Samran Singh vs State of Haryana

R.L. Anand, J.

This is a criminal revision filed by Samran Singh and his wife Doctor Manvinder Kaur and it has been directed against the order dated 20.11.1996 passed by the Additional Sessions Judge, Sirsa who framed charges against the petitioners under sections 304 Part II, 315, 468 465, 471, 201 and 120B of the Indian Penal Code.

The brief facts of the case are that Smt. Parveen daughter of Raunak Ram was married to Parmod Grover resident of Adampur. Out of the wedlock two issues were born first in the year 1987 and the second in 1990. Smt. Parveen Grover conceived for the third time and due date for the delivery as per the doctor was April, 1994. Parveen Grover had undergone antenatal check up at C.M.C. Hospital, Hisar and thereafter she got herself checked up from Dr. Manvinder Kaur in Gulati Nursing Home, Dabwali. As per both the checkups, deceased Parveen Grover was expected to have a normal delivery without any problem. On 24.4.1994 at about 7.30 A.M. she felt normal labour pains and was taken to Gulati Nursing Home at about 8.00 A.M. where she was admitted at 8.30 A.M. as per the bedhead ticket and on examination P/V Cervix was found dilated admitting two fingers and membranes were bulging out. Foetal heart sound was also found to be positive. On examination P/V at 9.30 A.M. cervix was found dilated admitting three fingers. At 10.00 A.M. Lady Doctor checked up Parveen Grover and assured her of normal delivery. However, at about 11.30 A.M. child passed meconium, therefore, the Lady Doctor Manvinder Kaur informed the relations of Parveen Grover that passing of meconium indicated foetal distress and suggested for immediate surgical operation. As per allegations of the complainant and the complaint, the relatives had wished to take the lady to Bathinda in case the delivery was not normal but the lady doctor stated that if Parveen Grover was removed to Bathinda there was danger to her life. She obtained consent of Banwari Lal the brother of Parveen Grover for the caesarean operation and asked them to arrange for one unit of blood which was arranged by the relatives of the deceased.

As per the record, the patient was given spinal anaesthesia by Doctor S.S. Gulati and Smt. Parveen immediately went into shock alongwith large vomitting. Her blood pressure at that time was very low and had dropped to 60 mm of Hg. at 12.35 hours and even after treatment it remained 60 mm of Hg. The doctors gave 1.3 cc of xylocaine injection. She was given various other transfusions and injections mentioned in the bed head ticket and the patient was taken out of the operation theatre and shifted to Room No. 7. Thereafter private practitioners expert in medicines and surgery were called. At 3.00 A.M. the doctor couple advised the relatives that the patient be shifted to Bathinda. The attendants arranged for the ambulance. However, while she was being shifted, the patient collapsed and died at about 3.30 P.M. After the death, the deadbody was handed over to the relatives and post mortem was not got conducted by the doctor couple nor the police authorities were informed about the death of Parveen Grover.

The fatherinlaw Piara Lal Grover of the deceased submitted an application before the Police against the doctor couple with regard to the wrong treatment, mismanagement, negligence and incompetency and thereby requested to register a case under sections 304, 316, 384, 465, 468 and 120B of the Indian Penal Code. On the said application, D.I.G. Hisar Range directed the Superintendent of Police, Sirsa to register a case and to investigate the same. Meanwhile, a direction was also issued to Director, Health Services for appointment of the Experts for opinion. Accordingly, F.I.R. No. 152 dated 31.5.1994 under Sections 304, 316, 384, 465, 468 and 120B of the Indian Penal Code came into existence. The Board of Doctors submitted their report on 26.6.1994. The Doctors observed in their report that the patient died of massive and intense irreversible shock which could be probably because of xylocaine hypersensitivity or because of spinal shock in which the xylocaine effect went a little higher on segments of the spinal cord paralysing the autonomic flow to the chest and heart and decreasing the vosomotor tone of blood vasculature. According to the Board of Doctors the efforts undertaken by the petitioner appeared to be fairly genuine and adequate. However, it is not out of place to mention that simple urine examination B.T., C.T. and xylocaine sensitivity test were not undertaken in the present case. So far as the record keeping was concerned, in view of the extreme busy time because of the heavy rush of the patients, it was considered just sufficient by the Board of Doctors. The case of the prosecution further is that a request was made by the husband of the deceased to Dr. Heeresh Chandra of Bhopal who gave his report on 23.8.1994 and the final report of the Doctor Heeresh Chandra who had the qualifications of M.D. (For. Med.) M.S. (Anat.) LL.B.F.A.M.S., F.A.F. Med Director (Retd.) gave the following opinion :

