Jharkhand High Court
Arun Kumar Abodh vs The State Of Jharkhand on 21 September, 2023
1
IN THE HIGH COURT OF JHARKHAND, RANCHI
----
Cr.M.P.No. 2557 of 2017
----
Arun Kumar Abodh .... Petitioner
-- Versus --
The State of Jharkhand .... Respondent
----
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
---
For the Petitioner :- Mrs. Sandhya Sahay, Advocate
For the State :- Mr. Rajesh Kumar, Advocate
----
7/21.09.2023 I.A. No.3316 of 2021 has been filed for amendment in the
prayer portion of the petition as subsequently the cognizance has been
taken by order dated 06.10.2020.
2. The learned counsel for the petitioner submits that the
petitioner is a practicing doctor and he is having the Masters Degree in
Surgery. She submits that the allegations are of medical negligence,
however, the learned court has taken cognizance under section 420,
120B of the IPC, which is not made out.
3. The respondent State submits that at this stage, this I.A.
may not be allowed.
4. Looking to the contents of the F.I.R as well as the order
taking cognizance and further considering that the matter is pending and
to avoid multiplicity of litigation, the prayer made in the instant I.A is
allowed and disposed of. The instant I.A. shall be treated as part of the
Cr.M.P. No.2557 of 2017.
5. Heard the learned counsel for the petitioner and the learned
counsel appearing for the respondent State.
6. This petition has been filed for quashing of the entire
criminal proceeding arising out of Tilaya P.S.Case No.231 of 2017 (G.R.
No.795 of 2017), pending in the court of learned Chief Judicial
Magistrate, Koderma.
7. Subsequently, the cognizance has been taken, and
amendment to this effect in the prayer portion of the petition, which has
been allowed by this Court today and thus, the order taking cognizance is
also under challenge.
8. The F.I.R was registered alleging therein that the informant
was a 7 months pregnant lady. On 02.08.2017 after experiencing
stomach ache she was admitted in the clinic of the petitioner where it
was informed by him that she is having labor pain and hence delivery has
to be done. At night the delivery was done and the brother of the
informant was informed that the child is fine and he was asked to deposit
money after which Rs.5,000/- was deposited by him on the counter. After
half an hour the petitioner informed them that the child was born dead
and hence it has been thrown away. In spite of several requests made by
the informant the body of the child was not given to her by the petitioner.
It is alleged that the petitioner has sold the child of the informant. It is
also alleged that the petitioner is a general surgeon and not a
gynecologist, inspite of that he carried out the delivery without any
female doctor in an unwarranted manner.
9. The learned counsel appearing for the petitioner submits
that the petitioner is a reputed doctor who has done MBBS and
thereafter completed Masters Degree in Surgery from Darbhanga Medical
College, Laheriasarai, Darbhanga which is a reputed medical college
under L.N.Mithila University. It was registered with Bihar Medical Council
and he was allowed to practice as a doctor. The clinic of the petitioner
was also registered with the Government of Jharkhand under section 15
of the Clinical Establishment (Registration and Regulation) Act, 2010. She
submits that in emergent situation, the patient has come to the clinic and
in view of that, with consent of the family members, the operation was
done by the petitioner. She submits that however inspite of his best
efforts, the petitioner has not been able to save the life(foetus). She
submits that the case of the petitioner is fully covered in view of the
judgment of the Hon'ble Supreme Court in the case of Jacob Mathew
v. State of Punjab and Another, (2005) 6 SCC 1.
10. The prayer made in the petition is being resisted by the
learned counsel for the respondent State on the ground that there is
allegation of not treating the patient properly and the allegations are
there of not handing over the child. He submits that in view of that, the
case under sections 406 and 420 IPC is not made out.
11. The Court has gone through the contents of the FIR and
finds that Mamta Devi went to the said clinic pursuant to a pain in her
abdomen and the doctor found that she is having a pregnancy of seven
months and seeing the nature, he suggested for treatment and in course
of treatment it was further suggested that now surgery is necessary and
with consent of the family members her surgery was done by the
petitioner. The medical certificate brought by way of supplementary
affidavit filed by the petitioner suggest that he has obtained the
certificate from Darbhanga Medical College, Dehriasarai and the said
clinic was registered with Government of Jharkhand under section 15 of
the Clinical Establishment (Registration and Regulation) Act, 2010. It
appears from Annexure-5 which is on the record as supplementary
affidavit that the risk bond was signed by the brother of the said Mamta
Devi and with consent the treatment was made by the petitioner. A
report of emergency labour room is annexed as Annexure -6 wherein it
has been disclosed that during the course of the treatment a dead feotus
was expelled from the body of Mamta Devi along with a placenta and a
bag of water and Mamta Devi was kept in observation whole day and on
finding to be fit she was discharged by Annexure-7 of the supplementary
affidavit. In view of the above, it appears that the entire allegation is of
medical negligence and the question remains that if such allegation is
there, how the case under section 406 and 420 of the IPC is made out.
Further if such a situation was there, the procedure as held by the
Hon'ble Supreme Court in the case of Jacob Mathew v. State of
Punjab and Another(supra) at paragraph no.53 was required to be
followed and in absence of that the case has been registered and for
ready reference para-53 of the said judgment is quoted below:
53. Reverting back to the facts of the case before us,
we are satisfied that all the averments made in the
complaint, even if held to be proved, do not make out a case
of a criminal rashness or negligence on the part of the
accused appellant. It is not the case of the complainant that
the accused appellant was not a doctor qualified to treat the
patient whom he agreed to treat. It is a case of non-
availability of oxygen cylinder either because of the hospital
having failed to keep available a gas cylinder or because of
the gas cylinder being found empty. Then, probably the
hospital may be liable in in civil law ( or may not be - we
express no opinion thereon) but the accused appellant
cannot be proceeded against under section 304-A IPC on the
parameters of the Bolam test.
12. It has further been held in subsequent judgment that even
for a case of medical negligence if a consumer case is filed before issuing
a notice a second opinion on the dispute of a medical practitioner is a
necessity.
13. In view of the above facts and reasons, the Court finds that
this is a case to exercise power under section 482 Cr.P.C and accordingly,
the entire criminal proceeding, arising out of Tilaya P.S.Case No.231 of
2017 (G.R. No.795 of 2017), pending in the court of learned Chief
Judicial Magistrate, Koderma including the order taking cognizance dated
06.10.2020 are quashed.
14. This petition is allowed and disposed of.
15. Pending petition if any also stands disposed of.
( Sanjay Kumar Dwivedi, J.)
SI/, A.F.R.
