These two criminal revisions have been preferred against the orders dated 27.5.2010 and 24.10.2009 passed by Additional Sessions Judge, Court No.1, Muzaffar Nagar in S.T. No.1229 of 2008, State of U.P. Vs. Dr. Veena Agrawal. By order dated 24.10.2009, learned trial court discharged the revisionist for the offence punishable under sections 269, 270, 337, 338 IPC, but rejecting the prayer for discharge, directed framing of the charge under section 304 IPC. The said order has been challenged in criminal revision no.4952 of 2009. In pursuance of order dated 24.10.2009, learned Sessions Judge framed charge under section 304 IPC against the revisionist on 27.5.2010 and the said order is under challenge in criminal revision no.2393 of 2010.
Since both the revisions arise out of same crime number and relate to the same controversy, they are being disposed of together.
For the sake of convenience, criminal revision no.2393 of 2010 has been taken as a leading case.
The facts are that on 15.1.2005, the complainant Ram Gopal Sharma - opposite party no.2 lodged F.I.R. at P.S. Civil Lines, Muzaffar Nagar, which was registered at crime no.12 of 2005 under sections 269, 270, 273, 326, 308 IPC, State Vs. Dr. Girish Kumar & others alleging therein that his son Vishal Sharma was born on 15.8.1996, he remained continuously ill. On 10.7.2004, he was treated by Dr. Girish Kumar at 'Child Care Centre' for pneumonia. Dr. Girish Kumar transfused blood brought from the Blood Bank of Dr. Veena Agrawal. Subsequently, when no improvement was noticed in the condition of the child Vishal Sharma, aged about 8 years, he was referred to Chandigarh, where he was admitted at C.B.D. Hospital and was found to be HIV+. It was alleged that Dr. Veena Agrawal supplied contaminated blood, which was transfused by Dr. Girish Kumar. Earlier charge sheet was submitted under sections 269, 270, 273, 337, 326, 308 IPC, but subsequently after death of the child, a supplementary charge sheet under section 304 IPC was also filed. On the case being committed to the Court of Sessions, a prayer for discharge was made on behalf of the revisionist. The revisionist was discharged under other sections, but learned trial court framed charge under section 304 IPC.
Heard Sri Dilip Kumar, learned counsel for the revisionist, Sri Pankaj Bharti, learned counsel for the complainant and learned A.G.A. for the State.
Affidavits have been exchanged between the parties.
Sri Dilip Kumar submits that the revisionist Dr. Veena Agrawal is a highly educated Doctor having a degree of M.B.B.S., M.D. (Pathology) and is running a Pathology Lab and Blood Bank in the name and style of "Agrawal Pathology Clinic" at Muzaffar Nagar and she has the license to run the Blood Bank. Immediately after the registration of the F.I.R., the Blood Bank of the revisionist was sealed. Stock register, blood issuing register and blood donation register were also sealed and numerous samples of blood were also taken under directions of the C.M.O., but no HIV contamination was found in any of the samples. No blood was ever sold to the complainant.
It was further argued that as per the prosecution allegations, the blood was transfused on 12.7.2004 and the specimen of blood sample of the victim Vishal Sharma was sent to Chandigarh and tested by P.G.I., Chandigarh on 16.12.2004 wherein CD4 count was found to be 260 cells/µl. The contention is that as per the 7th Edition of "Pathologic Basis of Disease" by Kumar-Abbas-Fausto and 17th Edition of "Harrison's Principles of Internal Medicine", the CD4 cell count use to be 1000 - 1100 cells / µl in healthy blood. This count is almost depleted within 12 weeks and as the regenerative system starts working again, the CD4 cell count gradually increases, but it takes about 3 to 5 years to reach the CD4 cell count to 260. Since the blood, allegedly purchased from the revisionist, was transfused in July 2004, this blood could not have been the cause of causing HIV+ infection to the child and the child must have got this infection much earlier. Emphasis was laid on the contents of the F.I.R. itself that since birth, the child Vishal Sharma remained continuously ill and on earlier occasions also, blood was transfused. On the basis of scientific material, Sri Dilip Kumar vehemently argues that CD4 count could not have reached the level of 260 cells within a span of five months from the date of blood transfusion.
The next contention of learned counsel for the revisionist is that before lodging F.I.R. or before filing of the charge sheet, no medical opinion was obtained by the investigating officer from any Board of Medical Experts or from a Government Doctor. It was submitted that it was incumbent on the part of the investigating officer to seek medical opinion as to whether the death of Vishal Sharma, aged about 8 years, could be caused by contaminated blood transfusion, which was done only five months before and CD4 count was found to be 260 cells/µl. The contention is that without experts' opinion or medical opinion, the revisionist cannot be prosecuted for the offence punishable under section 304 IPC or even under section 304-A IPC.
