1) By this application under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”), the applicant-original accused has challenged the order dated 13th October 1999 passed by the learned Judicial Magistrate First Class, Deesa, in M. Case No.6 of 1998, whereby he has issued process against the applicant for the offence punishable under sections 304A and 114 of the Indian Penal Code and seeks quashing of the said order as well as the complaint registered as Criminal Inquiry No.34 of 1998, pending in the court of the learned Judicial Magistrate First Class, Deesa qua the present applicant.
2) The respondent No.2-complainant lodged the above referred complaint in the court of the learned Judicial Magistrate First Class, Deesa being Criminal Inquiry No.34 of 1998 alleging commission of the offence under section 304 IPC against the applicant herein and other co-accused. The allegations made by the complainant were to the effect that his mother Gangaben was suffering from severe pain in the stomach. Hence, she was taken for treatment to Dr. Narendrabhai Vyas at Deesa, who after examining her, had informed that she had a tumor in the stomach and that if treatment is continued, she would recover. Thereafter, they had continued to give treatment as per the diagnosis of Dr. Narendrabhai Vyas. However, there was no relief and the pain continued. Hence, they had again gone to Dr. Narendrabhai, however he was not available. They had, therefore, gone to Dr. Heminbhai M. Shroff, that is, the applicant herein at Geeta General Surgical Hospital, wherein he had examined their mother on 20.2.1998 and admitted her in the hospital. As per the say of Dr. Heminbhai Shroff, they had got various reports of Gangaben and the doctor had informed them that Gangaben had an ordinary tumor in the uterus due to which was the cause of the pain and had further informed them that once she is operated, she would be cured. Accordingly, keeping trust in the said doctor, they had continued treatment at his hospital. Thereafter, Dr. Hemin Shroff and a doctor who had come from Ahmedabad had together performed undertaken surgery of the tumor his mother’s stomach. However, prior to performing the operation, neither was anything explained to them nor was their consent. Subsequently, they were informed that to pay Rs.10,000/-; and again on 3.3.1998, when their mother was discharged from the hospital, the doctor had asked them to pay Rs.6,000/- in respect of which receipt had been issued. However, no receipt had been issued in respect of the Rs.10,000/- which they had paid earlier. The doctor had also not informed them as to why such a huge amount was being taken and had threatened them that if the money is not paid, they would not be permitted to take Gangaben with them Hence, they had no option but to pay the amount.
3) It was further the case of the complainant that they were giving the medicine to the mother at their village Peplu as prescribed by Dr. Hemin Shroff and had continued with the treatment. However, after a few days their mother started suffering from severe stomach ache and stopped passing urine and stool. Hence, they had taken her to Dr. Shroff's hospital, where he had examined her after which she had passed urine and stool and was discharged and taken home.
4) Subsequently, after a few days, again their mother stopped passing urine and stool. Hence, they had taken her to Dr. Shroff's hospital at Deesa, where again she was treated, where after she passed urine and stool. When he along with his relatives insisted on asking the doctor as to what exactly was the ailment that Gangaben was suffering from, the applicant herein had informed that she had a malignant tumor and that the same had been removed by performing the operation. He had further said that despite the aforesaid, since she was suffering from pain, he was writing a note which they should take with them to Ahmedabad to the Cancer Hospital, where Gangaben would be required to take fomentation treatment at the said hospital, at the spot where she was operated. That since they wanted to save their mother's life, they had immediately gone to Ahmedabad and had met the person referred to by Dr. Shroff, who had also earlier performed the operation. But upon reading the chit, he suddenly looked worried and informed them that he would come in a little while, however, he did not come back. Thereafter on the next day, they had again gone to him and after taking a note from him, admitted their mother at the Cancer Hospital, where the cancer doctor had told them that the doctor who had performed the operation had committed a wrong as, without understanding and without having the necessary equipment surgery cannot be done. That once again blood, urine etc. reports will be required to be obtained, further investigation will be required to be done and surgery would be required to be done. According to the cancer doctor, the doctor at Deesa had complicated the case. Thereafter, they had continued their mother's treatment at the Cancer Hospital at Ahmedabad. However, on 7.4.1998 their mother Gangaben died because of lack of immediate treatment. It was further the case of the complainant that on account of the obsequial ceremonies which were required to be carried out on account of the death of his mother, he could not immediately lodge the complaint. That, thereafter, they had visited the applicant and asked for the necessary case papers, whereupon he had behaved badly with them and asked them as to why they were taking trouble because their mother was even otherwise going to die because of cancer. After great difficulty, some papers were given to them and they were abused and driven out. Thereafter, they had gone to lodge the complaint with the police, however, the persons of doctor had also followed them hence, they apprehended that the police would not take their complaint. Subsequently, they had lodged the complaint before that court alleging commission of the offence punishable under section 304 of the Indian Penal Code.
