HONOURABLE SRI JUSTICE S.RAVI KUMAR
+ CRIMINAL PETITION Nos.5056 OF 2014
& 5077 OF 2014
% Dated 25-6-2014
CRIMINAL PETITION No.5056 OF 2014:
Between:
# Dr.P.Malathi.
And:
..Petitioner.
$ The States of Telangana and Andhra Pradesh, represented by its Public Prosecutor, High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh and another.
…Respondents.
CRIMINAL PETITION No.5077 OF 2014 Between:
# Dr.L.Sudhakar.
And:
..Petitioner.
$ P.Rama Krishna Reddy and another.
…Respondents.
! Counsel for the petitioner: SRI R.N.HEMENDRANATH REDDY ^ Counsel respondents : PUBLIC PROSECUTOR.
SRI N.NAVEEN KUMAR < GIST:
>HEAD NOTE:
? Cases referred:
[1] (2013) 7 SCC 789
2 2009 CRI.L.J.822
3 (2013) 3 SCC 330
4 (1995) 5 SCC 767
5 (2004) 6 SCC 422
6 (2005) 6 SCC 1
7 IV (2013) ACC 68 (SC)
8 (2014) I SCC (Cri) 102 9 (2009) 3 SCC 1 10 (2009) 9 SCC 221 HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL PETITION Nos.5056 OF 2014 & 5077 OF 2014 Dated 25-6-2014 CRIMINAL PETITION No.5056 OF 2014:
Between:
Dr.P.Malathi.
And:
..Petitioner.
The States of Telangana and Andhra Pradesh, represented by its Public Prosecutor, High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh and another.
…Respondents.
CRIMINAL PETITION No.5077 OF 2014 Between:
Dr.L.Sudhakar.
..Petitioner.
And:
P.Rama Krishna Reddy and another.
…Respondents.
HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL PETITION Nos.5056 OF 2014 & 5077 OF 2014 COMMON ORDER:
These two Criminal Petitions are filed by two accused i.e., A.1 an A.3 in C.C.No.171 of 2014 on the file of Chief Metropolitan Magistrate, City Criminal Courts, Nampally to quash the proceedings against them.
Heard both sides.
Advocate for A.1 submitted that A.1 has not committed any offence and she is falsely implicated for obvious and oblique reasons and that there is no negligence on her part in treating the deceased i.e., daughter of second respondent. He further submitted that second respondent along with his wife and husband of the deceased filed Consumer Dispute No.40 of 2003 before A.P.State Consumer Dispute Redressal Commission, Hyderabad against the first accused and other accused by making the same allegation of medical negligence that were mentioned in the complaint and claimed compensation of Rs.One Crore with interest at 24% p.a., and the same was opposed and defended by the petitioners and other accused and the Honourable State Commission by an order dated 29-8-2008 dismissed the said application holding that there is no negligence on the part of the petitioners herein and questioning the said order, the complainant and others have filed appeal before the National Consumer Disputes Redressal Commission and the same is pending. He further submitted that husband of deceased made a complaint against the revision petitioners and others to A.P.Medical Council by making similar allegations of medical negligence and after thorough enquiry, the Ethical and Malpractices Committee of A.P. Medical Council held that there is no negligence on the part of doctors including these two petitioners and that the deceased died due to rare complication of “Amniotic Fluid Embolism” and the same was approved by general body of A.P.Medical Council and the same was intimated to the husband of the deceased through letter dated 11-2-2004. He further submitted that questioning the said order of A.P.Medical Council of India, husband of deceased filed an appeal before Medical Council of India under Regulations 8, 7 & 8.8 of Professional Conduct (Etiquette and Ethics) Regulations, 2004. He further submitted that after obtaining opinion of the experts of concerned branch of medicine of well reputed and prestigious institutions/Hospitals and after considering all the aspects of the matter, the Ethics Committee of Medical Council of India while holding that negligence could not be substantiated against A.1 observed that A.1 may be cautioned to be very careful in future in treating serious patients. The Executive Committee of Medical Council of India in its meeting dated 24-4- 2006 accepted the recommendation of Ethics Committee. But the general body of Medical Council of India in its meeting on 10-3-2007 while approving the recommendations of executive committee observed that as negligence could not be substantiated against A.1, decided to remove that part of warning recommended by Ethics Committee and thus A.P.Medical Council and Medical Council of India, which are the highest professional statutory bodies, have categorically held that there is no negligence on the part of A.1.
