Dr. Joan Mathaikal vs State of Bihar and Another

Sadanand Mukherjee, J.—Heard the parties. This is an application for quashing the order dated 29.4.2005 passed by Sri S.K. Singh, Judicial Magistrate, 1st Class, Patna City in C.A. No, 953 of 2004, wherein and whereunder, the learned Magistrate took cognizance against the accused persons u/ss. 304A, 304 Part-II, 326 and 465 of the I.P.C. pursuant to the order of the learned Additional Sessions Judge-12th, Patna in Cr. Rev. No. 37 of 2005 dated 26.2.2005, although the learned Judicial Magistrate, Patna City had earlier refused to take cognizance under the aforesaid provisions by passing a detailed order dated 12.1.2005.

The complaint case filed by the complainant is as follows:-

Wife of the complainant was ailing in the month of May, 2004 and she had loss of appetite, vomiting and yellow eyes and mild fever with pain in abdomen. She had been taken to Arshi Clinic, Sultanganj. Accused M.A. Rasheed (non-petitioner) prescribed medicines. The condition of the patient deteriorated and despite request of the complainant, the complainant''s wife was not treated for Jaundice. There was repeated pathological tests. Accused Dr. M.A. Rasheed despite being a Allopathic practitioner did not diagnosis disorder properly and prescribed Ayurvedic medicines. The condition of the patient further deteriorated. Accused No. 2 (non-petitioner) who was Director of Arshi Clinic did not call any specialist for the particular disease and both of them had committed gross negligence and when the condition did not improve, the patient was taken to Dr. U.C. Samal. Dr. U.C. Samal did not examine the condition of the patient clinically nor advised for ultrasound. Without examining the patient he prescribed certain medicines as mentioned in the complaint petition. The condition of the patient was still deteriorating and Dr. Samal advised the complainant to take her to Magadh Hospital, Rajendra Nagar, Patna for hospitalisation as there was no nursing arrangement in his clinic, but unfortunately Magadh Hospital refused to admit the patient in the hospital as there was no vacant bed available in the hospital. Thereafter, Dr. Samal (Accused No. 3) referred the patient to Kurji Holy Family Hospital, Patna suggesting some test to be conducted. He also did not take care in selection of drugs. On the same day of admission the patient felt breathing trouble, but the breathing of the patient could not be made stable. The duty Incharge was asked to make quick arrangement for ventilator (Artificial respiratory system), but the management of the said Kurji Holy Family Hospital denied to provide the same and said that the same cannot be supplied due to fear of infection to other patients lying on the bed in the said hospital. The deceased was suffering from jaundice which was detected in the said Hospital. The petitioner is Administrator of Kurji Holy Family Hospital, and the patient did not survive as there was no ventilation system for the survival of the patient. It is alleged that the petitioner alongwith others had criminal mens rea and had acted in the most negligent way in treating the patient, which ultimately caused death of the deceased. In the complaint petition a plea was taken for taking cognizance u/ss. 304A, 304 Part-II, 328 and 468 of the I.P.C.

It has been submitted on behalf of the petitioner that even if the entire statement made in the complaint petition be treated as gospel truth, no case is made out against the petitioner as the complainant and his associates had not approached the petitioner to supply the ventilator. The petitioner claims herself to be administrator and she had nothing to do with the treatment of the patient. It is stated that the Doctor decides line of treatment and medicines.

It has been submitted that earlier the complaint petition was dismissed. However, case of the petitioner is that the learned Additional Sessions Judge, 12th Patna has committed error in setting aside the order of the learned Magistrate dated 12.1.2005 in Cr. Rev. No. 37 of 2005 on 26.2.2005 without going into the merits of the case, and thus on the direction of the learned Additional Sessions Judge, 12th, Patna cognizance was taken u/s 304A, 304 Part-ll, 328 and 468 of the I.P.C. against the accused persons on 29.4.2005. It has been submitted that the learned Magistrate took cognizance in the most mechanical manner, without going into applicability of the various sections while passing the said order.

On behalf of complainant-opposite party no. 2, it has been submitted that this is a case of very high degree of negligence or gross negligence and the element of criminality is assessed by the fact that the accused persons do certain act with recklessness beyond rules. It has further been submitted that the prosecution of this criminal miscellaneous case for negligence is based on sound facts and circumstances as no medical professional in his ordinary senses would have failed to have done the duties of taking care of the patient as the petitioner has done in the present case as an Administrator of Holy Family Hospital, besides that, with reference to the decisions of the Hon''ble Supreme Court it is indicated that at the time of taking cognizance the court will have to be satisfied whether a prima facie case exists.

In this connection, parameters of taking cognizance of the offence have been elaborately discussed in the case of ''State of Haryana vs. Bhajanlal'' reported in AIR 1992 SC 6604 in which categories of cases have been mentioned, wherein the High Court may exercise its power conferred under Article 226 of the Constitution of India or u/s 482 of the Code of Criminal Procedure, and the Court may interfere with the proceeding relating to cognizable offences to prevent abuse of the processes of the Court or otherwise to secure the ends of justice, whereas, such category which is relevant in the instant case is as follows:-

"Where the allegation made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused."

The aforesaid parameter has also been followed in several decisions including in the case of ''Oil Corporation vs. N.E.P.C. India Ltd. and Ors.'' wherein also one of the categories relevant for the present purpose as stated is to the extent that a complaint can be quashed where allegations made in the complaint even if they are taken in their face value and accepted in their entirety do not prima facie constitute any offence or make out case alleged against the accused, and further for this purpose complaint has to be examined as a whole, but without examining the merits of the allegation. The matter neither needs any enquiry nor meticulous analysis of the material nor assessment of the reliability or genuineness of the allegation in the complaint, is warranted, while examining prayer for quashing the complaint.