Learned counsel for the revisionist placed reliance on a decision of the Apex Court in Jacob Mathew Vs. State of Punjab & Another (2005) 6 Supreme Court Cases 1, which laid certain guidelines which are reproduced below :
Guidelines - Re: prosecuting medical professionals
50. 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 complainants and sometimes by 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 rash or negligent act within the domain of criminal law under Section 304-A of 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 in his reputation cannot be compensated by any standards.
51. 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 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.
52. 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 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 arrested, the arrest may be withheld."
Similar view was taken by the Apex Court in a subsequent decision in Martin F D.'souza Vs. Mohd. Isfaq (2009) 3 Supreme Court Cases 1, which is reproduced below :
"117. We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer Fora (whether District, State or National) or by the Criminal Court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or Criminal Court should first refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the concerned doctor/hospital. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew's case (supra), otherwise the policemen will themselves have to face legal action."
The crux of the contention is that without obtaining a credible medical opinion from a Doctor, investigating officer was not justified in submitting the charge sheet against the revisionist and learned trial court was also not justified in framing charge under section 304 IPC without any medical opinion.
Sri Dilip Kumar further submits that when there is no prima facie evidence disclosing grave suspicion against the accused, the accused is entitled to be discharged.
Per contra, Sri Pankaj Bharti, learned counsel for the complainant submits that since at the time of admission in the 'Child Care Centre' on 10.7.2004, the percentage of Haemoglobin in the blood of child Vishal Sharma was only 4.6 and, therefore, on the advise of Dr. Girish Kumar, the complainant purchased one unit of blood from the revisionist on 12.7.2004, which was sold to him for Rs.1300/-, but no receipt was issued. The label of the blood unit was preserved by the complainant. The blood was contaminated. The child remained under treatment of Dr. Girish Kumar upto 7.12.2004 and when his condition deteriorated, he was referred to P.G.I., Chandigarh where, on investigation, he was found to be HIV +. The HIV antibody test report is annexure CA-5, which shows CD4 count to be 260 cells/µl. Thereafter, on 15.1.2005, the F.I.R. was lodged followed by search and seizure of the Blood Bank of the revisionist on 18.1.2005 and in the meantime, the revisionist had ample opportunity to manipulate the records of the Blood Bank. Due inquiries were made by the investigating officer from Dr. Sunil Arora, Associate Professor, P.G.I., Chandigarh. Annexure CA-7, which revealed that "Although HIV antibody tests are very sensitive, there is a 'window period' of 3 -12 weeks, which is the period between infection with HIV and the appearance of detectable antibodies to the virus. In the case of the most sensitive anti-HIV tests currently recommended, the window period is about 3 weeks. This period may be longer if less sensitive tests are used. In rare cases, it can take up to 6 months............"
Sri Bharti further submits that whether the unfortunate child caught HIV infection from the contaminated blood supplied by the revisionist or got it elsewhere, has to be decided by the trial court after evidence of the parties and at this stage, the Court should not interfere with the trial and the order directing framing of the charge as well as the charge under section 304 IPC should not be interfered with.
Learned A.G.A. adopted the submission advanced by learned counsel for the complainant.
For the purposes of deciding the real controversy between the parties, at this stage, it is immaterial whether one unit of blood was purchased or obtained by the complainant from the Blood Bank of the revisionist or not. It is a matter of evidence, which is not material for disposal of these revisions. The crucial point is that even if it is assumed that blood obtained from the Blood Bank of the revisionist was transfused on the child Vishal Sharma on 12.7.2004, could the same blood have caused HIV + infection in the child so that CD4 count of 260 cells/µl could have reached in December, 2004.
It has been explained in the 7th Edition of "Pathologic Basis of Disease" by Kumar-Abbas-Fausto, Chapter 6 at Page 254 (page 52 of the supplementary affidavit) that ".........Thus with either mode of entry of the HIV virus, the virus initially replicates in the lymphoid organs and then spills over into the blood. The patient now experiences the acute HIV syndrome. This phase is characterized initially by high levels of virus in plasma and an abrupt, sometimes severe, reduction in CD4+ T cells........."
"Because the loss of immune containment is associated with declining CD4+ cell counts, CDC classification of HIV infection stratifies patients into three categories on the basis of CD4+ cell counts: CD4+ greater than or equal to 500 cells/µl, 200 to 499 cells/µl, and fewer than 200 cells/µl. For clinical management, blood CD4+ counts are perhaps the strongest indicator of disease progression."
