Jharkhand High Court
Dr. Nibha Sinha @ Nibha Sinha vs The State Of Jharkhand .... Opp. Party on 17 January, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
1 Cr.M.P. No.3941 of 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 3941 of 2023
Dr. Nibha Sinha @ Nibha Sinha, aged about 55 years, W/o -Ranjan
Kumar Sinha, R/o -Quarter No. E-09, Near Panchmukhi Mandir, Sector-
II, P.O. -Dhurwa, P.S. -Dhurwa, District -Ranchi.
.... Petitioner
Versus
The State of Jharkhand .... Opp. Party
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioner : Mr. Arpit Kumar, Advocate
: Ms. Rupa Chandra, Advocate
: Mr. Ankitesh Kr. Jha, Advocate
For the State : Mr. Bhola Nath Ojha, Addl. P.P.
.....
By the Court:-
1. Heard the parties.
2. This criminal miscellaneous petition has been filed
invoking the jurisdiction of this Court under Section 482 Cr.P.C.
with a prayer to quash the FIR being Dhurwa (T) P.S. Case No.
330 of 2023 registered for the offences punishable under Section
304A of the Indian Penal Code.
3. The allegation against the petitioner is that the wife of the
informant was admitted in a hospital on 27.10.2023 and was under
the supervision of the petitioner who is a doctor in the said
hospital. Between 7:00 A.M. to 8:00 A.M. of a Saturday by a
cesarean procedure, the wife of the informant gave birth to a
child. After the cesarean procedure, both the mother and child
were in a healthy condition but suddenly at 12:00 mid-night of
Sunday, the condition of the wife of the informant deteriorated
but the hospital administration did not provide the required
treatment facility because of which the wife of the informant died
at about 05:00 A.M. on Sunday. The informant contacted the
doctor who came to the hospital and informed the informant that
she has no knowledge about the condition of the wife of the
informant and did not take the matter seriously and went away
from the hospital. On the basis of the written report submitted by
the informant, the case has been registered.
4. It is submitted by the learned counsel for the petitioner
relying upon the Judgment of Hon'ble Supreme Court of India in
the case of Lalita Kumari v. Govt. of Uttar Pradesh and Others
reported in (2014) 2 SCC 1 para -120.6(c) of which reads as under:-
"120.6. As to what type and in which cases preliminary
inquiry is to be conducted will depend on the facts and
circumstances of each case. The category of cases in which
preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in
initiating criminal prosecution, for example, over 3
months' delay in reporting the matter without
satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all
conditions which may warrant preliminary inquiry."
And submits that the police ought to have conducted a
preliminary enquiry before registration of the F.I.R.
5. It is next submitted by the learned counsel for the
petitioner relying upon the Judgment of Hon'ble Supreme Court
of India in the case of Jacob Mathew Vs. State of Punjab and
Ors., reported in MANU/SC/0457/2005 that in that case, the
Hon'ble Supreme Court of India has taken note of the tendency of
the doctors being subjected to criminal prosecution are on the
increase.
6. The learned counsel for the petitioner further draws the
attention of this Court to the Judgment of a Coordinate Bench of
this Court in the case of Dr. Dilip Kumar Vs. The State of
Jharkhand & Anr., in Cr.M.P. No. 1005 of 2006 dated 07.01.2019
in which the Coordinate Bench relied upon the Judgment of
Hon'ble Supreme Court of India in the case of Dr. Suresh Gupta
v. Govt. of NCT of Delhi and Another, reported in (2004) 6 SCC
422, para -20 & 21 of which reads as under:-
"20. For fixing criminal liability on a doctor or surgeon,
the standard of negligence required to be proved should be so
high as can be described as "gross negligence" or
"recklessness". It is not merely lack of necessary care,
attention and skill. The decision of the House of Lords in R.
v. Adomako [(1994) 3 All ER 79 (HL)] relied upon on behalf
of the doctor elucidates the said legal position and contains
the following observations:
"Thus a doctor cannot be held criminally responsible for
patient's death unless his negligence or incompetence
showed such disregard for life and safety of his patient as to
amount to a crime against the State."
21. Thus, when a patient agrees to go for medical
treatment or surgical operation, every careless act of the
medical man cannot be termed as "criminal". It can be
termed "criminal" only when the medical man exhibits a
gross lack of competence or inaction and wanton indifference
to his patient's safety and which is found to have arisen from
gross ignorance or gross negligence. Where a patient's death
results merely from error of judgment or an accident, no
criminal liability should be attached to it. Mere inadvertence
or some degree of want of adequate care and caution might
create civil liability but would not suffice to hold him
criminally liable."