It is submitted by A.3 counsel that Medical Council of India allowed the appeal filed by husband of the deceased in respect of A.3 and imposed penalty of removal of A.3 from the Indian Medical Register for three months and challenging the same, he filed writ petition No.16305 of 2007 before this court and this court was pleased to set aside the order of the Medical Council of India passed against A.3 and directed Medical Council of India to consider the appeal filed by the husband of the deceased and decide it on merits in accordance with law by giving reasonable opportunity to A.3 and to comply Regulation 8.2.
Challenging the said order in the writ petition, writ appeal is filed and the same is pending.
It is further submitted that not satisfied with the order of the Medical Council of India in respect of A.1, husband of the deceased approached government of India and at the instance of government of India, Medical Council of India re-examined the issue and reiterated and affirmed the earlier decision, stating that the decision was taken after a detailed and exhaustive procedure and there is no provision for the government ordering/requesting a review or re- examination or de-novo enquiry of a case where decision has already taken after following due procedure and questioning the said order, husband of the deceased filed a writ petition before High Court of Delhi and the same is pending.
It is submitted that when A.P.Medical Council and Medical Council of India after considering experts opinion and on a thorough examination of entire record held that there is no negligence on the part of the petitioner and when the Honourable State Forum has dismissed the complaint on the very same material, taking cognizance and subjecting the petitioner-A.1 to undergo rigorous criminal trial, is illegal, arbitrary, contrary and against the principles of natural justice.
It is further submitted that the concept of negligence differs in civil and criminal procedure what may be a negligence in civil may not necessarily be a negligence in criminal law and to attract offence of negligence, the element of mens rea must exist.
It is submitted that to attract criminal negligence degree of negligence is much higher than the negligence to attract civil negligence. It is submitted that negligence which is neither gross nor of higher degree may provide a ground for civil action but cannot form basis for prosecution. It is submitted that State Commission held that the petitioners are not liable to pay any compensation which is a civil claim and on the very same facts and allegations, the prosecution cannot withstand. It is further submitted that to fasten the criminal liability under Section 304-A I.P.C., degree of negligence must be highest whereas mere negligence is enough to fasten liability in civil proceedings. It is further submitted that for convicting a doctor in Criminal Case, there must be gross negligence amounting to recklessness. It is further submitted that four doctors whose sworn statements are recorded are not experts in the branch and they are private doctors and they are not concerned with the treatment that was given to the deceased patient in Shalini Maternity Hospital. It is further submitted that the husband of the complainant himself is a medical graduate and he is friend of Dr.Rajeshkhanna and on their request petitioners attended on the patient though they are not residential doctors of Shalini Maternity Hospital. It is further submitted that no Post Mortem is conducted on the deceased and even according to the complainant, it is impossible to conclude that patient has died from Amniotic Fluid Embolism without performing Post Mortem which he urged in his grounds of appeal before the National Consumer Disputes Redressal Commission, New Delhi. It is further submitted that complainant is a senior advocate and husband of the deceased is a senior burocrat and both of them have not taken any steps to get the Post Mortem conducted and on the other hand, they have claimed dead body without any Post Mortem. It is further submitted that the incident was on 6-3-2003 and the complaint before the court was on 12-2-2004 and if really, death is doubted, complainant ought not have waited for such a long time and it is only an after thought in order to blackmail and extract money from the petitioners, this complaint is filed taking undue advantage of the situation. He further submitted that if really death is doubted, being an advocate the complainant and being a burocrat, the husband of the deceased ought not have taken back dead body and they should have insisted for Post Mortem examination and that there is no prima facie material showing any recklessness or gross medical negligence on the part of the petitioners for the death of the deceased and therefore, the proceedings have to be quashed. It is further submitted that for obliging the request of husband of the deceased through one of the known doctors, the petitioners were made to face legal battle for the last ten years and that itself is a maximum punishment for both the doctors and on that ground also, the proceedings are liable to be quashed.