"By virtue of long standing in the subject, experience, knowledge and expertise in the medicolegal field and on the because of documents (photo copies) supplied enumerated in this report, facts drawn from these, analysed, correlated and ligature on record, I am of the final opinion that :

(i) It appears to be a misadventure in gynaecological field resulting in two deaths, as a result of spinal anaesthesia and its complications with irreversible shock.

(ii) The patient was not fit physically and clinically for the spinal anaesthesia.

(iii) Autopsy of the deceased was an ultimate and basic step further to look into the cause of death and actual insult that the body system suffered resulting in death of Smt. P. Grover and unborn child which remains obscure.

(iv) Autopsy would have certainly indicated whether the caesarean operation was necessary and medicolegally it amounts to "Contributory Negligence" on the part of Doctor couples.

(v) Any death in hospital, Nursing Home or any where else resulting from anaesthesia must have been reported to Police and autopsy conducted. This was a professional obligatory duty required under State medicine by any registered medical practitioner.

(vi) Nonlodging of report of Unnatural Death with Police Station amounts to destruction of evidence in my opinion.

(vii) Dr. S.S. Gulati and Dr. Manvinder Kaur appear to have precipitated the crises for the reasons best known to them. It would be difficult to defend themselves the election of operation was not for their best interest (monetary gain).

(viii) For the reasons brought out, the decisions to operate, with unqualified status and lack of facilities as against the pelvic delivery was an error, they could have, at the most, saved atleast one life (as per their judgment)."

After the completion of the investigation the accused were challaned under Sections 304, 316, 384, 465, 468 and 120 of the Indian Penal Code.

The arguments were heard by the learned trial Court who vide impugned order dated 20.11.1998 came to the conclusion that it was of the considered opinion that prima facie case under Sections 304 Part II, 315, 468, 465, 471, 201 and 120B of the Indian Penal Code was made out against both the accused. The reasons for framing the charges against the petitioners are mainly contained in paras Nos. 24, 25, 26 and 27 of the impugned order, as under :

"On careful consideration of the rival submissions and after perusal of the reports of the Medical Experts and other voluminous evidence on record, prima facie it appears that to proceed with the first stage of operation i.e. to administer spinal anaesthesia, was a gave error on the part of the accused. It was the duty of the accused to summon some expert Anaesthetic before administering anaesthesia. At no stage of investigation or his examination before the Medical Board Dr. S.S. Gulati indicated that he was conversant with administering the spinal anaesthesia shock. It was also the duty of the anaesthetic to conduct sensitivity test before injecting xylocaine. It is also in the medical report that for the use of local or spinal anaesthesia of any type it is mandatory that adequate resuscitation equipment must be available. But as per the record this facility was not available in the clinic of the accused. It was also criminally and medically as also ethically wrong on the part of the accused not to follow the procedure to prepare the patient for operation without conducting basic investigation. From the bedhead ticket and the report of the Medical Bard, it is prima facie evident that the time when the patient was admitted to the Nursing Home of the accused and during the prenatal checkup normal delivery was indicated. Even upto 11.00 A.M. the cervix was sufficiently dilated to admit three fingers which could induce normal delivery. Even the basic test i.e. urine examination was not conducted on admission or at any stage. Even the important investigation like bleeding time and clotting time was not done. No clinical examination of the systems such as CNS, respiratory, cardiovascular, gentiourinatory track etc. were performed by the accused. From the facts and arguments as discussed in earlier part of order, it is prima facie clear that the accused were having the knowledge that by administering spinal anaesthesia at such a stage i.e. having low blood pressure is likely to cause death of the patient and also the death of child in womb.

