Vijay Pal Sharma vs Ravi Sahai

Naresh Kumar Sanghi, J.—Challenge in this petition filed u/s 482, Cr.P.C., is to the order dated 10.09.2013 passed by the learned Judicial Magistrate Ist Class, Faridabad, whereby respondent Nos. 1 and 2 (Dr. Ravi Sahai and Dr. Brijesh) respectively were ordered to be summoned for the offence punishable u/s 304A, IPC instead of Section 304 read with Section 34, IPC and the order dated 30.01.2014 whereby the revision petition of the petitioner/complainant, Vijay Pal Sharma, challenging the order of the learned Judicial Magistrate Ist Class, Faridabad, was dismissed.

Learned counsel for the petitioner has raised the following three arguments:-

i) respondent Nos. 1 and 2 who were working as doctors with respondent No. 3, Sun Flag Hospital, Faridabad, were grossly negligent while treating Neena Sharma (since deceased) on 15.02.2012 when she was admitted as a case of heart problem;

ii) respondent Nos. 1 and 2 deliberately did not provide the required treatment to Neena Sharma resulting into her death and, as such, the courts below should have summoned respondent Nos. 1 and 2 for the offence punishable u/s 304 read with Section 34, IPC;

iii) the learned revisional court while dismissing the criminal revision petition had narrated the facts which were not available on record.

I have heard the learned counsel for the petitioner and with his able assistance gone through the material available on record.

The brief facts of the case are that petitioner-Vijay Pal Sharma is the husband of Neena Sharma (since deceased). On 15.2.2011, Neena Sharma was complaining severe pain above abdomen and in the back. She was also vomiting therefore, she was taken to Sun Flag Hospital, Sector 16-A, Faridabad, where Dr. Ravi Sahai and Dr. Brijesh (respondent Nos. 1 and 2, respectively) were working as medical officers. It was revealed to the doctors that Neena Sharma was suffering from hyper-tension for the last ten years. Respondent Nos. 1 and 2 represented themselves to be the heart specialists. In spite of disclosing that the patient had history of hyper-tension, the electric cardiogram and other tests were not done. However, the tests like endoscopy and ultra-sound were conducted while the same were not required. After some time, respondent Nos. 1 and 2 suggested that the patient be got discharged from hospital and taken to home. Thereafter, the condition of the patient became serious and the managerial staff of the Sun Flag Hospital referred Neena Sharma to Metro Heart Institute, Sector 15, Faridabad. After her admission in the Metro Heart Institute, she died on 18.02.2011. It was alleged in the complaint that Dr. Ravi Sahai and Dr. Brijesh deliberately did not conduct the electric cardiogram for ruling out the cardiac problem. It was also mentioned in para No. 10 of the complaint (Annexure P-1) that the doctors had no intention to cause death of the patient. It was also alleged that the management of the Sun Flag Hospital, Faridabad, was also vicariously liable with respondent Nos. 1 and 2 for committing the offence. After death of Neena Sharma, the Civil Surgeon, Faridabad, was requested to conduct thorough inquiry and as such, the board consisting of Dr. M.N. Sharma, Dr. Bina Sharma, Dr. Varinder Yadav and Dr. Vinay Gupta was constituted. The board held that respondent Nos. 1 and 2 were negligent while imparting the treatment. In spite of the report lodged with the police, no action was initiated against the accused, therefore, the petitioner/complainant had to file the complaint, before learned Judicial Magistrate.

In para No. 10 of his complaint, the complainant/petitioner was very categoric in his allegations that the doctors had no intention to cause the death of the patient, however, they committed the offence u/s 304, IPC. During the course of arguments on a query by this Court, learned counsel for the petitioner fairly conceded that there was no difference between negligence and gross-negligence and both were punishable u/s 304A, IPC. However, he had emphasized that the required tests were not conducted and proper treatment was not administered to the patient, therefore, the doctors had intentionally caused the death of Neena Sharma attracting the mischief of Section 304, IPC. There is no force in the arguments raised by the learned counsel for the petitioner. Even if the whole contents of the complaint, the material produced on record, the summoning order and the order passed by the revisional court are taken at their face value then also, by any stretch of imagination it cannot be said that the doctors, i.e. respondent Nos. 1 and 2, had committed the culpable homicide not amounting to murder. Even if for the sake of disposal of this petition, the allegations levelled by the petitioner are taken to be wholly true then also, at best it can be said that there was negligence on the part of respondent Nos. 1 and 2 while administering the treatment, attracting the mischief of Section 304A, IPC. Both the courts below have recorded the sound reasons for summoning of the respondents for commission of offence punishable u/s 304A, IPC.

To attract the provisions of Section 304 (Part I and II), IPC, it has to be proved that the act by which death is caused is done with intention of causing death or such bodily injury as is likely to cause death, and if the act is done with knowledge that it is likely to cause death but without intention to cause death or such bodily injury or is likely to cause death.

The essential ingredients of Section 304A, IPC, are as follows:-

(i) that the accused caused the death of any person;

(ii) that such death was caused by accused doing any rash act or that such death was caused by the accused doing any negligent act; and

(iii) such death did not amount to culpable homicide.

In the matter of Mahadev Prasad Kaushik Vs. State of U.P. and Another, Hon''ble the Supreme Court in para no. 29 analyzed the provisions contained in Sections 304 and 304A, IPC, and held as under:-

"There is thus distinction between Section 304 and Section 304A. Section 304A carves out cases where death is caused by doing a rash or negligent act which does not amount to culpable homicide not amounting to murder within the meaning of Section 299 or culpable homicide amounting to murder u/s 300, IPC. In other words, Section 304A excludes all the ingredients of Section 299 as also of Section 300. Where intention or knowledge is the ''motivating force'' of the act complained of, Section 304A will have to make room for the graver and more serious charge of culpable homicide not amounting to murder or amounting to murder as the facts disclosed. The section has application to those cases where there is neither intention to cause death nor knowledge that the act in all probability will cause death."

After perusal of the above judgment and taking into consideration the facts of the case, this Court is also of the firm opinion that the respondents can be tried for the offence punishable u/s 304A, IPC, only.

The argument of the learned counsel for the petitioner that the learned revisional court while dictating the impugned judgment had mentioned the facts which were not available before the said Court would by itself is not a sufficient ground to set aside the well-reasoned judgment which is otherwise acceptable to this Court.

It has been brought to the notice of this Court by the learned counsel for the petitioner that respondent No. 2, Dr. Brijesh, had also filed a petition before this Court challenging the order of the revisional court summoning him for the offence punishable u/s 304A, IPC and the same was also dismissed by this Court. The learned counsel was specifically asked for the delay of six months in filing the present petition but he could not explain as to why there is such a huge delay in filing the same.

In view of the totality of the facts and circumstances of the case, no ground for interference by this Court while exercising its jurisdiction u/s 482, Cr.P.C., is made out.

Dismissed.