On the other hand, learned Senior counsel for complainant -first respondent submitted that A.1 filed discharge petition before the Sessions Court and while dismissing the discharge petition, the Sessions Court held that there is prima facie material against the petitioners in respect of the offences under Sections 304-A and 201 I.P.C and the first accused has not challenged that order and when there is a provision to challenge the said order, Section 482 Cr.P.C. cannot be invoked. He further submitted that the remedy of the first accused is to file a revision against the dismissal of the discharge petition under Section 397 Cr.P.C. but she cannot ask for quash under Section 482 Cr.P.C. He further submitted that sworn statements of four doctors is recorded only as per the directions of this court and only on considering the Sworn Statements of those four doctors, the learned Sessions Judge held that there is prima facie material for the offence under Section 304-A I.P.C. and when there is prima facie material attracting the offence alleged, Section 482 Cr.P.C.can not be applied. He further submitted that all the grounds urged in the quash petitions are defences available to the petitioners and when the discharge order is not challenged, they cannot contend that there is no prima facie material. He further submitted that the proceedings are pending not because of the complainant and on all occasions, only the petitioners have come to the court and that caused delay, for that, complainant cannot be blamed. With regard to delay in filing private complaint before the court, he submitted that the same is within time and the delay cannot be a ground to quash proceedings and that may be a defence available which has to be considered after recording the evidence. He further submitted that the proceedings of Consumer Disputes Redressal Commission and the Medical Council have not become final as legal proceedings are pending challenging those orders and the petitioners cannot rely on them for the purpose of quashing. He further submitted that if the allegations in the complaint and the evidence supporting the said allegation, even if they are accepted in toto and do not constitute any offence, then only Section 482 Cr.P.C. can be applied but not otherwise, and the material on record would clearly attract offence of Section 304-A and 201 I.P.C. and therefore, there are no grounds for quashing the proceedings.
Now, the point that would arise for my consideration in these petitions is whether proceedings in C.C.No.117 of 2014 are liable to be quashed?
POINT:
Second respondent filed a private complaint against the petitioners herein and some others for offences under Sections 304-A, 316 and 201 I.P.C. and now after filing revisions and the discharge petition, the case is pending as C.C.No.171 of 2014 on the file of Chief Metropolitan Magistrate, City Criminal Courts, Nampally, for the offences under Sections 304- A and 201 I.P.C. Petitioner in Criminal Petition No.5056 of 2014 is A.1 and petitioner in Criminal Petition No.5077 of 2014 is A.3 in the above referred C.C. and they are herein after referred to as A.1 and A.3 for convenience and better understanding.
It is the contention of A.1 that she has not committed any offence as alleged in the complaint and she is implicated in the case for obvious and oblique reasons though there is no negligence on her part in treating the deceased i.e., daughter of complainant. It is her further contention that the complainant along with his wife and son-in-law and (husband of deceased), filed C.D.No.40 of 2003 before A.P.State Consumer Disputes Redressal Commission, Hyderabad making self same allegations of medical negligence and claimed compensation of Rs.one crore and after enquiry, the State Commission by a reasoned order dated 29-8-2008 dismissed the said complaint holding that there is no negligence on the part of A.1. It is contended by A.1 and A.3 that husband of the deceased made a complaint to Medical council with similar allegations of medical negligence and after thorough examination and after taking opinion of experts, Ethics committee found that there is no negligence on the part of the doctors and that the patient died due to rare complication of Amniotic Fluid Embolism and the said opinion is unanimously approved by the General body of A.P. Medical counsel and the same was intimated to the husband of the deceased through letter dated 11-2- 2004 and questioning the said order, he appealed before Medical council of India and after obtaining opinion of experts of the concerned branch of well reputed and prestigious institution/hospital, the