The learned Counsel wanted to place on record copies of some testimonials in order to deny or admit the genuineness of the documents by the Public Prosecutor. I am afraid that at this stage, the Public Prosecutor cannot be asked to admit or deny the genuineness of the documents as the onus to prove such documents lies on the person who wants to produce the same. Such documents can only be proved by producing relevant witnesses and evidence as per law.

As regards the delay in filing the complaint and lodging the F.I.R., suffice it to say that Parmod Grover husband of the deceased is not a medical person. He had lost his wife and a child in the womb and must have been in a state of shock. It may be possible that he must have taken some time to decide as to whether the doctors had done any wilful act or was it an act of real complication or misjudgment. In order to convince himself he must have consulted the medical experts before initiating proceedings against the accused. Therefore, the delay prima facie does not appear to have caused any prejudice to the accused, keeping in view the technical nature of the offence.

From the above facts and the discussion, it is apparent that Smt. Parveen Grover and the child in her womb died an unnatural death in the Nursing Home of the accused persons before CSection operation was conducted on her. Now the question to be decided at the time of trial would be as to whether the accused had caused the death of Parveen Grover and her child in womb by committing such act which was likely to cause death of which they had the knowledge and intention. However, at the stage of framing the charge the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged nor any weight is to be attached to the probable defence of the accused. In a way it is not is made out against both the accused, namely, Dr. Samran Singh and Dr. Manvinder Kaur. Let both the accused be chargesheet accordingly."

Aggrieved by the orders dated 20.11.1998, the present revision.

I have heard Shri R.S. Cheema, Senior Advocate on behalf of the petitioners and Shri J.S. Ahlawat, A.A.G. Haryana on behalf of the State assisted by Mr. P.S. Hundal Advocate on behalf of the complainant and with their assistance have gone through the record of this case.

Through this order I am disposing of two criminal revision petitions i.e. Criminal Revision No. 203 of 1999 titled as Samran Singh v. State of Haryana filed by the accused and other Criminal Revision No. 383 of 1999 titled Parmod Kumar Grover v. Dr. Samran Singh and others filed by the complainant. The accused have prayed that the offences with which they have been charged were not prima facie made out while the prayer of the complainant is that offences under Sections 302/420 of the Indian Penal Code are made out against the accused.

The relevant provisions regarding a trial before the court of Sessions are dealt in Section 225 Cr.P.C. onwards. Section 227 Cr.P.C. lays down as under :

"If upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."

Section 228 lays down as follows :

"Framing of charge : (1) If, after such consideration and hearing as aforesaid, the judge is of the opinion that there is ground for presuming that the accused has committed an offence which

(a) ...........................

(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.

(2) Where the Judge frames any charge under clause (b) of subsection (1), the charge shall be read and explained to the accused, and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried."

The provisions of Sections 227 and 228 Cr.P.C. have been considered by the Hon''ble Supreme Court from time to time. In 1977 Criminal Law Journal 1606 : AIR 1977 SC 2018 State of Bihar v. Ramesh Singh it has been laid down as follows :

"Reading Ss. 227 and 228 together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction.

Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused.

If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in crossexamination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial.

If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then on the theory of benefit of doubt the case is to end in his acquittal. But if on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227."

These provisions were also interpreted in AIR 1980 SC 52 Supdt. and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and others, and the relevant findings of the Hon''ble Supreme Court are as follows :

"At the stage of framing of the charges, the prosecution evidence does not commence. The Magistrate has, therefore, to consider the question as to framing of charge on a general consideration of the materials placed before him by the investigating Police Officer. The standard test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise is not exactly to be applied at the stage of Section 227 or 228. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charges against the accused in respect of the commission of that offence."

