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Judgment
Anil Kumar Choudhary, J
Heard the parties.
This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 528 of B.N.S.S., 2023 with the prayer to quash the entire criminal proceeding in connection with Complaint Case No. 312 of 2024 including the order dated 26.09.2024 passed by the learned Judicial Magistrate 1st Class, Jamshedpur whereby and where under, the learned Judicial Magistrate 1st Class, Jamshedpur has found prima facie case for the offences punishable under Sections 304A, 338, 420 and 468 of the Indian Penal Code against the petitioners.
Learned Senior Advocate appearing for the petitioners submits that charge has not yet been framed in this case and the trial is yet to begin.
The allegation against the petitioners is that the petitioners nos.1 and 2 are the doctors of Tata Motors Hospital in which hospital the complainant was entitled for free medical treatment. The complainant took his wife namely Babita Rai and got her admitted in the said hospital. The petitioner no.2 on 08.10.2023 checked up Babita Rai. The surgical procedure was fixed to 09.10.2023. Though the complainant was called to remain present at 07:00 am on 09.10.2023 but till 10:00 am the petitioner no.2 did not turn up in the said hospital. The petitioner no.1 asked the complainant about the medical book. The complainant went to his house and searched for the medical book but when he came back, the complainant came to know that medical book has been traced out and the surgical procedure has started. The surgical procedure was conducted by the petitioner no.1 in presence of the petitioner nos.3 and 4 and in the absence of petitioner no.2. The surgical procedure remained unsuccessful and the patient was brought out from operation theater at 03:30 pm. At 08:00 pm, the patient complained of bloating in her abdomen and when informed, the doctor told that the same is normal. On 10.10.2023 the patient was given khichri and, in the evening, there was vomiting but no doctor was available in the ward. On 11.10.2023 the patient complained of severe stomach ache, injection was administered to her and she slept. In the evening of 11.10.2023, the patient again complained of stomach ache and she was restless. The complainant intimated the same to the petitioner no.1 but the petitioner no.1 told that the same is normal. On 12.10.2023 a call was received by the complainant for another surgical procedure of the patient and the petitioner no.1 informed the complainant that during the first surgery there was a hole in the intestine hence, the second surgical procedure is being done to repair the same. The second operation was conducted by the petitioner nos.1 and 2 along with other doctors hurriedly but the patient did not regain sense. She was put on ventilator. The complainant intended to take the patient outside for better treatment but the hospital management did not make available the documents nor could give medical advice for the same. On 13.10.2023 the petitioner no.2 declared that Babita Rai has died because of multiple organ failure and heart attack. The complainant claimed that there was a violation of the consent and junior doctor conducted the surgical procedure in the absence of the senior doctor. On 10.10.2023 neither the petitioner no.1 nor the petitioner no.2 checked up the patient nor administered her any medicine. The document has been tampered and a bill of Rs.2,00,000/- was raised. To the question from the Court in paragraph no.7 of the statement on solemn affirmation, the complainant has intimated that in the consent form both the name of the petitioner nos.1 and 2 were there. No doctor given him in writing that the petitioner no.1 conducted a wrong surgical procedure and prior to this surgical procedure also, the wife of the complainant was treated in OPD. No doctor has given in writing to the complainant that the death of Babita Rai took place because of negligence of the petitioner nos.1 and 2.
On the basis of the complaint, statement of the complainant on solemn affirmation and the statement of the inquiry witnesses, the learned Judicial Magistrate 1st Class, Jamshedpur has found prima facie case of the offences as already indicated above.
