Dr. Kamala Gurwani vs State of Raj.

Prakash Tatia, J.—The present petition has been preferred by the petitioner Dr. Kamala Gurwani to challenge the criminal proceedings which was initiated because of lodging of FIR dated 16.2.1999 lodged by one Sharwan Kumar on the basis of which the challan was filed against the petitioner u/s 304A IPC.

The facts of the case are that on 17.2.1999 the complainant lodged written report with the police station, Sujangarh stating therein that her sister Luni Devi developed labour pain and one SB Cr. Misc. Petition No. 778/2001 Dr. Kamla Gurwani v. State female nurse Smt. Vishnu Kanta was called from the Government Hospital of nearby town to the complainant''s small village. The nurse after examining the victim lady Luni Devi opined that it is a complicated case,therefore, the victim should be taken to the Government hospital at Bidasar.

The nurse Smt. Vishnu Kanta accompanied the lady and the complainant and other family members took the lady to Government Hospital, Bidasar. The lady Luni Devi was admitted in the Government Hospital, Bidasar at 10.05 AM on 16.2.1999 itself. As per the bed head ticket she was given treatment by doctor at Bidasar Government Hospital and ultimately, at 3.00 PM looking to the condition of the patient, doctor advised that she be taken to higher hospital. She was discharged from the hospital for sending her to the Higher Hospital upon which, the complainant alongwith others took Smt. Luni Devi to the Government Hospital Sujangarh. They reached there after the hospital hours at about 4.00 PM and finding the hospital closed, they took the victim Luni Devi to house of the petitioner who was a Government doctor working in Government Hospital, Sujangarh who found the SB Cr. Misc. Petition No. 778/2001 Dr. Kamla Gurwani v. State situation emergent, the lady doctor, to save the life of Smt. Luni Devi obtained a consent letter from the complainant Sharwan Kumar that the child may be removed from the womb of the lady to save the lady. The child was removed from the womb of the lady at the residence of the petitioner in the presence of the doctor who came from the village Bidasar alongwith nurse. After said delivery of dead child, the lady Luni Devi took tea and biscuits and, thereafter, her condition become worst. She was taken to nearby private hospital i.e., Rathi Nursing Home where the blood of complainant Sharwan Kumar and Smt. Luni Devi were examined and finding the blood of Sharwan Kumar good for infusion in the body of Smt. Luni Devi, the blood of Sharwan Kumar was taken. The hospital incharge of the Rathi Nursing Home also came there but the victim Smt. Luni Devi could not be saved by the doctors. After the death of Smt. Luni Devi this written report was submitted by complainant Sharwan Kumar on 16.2.1999 at about 10.30 PM with allegation that Smt. Luni Devi was killed because of the negligence of the petitioner doctor. On the basis of the above FIR dated SB Cr. Misc. Petition No. 778/2001 Dr. Kamla Gurwani v. State 16.2.1999, the case u/s 304A IPC was registered. In investigation, the statement of complainant Sharwan Kumar, nurse Smt. Vishnu Kanta, who reached first to see Smt. Luni Devi, statement of Hemaram, male nurse-II of the Government Hospital , Bidasar and witness Chunaram- cousin brother of Smt. Luni Devi, who accompanied Smt. Luni Devi and others from Bidasar to Sujangarh as well as the statement of Shri Chunnath, the driver of the jeep in which Smt. Luni Devi was taken to Sujangarh, statement of Shri Karan Ram, one of the brother of Smt. Luni Devi, Bhanwarram, one relative of Smt. Luni Devi, the statement of shop-keeper of Sujangarh Nandlal whose shop was near the hospital, statement of Subhash Chandra an employee of medical store of Rathi Nursing Home, statement of Sannu Joshaf, technician working in the Rathi Nursing Home and statement of Ku. Shobha an employee of the Rathi Nursing Home as well as the statement of father of Smt. Luni Devi were recorded by the investigating agency. The bed head ticket of Smt. Luni Devi was also produced alongwith challan. Two postmortem reports, one of the newly born baby and postmortem SB Cr. Misc. Petition No. 778/2001 Dr. Kamla Gurwani v. State report of deceased Luni Devi were also obtained and produced alongwith the challan.