And submits that even if the allegations made against the
petitioner are considered to be true in its entirety, still the offence
punishable under Section 304A of the Indian Penal Code is not
made out against the petitioner.
7. The learned counsel for the petitioner next relied upon the
Judgment of a Coordinate Bench of this Court in the case of Dr.
Om Prakash Anand Vs. The State of Jharkhand in Cr.M.P. No.
1914 of 2021 dated 20.07.2022, wherein the Coordinate Bench
relied upon the Judgment of Hon'ble Supreme Court of India in
the case of Martin F. D'Souza v. Mohd. Ishfaq, reported in (2009)
3 SCC 1, para -106 of which reads 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."
And submits that to avoid harassment to the petitioner
before proceeding in the case, the report of the Doctor or
Committee of Doctors ought to have been procured. Hence, it is
submitted that the FIR being Dhurwa (T) P.S. Case No. 330 of 2023
registered for the offences punishable under Section 304A of the
Indian Penal Code be quashed and set aside.
8. The learned Addl. P.P. on the other hand vehemently
opposes the prayer for quashing the FIR being Dhurwa (T) P.S.
Case No. 330 of 2023 registered for the offences punishable under
Section 304A of the Indian Penal Code and submits that there is
specific allegation against the petitioner of being indulging in
gross negligence. Therefore, it is submitted that the F.I.R. ought
not be quashed and set aside at this nascent stage.
9. Having heard the submissions made at the Bar and after
going through the materials in the record, it is pertinent to
mention here that to bring a case of homicide under Section 304A
of the Indian Penal Code, besides the death of a person, there
must exist; the following ingredients:-
(i) The accused has caused such death.
(ii) That such act of the accused was rash and negligent
and that it did not amount to culpable homicide
as has been held by the Hon'ble Supreme Court of India in the
case of State of Punjab v. Balwinder Singh and Others, reported
in (2012) 2 SCC 182 by observing thus in para-10
"10. Section 304-A was inserted in the Penal Code by
Penal Code (Amendment) Act 27 of 1870 to cover those cases
wherein a person causes the death of another by such acts as
are rash or negligent but there is no intention to cause death
and no knowledge that the act will cause death. The case
should not be covered by Sections 299 and 300 only then it
will come under this section. The section provides
punishment of either description for a term which may
extend to two years or fine or both in case of homicide by rash
or negligent act. To bring a case of homicide under Section
304-A IPC, the following conditions must exist, namely,
(1) there must be death of the person in question;
(2) the accused must have caused such death; and
(3) that such act of the accused was rash or negligent
and that it did not amount to culpable homicide."
10. As has been held by the Hon'ble Supreme Court of India
in the case of Dr. Suresh Gupta Vs. Government of N.C.T. of
Delhi and Another (supra), for fixing a criminal liability on a
doctor or a surgeon, the standard of negligence required to be
proved should be so high that can be described as gross
negligence or recklessness.
11. Now coming to the facts of the case, there is no allegation
against the petitioner under whose supervision the cesarean
procedure was conducted; that the petitioner has committed any
negligence in conducting the cesarean procedure. The only role in
treatment of the petitioner as alleged is confined only up to
conducting the cesarean procedure. Admittedly, after the surgery,
the wife of the informant and the child were healthy and hearty.
There is no allegation against the petitioner of having neglected or
indulging in any reckless activity rather the allegation is against
the management of the hospital. There is no allegation against the
petitioner that the petitioner was in any manner associated with
the management of the hospital. The only allegation against the
petitioner is that after the death of the wife of the informant, the
petitioner came to the hospital and expressed her ignorance about
the condition of the wife of the informant. So considering the
entire allegations made in the First Information Report to be true
in its entirety, in the considered opinion of this Court, the same do
not constitute the offence punishable under Section 304A of the
Indian Penal Code. Hence, continuation of the criminal
proceeding will amount to abuse of process of court. Therefore,
this is a fit case where the FIR being Dhurwa (T) P.S. Case No. 330
of 2023 registered for the offences punishable under Section 304A
of the Indian Penal Code be quashed and set aside qua the
petitioner.
12. Accordingly the FIR being Dhurwa (T) P.S. Case No. 330
of 2023 registered for the offences punishable under Section 304A
of the Indian Penal Code is quashed and set aside qua the
petitioner only.
13. In the result, this criminal miscellaneous petition is
allowed.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 17th January, 2024
AFR/Sonu-Gunjan/-