In 1997(2) Recent Criminal Reports 789, Ram Chand v. State of Punjab this Court also held after relying upon AIR 1977 S.C. 1989 that order framing charge should show application of mind and detailed order was not required to be written. Requirement of Sections 227 and 228 is that there should be a finding that prima facie case was made out and sufficiency of evidence resulting into conviction is not to be seen because that will be seen by the trial Court when it will enter into the provisions of Sections 232, 234 and 235 Cr.P.C.

Learned Counsel appearing on behalf of the respondents submitted that there was prima facie case against the petitioners to hold that they were guilty for the offence of which they have been charged. So much so even the case of the complainant is covered by clause (4) of Section 300 of the Indian Penal Code. In these circumstances, the accused petitioners should have been convicted for the offence under Section 302 I.P.C. apart from the complainant has been cheated at the hands of the couple Doctors and therefore, ingredients of Section 420 I.P.C. are also attracted in this case. So far as the legal proposition propounded by the learned counsel for the respondent is concerned, there is no dispute about it. As held by the Hon''ble Supreme Court and also by this Court that even on strong suspicion charge can be framed against the accused. Sufficiency of the evidence is not to be seen. It is not the business of the trial Court to see whether the prosecution ultimately will be able to procure conviction or not. These are subsequent stages. Yet in all the citations the Hon''ble Supreme Court and the High Court also it has been stated that there must be a prima facie basis leading to the offences of which accused are going to be charged. If the charges are totally different, the flight of the prosecution cannot be against the accused for a different charge. In the present case, there is no post mortem examination either of the deceased or of the child. The Post Mortem Reports could be the vital evidence from which prima facie offences could be made out after hearing the cause of death.

Now let us see how things proceeded. A Board of four Doctors namely Doctor D.P. Mangla, M.D., Director Health Services, Haryana, Dr. Harbhajan Singh Randhawa, MS, Surgeon General Hospital, Karnal, Dr. (Smt.) Subhita Ajmani, MBBS, DCG, Gynaecologist General Hospital, Karnal and Dr. Sukhbir Singh M.D. (Anaesthesia), Anaesthtist and S.M.O. General Hospital Karnal was constituted and this Board went into the minutest details of the treatment which was given to Smt. Parveen Grover, from time to time. The Board ultimately after appraising the statement of the main complainant Shri Parmod Grover and his brotherinlaw Banwari Lal came to the conclusion that the main allegations were of incompetence, negligence, inadequate treatment, poor facilities and greed for extortion of money. The case here set up by the complainant about the Doctors was that the couple Doctors were not competent to give anaesthesia and they had poor infrastructure in the operation theatre and Nursing Home. These are all factors which were taken note of and the findings of the Board was that it was evident that Dr. S.S. Gulati was a General Surgeon of repute and he had more than 25 years of experience as a surgeon besides he has also worked as Registrar in the Department of Anaesthesia of Medical College, Rohtak. Doctor S.S. Gulati had done hundreds of operations of various kinds including caesarean sections under spinal anaesthesia. A critical appraisal of the documentary record also revealed that an approximately 2530 deliveries were conducted every month in the Nursing Home and caesarean sections were resorted to in less than 4% cases of deliveries. Dr. Manvinder Kaur Gulati, the lady doctor was an old MBBS and held diploma in Child Health. She had an extensive experience of conducting normal deliveries and the couple in question was the most popular and was the leading practitioners of the town. Further it was held that in the present case the deceased was expected to have normal delivery and the same was assured to the relations. However, in view of the nonprogress of the labour and the passage of maconium alongwith foetal distress appeared to be quiteagenuine indication for resorting to caesarean section in the present case. The Board also gave following opinion with regard to the mode of treatment given by the couple Doctor :

"The efforts on the part of the doctors appeared fairly genuine in calling the other experts of the town and getting their opinion on the treatment. The infrastructure facilities in the Nursing Home were just reasonable. The operation theatre and the Labour room appeared to be too small to have free movements at the time of crisis. The resuscitative measures available in the Nursing Home appeared to be rather just adequate keeping in view the amount of surgery undertaken. However, the Nursing Home had the facilities of intercom system, the diesel generator set and the residential accommodation to the low level workers. There was no proof or evidence regarding the greed or extortion of money on the part of the doctors."