Ethics Committee of Medical Council of India observed that there is no negligence on the part of A.1 but observed that she may be cautioned to be careful in future by treating serious patients. That observation of Ethics Committee was approved by the Executive Committee on 24-4-2006 but the General Body of the Medical council in its meeting on 10-3-2007 while approving the recommendations observed that there was no negligence on the part of A.1 and decided to remove that part of the recommendations of Ethics Committee with regard to caution. Medical Council of India opined that there is some negligence on the part of A.3 and imposed penalty of removal of his name from the Indian Medical Register for a period of three months and challenging the same, he preferred writ petition before this court and the writ petition is allowed by setting aside the punishment given by Medical Council of India and remitted back the matter to Medical Council of India to give opportunity to A.3 and consider all the relevant facts. Challenging the said order, a Writ Appeal is filed and the same is pending. It is undisputed fact that an appeal is preferred to National Consumer Disputes Redressal Commission against the orders in C.D. No.40 of 2003 and the same is also pending. All the accused preferred Criminal Revision Cases to this court challenging the cognizance taken by the Magistrate against all the accused and this court by common order dated 1-7-2011 held that the Magistrate has not followed the procedure of recording statements of all witnesses and for that reason, order of the Magistrate was set aside and the matter was remanded back to take necessary steps of recording the statements of all the witnesses. After remand, the Magistrate after recording statements of all the witnesses took cognizance and passed order on 13-8-2012 and challenging the same, A.3 preferred revision and this court has set aside the said order dated 13-8-2012 on the ground that affidavits of the witnesses are not permissible and only sworn statements are to be recorded and again remanded back the matter to Chief Metropolitan Magistrate giving liberty to the complainant to produce four doctors for recording their sworn statements. After the said order, the learned Chief Metropolitan Magistrate recorded sworn statements and thereafter committed the case to the court of Sessions which is registered as S.C.No.242 of 2013. A.1 filed Criminal M.P.No.34 of 2014 in the said Sessions Case for discharge and the IV Additional Metropolitan Sessions Judge by an order dated 28-2-2014 dismissed the petition observing that there is no material to frame charge for offence under Section 316 I.P.C. and there is material for the offences under Sections 304-A I.P.C. and 201 I.P.C. and thereby transferred the case to Chief Metropolitan Magistrate as per proceedings under section 228 (1) (a) Cr.P.C. to proceed further. Now at that stage, these two petitions are filed by A.1 and A.3 to quash the proceedings.
First and foremost objection taken on behalf of respondent-complainant is that when the court below found that there is prima facie material for the offences under Sections 304-A and 201 I.P.C., the remedy of the petitioners is to challenge that order by filing a revision and they cannot invoke jurisdiction of this court under Section 482 Cr.P.C. He submitted that when there is an alternative remedy available under the statute, the inherent powers cannot be exercised. To support his argument, learned Senior Counsel for the respondent complainant placed reliance on a decision of Supreme Court in MOHIT ALIAS SONU AND ANOTHER Vs.
[1]
STATE OF UTTAR PRADESH AND ANOTHER ( ) wherein it is held as follows:
“An order which substantially affects the rights of the accused or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order as contemplated under Section 397(2) CrP.C. When an order, not interlocutory in nature, can be assailed in the High Court in revisional jurisdiction under Section 397 or 401 CrP.C, then there should be a bar in invoking the inherent jurisdiction of the High Court under Section 482 CrP.C. In other words the inherent power of the High Court can be exercised only when there is no remedy provided in the CrP.C for redressal of the grievance. It is well settled that the inherent power of the High Court can ordinarily be exercised when there is no express provision in CrPC under which an order impugned can be challenged. Therefore, when there is a specific remedy provided by way of appeal or revision, the inherent power either under Section 482 CrPC or Section 151 CPC cannot and should not be restored to.”
