Subhash Thakur vs State of Himachal Pradesh

Tarlok Singh Chauhan, J.—1. The petitioner has sought pre-arrest bail in case FIR No. 20/2016, 30.01.2016, registered at Police Station, Rampur Bushehar, District Shimla, under Section 304-A of IPC and Section 13(1)(d) of the Prevention of Corruption Act.

The respondents have produced the records of investigation and have also filed the status report.

What emerges from the prosecution story is that on 30.01.2016, a complaint was lodged by one Kulvinder Singh with the Station House Officer, Police Station, Rampur Bushehar alleging therein that his father deceased Narender Singh had been admitted in ''Sri Khand'' hospital on the recommendations of co-accused Dr. Rajeshwar Thakur, who is posted as a General Surgeon at MGMSC Government Hospital, Khaneri. The complainant had further stated in his application that his father had been suffering from stone in the gall bladder and when he contacted co accused Dr. Rajeshwar Thakur, no date for operation was fixed and was further informed that in case he wanted undergo an immediate operation, then he should contact at ''Sri Khand'' hospital. Thereafter, father of the complainant was admitted at ''Sri Khand'' hospital on 29.01.2016 where co-accused Dr. Rajeshwar Thakur operated the deceased at about 6.00 p.m. and on 30.01.2016 at about 6.00 a.m., the father of the complainant died in the hospital.

Insofar as the specific role attributed to the petitioner is concerned, it has been found that during the course of investigation the petitioner is working as an Anesthetist at Government Hospital (MGMSC), Khaneri and is alleged to have administered anesthesia to the deceased in the private hospital. In this manner, the petitioner alongwith co-accused Dr. Rajeshwar Thakur have been accused of committing an offence under Section 304-A IPC read with Section 13(1)(d) of the Prevention of Corruption Act, 1988, whereas, the other co-accused Brij Lal Thakur alongwith aforesaid Sections has been accused under Sections 107 and 34 IPC.

I have heard the learned counsel for the parties and have gone through the records of the case.

It is vehemently argued by Shri B.S. Chauhan, Senior Advocate, assisted by Shri B.C. Verma, Advocate, that the petitioner has been falsely implicated in the case as he has no connection with the offence in question and has not even been named as accused in the FIR. On the other hand, the learned Additional Advocate General, has vehemently argued that the petitioner had administered anesthesia and was, therefore, equally responsible and liable for the negligent act which resulted in death of the deceased. Moreover, it was only with a view to make a quick buck that the petitioner had in violation of the rules indulged in private practice that too when he is getting non-practicing allowance (NPA of Rs. 13,338/-).

As observed earlier, the case of the petitioner is of complete denial. However, even if it is assumed without conceding that the petitioner has some role to play, it would be noticed that it is primarily on the basis of the statements of two nurses, Kumari Dipika and Manju Thakur, recorded under Section 164 Cr.P.C. that the petitioner has been roped in as a co-accused. In case, the statements of these witnesses are closely scrutinized, it would be noticed that both these witnesses have categorically stated that on 29.01.2016 as per instructions of Dr. Brij Lal (co-accused), they prepared the operation theatre and at about 5.30 p.m., the deceased Narender Singh was brought to the operation theatre where the petitioner checked his vital statistics and was thereafter administered anesthesia. It has further come in their statements that Dr. Rajeshwar Thakur and Dr. Brij Lal commenced the operation at about 6.00 p.m. which ended at about 7.30 p.m. After this, the patient was not only normal but was talking with the staff and others present there. It is at about 8.00 p.m. that deceased complained of headache and it was thereafter at about 2.00 a.m. that his condition began to deteriorate and he later succumbed to the same.

In this background, it is necessary to understand as to what is the nature of the work and duties and the role the Anesthetist has to perform in an operation/surgery. The Anesthetist, perioperative physician (''peri'' meaning all around), who provides medical care to each patient throughout his surgical experience. This includes medically evaluating the patient before surgery (pre operative), consulting with the surgical team, providing pain control and supporting life functions during surgery (intra operative), supervising care after surgery (post operative) and discharging the patient from the recovery unit.

Now, in case the records of the investigation are adverted to, then prima facie, no negligence or lapse can at this stage be attributed to the petitioner so as to attract the applicability of Section 304-A IPC. The petitioner, at best, can be booked only under the Prevention of Corruption Act that too in case it is conclusively established that the petitioner had infact indulged in private practice and had administered anesthesia or had some other role in the operation of the deceased.

Having said so, I find this to be a fit case where the petitioner ought to be granted pre-arrest bail.

Accordingly, the petition is allowed and the petitioner is ordered to be released on bail in case FIR No. 20/2016, dated 30.01.2016, registered at Police Station, Rampur Bushehar, District Shimla, under Section 304-A of IPC and Section 13 of the Prevention of Corruption Act, on his furnishing personal bond in the sum of Rs. 25,000/- with one surety of the like amount to the satisfaction of Judicial Magistrate Ist Class, Rampur, District Shimla, with the following conditions:--

"(i) that the petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;

(ii) that the petitioner shall not tamper with the prosecution evidence or threaten the witnesses;

(iii) that the petitioner shall make himself available for interrogation by the police officer as and when required.

(iv) that the petitioner shall not misuse his liberty in any manner."

Learned Judicial Magistrate Ist Class, Rampur, District Shimla, is directed to comply with the directions issued by the High Court, vide communication No. HHC.VIG./Misc. Instructions/93-IV.7139 dated 18.03.2013.

Any observation made hereinabove shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made hereinabove.

Petition stands disposed of.