Court No. - 34
Case :- APPLICATION U/S 482 No. - 15537 of 2005
Applicant :- Dr. Kartikeya Sharma
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Sikandar B. Kochar
Counsel for Opposite Party :- Govt. Advocate,Nand Lal Maurya,Rajesh Srivastava
Hon'ble Sudhir Agarwal,J.
1. Heard Sri G. S. Chaturvedi, Senior Counsel assisted by Sri Sikandar B. Kochar, learned counsel for applicant and learned A.G.A. for State. None is present on behalf of respondent-3, though names of Sri Nand Lal Maurya and Sri Rajesh Srivastava, Advocates have been shown in the cause list. Hence, I proceed to hear and decide this application after hearing aforesaid counsel.
2. Applicant has invoked jurisdiction of this Court under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") with a prayer for quashing entire proceedings of Complaint Case No.6315 of 2004 (Kedar Nath Vs. Dr. Kartikeya Sharma), under Sections-304A IPC, Police Station-Colonelganj, District-Allahabad.
3. It is contended that a bare perusal of FIR reveals that from the allegations contained in it, no offence under Section 304A IPC is made out against applicant and, therefore, proceedings initiated against applicant are patently illegal and arbitrary.
4. I have gone through application under Section 156 (3) Cr.P.C. filed by respondent-2, which is Annexure-4 of the application, and it reads as under :
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11- ;g fd izkFkhZ Jheku th dks izkFkZuk i= ns jgk gS fd U;k; fgr eas izkFkhZ dk izkFkZuk i= Lohdkj dj Fkkuk/;{k duZyxat dks funsZ'k nsdj izkFkfedh ntZ djkuk vko';d gSA** “1. That the applicant Kedarnath s/o Late Shiv Narain r/o 55/1, Mahila Gram Inter College, Subedarganj, Police Station- Dhoomanganj, District - Allahabad, is a member of Scheduled caste.
2. That the applicant had taken his wife Smt. Kusumlata to the residence of Dr. Kartikey Sharma near Rajapur Crossing, opposite to the Northern India Patrika ground, at 6:00 PM on 20.04.2004, as she was having headache.
3. That Dr. Sharma, having examined the CT Scan report of my wife, advised her to be quickly admitted to the hospital, otherwise she would lose her eyesight, adding that she has a tumour in her head, which needs to be operated urgently.
4. That the applicant, following the advice of the doctor, got his wife admitted to the Anand Hospital, Muir Road, near Police Lines Colony at around 8:00 PM on the same day.
5. That Dr. Kartikey Sharma, on 21.04.2004, performed an operation on my wife to treat the tumour, but the patient even after undergoing the operation, did not get well and her condition deteriorated on 26.04.2004; therefore, I consulted Dr. Sharma about the condition of the patient, “Doctor sir, you had told me that the condition of the patient would improve, once she is operated upon; but the condition of the patient worsened after undergoing the operation”.
6. That the doctor asked me to get another CT Scan of the patient conducted, on which the applicant wanted to know the reason for another CT Scan, as the operation on her for removal of the tumour has been performed. In reply, the doctor stated that the operation which has been conducted on her, was meant for removing liquid, the tumour has still not been operated upon. The doctor's reply perplexed the applicant so much that he got another CT Scan conducted on her at the Kriti Scanning Centre on Louther Road near the Medical Crossing on 27.04.2004.
7. That Dr. Sharma continued the treatment even after the CT scan, but the condition of the patient kept deteriorating, and he repeatedly stated to the doctor that if treatment of the problem was not appearing possible, he might take the patient to the AINV Hospital, Delhi; but the doctor assured him of treatment. On 04.05.2004 at 10:00 AM, the applicant's wife breathed her last at the Anand Hospital.
8. That the applicant stated to the doctor, “My wife has died as the result of medical negligence on your part. You have taken Rs. 25,000/- and proper treatment was not provided; I therefore would take the body only after informing the police. This infuriated Dr. Sharma and stated, “Take the patient to your house silently. The inevitable happened. If you try to initiate an action, you will face dire consequences”. Dr. Sharma got the body sent to my house through an ambulance.
9. That the applicant is a poor person and belongs to a scheduled caste. He after performing last rites of her wife informed the SHO, Colonelganj and Mahila Thana, Civil Lines, Allahabad, as he was in grief after his wife's death and also for the reason that Dr. Sharma had frightened him much, but no action was taken.
10. That the applicant on 24.07.2004 informed the Senior Superintendent of Police personally and also through a registered post, but no action was initiated in response to his application; nor was any case registered.
11. That the applicant is giving the application with the request that in the interest of the justice, it is expedient that the application be accepted and instruction be issued to the SHO, Police Station-Colonelganj, for registration of the FIR.”
(English translation by Court)
5. This is an application under Section 156 (3) Cr.P.C. which was treated to be complaint by Magistrate vide order dated 06.12.2004 and he proceeded in the matter as complaint by recording statement of complainant under Section 200 Cr.P.C. and statement of one Pramod Kumar was recorded under Section 202 Cr.P.C. Thereafter, summoning order was passed against applicant.
6. Learned Senior Counsel stated that a perusal of complaint does not show that there are ingredients of Section 304 -A IPC and no case under Section 304-A IPC is made out against applicant.
7. Section 304A IPC reads as under :
“304A. Causing death by negligence.—Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”
8. He further argued that in the case of medical negligence, in Jacob Mathew vs. State of Punjab and other, AIR 2005 SC 3180 Court has held that prosecution under Section 304A IPC against alleged medical negligence will not be culpable by Court unless medical opinion from an Expert Committee is obtained, otherwise proceedings initiated against a person, will amount to gross abuse of law. Relevant extract of the judgment reads as under :
“ 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.
We may not be understood as holding that doctors can never be prosecuted for an offnece of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.
Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors of offences of which criminal rashness or criminal negligence is an ingredient. 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 prefarably from a doctor in government service qualified in that branch of medical practice who can normally be expected to given an impartial and unbiased opinion applying Bolam's test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrest, the arrest may be withheld.”
(emphasis added)
9. In the present case, neither any such medical opinion of an Expert Body has been obtained nor otherwise allegations contained in complaint satisfy requirements of Section 304A IPC as discussed above.
10. In view thereof, proceedings of Complaint Case No.6315 of 2004 (Kedar Nath Vs. Dr. Kartikeya Sharma), under Sections-304A IPC, Police Station-Colonelganj, District-Allahabad, cannot be sustained and is hereby quashed.
11. With aforesaid observations, this application is allowed.
Order Date : 18.12.2019 Manish Himwan