Dr. Biswa Mohan Mishra vs State Of Orissa
2023 Latest Caselaw 9188 Ori

   IN THE HIGH COURT OF ORISSA AT CUTTACK

              CRLMC NO.1002 of 2017

 (In the matter of application under Section 482 of the
 Criminal Procedure Code, 1973).

 Dr. Biswa Mohan Mishra      ...               Petitioner
                    -versus-

 State of Orissa                 ...     Opposite Party


 For Petitioner         : Mr. M.K.Mishra,
                          Sr. Advocate


 For Opposite Parties : Mr. S.S. Pradhan, AGA


      CORAM:
               JUSTICE G. SATAPATHY

           DATE OF JUDGMENT :14.08.2023

G. Satapathy, J.

This application U/S.482 of

Cr.P.C. seeks to quash the criminal proceeding

instituted against the petitioner in G.R. Case No.

1655 of 2009 arising out of Lingaraj P.S. Case No. 70

of 2009 pending in the file of learned S.D.J.M.,

Bhubaneswar.

2. The facts in precise are the petitioner was a

Doctor and attached to Bhubaneswar Municipal

Corporation Hospital (in short, "BMC Hospital") at Old

Town, Bhubaneswar as a Medicine Specialist. At the

relevant time of occurrence on 01.07.2009 at about 6

P.M., Madhusmita Sahoo (hereinafter referred to as

the "deceased") was admitted at bed No. 36 in

Medicine Ward of BMC Hospital and she was under

the treatment of the petitioner. As the deceased was

having low haemoglobin and her condition was

getting worse, her uncle requested the petitioner and

staff of BMC Hospital to give her blood transfusion

immediately for her treatment, but although they

assured to give the blood on 02.07.2009, her

condition became serious at about 11 P.M. on

01.07.2009 and despite being requested by Doctor

Sujata for several times, the petitioner did not

respond and thereby, the informant also requested

the petitioner, but he refused and asked him to

contact with Doctor B.N.Das Mohapatra Surgery

Specialist to attend the patient and the said Doctor

on being requested over phone assured to direct the

petitioner to attend the patient immediately, but

unfortunately the deceased died in the midnight due

to negligence of the petitioner.

3. In order to pacify and manage the situation,

Dr. Sujata shifted the deceased with Oxygen support

by an Ambulance to Capital Hospital where the Doctor

on duty declared the deceased as received dead.

After this incident on 02.07.2009 at about 2 P.M. the

uncle of the deceased namely Sanjay Kumar Sahoo

lodged an FIR before IIC, Lingaraj Police Station who

registered Lingaraj P.S. Case No. 70 of 2009 and

entrusted the investigation to S.I. of Police Dullabha

Patel who after completion of investigation, placed

charge sheet against the petitioner. This is how the

present criminal proceeding came to be instituted

against the petitioner who by way of this application

prays to quash the criminal proceeding.

4. In the course of hearing of this application,

Mr.M.K.Mishra, learned Senior Counsel by drawing

the attention of the Court to the ingredients of

Section 304-A of the IPC has submitted that there is

absolutely no material against the petitioner to find

out any prima facie case U/s. 304-A of IPC. It is also

advanced for the Petitioner that had the Ultra

Sonography(USG) of abdomen and pelvis of the

deceased been done in time, the diagnosis would

have been established and treatment could have

been properly provided to the patient(deceased) as

opined by the District Medical Board (DMB), but the

informant being advised in this regard had failed to

conduct the USG and thereby, the family members of

the patient were negligent. It is further submitted

that the petitioner had discharged his duty by

advising the patient to take her to Capital Hospital

since there was no medical facility of USG at BMC

Hospital. Mr.Mishra, learned Senior Counsel by

relying upon the decisions in (1) Jacob Mathew v.

State of Punjab and another; (2005) 6 SCC 1

and (2) A.S.V. Narayan Rao v. Ratnamala and

another; (2013) 10 SCC 741 has prayed to quash

the criminal proceeding instituted against the

petitioner.

5. In repelling the above submissions,

Mr.S.S.Pradhan, learned AGA by taking this Court to

the relevant facts mentioned in the charge sheet has

submitted that despite repeated telephone calls and

requests made by Dr.Sujata Samanta, the petitioner

refused to come to attend the patient, rather he

replied to shift the patient to any private Nursing

Home which was a clear-cut violation of public duty

and constitute gross negligence and the above fact

stands justified by the Call Details Report (CDR) of

mobile phone number of the petitioner and land

phone number of the BMC Hospital and the petitioner

having not found performed his duty is squarely liable

for gross negligence and the present proceeding

therefore, should not be quashed.

6. Adverting to the rival contentions, this Court

considers it imperative to discuss what constitute

negligence in terms of Section 304-A of the IPC. For

the purpose of attracting U/S. 304-A of IPC, the

following ingredients are required:-

(i) There must be death of a person in question.

(ii) The accused must have caused such death, and

(iii)Lastly such act of the accused was rash and negligent and it did not amount to culpable homicide.

A causal reference to the materials on

hand would go to disclose the allegation of medical

negligence against the Petitioner and accordingly, the

Petitioner has been charge-sheeted for offence U/S.

304-A of IPC which prescribes punishment for causing

death by negligence. Negligence is a breach of duty

imposed by law and it may be either civil or criminal

depending upon the nature and gravity of the

negligence. Criminal negligence, on the other hand is

gross and culpable, neglect or failure to exercise,

reasonable and proper care and precaution to guard

against injury, either to the pubic generally or to an

individual in particular. In criminal case, the

magnitude and degree of negligence are

determinative factors. Besides, there must be mens

rea in criminal negligence, which shall be of such

nature to the utter disregard to the life and safety of

others so as to amount a crime.

