Court No. - 24
Case :- CRIMINAL REVISION No. - 1532 of 1991 Revisionist :- Dr. Manish Gadre Opposite Party :- State And Another Counsel for Revisionist :- G.S. Chaturvedi Counsel for Opposite Party :- Shasikant
Hon'ble Dinesh Kumar Singh-I,J.
List has been revised.
No one is present from the side of the revisionist to press this revision as well as from the side of the respondent no. 2.
Sri Kunwar Ritesh Kumar, learned A.G.A. is present.
Since this revision is of the year 1991, therefore, it is being decided on merit in the absence of the parties.
The order dated 24.8.1991 passed by the 1st Additional District and Sessions Judge, Kanpur Nagar has been assailed in the present revision whereby he allowed the said revision and set aside the order dated 11.3.1991 of Metropolitan Magistrate VIII in Complaint Case No.4 of 1991 whereby he had dismissed the complaint and has summoned the revisionist to face trial under section 304-A IPC.
The grounds as set up in the revision are that Sessions Judge has gone beyond the record in deciding this criminal revision. He did not summon the bed head ticket and it appears that some photocopy was produced, which too was not correct and because there were no cutting on material point in the bed head ticket, it was necessary that original bed head ticket ought to have been summoned. A solitary cutting in the bed head ticket is in the consent clause whereby the complainant had withdrawn his consent for ligation. The complainant had earlier given consent for ligation so that his wife may not bear children in future but later on he said that he did not wish to get any ligation done. So only the word ligation was cut from the consent given by the husband. There was no other cutting of any sort in the bead head ticket. It is also mentioned that the Magistrate had seen the bed head ticket and returned it to the hospital. Further, it is mentioned in the ground of revision that Smt. Pushp Lata did not need any blood transfusion as her HB was as high as 11.6%, hence in the routine course no blood was needed for operation and only as a matter of abundant precaution the applicant had advised the attendants, to be on the safer side, to arrange one bottle of blood. The first delivery of Smt. Pushp Lata was also cesarean delivery which had also been conducted by the applicant- revisionist. Even at that time no blood transfusion was done. Even in the present delivery the blood loss was very low and no blood transfusion was required and therefore no blood transfusion was carried out. Unnecessary blood transfusion is itself hazardous and some times causes serious complications. Medical books also would show that if HB was high then the blood transfusion would not be required in the healthy pregnant woman. The death was due to cardio respiratory failure. Even after the death of Smt. Pushp Lata, the complainant and other attendants had requested the applicant that the baby be kept in the nursery for ten days which was done and till that time there was no complaint of any negligence. Had there been any negligence on the part of the revisionist, the complainant would not have left his child in the care of the revisionist.
I have gone through the order dated 24.8.1991. It is mentioned in the order that the complainant i.e. the opposite party no. 2 had moved an application on 2.1.1991 mentioning therein that the revisionist Dr. Manisha Gadre had conducted abdominal operation of the wife of complainant on 8.11.1990 and a female child was born and during this operation necessity was felt for providing blood. Because of carelessness of accused-revisionist Manisha Gadre, blood could not be transfused as a result of which the wife of opposite party no. 2 died. Had she taken full precaution and had transfused the blood, the life of the wife of opposite party no. 2 could have been saved. it is also mentioned in the complaint that after the death of wife of opposite party no. 2, her cremation was done and after having arranged for care of small children of opposite party no. 2, report could be lodged with delay and moreover there was curfew in town thereafter only the complainant sent report on 19.12.1990 to S.S.P., Kanpur by registered post and when no action was taken then the present application was filed on 2.1.1991.
Lower revisional court has mentioned in the impugned order that at the stage of proceedings under section 203 Cr.P.C. it was not necessary for the Magistrate to decide whether there was sufficient evidence on record to show that the accused be held guilty and on this stage only this much was to be seen as to whether there was prima-facie evidence against the accused so that trial could proceed meaning thereby that whether cognizable offence is made out against the accused on the basis of evidence adduced. No merit of evidence is required to adjudge at this stage. He has further written in the impugned order that the complainant in support of his version has examined two witnesses and also presented all the documents relating to the treatment given to his wife which also included bed head ticket prepared by the revisionist and other reports. In these papers there were cutting at several places which appeared to reflect contradiction. It appeared that some additions were made subsequently. Manipulation was also made in serial of the documents. It has been mentioned in the bed head ticket that at the time of operation and prior to that also there was dearth of blood in the body of the wife of opposite party no. 2. This makes it clear that no blood was transfused to her and soon after the operation she died. Cause of death is mentioned to be asphyxia as a result of lack of blood. On the basis of this document it is proved that the revisionist had conducted operation and in the opinion of the revisional court, the statement of the complainant as well as the documentary evidence proved that the wife of opposite party no. 2 died to due dearth of blood and that in case accused-revisionist had transfused the blood, there was possibility of saving life of wife of opposite party no. 2. Therefore, it was held that it would not be proper to hold that there was no prima-facie case against the revisionist. Further, it is recorded in the impugned order that at this stage it was not proper to expect from the complainant that he should adduce entire evidence. There is no importance at this stage of any evidence of specialist. Learned Magistrate has given too much importance to the complaint being submitted after much delay which is also not proper and accordingly, the lower revisional court has allowed the revision and set aside the order dated 11.3.1991 and has summoned the revisionist to face trial under section 304-A IPC.
It is pertinent to refer here to the law laid-down by Supreme Court in Jacob Mathew vs. State of Punjab and another, (2005) 6 SCC 1 in which it has been held that a private complaint may not be entertained unless the complainant had 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.
In view of position of law, it is apparent that the facts in the present matter do not reveal that any opinion was taken by the lower revisional court in respect of the charge of rashness or negligence on part of the accused-revisionist and yet has set aside the order of the Magistrate dated 11.3.1991 and has summoned the revisionist accused to face trial under section 304A IPC. The said order appears to be erroneous in view of above position of law and needs to be set aside and it is accordingly set aside.
Revision stands allowed and the impugned order dated 24.8.1991 is set aside.
Order Date :- 26.4.2019 AU