Dr. Dilip Kumar vs State Of Jharkhand And Ors

The present petition has been filed for quashing the order dated 15.02.2006 passed by the learned Chief Judicial Magistrate, Jamshedpur in Sakchi

P.S. Case No. 11 of 2006 corresponding to G.R. No. 88 of 2006, whereby cognizance of the offence under Section 304-A of the Indian Penal Code

has been taken against the petitioner and one Dr. Anjali Kumari. Further prayer has been made for quashing the entire criminal proceeding arising out

of the aforesaid case, pending in the court of Chief Judicial Magistrate, Jamshedpur.

Learned counsel for the petitioner submits that the petitioner was the attending doctor of M.G.M. Medical College and Hospital, Jamshedpur on

14.01.2006 wherein the son (the deceased) of the informant was brought for treatment. However on examination of the son of the informant, it was

found that he was brought dead. The informant (opposite party no. 2) thereafter lodged an F.I.R. against the petitioner and one Dr. Anjali Kumari

without any factual substance. It is further submitted that even if the allegation made by the opposite party no.2 is taken to be true on the face of it, it

does not constitute any ingredient under Section 304-A of I.P.C. It is also submitted that continuance of the criminal case would be an abuse of the

process of court and therefore, the order of cognizance as well as the entire criminal proceeding arising out of Sakchi P.S. Case No. 11 of 2006 may

be quashed.

Learned A.P.P. though opposes the petitioner’s prayer, yet he submits that paragraph-5 of the case diary contains the statement of the

informant (opposite party no.2) which discloses that his son was in fact brought dead to the said hospital. The said fact has also been corroborated by

the statements of the independent witnesses recorded in paragraphs 7 and 8 of the case diary.

Heard learned counsel for the parties.

Before coming to the merit of the case of the petitioner, it would be appropriate to go through the guidelines laid down by the Hon’ble Supreme

Court in the case of Jacob Mathew Vs. State of Punjab and Another reported in (2005) 6 SCC 1, with regard to prosecution of medical professionals

in the cases of medical negligence. The relevant part of the said judgment is quoted as under:

“Guidelines â€" Re: prosecuting medical professionals

As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an

increase. Sometimes such prosecutions are filed by private complainants and sometimes by the police on an FIR being lodged and

cognizance taken. The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science

so as to determine whether the act of the accused medical professional amounts to a rash or negligent act within the domain of criminal law

under Section 304-A IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes

harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or

discharge but the loss which he has suffered to his reputation cannot be compensated by any standards.

We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an

essential ingredient. All that we are doing is to emphasise the need for care and caution in the interest of society; for, the service which the

medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous

or unjust prosecutions. Many a complainant prefer recourse to criminal process as a tool for pressurising the medical professional for

extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.

Statutory rules or executive instructions incorporating certain guidelines need to be framed and issued by the Government of India

and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain

guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is

an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the

form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused

doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an

independent and competent medical opinion preferably from a doctor in government service, qualified in that branch of medical practice

who can normally be expected to give an impartial and unbiased opinion applying the Bolam test to the facts collected in the investigation. A

doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against

him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels

satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be

withheld.â€​

In the case of Dr. Suresh Gupta Vs. Government of N.C.T. of Delhi and Another reported in (2004) 6 SCC 422, the Hon’ble Supreme Court

held thus:-

“20. For fixing criminal liability on a doctor or surgeon, the standard of negligence required to be proved should be so high as can be

described as “gross negligence†or “recklessnessâ€. It is not merely lack of necessary care, attention and skill. The decision of the

House of Lords in R. v. Adomako relied upon on behalf of the doctor elucidates the said legal position and contains the following

observations:

“Thus a doctor cannot be held criminally responsible for patient’s death unless his negligence or incompetence showed such

disregard for life and safety of his patient as to amount to a crime against the State.â€​

Thus, when a patient agrees to go for medical treatment or surgical operation, every careless act of the medical man cannot be termed

as “criminalâ€. It can be termed “criminal†only when the medical man exhibits a gross lack of competence or inaction and wanton

indifference to his patient’s safety and which is found to have arisen from gross ignorance or gross negligence. Where a patient’s

death results merely from error of judgment or an accident, no criminal liability should be attached to it. Mere inadvertence or some degree

of want of adequate care and caution might create civil liability but would not suffice to hold him criminally liable.

This approach of the courts in the matter of fixing criminal liability on the doctors, in the course of medical treatment given by them to

their patients, is necessary so that the hazards of medical men in medical profession being exposed to civil liability, may not unreasonably

extend to criminal liability and expose them to the risk of landing themselves in prison for alleged criminal negligence.

