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Judgment
The applicant has filed this application under Section 482 of the CR.P.C. for quashment of criminal proceedings initiated against her for an offence under Section 304-A of the IPC which is pending as RT No.1221/2014 before the learned Judicial Magistrate First Class, Ashta District Sehore.
Brief facts of the case are that the applicant is a Gynecologist Doctor and presently posted as Medical Officer in Sultaniya Hospital, Bhopal. In order to promote and facilitate family planning at remote area/villages, the State of M.P. has launched a scheme where the District Administration organized a camp and the qualified Doctors from District Hospital or specialized centres were deputed to perform sterilization operation at place and facility provided by District Administration. On 27/11/2014 one such camp was organized at Health Center at Ashta District Sehore and the petitioner as part of her duty was instructed to supervise the said camp. The deceased Kiran Bai was kept in observation by the Health Care Centre at Ashta and the duty doctor present there after being satisfied with the recovery and success of operation has discharged her. Due to some complication attached with surgical process the condition of the patient/deceased Kiran Bai deteriorated. She approached the Health Care Centre at Ashta, where she was referred to Bhopal and the deceased died during treatment. The post-mortem was conducted and in the opinion of the Doctor, the cause of death due to Cardio Respiratory failure as a result of Perforation Peritonitis and its complications. Thereafter without conducting any investigation with respect to the negligence of the petitioner and in gross violation to the circular of State Government issued on 11/11/2011, FIR was registered against the petitioner under Section 304-A of the IPC and investigation was started. Thereafter, charge sheet was filed before the Court under Section 304-A of the IPC. Petitioner has raised an objection before the trial Court regarding the maintainability of the case on the ground that the petitioner is a government servant and, therefore, she cannot be prosecuted without prior sanctioned under Section 197 of the Cr.P.C. The said objection was dismissed vide order dated 03/03/2017. Being aggrieved by that order, the petitioner has filed the present petition.
Learned counsel appearing on behalf of the petitioner argues that the petitioner is a Doctor by profession and, therefore, she is protected by guidelines issued by the Hon'ble Apex Court in the case of Jacob Methew vs. State of Punjab, 2005 (6) SCC 1. He further submits that the petitioner is a government servant and she was on duty at the time of incident and, therefore, she cannot be prosecuted without taking prior sanctioned under Section 197 of the Cr.P.C. The State Government has issued the guidelines where it has been stated that investigating officer or Station In-charge of Police Station will not register an FIR without taking an expert opinion with respect to negligence of the Doctor. These guidelines were issued in compliance of the directions issued by the Hon'ble Apex Court in the case of Jacob Methew (supra) and, therefore, the same are binding on the Investigating Officer as well as the trial Court.
For the said purpose, learned counsel for the applicant relied on a judgement passed by the Apex Court in the case of Manorama Tiwari vs. Surendra Nath Rai, 2016(1) SCC 594 as well as the judgement passed by this Court in M.Cr.C. No.10383/2013 ( Dr. Neha Chaurasia
vs. State of MP, 2016 SCC Online MP 4127.
Heard learned counsel for the parties and perused the record. From perusal of the record it reveals that the applicant has filed the present application under Section 482 of the Cr.P.C. for quashment of criminal proceedings initiated against him. The petitioner is Doctor by profession and for the purpose of facilitate family planning at remote area/villages, the State of M.P. has launched a scheme for which District Administration organized a camp and qualified Doctors from District Hospital or Specialized Centers were deputed to perform sterilization operation at place and facility provided by District Administration. On 27/11/2014 one such camp was organized at Health Center at Ashta District Sehore and the petitioner as part of her duty was instructed to supervise the said camp. In the said camp, one Kiran Bai was admitted and after success of operation, she has been discharged. However, due to some complication attached with surgical process the condition of the patient/deceased Kiran Bai deteriorated and ultimately she died during her treatment at Bhopal. Thereafter, the post-mortem was conducted and a case was registered against the petitioner under Section 304-A of the IPC. It is not disputed that the petitioner is a public servant at the time of incident and she was discharging her duty, therefore, the petitioner cannot be prosecuted without prior sanctioned under Section 197 of the Cr.P.C. The Hon'ble Apex Court in the case of Manorama Tiwari (supra) in para 12 has held as under :-
"12. In view of the above-settled position of law, we are of the opinion that in the present case, the High Court has erred in law in dismissing the criminal revision filed by the appellants and affirming the order of the Magistrate rejecting their application as to maintainability of the criminal complaint without sanction from the State Government. In our opinion, it is a clear case where the appellants were discharging their public duties, as they were performing surgery on the patient in the Government Hospital. It is not disputed that the appellants were the medical officers in the Government Hospital. As such, the criminal prosecution of the appellants initiated by the respondent (complainant) is not maintainable without the sanction from
the State Government. That being so, we are inclined to allow this appeal."
In light of the judgement passed by the Hon'ble Apex Court in the case of Jacob Methew (supra), the State Government has issued a circular dated 11/11/2011 laid down the guidelines for lodging the FIR against the Doctor. As per the said guidelines, before registering the FIR against the Doctor, an opinion from the expert or committee is required to be obtained. However, in the present case, no such opinion from the expert or a committee has been taken by the State Government before registering the FIR against the applicant.
In the case of Dr. Neha Chaursai (supra), this Court in para 10 has held as under :-
"10. The law relating to the prosecution of doctors for medical negligence amounting to an offence u/s. 304-A has been well settled. There was however some confusion for a short while as to whether there was any distinction in the standards and procedure between the prosecution of a doctor for an offence u/s. 304-A IPC and a civil action for compensation before a Court of Competent Jurisdiction. In Jacob Mathew v. State of Punjab -(2006) 6 SCC 1, a three judge bench of the Supreme Court had laid down in paragraph 52, that before a criminal court takes cognizance or the police proceeds against a doctor for an offence u/s. 304-A, both shall secure a report from an independent doctor or a board of doctors, preferably practising in the same filed as the doctor sought to be proceeded against, who opines that the doctor to be prosecuted, acted in "gross negligence" to the known standards of the medical profession. However, in Martin F. D'Souza v. Mohd. Ishfaq - (2009) 3 SCC 1, one of the Ld. Judges in a two Judge Bench of the Supreme Court, extended the requirement of an opinion by an independent doctor or a medical board as a condition precedent, even to proceed against a doctor for medical negligence under the consumer/civil law, by relying upon judgement of the Supreme Court in Jacob Mathew's case, supra. The opinion of the justice Markandey Katju in Martin D'Souza supra was held to be per incuriam by the Supreme Court in V. Krishna Rao v. Nikhil Super Speciality Hospital (2010) 5 SCC 510, to the extent that the same extended the protection of an opinion of a doctor or a medical board as a precondition to initiating proceedings for negligence against a doctor before the Consumer Forum. It held that the law laid down in Jacob Mathew providing for an opinion/report of another doctor or a medical board as a condition precedent, was only restricted to prosecution of doctors under the criminal law for an offence u/s. 304-A.
Thus, by applying the law laid down by the Supreme Court in the case of Jacob Methew's (supra) the proceedings against the petitioner herein is clearly in breach of law and thus an abuse of the process. The FIR against the petitioner was registered even before the report of the Medical Board was available or even called for by the Police.
It is undisputed fact in the present case that the petitioner is a public servant thereby necessitating the requirement of a sanction under Section 197 of the Cr.P.C.
Thus, in light of the aforesaid, the present application is allowed and the criminal proceedings which are pending against the petitioner as RT No.1221/2014 before the Court of Judicial Magistrate First Class, Ashta, District Sehore is hereby quashed.