In answer to the above referred decision, advocate for A.1 submitted that the scope of revision would be only with regard to framing of charges and while framing charges, material that has to be considered by the court below or the revisional court is the evidence produced on behalf of the complainant and it cannot look into the material or evidence on behalf of the accused but in a proceedings under Section 482 Cr.P.C., the court is free to examine the material produced by both parties to arrive at a just decision and to support his arguments, he has placed reliance on the judgment of Honourable Supreme Court in RUKMINI NARVEKAR Vs. VIJAYA
[2]
SATARDEKAR AND ORS. ( ) wherein it is held as follows:
“In my view, therefore, there is no scope for the accused to produce any evidence in support of the submissions made on his behalf at the stage of framing of charge and only such material as are indicated in Section 227 Cr.P.C. can be taken into consideration by the learned magistrate at that stage. However, in a proceeding taken therefrom under Section 482 Cr.P.C. the Court is free to consider material that may be produced on behalf of the accused to arrive at a decision whether the charge as framed could be maintained. This, in my view, appears to be the intention of the legislature in wording Sections 227 and 228 the way in which they have been worded and as explained in Debendra Nath Padhi’s case (supra) by the larger Bench to which the very same question had been referred.
Learned counsel for A.1 also contended that the powers under Section 482 Cr.P.C. are wide and the defence material can be relied on in quash proceedings. He placed reliance on the judgment of the Honourable Supreme Court in RAJIV THAPAR
[3]
AND OTHERS Vs. MADAN LAL KAPOOR ( ) wherein the Honourable Supreme Court observed that the discretion vested in High Court under Section 482 Cr.P.C. can be exercised suo motu to prevent abuse of court and/or to secure the ends of justice. The Honourable Supreme Court has formulated some steps to determine the veracity of prayer for quashment raised by accused by invoking the powers vested in High Court under Section 482 Cr.P.C. Those steps are as follows:
“30.1. Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e., the material is of sterling and impeccable quality?
30.2. Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e., the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?
30.3. Step three: whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant?
30.4. Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
30.5. If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused.”
From the above referred decisions of the Hononourable Supreme Court, it is clear that the scope of enquiry in a discharge petition is limited whereas the powers of this court under Section 482 Cr.P.C. are wide but they have to be exercised sparingly. Here, from the facts it is clear that the incident was on 5/6-6-2003 and private complaint is filed in February, 2004. It is also clear from the material on record that in the complaint, no witnesses are cited and as per the record, at the first instance, sworn statements of two persons i.e., complainant and husband of deceased were recorded at the time of taking cognizance.
As rightly pointed out by advocate for petitioners, in a discharge petition, material now relied on by petitioners cannot be taken into account since the sworn statements and documents if any filed by complainant alone will be considered at the time of framing charge. Therefore, considering the principle laid down in the above three decisions, the objection of the respondent with regard to maintainability of Section 482 Cr.P.C. petition is not at all tenable and therefore, the said objection is negatived.
The next objection of the advocate for complainant-respondent is that the orders of the Consumer Disputes Redressal Commission and the Medical Council of India cannot be relied on now in view of the pendency of appeal and legal proceedings challenging those orders.
For this, the advocates for petitioners submitted that the findings of civil court prevail on criminal court only when they are reversed by appellate court and mere pendency of appeal do not have any effect. They further submitted that since the orders of Consumer Disputes Reddresal Commission or Medical Council are not suspended, the objection of the respondent is not tenable. To support their argument, they relied on a decision of Supreme Court i n V.M.SHAH Vs. STATE OF MAHARASHTRA AND
[4]
ANOTHER ( ) wherein it is held as follows:
“Findings recorded by Civil Court prevail until reversed by the appellate court after duly considering the same and weighing the evidence afresh. Mere pendency of appeal does not have the effect of suspending the operation of the decree of the civil court.”
From the above decision, it is clear that mere pendency of an appeal will not have any effect unless operation of it is suspended. Here, admittedly, there is no suspension of operation of those orders and therefore, the objection of the respondent cannot be sustained.
Advocates for petitioners submitted that respondent/complainant approached State Consumer Disputes Redressal Commission and also State Medical Council making same allegation and both State Consumer Disputes Redressal Commission and Medical Counsel after examining the same material which is filed along with the complaint and also the evidence of same persons i.e.., complainant, husband of deceased and another doctor by name Rajeshkhanna held that there is no negligence and dismissed the claim of the complainant for a sum of Rs.one crore. They submitted that the A.P.Medical counsel is a statutory body which has to examine the allegation with the help of experts and such body after a thorough examination found that there is no negligence on the part of these two petitioners and when such a categorical findings are given by two different forums on the self same allegation, complaint on such allegation have to be quashed. They further submitted that burden of proof in Criminal Cases would be higher than the proof that is required in a civil claim. When the Consumer Disputes Redressal Commission which is headed by former judge of this court held that there is no evidence of negligence and on the same evidence, prosecution cannot be sustained.