On behalf of the petitioner a decision of this Court reported in Lal Mohan Jha and Another Vs. The State of Bihar and Another, has been cited to show that under the circumstances in the case the petitioner who is Administrator of the Hospital could not be made liable for any recklessness or negligence in the treatment of the patient so as to make her answerable under the sections in which cognizance against her has also been taken. The Hon''ble Single Judge of this Court quoted law on this point as spelt out in the case of Jacob Mathew Vs. State of Punjab and Another, . page-213]. The Hon''ble Single Judge of this Court also made reference of the cases as discussed in the case of ''Bolam vs. Friern Hospital Management Committee'' reported in (1957) 2 All E.R. 118 at 121. The Hon''ble Single Judge also placed reliance on a two-Judge Bench decision of Hon''ble Supreme Court in case of Dr. Suresh Gupta Vs. Govt. of N.C.T. of Delhi and Another, . It has to be deduced from the aforesaid decisions that since the medical professional has been held to be placed on pedestal different from ordinary mortals, it was held in that decision that 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 ''recklessness''. Mere lack of care, precaution and attention or inadvertence might create civil liability but not a criminal one. In the case of Jacob Mathew vs. State of Punjab, relied upon on behalf of the petitioner it has been categorically laid down that the essential ingredient of mens rea cannot be excluded from consideration when the charge in a criminal court consists of criminal negligence. In Jacob Mathew Vs. State of Punjab and Another, , a distinction has been made between a simple lack of care/error of judgment or an accident and the criminal negligence.

While quoting various decisions the Hon''ble Supreme Court that criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. The distinction has been shown between negligence actionable in tort and negligence punishable as a crime. To be latter, the negligence has to be gross or of a very high degree. Para-graph-24 of the aforesaid judgment is relevant for the purpose reads as follows:-

"24. The classical statement of law in Bolam''s case has been widely accepted as decisive of the standard of care required both of professional men generally and medical practitioners in particular. It has been invariably cited with approval before Courts in India and applied to as touchstone to test the pleas of medical negligence. In tort, it is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that a defendant charged with negligence acted in accord with the general and approved practice is enough to clear him of the charge. Two things are pertinent to be noted. Firstly, the standard of care, when assessing the practice as adopted, is judged in the light of knowledge available at the time (of the incident), and not at the date of trial. Secondly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at the point of time on which it is suggested as should have been used."

In the instant case allegation is that the Administrator-petitioner could not make arrangement for ventilator and further allegation is that the management of Holy Family Hospital denied to provide the same and the patient did not survive as there was no ventilation system for survival of the patient and therefore allegation is made regarding criminal mens rea on the part of the petitioner. It may be mentioned here that the case against Dr. U.C. Samal in the instant criminal complaint has already been quashed. In the case of ''Jacob Mathew vs. State of Punjab'' as stated above, there is clear indication that when the charge of negligence arises out of failure to use some particular equipment, the charge fails if the equipment was not generally available at that point of time, on which it is suggested as should have been used. It may be mentioned here that in the aforesaid allegation made in the complaint petition, there is allegation of lack of proper judgment which appears from perusal of the circumstances of the case. In the aforesaid decision it is clearly mentioned that such circumstances cannot give rise to criminal negligence.

On behalf of opposite parties, on the other hand, a case reported in 1997(1) P.L.J.R. Page-653 has been cited to show that the Magistrate is not supposed to weigh pros and cons of the evidence at the stage of considering question of issuance of process. Further a case reported in 1988 P.L.J.R. Page-216 has been relied upon by the opposite parties. A Division Bench of this Court held therein that the Magistrate has to apply his mind only to the materials produced in the complaint petition and the Magistrate cannot see other material. Further a case reported in AIR 1975 S.C. Page-1947 has been relied upon, wherein and whereunder, basic principle in regard to the materials to be considered at the stage of issuing process have been stated. While laying down that at the stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same, and he is only prima facie to be satisfied whether there are sufficient ground for proceeding against the accused and further the scope of enquiry u/s 202 of the Cr.P.C. is extremely limited only to ascertain truth or falsehood of the allegation made in the complaint. Certain categories of cases have also been mentioned therein which may be a ground for quashing to order of a Magistrate. The decision in respect of categories of cases leading to quashing of proceeding was later on followed in the case of Bhajanlal (supra) and in the decisions of the Hon''ble Supreme Court primary emphasis has been given regarding nature of allegations which on their face value do not make out any ingredient for offence. The decision earlier cited in support of petitioner''s case regarding gross negligence in absence of mens rea, the submissions on the basis of the aforesaid decision on behalf of the petitioner lead to a conclusion that the allegation made in the complaint or statements of the witnesses recorded in support of the same even if taken on their face value do not make out a case of criminal negligence. whereas, remedies are available in tort which is the civil remedy. Gross criminal negligence is not made out under the circumstances of the case so far as the petitioner is concerned.

In view of aforesaid discussion, there appears to be no ingredient of the offence in relation to criminal negligence and therefore proceeding against the petitioner u/ss. 304A, 304 Part-ll, 326 and 465 of the I.P.C. shall be an abuse of the processes of the Court if pursued, and as such the order of cognizance under the aforesaid section is liable to be set aside and the proceeding is liable to be quashed. It, however, will not prevent the petitioner to pursue other remedies available under law. This criminal miscellaneous application is allowed.