Dr. Smt. Neerja Sahu vs Mahavir Singh
2021 Latest Caselaw 1489 MP

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                  HIGH COURT OF MADHYA PRADESH
                                  M.Cr.C. No.1971/2013


        HIGH COURT OF MADHYA PRADESH
               BENCH AT GWALIOR
                              (Single Bench)


                             MCRC-1971-2013
                     (DR. SMT. NEERJA SAHU Vs MAHAVIR SINGH)



CORAM

                  Hon. Shri Justice Vishal Mishra
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Appearance
       Shri Atul Gupta, learned counsel, for the petitioner.
       Shri Prashant Sharma, learned counsel for respondents.
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Whether approved for Reporting :                           Yes/No

Reserved on           :      10.03.2021
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                                   ORDER

(Passed on 22nd April, 2021)

The present petition has been filed being aggrieved by an order

dated 17.01.2013 passed by the learned JMFC, Gwalior, whereby he

has directed for registration of case under Section 338 of IPC against

the petitioner.

2. It is submitted the petitioner is respective citizen of the society

by profession is a doctor and is serving the society for last couple of

years. She is a practicing doctor in the field of gynecology and runs a

private clinic at Morar, Gwalior.

3. A private complaint was filed under Section 417, 420, 327, 329

and 427 of IPC alleging that without authorization or approval or

HIGH COURT OF MADHYA PRADESH M.Cr.C. No.1971/2013

without giving knowledge, the petitioner has removed the uterus of

complainant's wife Smt. Pravesh and has committed an offence under

the aforesaid sections.

4. The learned JMFC after recording the testimony of the witnesses

under the provisions of 202 of Cr.P.C and after givefull consideration

of the complaint has taken cognizance in the matter and has directed

that a complaint should be registered under Sections 338 of IPC and

not any other sections.

5. The present petition has been filed seeking quashment of the

aforesaid order dated 17.01.2013 on the ground that the complaint has

been filed with an ulterior motive of extracting money from the

petitioner. It is argued that the complainant on previous occasion has

approached the District Consumer Redressal Forum by filing the

complaint under the provision of Consument Protection Act, wherein

the learned Forum has directed for calling the medical report and on

the basis of the opinion given by the Medical Board, has given its

verdict on 07.11.2009 and has held that uterus of the wife of the

complainant was removed with the consent of both patient as well as

her husband and it was in their respective knowledge that the operation

which was conducted was for removing the uterus as she was suffering

the diseases of Menorrhagia for which the best possible cure is to

remove the uterus. It is submitted that the complaint was also filed

before Superintendent of Police, Gwalior as well as CMO, Gwalior and

HIGH COURT OF MADHYA PRADESH M.Cr.C. No.1971/2013

in both the places, the conclusion was the same against the

complainant.

6. It is argued that the law with respect to the filing of the

complaint against the doctors was considered by the Hon'ble Supreme

Court in the case of Jacob Mathew vs State Of Punjab & Anr, 2005

(6) SCC 1 and Dr. Suresh Gupta vs Govt. Of N.C.T. Of Delhi & Anr. ,

2004 (6) SCC 422 and the Hon'ble Supreme Court in both the cases

laid down the guidelines for taking cognizance against the doctors and

it was also held that doctors could not be held liable for their conduct

if the action taken by them is in welfare of the patients. The learned

trial Court has failed to take into the consideration of the witness

Sanjay Agarwal who was examined as PW/6 who works as consultant

doctor in Birla Hospital and was also advised for removal of uterus to

the patient. Apart from this, it is not the petitioner who has conducted

the operation, rather, one Dr. Y.K. Tripathi has got conducted the

operation on wife of the complainant and he has not been alleged as an

accused in the complaint. The learned trial Court has further failed to

appreciate that all the documents filed along with the private complaint

as well as with the present complaint and filed under Section 200 of

Cr.P.C. does not disclose any cognizable offence and all the documents

clearly show that prior to carrying out of the operations of the wife of

the complainant, the matter was duly brought to her knowledge and

after taking consent from the patient, the operation was got conducted.

HIGH COURT OF MADHYA PRADESH M.Cr.C. No.1971/2013

In such circumstances, by no stretch of imagination it can be said that

the act done by the petitioner was without any consent. In such

circumstances, the order taking cognizance in the matter deserves to be

quashed.

7. Per contra, learned counsel for the respondent has vehemently

opposed the arguments advanced by the learned counsel for the

petitioner and has argued that the evidences recorded before the

Consumer Forum cannot be taken into consideration in the present

case as the evidence and witnesses were recorded in some other case

cannot be considered in some other case. Apart from this, the matter is

at the stage of taking cognizance in the matter. The contains of the

complaint is still to be proved by leading cogent evidence in the matter.

