Dhanbad.
4. The complaint case has ben filed alleging therein that the
O.P.No.2 is the son of the deceased Ramesh Kumar Chopra. It is alleged
that the patient was taken to Patliputra Nursing Home and admitted
there on 20.09.2014 at about 3.00 p.m. and paid registration fees of
Rs.50/-. It is alleged that the accused no.1 and the petitioner diagnosed
the patient and they induced the patient attendant to deposit Rs.20,000/-
however only Rs.1000/- was deposited. In the evening, again further
amount was demanded whereafter it is alleged that another Rs.5,000/-
was deposited. It is alleged that the accused no.1 gave some drugs to
the ailing father due to which the condition became critical. Thereafter
the phone numbers of the accused no.1 was switched off. It is alleged
that patient became critical on intentional omission and neither the
patient was referred nor any life supporting system, ventilation, etc was
provided. It is alleged that accused persons killed the father in law of the
complainant by administering drug and wrongfully gained the property
and also extorted witness no.1 and caused death with the knowledge
that their act will cause death of the father in law of the complainant.
5. The learned counsel for the petitioners submit that only on
the basis of the solemn affirmation and of the enquiry witness the
learned court has taken cognizance under section 304A IPC. He submit
that both the doctors namely, Dr. Nirmal Drolia @ Nirmal Kumar Drolia
and Dr. Sanjay Mukherjee treated the father in law of the informant in
terms of the medical protocol, however, in course of treatment, the life of
the father in law of the informant was not saved in spite of best efforts
made by these doctors. He submits that straight-way the complaint case
has been filed and the learned court has taken the cognizance ignoring
the judgment of the Hon'ble Supreme Court in the case of Jacob
Mathew v. State of Punjab, (2005) 6 SCC 1.
6. Mr. Upadhyay, the learned counsel appearing for the
O.P.No.2 submits that father of the complainant was treated by these
doctors negligently and that is why the learned court has rightly taken
cognizance. He submits that one of the doctor has not attended the
patient and subsequently he has left for his heavenly abode. He submits
that the learned court has rightly taken cognizance under section 304A
IPC.
7. Learned counsel for the respondent State submits that on
complaint petition the learned court has taken cognizance.
8. Looking to the complaint petition, it transpires that only
allegations are made that Dr. Sanjay Mukherjee by that time was not
present in the hospital, but it is admitted in the complaint petition that
Dr. Drolia, has attended the patient, however, the life of the patient was
not saved. A preliminary enquiry with regard to the said negligence is
necessitated as held by Hon'ble Supreme Court in the case of Jacob
Mathew v. State of Punjab(supra), paragraph nos. 48 to 52 of the
said judgment is quoted below:
"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 [(1957) 1 WLR 582 : (1957) 2 All ER 118
(QBD)] , WLR at p. 586 [ [Ed.: Also at All ER p. 121 D-F and set
out in para 19, p. 19 herein.]] 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 [(2004) 6 SCC 422 : 2004 SCC
(Cri) 1785] 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 [(2004) 6
SCC 422 : 2004 SCC (Cri) 1785] . 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 [ [Ed.: The following is the
said extract from Merry and McCall Smith: Errors, Medicine
and the Law, cited with approval in Dr. Suresh Gupta case,
(2004) 6 SCC 422 (at pp. 247-48 of the book):"Criminal
punishment carries substantial moral overtones. The doctrine
of strict liability allows for criminal conviction in the absence of
moral blameworthiness only in very limited circumstances.
Conviction of any substantial criminal offence requires that the
accused person should have acted with a morally
blameworthy state of mind. Recklessness and deliberate
wrongdoing, levels four and five are classification of blame,
are normally blameworthy but any conduct falling short of
that should not be the subject of criminal liability. Common-
law systems have traditionally only made negligence the
subject of criminal sanction when the level of negligence has
been high -- a standard traditionally described as gross
negligence.***Blame is a powerful weapon. When used
appropriately and according to morally defensible criteria, it
has an indispensable role in human affairs. Its inappropriate
use, however, distorts tolerant and constructive relations
between people. Some of life's misfortunes are accidents for
which nobody is morally responsible. Others are wrongs for
which responsibility is diffuse. Yet others are instances of
culpable conduct, and constitute grounds for compensation
and at times, for punishment. Distinguishing between these
various categories requires careful, morally sensitive and
scientifically informed analysis."]] from Errors, Medicine and
the Law by Alan Merry and Alexander McCall Smith which has
been cited with approval in Dr. Suresh Gupta case [(2004) 6
SCC 422 : 2004 SCC (Cri) 1785] (noted vide para 27 of the
Report).
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 [(1957) 1
WLR 582 : (1957) 2 All ER 118 (QBD)] 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.
9. The above judgment referred in another series of
judgments of different High Courts including Jharkhand High Court and
further in the case of Martin F. D' Souza v. Md. Ishfaq, (2009) 3
SCC 1. In paragraph no.106 of the said judgment, it has been held 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. In view of the above facts and looking to the judgment of
the Hon'ble Supreme Court, it is crystal clear that a private complaint
may not be entertained unless the complainant has produced prima facie
evidence in the form of credible opinion given by another doctor to
support the charge of rashness or negligence on the part of the accused
doctor. It appears that to allow the proceeding will amount to abuse of
the process of law and, accordingly, the entire criminal proceedings
pertaining to C.P.Case No.2528 of 2014, pending in the court of learned
Judicial Magistrate, First Class, Dhanbad is quashed.
11. Cr.M.P. No.3701 of 2017 and Cr.M.P. No.2640 of 2017 stand
allowed and disposed of.
12. Pending petition if any also stands disposed of.
( Sanjay Kumar Dwivedi, J.)
SI/