7. In the wake of aforesaid, the legal position

as has been explained by the Apex Court in the

decision in Dr. Suresh Gupta Vrs. Government of

NCT of Delhi and another; (2004) 6 SCC 422,

wherein in paragraph 12 it has been held that where

a patient dies due to the negligent medical treatment

of the Doctor, the Doctor can be made liable in civil

law for paying compensation and damages in tort and

at the same time, if the degree of negligence is so

gross and his act was so reckless as to endanger the

life of the patient, he would also be made criminally

liable for offence U/S. 304-A of IPC. In the aforesaid

decision at paragraph 20, the Apex Court has further

held that

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 contained 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."

8. In this case, the attention of the Court was

drawn by the Petitioner to the decision in Jacob

Mathew (supra) wherein the Apex Court in

paragraphs 18,41,48(1), 48(7) and 52, has made

certain observation which are certainly very much

relevant in the matter and the same are extracted as

under:-

          xxx      xxx       xxx      xxx      xxx

          18.   Judged    by   this    standard,    a

professional may be held liable for negligence on one of 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.

41. The Court held that a person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for that purpose. Such a person when consulted by a patient owes him certain duties, viz. a duty of care in deciding whether to undertake the case,

a duty of care in deciding what treatment to be given or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient.

48(1). 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".

48(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.

52. 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 Bolam* test to the facts collected in the investigation.

*Bolam v. Friern Hospital Management Committee.(1957)1WLR 582:(1957)2 All ER 118 (QBD)

9. On applying the strict parameters as

enunciated by the Apex Court which are referred to

above, to test the sustainability of the case at hand

by keeping in mind the requirement of gross

negligence to prosecute a Doctor, it appears that the

IO had got a medical board consisting of a team of

Doctors namely Dr. S.K. Dash, MD (Medicine), Dr.

S.C. Jenamani, MS(Surgery) and Dr. S.S. Sarangi,

MS (O&G) constituted to form an opinion in the

matter, but neither the report of the medical board

nor the Post Mortem Report of the deceased though

available were produced by the Petitioner in this case,

but there appears some adverse and negative opinion

by the medical board with respect to the treatment of

the deceased in the charge-sheet. The certified copy

of the charge-sheet also discloses the report of the

Dr. Sujata Samanta who was on duty on the relevant

night in following words "despite my (her) repeated

telephone request between 10.45 PM to 12.25 AM on

01/02.07.2009 to take proper action, the Petitioner

(Doctor B.M. Mishra) refused to come to attend the

patient, rather replied over telephone only to shift the

patient (deceased) to any private nursing home." The

IO in the aforesaid charge-sheet had also disclosed

that the CDR of Mobile of Petitioner (9437262710)

and land Phone of BMC Hospital (0674-2590255)

establishes that at 12.30 AM in the mid night of

01/02.07.2009 the location of the mobile of the

Petitioner was at Sahidnagar, but he was found to

have referred the patient to surgery specialist

mentioning the time 12.30AM on 02.07.2009 in the

bed head ticket. Although number of documents had

been seized by the IO as per the charge-sheet, but

the Petitioner has not produced any of the documents

such as Pathological Report of the deceased, blood

requisition, report of CMMO, report of Dr. B.Das

Mohapatra and report of Dr. Sujata Samanta for

perusal of the Court.

10. It is true that no sensible professional, more

particularly a Doctor would intentionally commit an

act or omit to do an act which would result in loss of

life. A medical practitioner faced with an emergency

situation would definitely try his level best to treat

the patient and ordinarily could not leave his patient

to die. The position of Doctor in India as accepted by

public generally is next to God, but there are certain

instances/aberration of course a few in number, the

medical practitioners are acting in utter disregard to

human life in expectation of pecuniary advantage to

malign in the noble profession. A Doctor is always

expected to treat or provide assistance to the patient

to the best of his knowledge and ability without any

material expectation which is why renders such

profession as noble and they are considered as

emissary of God in our country. Reverting back to the

case at hand, it is of course true whether the

deceased died on account of gross negligence of the

Petitioner is a question of fact which can be answered

in the trial after evidence is led, but the materials so

collected by the Investigating Agency when tested on

the touch stone of the parameters as laid down in

Jacob Mathew(supra), there appears some prima

facie case against the Petitioner vindicating a trial in

this case.

11. On a cumulative assessment and discussion

of facts and law as indicated above, it appears to the

Court that the Petitioner has not made out a case to

show that the criminal proceeding instituted against

him in the aforesaid case is an abuse of process of

Court and, thereby, is required to be quashed. Hence,

it is ordered.

12. In the result, the CRLMC stands dismissed

on contest, but in the circumstance, there is no order

as to costs.

13. Since the criminal case in G.R. Case No.

1655 of 2009 is an year old case and 14 years has

already been elapsed, the learned trial Court is

requested to expedite the trial and dispose of the

case within a period of six months of receipt of the

copy of this order. A copy of this order be sent to

learned trial Court forthwith.

(G. Satapathy) Judge

Signature Not Verified Digitally Signed Orissa High Court, Cuttack, Signed by: KISHORE KUMAR SAHOO Dated the 14th of August, 2023/kishore Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 16-Aug-2023 10:26:48