Finally, the board gave the following opinion :

"It is pertinent to point out that this particular lady died of massive and intense irreversible shock, which could be probably because of xylocaine Hypersensitivity or because of spinal shock in which the xylocaine effect went a little higher on segment of the spinal cord paralysing the autonomic the chest and heart and decreasing the vasomotor tone of blood basculature. The efforts undertaken by the Doctors in question appeared to be fairly genuine and adequate. However, it is not out of place to mention that simple urine examination BT, CT and xylocaine sensitively test were not undertaken in the present case. So far as the record keeping was concerned, keeping in view the extreme busy time because of the heavy rush of the patients it was considered just sufficient by the committee.

In the end, the doctor couple on their part made all possible efforts to save the life of the patient and there does not appear any deliberate, intentional negligence on their part. However, it was agreed that there was further scope for improvement of the infrastructure facilities in Nursing Home, Operation Theatre and Labour Room."

Now I would like to quote the relevant extract given by the private Doctor whose services were hired by the complainant as under :

In my medicolegal opinion, irreversible Hypoxia damage was caused (BP at 6065 Hg.) to the deceased as a result of rash and negligent intervention with normal pregnancy for which neither Dr. S.S. Gulati nor Dr. (Mrs.) Manvinder Kaur was qualified."

Resultantly the Private Expert gave the following opinion :

"It was a grave medicolegal error that no clinical assessment and record at any stage including pulse, respiration, investigation before operation, and after operation in critical condition till 1330 hours was made."

The final opinion given by Doctor Heeresh Chandra in his report dated 16.12.1994 are as follows :

(i) It appears to be a misadventure in gynaecological field resulting in two deaths, as a result of spinal anaesthesia and its complications with irreversible shock.

(ii) The patient was not fit physically and clinically for the spinal anaesthesia.

(iii) Autopsy of the deceased was an ultimate and basic step further to look into the cause of death and actual insult that the body system suffered resulting in death of Smt. Parveen Grover and unborn child, which remains obscure.

(iv) Autopsy would certainly have indicated whether the ceasarean operation was necessary and medicolegally it amount to "contributory negligence" on the part of Doctor couple.

(v) Any death in hospital, Nursing Home or any where else resulting from anaesthesia must have been reported to Police and autopsy conducted. This was a professional obligatory duty required under State medicine by any registered medical practitioner.

(vi) Nonlodging of report of Unnatural Death with Police Station amounts to destruction of evidence, in my opinion.

(vii) Dr. S.S. Gulati and Dr. Manvinder Kaur appear to have precipitated the crisis for the reasons best known to them. It would be difficult to defend themselves the election of operation was not for their best interest (momentary (monetary ?) gain).

(viii) For the reasons brought out, the decision to operate, with unqualified status and lack of facilities as against the pelvic delivery was an error. They could have at the most, saved atleast one life (as per their own judgment)."