It is not disputed proposition of law, that in civil cases, the evidence has to be weighed on preponderance of probability whereas in criminal cases, the evidence required is beyond all reasonable doubt. Therefore, degree of proof is more in Criminal Cases when compared to civil claims.
One of the points urged on behalf of the petitioners is that for a civil claim of damages, it is sufficient if negligence is proved but to punish a person, prosecution has to prove that there is gross negligence and therefore, mere negligence is not sufficient to convict a person. They further contended according to Section 304-A I.P.C., death must be result of rash or negligent act.
Here in this case, there is absolutely no evidence to show the cause of death, as no Post Mortem was conducted. It is not in dispute that complainant is a senior advocate and the husband of the deceased is a senior burocrat and both of them have not insisted for Post Mortem and took the dead body and they have not raised their little finger nearly for about one year and this aspect would show the malafide intention of the complainant in order to harass the petitioners. It is also not in dispute that complainant has urged in the grounds of appeal before the National Consumer Disputes Redresal Commission, that Post Mortem is a must to know exact cause of death. Admittedly, there is no Post Mortem and therefore, there is no material to know the cause of death. Coming to Sworn statements of four doctors, they are only opinion expressed by them on the basis of case sheet. When Medical Council of Andhdra Pradesh and Medical council of India basing on the same case sheet by taking into consideration opinion of experts in the field who are independent and unbiased held that there is no negligence on the part of these two doctors and therefore, the allegations in the complaint are only allegations which are not supported by any acceptable and legal evidence.
Now the two charges that are faced by petitioners are Sections 304-A and 201 I.P.C. I feel that it is better to extract these two provisions.
Section 304-A I.P.C. reads as follows:
“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.”
Section 201 I.P.C.reads as follows:
“Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false.”
Coming to Section 304-A I.P.C. a plain reading of the above provisions indicates that death must be due to rash or negligent act of the accused persons. So cause of death is the primary point and negligent and rash act is the next point.
To attract offence of criminal medical negligence punishable under Section 304-A I.P.C., the essential ingredients are:
(a) death of a person;
(b) death was caused by the accused during any rash or negligent act;
(c) act does not amount to culpable homicide.
To prove above ingredients, there must be material showing:
(a) the existence of a duty;
(b) a breach of the duty causing death;
(c) a breach of that duty must be characterised as gross negligence.
In DR.SURESH GUPTHA Vs. GOVT.OF NCT
[5]
OF DELHI AND ANOTHER ( ), Honourable Supreme Court held as follows:
“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 relied upon on behalf of the doctor elucidates the said legal position and contains 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.”
“Thus, when a patient agrees to go for medical treatment or surgical operation, every careless act of the medical man cannot be termed as “criminal”. It can be termed “criminal” only when the medical man exhibits a gross lack of competence or inaction and wanton indifference to his patient’s safety and which is found to have arisen from gross ignorance or gross negligence. Where a patient’s death results merely from error of judgment or an accident, no criminal liability should be attached to it. Mere inadvertence or some degree of want of adequate care and caution might create civil liability but would not suffice to hold him criminally liable.”
In JACOB MATHEW Vs. STATE OF PUNJAB
[6]
A N D ANOTHER ( ) Honourable Supreme Court formulated certain guidelines for prosecuting the Medical Professionals which are as follows:
“As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complaints and sometimes by the police on an FIR being lodged and cognizance taken. The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to a rash or negligent act within the domain of criminal law under Section 304-A IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered to his reputation cannot be compensated by any standards.”
“We may not be understood as holding that doctors can never be prosecuted for an offence 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 prefer 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 the 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 for 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 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 the Bolam 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 investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.”