It is a pre-trial stage, and quashing of the order is pre trial stage is not

permissible as has been held by the Hon'ble Supreme Court in large

numbers of cases. It is not a case, where doctor is at fault by doing in

operation in a wrong manner, rather, it is a case, where without the

consent of the patient, the uterus of the patient has been removed. The

aforesaid aspect was not brought to the notice of the patient and

subsequently, the problem was re-occured with the patient and on

getting advice, an ultrasound done again, the aforesaid aspect of

removal of the uterus to came to her knowledge. In such

circumstances, the matter is still required to be proved before the trial

Court by leading evidences. Quashment of the private complaint at the

HIGH COURT OF MADHYA PRADESH M.Cr.C. No.1971/2013

stage of taking cognizance is not permissible as per law. As only the

private complaint and the evidence produced by the complainant at the

time of cognizance is required to be seen and if the learned trial Court

was satisfied with the statements and the documents produced before

it, the trial Court was having every right to take cognizance into the

matter. The case filed before the Consumer Redressal Forum was for

claiming compensation against the petitioner and the same was not for

taking any criminal action against him, therefore, the case is entirely

different and the evidence led in the case before the Consumer Forum

cannot be read in the present case. As per the private complaint, the

allegation against the petitioner is that he has got conducted the

operation of the complainant's wife and has removed her uterus

without her consent. The operation was got conducted on 31.07.2008,

his wife was discharged from the hospital on 06.08.2008 and

thereafter, again when the problem continued i.e. stomach ache and

bleeding continued, then the respondent and his wife again contacted

the petitioner who has again advised to go for an ultrasound and on

06.09.2008, an ultrasound was got done and then it came to the

knowledge of the complainant and his wife that uterus has been

removed. The complaint has been filed prior to conducting the

operation to remove the uterus, no consent was taken by the patient. In

such circumstances, the doctor/petitioner on its own has removed the

uterus. The learned trial Court has taken cognizance into the matter

HIGH COURT OF MADHYA PRADESH M.Cr.C. No.1971/2013

after recording the statement of wife of the complainant as well as

other witnesses and going through the documents filed along with the

complaint. In such circumstances, the order impugned is well reasoned

and justified order. He has prayed for dismissal of the petition.

8. Heard learned counsel for the parties and perused the record.

9. From perusal of the record it is seen that on earlier occasion, the

complaint under Section 12 of Consumer Protection Act, 1986 was

filed before the Consumer Redressal Forum for claiming compensation

to the tune of Rs.5,00,000/- against the petitioner which was registered

at Case No.748/2008 and which was heard and finally decided on

07.11.2009 finding complaint to be bogus and the same was dismissed.

From perusal of the order passed by the Consumer Redressal Forum it

is seen that the complaint is made with the same allegations as that are

made in the private complaint. The consumer Forum has directed for

calling the expert opinion from the Medical Board and the opinion was

received. It is further observed in para 13 of the aforesaid order

wherein it is clearly seen that the documents were filed as Ex. 1 to 30

and along with the documents the consent form given by the wife and

her husband i.e. complainant, wherein their signatures have been

mentioned and they have admitted the signatures on the aforesaid

form. Ex- R-29(9) dated 31.07.2008 is a consent form showing the

signatures of the complainant giving consent for operation. The

opinion from the Civil Sargon-cum-Chief Superintendent of District

HIGH COURT OF MADHYA PRADESH M.Cr.C. No.1971/2013

Gwalior is also seen dated 24.03.2009 Ex. P/4 which clearly discloses

that they are satisfied with the enquiry being conducted in the matter

on the complaint made by the complainant and his wife that the

treatment given to the wife of the complainant was proper and the

operation was got done with the consent of the complainant and his

wife. The statement of Sanjay Kumar Agarwal, witness produced from

the complainant in the present case is seen which clearly shows that

the opinion taken by complainant and his wife from Birla Hospital and

they were advised to get removed the uterus. Thus, all the documents

which have been filed by the petitioner clearly discloses the fact that

the operation of removal of uterus was got done after taking consent

from the complainant and his wife. Even the opinion of the Medical

Board clearly discloses the fact that no illegalities has been committed

by the doctor/petitioner and the every act was done after taking consent

from the wife of the complainant and the complainant. The consent

given by the respondent on 31.07.2008 clearly reflects that "the

consent was given for removal of uterus". After filing the complaint

before the JMFC on 04.10.2008, the petitioner waited for the outcome

of the case filed before the Consumer Redressal Forum and it is after

rejection of the complaint on 07.11.2009, the cognizance was taken by

the learned trial Court on 07.01.2013. The petitioner has not bothered

to get the complaint registered at an early date and get a statement

recorded before the trial Court. The private complaint as well as the

HIGH COURT OF MADHYA PRADESH M.Cr.C. No.1971/2013

complaint before the Consumer Redressal Forum are on the same facts

and grounds. The complainant himself has failed to demonstrate before

the Consumer Forum that any illegalities have been committed by the

petitioner.

10. The law with respect to taking cognizance against the doctors

was considered and settled by the Hon'ble Supreme Court recently in

the case of S.K. Jhunjhunwala Vs. Dhanwanti Kaur and Anr.

reported in 2019 (2) SCC 282, wherein the Hon'ble Supreme Court has

held that principles which are reiterated in the case of Bolam Vs.