Section 299 of the Indian Penal Code deals with Culpable homicide and as per its definition whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such an act to cause death, commits the offence of culpable homicide. So far as ingredients of intention is concerned, it is totally missing. The critical point for determination is whether there is prima facie evidence of knowledge on the part of the accused that by their act, they were likely to cause death of Smt. Parveen Grover and her child. I cannot lose sight of the fact that the accused are running a reputed clinic. No Doctor would like to bring bad reputation for his clinic. It will never be the intention of any Doctor to kill his patient. It is primary duty of the doctor to treat the patient. Curement is in the hands of Almighty. That is the reason it is said on the part of the Doctors : "I treat and He cures". The medical science is a science of opinion. There can be genuine mistake even on the part of an experienced and seasoned Doctor in a particular Branch. Even an qualified Expert can commit mistake resulting into complication but such an act or omission on the part of the Expert would not prima facie come within the domain of knowledge, which is a stronger term than the act of rashness or negligence. In order to attract the relevant provisions also it has to be established prima facie by the prosecution that accused petitioners had the positive adverse results before them and still they ignored the same and had treated the patient in such a manner that it was likely to cause death by their acts. The cases are not unknown of the medical treatment when in a case of sure death Doctors do take chance. The grouse of the complainant is that his wife was assured of normal delivery. There was no complication with the patient at the time of her admission and in this regard reliance was placed on the bed head ticket and still the patient has not survived because the couple Doctors were not expert in the Anaesthesia and that they did not calculate the adverse effect of anaesthesia which were given to the patient. The contention is not prima facie correct. Both the Doctors had qualifications. Shri Samran Singh Gulati had obtained the Degree of Bachelor of Medicine and Bachelor of Surgery from Punjab University some where in 1966 and he was authorised to practise Medicine, Obstetrics and Surgery. His wife Manvinder Kaur had also obtained Degree of Bachelor of Medicine and Bachelor of Surgery from Panjab University in the year 1967 and she was authorised to practise, Medicine, Obstetrics and Surgery. Both were qualified Doctors. Doctor Samaran Singh Gulati had also obtained Degree of Master of Surgery in the year 1973 from Panjab University. Further Doctor G.L. Kamra, M.S. D.A. Head of the Anaesthesiology Department, Medical College, Rohtak had certified that Dr. Samran Singh Gulati served as Registrar in the Department of Anaesthesiology, Medical College, Rohtak, from 1.1.1968 to 24.10.1968. He was fully occupied with the routine as well as Emergency anaesthetic Services of the Hospital and was fully conversant with the different anaesthestic procedures. The Vice Chancellor of the Panjab University also certified on 28.6.1969 that Manvinder Kaur had obtained Diploma in Child Health of the University. Even the Board of Specialists had gone into this aspect as to whether due care has been taken note of by the couple Doctors. A particular reasonable inference can be drawn that act of knowledge cannot be attributed to the accused. While dealing such case the test for framing the charge or otherwise should be whether the treatment which was given to the patient by the couple Doctors was proper, fair, competent and reasonable. If these tests are satisfied then prima facie ingredients of Section 304 Part II read with Section 299 I.P.C. are not attracted. Learned counsel for the petitioners has relied upon a judgment of the Karnataka High Court reported as 1989 Accident Claims Journal 393, Dr. Krishan Prasad v. State of Karnataka. The point for determination before his Lordship was whether the accused in the given circumstances had committed an offence under Section 304 A of the Indian Penal Code or not. In the cited case the deceased was admitted for child delivery and the Doctors decided caesarean operation under local anaesthesia as general anaesthesia would affect the child. Soon after the local anaesthesia was administered blood pressure began to fall. The Doctors did their best to save the deceased and the child but in vain. The contention of the prosecution against the Doctor who administered anaesthesia was that he was not an anaesthetic expert and that he did give test dose. In the cited case the postmortem of the deceased was not conducted and cause of death whether by anaesthesia or some other reasons could not be made out. Whether the death caused due to rash and negligent act of the Doctor ? All these factors were taken note of including the opinion of the medical experts and the Hon''ble High Court of Karnataka came to the conclusion that anaesthesia is normally given to all the patients and nongiving of a test dose was not an indication of rashness or negligence so long as treatment is proper, fair, competent and reasonable. In the given circumstances proceedings under Section 304A of the Indian Penal Code were quashed. In the present case there is no allegations of the prosecution that on account of administering anaesthesia, the Blood Pressure of the patient fell and the patient could not recoup as complications had come. Even the Doctors at the first instance expected normal delivery. Sometimes those complications are controlled and sometimes those complications give rise to further complications which are not controlled and ultimately leading to the tragic death of the mother and the child. Even the opinion of the private expert which has been obtained by the complainant does not indicate prima facie that the accused couple had the knowledge that their treatment was likely to cause the death of the mother and the child. Doctor Heeresh Chandra has given opinion on the basis of the data which has been supplied to him. He has not interrogated the Doctors and the Nurses who were incharge of the patient at the relevant time. His opinion prima facie cannot supersede the opinion of the Board of Doctors. Learned Counsel Mr. Cheema appearing on behalf of couple Doctors has drawn my attention to 1977 Criminal Law Journal 1373, Ghanshyamdas v. The State of Madhya Pradesh and submitted that there should be proximity between the acts and the death, and the offence and that the accused cannot be convicted or chargesheeted under section 304 I.P.C. In the cited case Coramine injection was given to asthma patient but there was no indication in the post mortem examination that Coramine injection was proximate cause of death. The High Court even held that ingredients of Sections 304A of the Indian Penal Code are not made out.