It is submitted by the learned Senior Advocate appearing for the petitioners that the petitioner no.1 is a qualified doctor having qualification of MBBS, Post Graduation in Obstetrics and Gynaecology (DNB) National Board of Examinations, Ministry of Health, Govt. of India qualification, petitioner no.2 is also a qualified doctor having MBBS degree and MD (Obstetrics and Gynaecology), the petitioner no.3 is also a qualified doctor having a MBBS degree and MS (Obstetrics and Gynaecology) and the petitioner no.4 is a qualified doctor having a MBBS degree. It is next submitted by the learned Senior Advocate appearing for the petitioners that the deceased wife of the complainant was suffering from gynaecological problem and was consulting the petitioner no.1 since February, 2023. The surgical procedure of Laparoscopic Hysterectomy and Bilateral Salpingio-Oophorectomy (TLH-BSO) was conducted successfully on 09.10.2023. The patient was shifted to High Dependency Ward for further monitoring and she was stable on 10.10.2023 and 11.10.2023 however at around 08:30 pm the patient complained about abdominal pain and her vitals were found to be deranged and she was shifted to ICU. It is further submitted by the learned Senior Advocate appearing for the petitioners that the consent of the complainant was taken after informing about the medical condition of the patient for her exploratory laparotomy however, despite best efforts, the patient could not survive. It is next submitted by the learned Senior Advocate appearing for the petitioners that it is out and out false to say that the petitioner no.1 did not possess requisite qualification nor there is any rash and negligence action on behalf of any of the petitioners. It is then submitted by the learned Senior Advocate appearing for the petitioners that the allegations against the petitioners are all false and the Civil Surgeon, Jamshedpur constituted an expert enquiry committee to examine the complaint of the complainant and in the examination, the said committee consisting of five specialist doctors, has opined that this is not a case of extreme negligence. Relying upon the judgment of the Hon’ble Supreme Court of India in the case of Jacob Mathew vs. State of Punjab & Anr. reported in (2005) 6 SCC 1, it is submitted by the learned Senior Advocate appearing for the petitioners that in paragraph no.48, the Hon’ble Supreme Court of India has summed up the conclusions and paragraph nos.48(2), 48(3), 48(5) and 48(6) are relevant for the purpose of this case. It is further submitted by the learned Senior Advocate appearing for the petitioners that there is no allegation of any negligence amounting to an offence for prosecution under criminal law. It is next submitted by the learned Senior Advocate appearing for the petitioners that this is a case where the provision of Sections 88 and 92 of the Indian Penal Code can be pressed into service, which envisages that nothing is an offence which is not intended to cause death, if done in good faith, therefore, the exception casted by Section 88 of the Indian Penal Code saves the act of the petitioners as the medical treatment done by the petitioners was done in good faith and was not at all intended to cause death. It is also submitted by the learned Senior Advocate appearing for the petitioners that by no stretch of imagination, the offence punishable under Section 420 of the Indian Penal Code is made out from the allegation made in the FIR. It is then submitted by the learned Senior Advocate appearing for the petitioners that in the absence of any allegation of creation of any false document against any of the petitioners, the offence punishable under Section 468 of the Indian Penal Code is not made out. It is further submitted by the learned Senior Advocate appearing for the petitioners that in the absence of any allegation that the petitioners did anything rashly or negligently to endanger human life or caused any grievous hurt to any person or has caused anything to endanger the person safety and others, the offence punishable under Section 338 of the Indian Penal Code is not made out either. It is further submitted that the hospital being a multispecialty hospital has several doctors in a particular department, so the consent form is obtained in the name of a number of doctors and depending upon the availability of the concerned doctor at the time of surgical procedure, the names of the other doctors are score cut, but the same by no stretch of imagination can be said to be an interpolation. Hence, it is submitted that the prayer as made in this criminal miscellaneous petition be allowed.
The learned Addl. P.P. and the learned counsel for the opposite party no.2 on the other hand vehemently oppose the prayer and submits that though in the consent form the name of doctor Somanth Ghosh was also there to be the doctor in respect of whom consent was given but the same later on stroke out. It is further submitted by the learned Addl. P.P. and the learned counsel for the opposite party no.2 that the petitioner no.1 never produced the requisite document of her qualification. It is next submitted by the learned Addl. P.P. and the learned counsel for the opposite party no.2 that the medical board constituted three specialist doctor whose recommendation is there in page no.55 of Annexure-E which goes to show that there is no registration of the DNB of the petitioner no.1 though the certificate is available hence, on the basis of the recommendation of the three member board, an expert enquiry committee was constituted but the expert enquiry committee has arrived at the conclusion that this is not a case of extreme negligence and also observed that one of the apparent complication of laparoscopic surgery is sigmoid perforation and such perforation may take place during the surgery or after that. Hence, it is submitted that as the materials in the record is sufficient to constitute each of the offences for which the learned Judicial Magistrate 1st Class, Jamshedpur has found prima facie case, therefore, this criminal miscellaneous petition being without any merit be dismissed.
Having heard the submissions made at the Bar and after going through the materials available in the record, it is pertinent to mention here that as has been concluded by the Hon’ble Supreme Court of India in the case of Jacob Mathew vs. State of Punjab & Anr. (supra), paragraph nos.48(2), 48(3), 48(5) and 48(6) of which reads as under:-
“Conclusions summed up
We sum up our conclusions as under:”
(1). Xxxxx
(2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.
(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
(4). Xxxxx
(5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.