Friern Hospital Management Committee, reported in 1957 (1) WLR

582 and Jacob Mathew (Supra), wherein, the Hon'ble Supreme Court

has framed the certain principles which reads as under:-

"Said principles being: (a) a professional may be held liable for negligence either (i) when he was not possessed of the requisite skill which he professed to have possessed, or, (ii) when he did not exercise, with reasonable competence in the given case, the skill which he did possess, (b) the fact that the defendant charged with negligence acted in accord with the general and approved practice, is enough to clear him of the charge, (c) the standard of care, when assessing the practice as adopted, is judged in the light of knowledge available at the time of incident and not at the date of trail, and (d) the standard to be applied for judging the negligence would be that of an ordinary competent person exercising ordinary skill in that profession."

11. The case of Jhunjhunwala (Supra) was for claiming

compensation and the facts of the case where that the surgery of

removal of stones was got done by deviating of method of surgery

HIGH COURT OF MADHYA PRADESH M.Cr.C. No.1971/2013

without the consent and the learned Hon'ble Supreme Court has held

that the respondent no. 1 has failed to prove by medical evidence any

specific kind of negligence on the part of the appellant in performing

the surgery (conventional surgery) and the complaint filed before the

Consumer Forum was rejected. In the present case also after giving

consent for getting the uterus removed by way of surgery, the doctors

have got conducted the surgery. It is not a case that the medical

negligence has been committed by the doctors, rather the allegation is

made without the consent her uterus has been removed. From the

documents available on records it is seen that the consent form was

duly signed by the complainant and clearly reflects that consent is

given for removal of uterus. The opinion taken from the Medical Board

as well as enquiry conducted by the Medical Officer clearly reflect that

no negligence has been committed by the doctors, rather the best

possibles treatments which could be given to her.

12. The Hon'ble Supreme Court in the case of Jacob Mathew

(Supra) has held as under:-

"23.It was further observed that the fact that a defendant charged with negligence acted in accord with the general and approved practice is enough to clear him of the charge.

It was held that the standard of care, when 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. It was held that 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. His Lordship quoted with approval the subtle observations of Lord Denning made in Hucks vs. Cole (1968) 118 New LJ 469,

HIGH COURT OF MADHYA PRADESH M.Cr.C. No.1971/2013

namely, "a medical practitioner was not be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be held liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field."

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        "47. It is apt to remember the words of the then

Chief Justice of India when he said in Jacob Mathew's case (supra) which reads as under:

"The subject of negligence in the context of medical profession necessarily calls for treatment with a difference. There is a marked tendency to look for a human actor to blame for an untoward event, a tendency that is closely linked with a desire to punish. Things have gone wrong and therefore somebody must be found to answer for it. An empirical study reveals that background to a mishap is frequently far more complex than may generally be assumed. It can be demonstrated that actual blame for the outcome has to be attributed with great caution. For a medical accident or failure, the responsibility may lie with the medical practitioner, and equally it may not. The inadequacies of the system, the specific circumstances of the case, the nature of human psychology itself and sheer chance may have combined to produce a result in which the doctor's contribution is either relatively or completely blameless. The human body and its working is nothing less than a highly complex machine. Coupled with the complexities of medical science, the scope for misimpressions, misgivings and misplaced allegations against eh operator i.e. the doctor, cannot be ruled out. One may have notions of best or ideal practice which are different from the reality of how medical practice is carried on or how the doctor functions in real life. The factors of pressing need and limited resources cannot be ruled out from consideration. Dealing with a case of medical negligence needs a deeper understanding of the practical side of medicine. The purpose of holding a professional liable for his act or omission, if negligent, is to make life safer and to eliminate the possibility of recurrence of negligence in future. The human body and medical science, both are too complex to be easily understood. To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires an indepth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability."

HIGH COURT OF MADHYA PRADESH M.Cr.C. No.1971/2013

13. Taking into consideration overall facts and circumstances of the

case as well as the fact that complaint filed before the Consumer

Forum as well as the private complaint are on same facts and verbatim

are identical and all the allegation made in the complaint before the

Consumer Forum are same as made in the private complaint. Thus,

taking into consideration the law laid down by the Hon'ble Supreme

Court in the aforesaid cases and going to the complaint as well as

private complaint and the other documents available on the record, this

Court is of the considered opinion that the learned trial Court has

committed an error in taking cognizance in the matter against the

petitioner. This Court has already status quo in the matter vide its order

dated 16.07.2013 and the aforesaid order is still in existence, thus, this

Court deems it appropriate to quash the order passed by the learned

JMFC. Accordingly, the order impugned dated 17.01.2013 is hereby

quashed and the petitioner is discharged from all the allegations

levelled against her.

14. Accordingly, the petition is hereby allowed. No order as to costs.

                                                       (Vishal Mishra)
LJ*/-                                                      Judge


              LOKENDRA JAIN
              2021.04.22
              17:05:21 -07'00'