In 17th Edition of "Harrison's Principles of Internal Medicine", similar view was expressed.
On the Internet also, on the web site of National Aids Control Organization of India, the detailed information regarding HIV / AIDS is available, which has been filed by learned counsel for the revisionist as part of the supplementary affidavit (Page 75 to 81). On page 81, CD4 Cell count 200 - 500 cells/µl is described as intermediate immune deficiency and time period has been given as 2 to 3 years. According to this information, the HIV virus must have penetrated the body of the deceased about 2 years before the testing and the deceased could not have received HIV infection on 15.7.2004.
These books and other medical literatures were also produced by learned counsel for the revisionist to show that for 3 to 12 weeks of the primary infection, CD4 cell count remains normal; for a period of 1 to 2 years, it is less than 200 cells/µl. For 2 to 3 years, CD4 cell count is between 200 - 500 cells/µl and after 3 to 5 years, it may be more than 500 cells/µl. In these circumstances, it can be inferred that CD4 count of 260 cells/µl could not have reached within a span of 5 months from the date of the transfusion. This clearly shows that the child Vishal Shama must have been exposed to HIV infection much earlier. It is also on record that on earlier occasion also, blood was transfused on Vishal Sharma. He might have received HIV contamination from earlier blood transfusion also, but it is apparent that CD4 cell count prima facie establishes that HIV+ infection was caught by the child much earlier and could not have been caused by blood transfusion on 12.7.2004.
It was the duty of the investigating officer to obtain a proper medical opinion from a doctor expert in HIV+ diseases to determine as to whether a CD4 count of 260 cells/µl indicated that the HIV+ infection could have been caused by blood transfusion on 12.7.2004 or not. No such opinion was sought by the investigating officer and no such opinion was given by Dr. Arora, Associate Professor, P.G.I., Chandigarh.
As held in Jacob Jacob Mathew's case (supra), the Apex Court has clearly directed that the prosecution of professionals like doctors should not be done without obtaining prior medical opinion regarding their negligence. Unless a body of experts comes to the conclusion about the medical negligence or criminal medical negligence of a doctor, he should not or cannot be prosecuted for the same. The prosecution cannot survive simply on the basis of suspicion and presumption. For framing a charge, there must be material on record showing strong suspicion against the accused.
In the instant case, there is no material to show strong suspicion against the revisionist, but the medical literature shows that CD4 count of 260 cells/µl could not have reached within 5 months, but must have reached after a much longer period from the HIV contamination in the body. In such circumstances, the prosecution of the revisionist is neither justified nor warranted and is an abuse and misuse of process of the Court. Neither the investigating officer obtained any proper medical opinion nor the Magistrate or the learned Sessions Judge obtained any medical opinion and the order directing framing of the charge as well as rejecting the prayer for discharge has been passed simply on the basis of suspicion, which is not even a strong suspicion. To sustain a charge, there must be some basis for the same, but in the instant case, there is nothing on record to show that the unfortunate child Vishal Sharma got HIV infection from blood transfusion dated 12.7.2004.
In Dilawar Balu Kurane Vs. State of Maharashtra (2002) 2 SCC 135, the Apex Court held that "in exercise of powers under section 227 of the Code of Criminal Procedure, the Court has the power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; when the material placed before the Court discloses grave suspicion against the accused, which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial ; and by and large, if two views are equally possible and the Judge is satisfied that the evidence produced before him, while giving rise to some suspicion, but not grave suspicion against the accused, he will be fully justified to discharge the accused."
Similar views were expressed by the Apex Court in Yogesh @ Sachin Jagdish Joshi Vs. State of Maharashtra (2008) 10 SCC 394 and P Vijayan Vs. State of Kerala and another (2010) 2 SCC 398.
Learned counsel for the complainant as well as learned A.G.A. could not rebut on merits the submission of learned counsel for the revisionist that CD4 count of 260 cells/µl could not have been reached within a span of 5 months and the child got HIV+ infection much earlier.
In these circumstances, to permit the trial to continue till its logical conclusion, would not only be the harassment of the revisionist, but also wastage of time of the Court. The order directing framing of the charge as well as the charge framed under section 304 IPC cannot be sustained and are liable to be quashed.
Both the revisions are allowed.
The impugned order dated 24.10.2009 as well as charge dated 27.5.2010 under section 304 IPC framed against the revisionist Dr. Veena Agrawal are quashed and she is discharged for the offence under section 304 IPC. She has already been discharged under sections 269, 270, 337, 338 IPC by learned Addl. Sessions Judge, therefore, there is no need for her to surrender.
Dtd./- 29th July, 2011 ss