Here the case at the most can be said to be of negligence that the Doctor couple did not provide her facilities as pointed out by the Experts in the report. It was opined by the Expert Committee that the infrastructure facilities in the Nursing Home were just reasonable. The operation theatre and the labour room appeared to be too small to have free movements at the time of crisis. The resuscitative measures keeping in view the amount of surgery undertaken were inadequate. However, the Nursing Home had the facilities of intercom system, the diesel generator set and the residential accommodation to the low level workers. What would be the effect of these lapses will be a point for appreciation. I do not want to comment as to whether offence under section 304A of the Indian Penal Code is made out in the case. It is conceded by Mr. Cheema that he has no objection if his client is tried for that offence. Though the State of Haryana has its own reservations in this regard. The case of sheer mishappening cannot be equated with an act of rashness or negligence. Rashness is positive act which is committed by an accused. Negligence also requires a wilful inaction on the part of the accused so as to derive him within the mischief of negligence. Let all these aspects should be examined by the trial Court itself but definitely this Court is of the opinion that learned trial Court was not justified in prima facie holding that the offence under section 304 Part II I.P.C. is made out against the couple Doctors. With regard to other charges framed by the learned trial Court, this court has no difficulty in quashing the same. There is no prima facie evidence at all for the offences under Sections 315, 468, 465, 471, 201 and 120B of the Indian Penal Code. These charge are also quashed.

Summarising my above discussion, this Court has come to the following conclusion :

(i) That the report of the Expert Committee does not make out a prima facie case under section 304 Part II of the Indian Penal Code and the opinion of the Board cannot be ignored nor can it relegated to the second place and that opinion of Dr. Heeresh Chandra even does not make out a case under section 304 Part II of the Indian Penal Code. There was hardly any ingredient so as to attract the provisions of Sections 299 or any part of it punishable under Section 304 Part II of the Indian Penal Code. There was no evidence prima facie to connect the accusedpetitioners with the offences under Sections 315, 468, 471, 201 and 120B of the Indian Penal Code. There was no prima facie evidence to suggest that the treatment which was given to the deceased was inadequate, unfair, incompetent and unreasonable or that the couple Doctor failed to perform a reasonable skill for the safety of the deceased.

(ii) That the couple Doctor were sufficiently qualified so as to treat the patient like Smt. Parveen Grover.

In the light of the above discussion, I allow Criminal Revision No. 203 of 1999 titled Samran Singh and another v. State of Haryana as in the opinion of this Court learned Sessions Sirsa has committed patent illegality and irregularity in chargesheeting the Doctor couple. Now they will be tried only by a Magistrate for the offence under Section 304A of the Indian Penal Code.

So far as the Criminal Revision No. 383 of 1999 of the complainant Shri Parmod Kumar Grover is concerned, the same is hereby dismissed and order dated 20.11.1998 is set aside, as I do not find any prima facie evidence of murder or cheating etc.