5) Pursuant to the lodging of the aforesaid complaint, the learned Judicial Magistrate First Class, Deesa, by an order dated 21.4.1998, directed investigation to be carried out by the concerned police station under section 156(3) of the Act. The Investigating Officer, upon completion of the investigation, filed a “B” summary report on 14.7.1998. The learned Magistrate, upon taking into consideration the police report as well as the supporting documents, granted the “B” summary application qua two of the accused, that is, Jeetubhai M. Shroff and Dr. Patel, who was the anesthetist. However, the learned Magistrate directed issuance of process under sections 304A and 114 IPC against the applicant and Dr. Dhirubhai Anandgiri Gosai, namely, the cancer specialist, who had performed the operation along with the applicant herein. Being aggrieved, the applicant has filed the present application seeking quashing of the above referred complaint and the process issued thereon.
6) Mr. Mehul Rathod, learned advocate appearing on behalf of the applicant submitted that the findings recorded by the learned Magistrate while rejecting the “B” summary report are without any basis. It was submitted that the applicant herein has the qualification of Master of Surgery and was fully qualified to perform the operation in question. It was submitted that the operation that was performed, was Exploratory Leparotomy (viz. removal of obstruction from the intestine) and that the hospital was fully equipped to carry out such an operation. It was submitted that the mother of the complainant was suffering from cancer and that the treatment adopted by the applicant herein was the only possible treatment in such cases. It was submitted that after the treatment, the patient was relieved from pain and in such cases, considering the volume of gas, the only possibility was to carry out such operation to give relief qua the pain. Under the circumstances, there was no question of adopting any other course of treatment. It was submitted that the deceased Gangaben was suffering from severe stomach pain and could not pass stool and urine and, therefore, she was required to be given immediate treatment, failing which she would not survive. Hence, in the light of the emergent situation, the operation was carried out to give immediate relief to Gangaben. It was submitted that the clinical diagnosis made by the applicant was confirmed by the biopsy report and that there is no negligence on the part of the applicant. It was submitted that Gangaben was suffering from Leiomyosarcoma of uterus viz. cancer of uterus, and, as such, there was no negligence on the part of the applicant inasmuch as considering the nature of the disease with which Gangaben was suffering from, viz., cancer Grade II, she was already at an advanced stage and, as such, it cannot be said that there was any negligence on the part of the applicant herein. The attention of the court was invited to the decision of the Supreme Court in the case of Jacob Mathew Vs. State of Punjab & Ors, (2005) 6 SCC 1, wherein it has been held that 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. It was submitted that in the facts of the present case, no such opinion of another competent doctor had been given by the complainant and, as such, the learned Judicial Magistrate was not justified in entertaining the complaint. Attention was also invited to the various principles laid down by the Supreme Court in the aforesaid decision, wherein it has, inter alia, been held that indiscriminate prosecution of medical professionals for criminal negligence is counter- productive and does no service or good to society. A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. 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 so or failed to do so. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent. Adverting to the facts of the present case, it was submitted that as per the clinical diagnosis made by the applicant Gangaben was suffering from a malignant tumor. It was submitted that the complainant was advised to take her to Ahmedabad for treatment at the Civil Hospital; however, it was the complainant who had insisted on his mother being treated at the applicant's hospital. Thereafter, the operation was performed by a fully qualified Oncologist, who was duly qualified to carry out operations of such nature and that the applicant herein had only assisted the oncologist and that the necessary equipment for carrying out such operation was available in the hospital of the applicant. It was urged that in case where a patient is suffering from cancer, radiation and chemotherapy are normally given at different hospitals which have the necessary facilities not at the hospital where the operation is performed. Accordingly, the complainant was informed to take his mother for radiation etc., to the Civil Hospital at Ahmedabad. However, he had failed to do so. Under the circumstances, the applicant cannot be held liable for any offence under section 304(A) of the Indian Penal Code. Reliance was also placed upon the decision of the Supreme Court in the case of Dr. Suresh Gupta Vs. Government of NTC of Delhi & Anr., (2004) 6 SCC 422, as well as an unreported decision of this court in the case of State of Gujarat Vs. Dr. Divyakant D. Nanavati & Ors., rendered on 15.11.2006 in Special Criminal Application No.259 of 2006, wherein the court after, by placing reliance upon the above referred two decisions of the Supreme Court, had held that no negligence could be attributed to the respondents- doctors and had dismissed the petition against the order passed by the Sessions Court discharging the respondents therein. It was submitted that the reasoning given by the learned Magistrate while issuing process is without any basis or evidence on record and that even a fully qualified surgeon cannot come to such a conclusion without supportive evidence. Under the circumstances, the applicant cannot be held to be criminally liable and that the complaint, as well as, the process issued against the applicant herein, is required to be quashed in the interest of justice.
7) On the other hand, Mr. R. J. Goswami, learned advocate for the respondent No.2 invited the attention of the court to the decision of the Supreme Court in the case of Jacob Mathew Vs. State of Punjab & Ors (Supra) and more particularly to paragraph 52 thereof wherein the court while laying down that 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, has further held that 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. It was submitted that when the learned Magistrate had directed investigation under section 156(3) of the Code, it was the duty of the investigating officer to obtain the opinion of a competent medical officer, which he had failed to do so. Under the circumstances, if at all the court is inclined to entertain the application, it may direct further investigation by the investigating officer to the effect that he should obtain an opinion of a doctor in government service, qualified in that branch of medical practice for his opinion.