For every mishap or death during medical treatment, the medical man cannot be proceeded against for punishment. Criminal

prosecutions of doctors without adequate medical opinion pointing to their guilt would be doing great disservice to the community at large

because if the courts were to impose criminal liability on hospitals and doctors for everything that goes wrong, the doctors would be more

worried about their own safety than giving all best treatment to their patients. This would lead to shaking the mutual confidence between the

doctor and the patient. Every mishap or misfortune in the hospital or clinic of a doctor is not a gross act of negligence to try him for an

offence of culpable negligence.

Between civil and criminal liability of a doctor causing death of his patient the court has a difficult task of weighing the degree of

carelessness and negligence alleged on the part of the doctor. For conviction of a doctor for alleged criminal offence, the standard should

be proof of recklessness and deliberate wrongdoing i.e. a higher degree of morally blameworthy conduct.

To convict, therefore, a doctor, the prosecution has to come out with a case of high degree of negligence on the part of the doctor.

Mere lack of proper care, precaution and attention or inadvertence might create civil liability but not a criminal one. The courts have,

therefore, always insisted in the case of alleged criminal offence against the doctor causing death of his patient during treatment, that the

act complained against the doctor must show negligence or rashness of such a higher degree as to indicate a mental state which can be

described as totally apathetic towards the patient. Such gross negligence alone is punishable.

See the following concluding observations of the learned authors in their book on medical negligence under the title Errors, Medicine

and the Law (by Alan Merry and Alexander McCall Smith at pp. 247-48). The observations are apt on the subject and a useful guide to the

courts in dealing with the doctors guilty of negligence leading to death of their patients:

“Criminal punishment carries substantial moral overtones. The doctrine of strict liability allows for criminal conviction in the absence of

moral blameworthiness only in very limited circumstances. Conviction of any substantial criminal offence requires that the accused person

should have acted with a morally blameworthy state of mind. Recklessness and deliberate wrongdoing, levels four and five are classification

of blame, are normally blameworthy but any conduct falling short of that should not be the subject of criminal liability. Common-law systems

have traditionally only made negligence the subject of criminal sanction when the level of negligence has been high â€" a standard

traditionally described as gross negligence.

* Â Â Â Â Â Â Â Â * Â Â Â Â Â Â Â Â *

Blame is a powerful weapon. When used appropriately and according to morally defensible criteria, it has an indispensable role in human

affairs. Its inappropriate use, however, distorts tolerant and constructive relations between people. Some of life’s misfortunes are

accidents for which nobody is morally responsible. Others are wrongs for which responsibility is diffuse. Yet others are instances of

culpable conduct, and constitute grounds for compensation and at times, for punishment. Distinguishing between these various categories

requires careful, morally sensitive and scientifically informed analysis.â€​

It is a settled law that even if the allegation levelled in the F.I.R. is taken to be true on the face of it, does not constitute any offence, the High Court

while exercising jurisdiction under Section 482 of Cr.P.C. may quash the entire criminal prosecution. Several paragraphs of the case diary also reveal

that son of the opposite party no. 2 was brought dead to the said hospital when the petitioner and one Dr.Anjali Kumari attended him. Moreover, in the

facts of the present case, it appears that the guidelines provided by the Hon’ble Supreme Court for investigating the cases of medical negligence

has not been followed.

This Court vide order dated 04.07.2018 directed the learned A.P.P. to take instruction from the Officer-in-Charge of Golmuri Police Station

regarding the whereabouts of the opposite party no. 2. Thereafter, a letter as contained in memo no. 2979 of 2018 dated 31. 07.2018 was issued by

the Officer-in-Charge, Sakchi Police Station, Jamshedpur addressed to the learned A.P.P. A copy of the said letter dated 31.07.2018 has been

produced by Mr. Sanjay Kumar Srivastava, learned A.P.P., on perusal of which it appears that the opposite party no. 2 has died on 02.03.2013 itself.

Considering the prima facie fact which is revealed from the investigation of the case as well as keeping in view that the prosecution has not

followed the due procedure laid down by the Hon’ble Apex Court in the case of Jacob Mathew (supra) in the investigation of the present case

which relates to medical negligence, I am of the view that the continuance of the present case shall be an abuse of the process of court.

As such, the entire criminal proceeding arising out of Sakchi P.S. Case No. 11 of 2006 corresponding to G.R. No. 88 of 2006 including the order

of cognizance dated 15.02.2006 passed by Chief Judicial Magistrate, Jamshedpur is hereby quashed.

The present Cr.M.P. is accordingly allowed.