I n P.B DESAI (DR.) Vs. STATE OF
[7]
MA H A R A S H T R A AND ANOTHER ( ), the Honourable Supreme Court described as to when Medical Liability will attract and held as follows:
“It follows from the above that as far as the sphere of criminal liability is concerned, as mens rea is not abandoned, the subjective state of mind of the accused lingers a critical consideration. In the context of criminal law, the basic question is quite different. Here the question is: Does the accused deserve to be punished for the outcome caused by his negligence? This is a very different question from the civil context and must be answered in terms of mens rea. Only if a person has acted in a morally culpable fashion can this question be answered positively, at least as far as non strict liability offenses are concerned.”
“The only state of mind which is deserving of punishment is that which demonstrates an intention to cause harm to others, or where there is a deliberate willingness to subject others to the risk of harm. Negligent conduct does not entail an intention to cause harm, but only involves a deliberate act subjecting another to the risk of harm where the actor is aware of the existence of the risk and, nonetheless, proceeds in the face of the risk. This, however, is the classic definition of recklessness, which is conceptually different from negligence and which is widely accepted as being a basis for criminal liability.”
“The solution to the issue of punishing what is described loosely, and possibly inaccurately, as negligence is to make a clear distinction between negligence and recklessness and to reserve criminal punishment for the latter. If the conduct in question involves elements of recklessness, then it is punishable and should not be described as merely negligent. If, however, there is nothing to suggest that the actor was aware of the risk deliberately taken, then he is morally blameless and should face, at the most, a civil action for damages.”
I n A.S.V.NARAYANAN RAO Vs. RATNAMALA
[8]
AND ANOTHER ( ), the Honourable Supreme Court held as follows:
“Criminal proceedings are maintainable only if there is prima facie gross negligence as opined by independent doctor (preferably government doctor).”
I n MARTIN F.D.’ SOUZA Vs. MOHD.ISHFAQ
[9]
( ) the Honourable Supreme Court while referring to JACOB MATHEW’s case held that degree of negligence to fasten criminal liability under Section 304-A I.P.C. is higher than the negligence fasten to civil liability. The Honourable Supreme Court held as follows:
“When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions.”
“To fasten liability in criminal proceedings e.g. under Section 304-A IPC the degree of negligence has to be higher than the negligence which is enough to fasten liability in civil proceedings. Thus for civil liability it may be enough for the complainant to prove that the doctor did not exercise reasonable care in accordance with the principles mentioned above, but for convicting a doctor in a criminal case, it must also be proved that this negligence was gross amounting to recklessness.”
I n MALAY KUMAR GANGULY Vs. DR.
[10]
SUKUMAR MUKHERJEE AND OTHERS.( ), Honourable Supreme Court formulated certain points to be determined by the courts while fixing individual liability of doctors observed as follows:
“There cannot be, however, any doubt or dispute that for establishing medical negligence or deficiency in service, the courts would determine the following:
(i) No guarantee is given by any doctor or surgeon that the patient would be cured.
(ii) The doctor, however, must undertake a fair, reasonable and competent degree of skill, which may not be the highest skill.
(iii) Adoption of one of the modes of treatment, if there are many, and treating the patient with due care and caution would not constitute any negligence.
(iv) Failure to act in accordance with the standard, reasonable, competent medical means at the time would not constitute a negligence. However, a medical practitioner must exercise the reasonable degree of care and skill and knowledge which he possesses. Failure to use due skill in diagnosis with the result that wrong treatment is given would be negligence.
(v) In a complicated case, the court would be slow in contributing negligence on the part of the doctor, if he is performing his duties to the best of his ability.
Bearing in mind the aforementioned principles, the individual liability of the doctors and hospital must be judged.”
