Dr. Herman Joseph vs The State Of Madhya Pradesh
2021 Latest Caselaw 1188 MP

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                             THE HIGH COURT OF MADHYA PRADESH
                                              M.Cr.C.No.3948/2021
                               (DR. HERMAN JOSEPH AND OTHERS VS. STATE OF M.P.)

                   Jabalpur; Dated 01/04/2021
                         Shri Surendra Singh, learned Senior Advocate with Ms. Rachna
                   Singh, counsel for the applicants.
                         Shri Devendra Shukla, learned PL for the respondent/State.

Shri Deepak Sahu, learned counsel for the objector.

This is the first application filed under Section 438 of the Cr.P.C. for grant of anticipatory bail. Applicants no.1 Dr. Herman Joseph, Applicant No.2 Sr. Lorraine Thayil & Applicant No. 3 Dr. Sabeeha Ansari apprehend their arrest in connection with Crime No.12/2021 registered at Police Station Ashta, District Sehore for the offence punishable under Sections 304 of the IPC.

As per the prosecution case, at the time of incident applicant no.1 Dr Harman, applicant no.2 sister Lorraine Thayl Nurse and applicant no.3 Dr Sabeeha Ansari (BUMS) were employed in Pushp Kalyan Hospital Sehore. Deceased Prateeksha was pregnant and her regular checkup was being done by applicant no.3 Sabeeha Ansari (BUMS). On 8/12/2020 Prateeksha went to Pushp Kalyan Hospital for a regular checkup with her sister Neha, where Applicant no.3 Sabeeha Ansari told after checkup that delivery could happen within a day or two. As per applicant no.3 Sabeeha Ansari's instruction on 10/12/2020, Prateeksha went to Pushp Kalyan Hospital along with her sister Neha and husband Gireesh where applicant no.3 Sabeeha Ansari checked her and told that there is a chance of normal delivery. She will administer injection to Prateeksha to induce labour and we will wait until 4:00 p.m. Thereafter, Dr Serbia Ansari injected 4 injections to Pratheeksha, but delivery could not be done. Then applicant no.3 Sabeeha Ansari said that they would perform cesarean operation for delivery. Thereafter applicant no.2 Lauren administered drip to Prateeksha in the presence of Sabeeha Ansari and Sabeeha Ansari told that the

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doctors would come and perform an operation at 4:00 pm and there was no problem. She also asked to deposit Rs 33000 as the cost of the operation . In the evening at 4:15 pm, applicant No.3 Dr Sabeeha Ansari and applicant no.2 sister Lauren took Prateeksha in the operating room where applicant no.2 Lauren injected anaesthesia to Pratiksha Sharma, due to which Smt. Pratiksha Sharma and the child in her womb died. It is alleged that the applicants ran the hospital without having a permanent gynaecologist and anaesthesia specialist. Applicant no.2 Lauren injected anaesthesia to Pratiksh at the behest of applicant no.1 Dr Harman while she did not have any requisite qualification to administer anaesthesia and Pratiksha died due to the negligence of applicants. Regarding the incident, Police registered Crime No.12/2021 at Police Station Ashta, District Sehore for the offences punishable under Sections 304 of the IPC against the applicants. Thus, the applicants are apprehending their arrest in the crime.

Learned counsel for the applicants submits that the applicants are innocent and have falsely been implicated in the crime. There is no evidence on record to show that the applicants were negligent. Applicants no.1 & 3 are qualified doctors and applicant No.3 is a qualified nurse having the requisite degree to administer anaesthesia. Due to certain complications, a cesarean operation was recommended. The deceased died due to complications in delivery for which applicants can not be held liable. Even If the prosecution story is accepted into toto, offence under section 304A of IPC is made out against applicant no.3 at worst, which is a bailable offence. Applicants are ladies. They have no criminal past. They are ready to cooperate in the investigation and trial. In the event of arrest, their reputation will be tarnished. Under these circumstances, learned counsel prays for grant of anticipatory bail. In this regard, learned counsel for the applicants has placed reliance on the judgement of the Coordinate Bench of this Court passed in Dr. Khusaldas Pammandas V. State of M.P. reported in 1959 M.P.L.J. page 966 and the judgment of the

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Hon'ble Apex Court passed in Mahadev Prasad Kaushik v. State of U.P., AIR 2009 SC 125.

Learned counsel for the State as well as the objector opposed the prayer and submitted that from the evidence collected by the prosecution it appears that applicants ran the hospital where they used to perform cesarean delivery without having a permanent gynaecologist and anaesthesia specialist. Applicant No.1 is not a gynaecologist, applicant no.3 does not have the requisite degree for treating patients by allopathic medicine. Even the certificate filed by applicant no.3 along with the bail application shows that she did BUMS (Bachelor of Unani Medicine and Surgery) from al Farukhi Unani tibbia College Indore. It is alleged that she administered four injections to Pratiksha for inducing labour and then took her to the operation theatre where applicant No.2 Sr. Lorraine Thayil administered her anaesthesia at the instance of applicant no.1&3, while applicants were neither gynaecologists nor Anesthesia Specialists. They knew fully well that Pratiksha could die on giving anaesthesia. Anaesthesia can not be administered without the presence of Anaesthesia Specialists. Even then they administered anaesthesia to Pratiksha in the absence of a gynaecologist and anaesthesia specialist due to which she died. Applicants did not administer anaesthesia to treat Pratiksha but to make her unconscious, while they knew well that it could endanger her life. The enquiry committee also found that the applicants were negligent, they administered Anesthesia and tried to perform cesarean operation of deceased Pratiksha in the absence of any gynaecologist and Anesthesia Specialist. He further submitted that S.P. Sehore has declared a reward to apprehend applicants. Their arrest warrant has also been issued by the court and proceedings under Section 82 of the Code of Criminal Procedure are going on against the applicants before JMFC Ashta District Sehore, so they are not entitled to get anticipatory bail. In support of their contention, learned counsel placed reliance on the judgment of Hon'ble

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Apex Court passed in the case of State of M.P. Vs. Pradeep Sharma, (2014) 2 SCC 171.

It appears from the record that the S.P. Sehore had declared a reward for apprehending applicants. Their arrest warrants have also been issued by the court and proceedings under Section 82 of the Code of Criminal Procedure are going on against the applicants before JMFC Ashta District Sehore. Hon'ble Apex court in the case of Lavesh vs State (Nct Of Delhi) (2012) 8 SCC 730 observed as under:-

"Normally, when the accused is "absconding" and declared as a "proclaimed offender", there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code is not entitled the relief of anticipatory bail."

Apex court in the case of State of M.P. Vs. Pradeep Sharma, (2014) 2 SCC 171 also on relaying the above mentioned judgement held "it is a settled position of law that where the accused has been declared as an absconder and has not cooperated with the investigation, he should not be granted anticipatory bail."

So looking to the facts that S.P. Sehore had declared a reward for apprehending applicants, their arrest warrants have also been issued by the court and proceedings under Section 82 of the Code of Criminal Procedure are going on against the applicants before JMFC Ashta District Sehore, this court is not inclined to grant anticipatory bail to the applicant.

Hence, the bail application of the applicants is rejected. However, if the applicants surrender before the trial court within fifteen days from today and file an application for regular bail, the trial court is directed to consider the same in accordance with law expeditiously preferably on the same day.

(Rajeev Kumar Dubey) Judge

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