8) This court has perused the allegations made in the complaint and has considered the rival submissions advanced by the learned advocates for the respective parties as well as the decisions cited at the bar. On a plain reading of the allegations made in the complaint, it appears that the basis for making the allegations against the applicant and other accused, is the opinion of the cancer specialist at the cancer hospital, who, according to the complainant had informed him that the doctor who had carried out the operation had performed the same without properly understanding the subject and without having the necessary equipments.
9) A perusal of the “B” summary report submitted by the investigating officer shows that the investigating officer while carrying out the investigation, has recorded statements of the complainant, his relatives, the applicant herein, the accused No.4-Dr. Dhirubhai Anandgiri Gosai, Dr. Guruprasad Singh, namely, the doctor who had prepared the Sonography report as well as Dr. Narendrabhai who had initially treated Gangaben, before she was brought to the hospital of the applicant. Apart from the aforesaid statements, it does not appear as if the Investigating Officer has recorded the statement of the concerned doctor at the civil hospital, who, according to the complainant, had told them that the operation was carried out in a negligent manner, nor has he obtained any independent and competent medical opinion from a doctor in government service, qualified in that branch of medical practice.
10) As can be seen from the impugned order passed by the learned Judicial Magistrate, the learned Magistrate, upon studying the investigation papers, has observed that the operation was carried out on an assumption that there was a chance of the tumor being malignant; however, it had not been ascertained as to whether the tumor was cancerous. The applicant herein was not a cancer surgeon. Under the circumstances, it cannot be believed that his hospital was fully equipped with all the necessary facilities for conducting an operation of this nature. From the statement of Dr. Dhirubhai, the tumor had spread up to the navel and that the same was emerging from the uterus. The learned Magistrate was of the opinion that, it was clear that the origin of the tumor was from the uterus. Looking at the Cancer Research Institute report dated 31.3.1998, wherein it was indicated that the operation was performed in respect of pelvic mass, the learned Magistrate was of the opinion that though the tumor was originating from the uterus, the operation of the uterus had not been performed. Hence, that the doctor by taking due care and caution, were required to remove the entire uterus, which was not done. Thus, the origin of the tumor had still remained. The learned Magistrate, upon perusal of the report of the cancer hospital, has, accordingly, recorded aforesaid conclusion.
11) On a perusal of the papers, on which reliance has been placed by the learned Magistrate, this court is of the opinion that there is no basis for the formation of the said opinion by the learned Magistrate. The learned Magistrate is not a medical expert who is qualified to give such an opinion, that too, without any opinion of a competent medical officer in this regard. Under the circumstances, the conclusion drawn by the learned Magistrate is without any basis and is merely based upon presumptions. The impugned order passed by the learned Magistrate, therefore, cannot be sustained.
12) However, at the same time, as rightly pointed out by the learned advocate for the respondent No.2- complainant as laid down by the Supreme Court in the case of Jacob Mathew Vs. State of Punjab & Ors(supra), the Investigating Officer should before proceeding against the doctor accused of rash and negligent act or omission while carrying out the investigation, was required to 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. Under the circumstances, the interests of justice would be met, if after setting aside the impugned order passed by the learned Magistrate, further directions are given to the Investigating Officer to carry out further investigation in the matter under section 173(8) of the Code and to obtain an independent and competent medical opinion preferably from a doctor in government service, qualified in that branch of medical practice. It would be appropriate if an opinion from a doctor in a Government Hospital at Ahmedabad is obtained. However, merely because the Investigating Officer is directed to carry out further investigation does not mean that the applicant should again face the threat of arrest. As held by the Supreme Court in the case of Jacob Mathew (supra) 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. In the facts of the present case, for the purpose of obtaining the opinion of a qualified doctor, preferably working in a Government hospital, there would be no necessity to arrest the applicant. The Investigating Officer while carrying out further investigation shall keep the aforesaid observations in mind and shall not subject the applicant to any coercive action.
13) In the light of the aforesaid discussion, the application partly succeeds and, is accordingly allowed to the following extent. The impugned order dated 13.10.1999 passed by the learned Judicial Magistrate First Class, Deesa, below Exh.1, in M. Case No.6 of 1998, is hereby quashed and set aside to the extent the same directs issuance of process under section 304A and 114 IPC against the applicant and the accused No.4-Dr. Dhirubhai Anandgiri Gosai. However, it is directed that the Investigating Officer shall carry out further investigation under section 173(8) of the Code and obtain an independent and competent medical opinion as observed hereinabove and, thereafter, submit a fresh report before the learned Judicial Magistrate, who shall consider the same in accordance with law. While carrying out further investigation, the Investigating Officer shall not arrest the applicant herein and the other co-accused in connection with the further investigation. Rule is made absolute accordingly to the aforesaid extent.
(HARSHA DEVANI, J.)
Vahid