From the proposition laid down in the above referred decision, it is clear that mere negligence is not sufficient and to fasten criminal liability, gross negligence and high recklessness on the part of the doctors is required. Both State Consumer Disputes Redressal Commission and the State Medical Council found that there is no negligence on the part of doctors and the patient died due to Amniotic Fluid Embolism. There is no Post Mortem examination and the cause of death is not known except the presumptions and assumptions of the complainant. Even the sworn statements of four doctors is only their opinion in respect of case sheet, which document was already considered by Consumer Disputes Redressal commission and State Medical Council and Medical Council of India in respect of A.1., the Consumer Redressal commission and State Medical Council of India in respect of A.3 and these forums after considering the opinion of experts in the field found that there was no negligence of any kind on the part of these two doctors. Further from the material, it is clear that petitioner i.e., A.1 is not a residential doctor of Shalini Maternity Hospital and she only accommodated as she was requested by one of her colleague who happened to be classmate of husband of deceased.
It is not in dispute before this court that the inherent jurisdiction of Section 482 Cr.P.C. can be exercised to quash proceedings in an appropriate case either to prevent abuse of process of court or otherwise to secure the ends of justice. Abusing the process of court is a ‘term’ generally applied to a proceeding which is wanting in bonafides and is frivolous, vexatious and oppressive. In other words, it is a ‘word’ used in connection with action for using some process of court maliciously to the injury of another person. Simply stated abuse of process of courts would mean an improper use of legal process with a view to obtain unfair advantage or undeserving benefit.
Taking the facts and circumstances of the case and the material filed along with quash petition and the principle laid down by Supreme Court into consideration, I am of the view that there is no material showing gross negligence or recklessness on the part of these two petitioners for the death of deceased and the ingredients of Section 304-A I.P.C. are not at all attracted, against the petitioners.
Coming to offence under Section 201 I.P.C., according to the complainant, there is screening of the evidence by not informing local authorities for the Post Mortem examination and for making belated entries in the case sheet. For these allegations, there is absolutely no material to show that there was any falsifying of hospital record to screen away the offences. Mere suspicion or allegation however strong they may cannot be taken into consideration without any supporting material. Even otherwise those allegations reflects on the Nursing Home and its residential doctors, but not on petitioners.
When the basic requirements are missing and the State Consumer Redressal Commission, State Medical Council and National Medical Council found no negligence from the same material then allowing such complaint to continue and compel petitioners to face rigama role of the criminal trial would be totally unjustified leading to miscarriage of justice.
In Rajiv Sather and others, Honourable Supreme Court indicated four steps to exercise powers under Section 482 Cr.P.C. When the material relied on by the accused is sound, reasonable and indubitable and when the material relied upon by the accused would rule out assertions contained in the charges levelled against the accused and if the material is such, as would persuade a reasonable person to dismiss and condemn factual basis of the accusation as false and when such material is not refuted by the complainant and if the proceedings with the trial court result abuse of any process of court, the High Court should persuade to quash such criminal proceedings by exercising powers under Section 482 Cr.P.C.
Here in this case, the material relied on by the petitioners is definitely sound reasonable and would rule out the assertions that are made in the complaint against them. Therefore, applying the four steps that are indicated by Honourable Supreme Court in the above referred decision to the facts of this case, I am of the view that this is a fit case to exercise powers of this court under Section 482 Cr.P.C. to prevent abuse of process of court and also to save precious time of the court.
For the reasons stated supra, both the Criminal petitions are allowed and proceedings in C.C.No.171 of 2014 on the file of the Chief Metropolitan Magistrate, City Criminal Courts, Nampally are quashed, in respect of petitioners i.e., A.1 and A.3.
As a sequel to the disposal of this Criminal petition, the Miscellaneous Petitions, if any, pending, shall stand dismissed.
JUSTICE S.RAVI KUMAR Dated 25-6-2014.
Note:
L.R.copy to be marked.
BO.
Dvs.
HONOURABLE SRI JUSTICE S.RAVI KUMAR
Dvs
CRIMINAL PETITION Nos.5056 OF 2014 & 5077 OF 2014 Dated 25-6-2014
[1] (2013) 7 SCC 789
[2] 2009 CRI.L.J.822
[3] (2013) 3 SCC 330
[4] (1995) 5 SCC 767
[5] (2004) 6 SCC 422
[6] (2005) 6 SCC 1
[7] IV (2013) ACC 68 (SC)
[8] (2014) I SCC (Cri) 102
[9] (2009) 3 SCC 1
[10] (2009) 9 SCC 221