(6) The word “gross” has not been used in Section 304-A IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be “gross”. The expression “rash or negligent act” as occurring in Section 304-A IPC has to be read as qualified by the word “grossly”.
that negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.
Now coming to the facts of the case, the undisputed fact remains that a five member of expert enquiry committee has given a clean chit to all the petitioners by holding that this is not a case of extreme negligence.
In view of such undisputed report which form part of the counter affidavit filed by the opposite party no.2-complainant as Annexure-C at page no.43 to 46 of the brief and in the absence of any material in the record to show any rash and negligent action on the part of the petitioners, this Court is of the considered view that this is not a case where the offence punishable under Section 304A of the Indian Penal Code is made out against any of the petitioners; even if the entire allegations made against them are considered to be true.
So far as the offence punishable under Section 420 of the Indian Penal Code is concerned, the essential ingredients to constitute the said offences are :-
(i) Deceit, that is to say dishonest or fraudulent misrepresentation, and
(ii) Inducing the person deceived to part with any property
as has been reiterated by the Hon’ble Supreme Court of India in the case of Ram Narayan Popli vs. Central Bureau of Investigation reported in (2003) 3 SCC 641
Now coming to the facts of the case, there is no allegation of any dishonest or fraudulent misrepresentation nor there is allegation against any person deceived being induced to part with the property.
Under such circumstances, this Court is of the considered view that even if the entire allegations made against the petitioners are considered to be true, in their entirety, still, the offence punishable under Section 420 of the Indian Penal Code is not made out.
So far as the offence punishable under Section 338 of the Indian Penal Code is concerned, the essential ingredients to constitute the said offence are :-
(1) Accused did some act;
(2) He did it rashly or negligently;
(3) The act was such as to endanger human life or personal safety of others;
(4) Grievous hurt was caused in consequence of such act.
Now coming to the facts of the case, there is neither any allegation of any grievous hurt or caused in consequence of any act of rash and negligence of the petitioners nor there is any allegation that any rash and negligent act of the petitioners was such as to endanger human life or personal safety of others and in the absence of the same, this Court has no hesitation in holding that even if the entire allegations made against the petitioners are considered to be true, in their entirety, still, the offence punishable under Section 338 of the Indian Penal Code is not made out.
So far as the offence punishable under Section 468 of the Indian Penal Code is concerned, the essential ingredient to constitute the said offence are:-
(1) The accused prepared false document or electronic record;
(2) The accused did it with false meaning of written instrument for the purpose of fraud or deceit;
(3) The document or electronic record was prepared dishonestly or fraudulently;
(4) He did it with the intention of causing wrongful gain to someone and wrongful loss to another; and
(5) He did so for the purpose of cheating.
Now coming to the facts of the case, there is no allegation of any forgery that is creation of any false document and striking out of a name of a doctor from the consent form by a multi specialist hospital which has several doctors in one department, as per the availability of the doctor, cannot be termed as creation of a false document. If the complainant was so choosy about a particular doctor, the complainant ought not have signed the consent form containing the names of several doctors but the complainant in paragraph no.7 of his statement on solemn affirmation has made a categorical admission that the consent form bore the names of both the petitioner no.1 and the petitioner no.2 so the complainant having accorded his consent for the surgical procedure to be conducted either by the petitioner no.1 or by petitioner no.2 and the petitioner no.1 admittedly having conducted the surgical procedure on 09.10.2023, in the considered view of this Court even if the entire allegations made against the petitioners are considered to be true, in their entirety, still, the offence punishable under Section 468 of the Indian Penal Code is not made out.
In view of the discussions made above, as none of the offences in respect of which the learned Judicial Magistrate 1st Class, Jamshedpur has found prima facie case is made out against the petitioners, in the considered opinion of this court, continuation of the criminal proceeding against the petitioners will amount to abuse of process of law and this is a fit case where the entire criminal proceeding in connection with Complaint Case No. 312 of 2024 including the order dated 26.09.2024 passed by the learned Judicial Magistrate 1st Class, Jamshedpur be quashed and set aside qua the petitioners.
Accordingly, the entire criminal proceeding in connection with Complaint Case No. 312 of 2024 including the order dated 26.09.2024 passed by the learned Judicial Magistrate 1st Class, Jamshedpur is quashed and set aside qua the petitioners.
In the result, this criminal miscellaneous petition is allowed.
The interim relief granted earlier vide order dated 17.03.2025 is vacated.
Registry is directed to intimate the court concerned forthwith.