In the trial court, substance of acquisition was read over and stated to the accused u/s 251 Cr.P.C. after taking cognizance for the offence u/s 304A IPC.

Before the trial court an application u/s 197 Cr.P.C. was submitted by the petitioner-doctor stating therein that she performed her official duty and, therefore, for her prosecution sanction from the State Government as necessary u/s 197 Cr.P.C. and no criminal proceedings can be taken against the accused petitioner without said sanction for her prosecution. The said application submitted by the petitioner was rejected by the learned Magistrate vide order dated 7th Sept., 2001. To challenge the said order dated 7th Sept., 2001 on the ground of want of sanction u/s 197 Cr.P.C., a separate criminal misc. petition which is SB Cr. Misc. Petition No. 594/1997 has been preferred by the petitioner. The petitioner also preferred one more S.B. Cr. Revision Petition No. 589/2001 challenging the order of the trial court by which SB Cr. Misc. Petition No. 778/2001 Dr. Kamla Gurwani v. State the trial court stated substance of acquisition to the accused and sought from the petitioner whether she pleads guilty or has any defence to make out. The said order was challenged on the ground of non providing opportunity of hearing to the petitioner before passing of the order u/s 251 Cr.P.C. The petitioner''s said revision petition No. 589/2001 was dismissed by this Court after holding that in trial of summon cases the only permissible way before the learned Magistrate is that he should read over the contents of the offences to the accused and the order of discharge cannot be passed by the Magistrate by resorting to provision of Section 251 and 255(1) Cr.P.C. This Court while deciding the revision petition No. 589/2001 vide order dated 1st Nov., 2001 clearly observed that the court is hearing revision petition against the order by which contents of offence were read over and it is not a petition u/s 428 Cr.P.C and there is large difference between the scope of revision and the petition u/s 482 Cr.P.C and obviously the High Court on this ground did not examine whether the prosecution can be quashed or not. SB Cr. Misc. Petition No. 778/2001 Dr. Kamla Gurwani v. State Finding this difficulty, the petitioner immediately submitted present petition u/s 482 Cr.P.C. which his S.B. Cr. Misc. Petition No. 778/2001.

Learned Counsel for the petitioner vehemently submitted that from the allegation levelled against the petitioner as well as from all the material placed on record it is amply proved that no allegation is against the petitioner of committing any offence. It is submitted that Section 88 is the relevant provision which declared that any act not intended to cause death, done by consent in good faith for person''s benefit is no offence. It is submitted that from the evidence of all the witnesses including the evidence of the complainant himself and his brother and relatives also it is amply proved that the lady had difficulty in delivery case and uterus was not opening and, therefore, in emergent situation, the nurse was called from the Government hospital, who examined the patient at the residence of the victim Smt. Luni Devi. Nurse immediately opined that it is a complicated case and, therefore, the victim should be taken to SB Cr. Misc. Petition No. 778/2001 Dr. Kamla Gurwani v. State Government hospital forthwith. She was taken to Government Hospital and was admitted in hospital in the morning at 10.00 AM. The patient remained in the hospital upto 3.00 PM for a long period, and she was given treatment which is apparent from the bed head ticket produced by the prosecution itself. The expert doctor of Government Hospital was of the view that it is a complicated case and, therefore, the lady should be sent to higher hospital. It took time when the lady alongwith doctor and the nurse reached to the petitioner and that too at petitioner''s residence in view of the fact that hospital was closed and staff was not available. Being doctor, the petitioner was under obligation to take care of the patient and she found that if more efforts are made for delivery of the child, the lady may also die and child will also not survive. This position was made clear to the person who brought the lady to the petitioner.

The complainant himself gave his written consent for saving the life of the victim Smt. Luni Devi by delivery with the help of instrument in view of the fact that mouth of ovary was not opening. The dead child was removed from the body and of the SB Cr. Misc. Petition No. 778/2001 Dr. Kamla Gurwani v. State lady to save the life of the lady and, thereafter, she was given tea and biscuits in the presence of the other doctor and nurse. Thereafter, the victim''s condition deteriorated and she was taken to nearby hospital where facilities were available. The blood was taken of the complainant himself for infusion in the body of the victim and all these evidence have been produced by the prosecution � an independent agency and is the case of the complainant himself.

In view of the above reasons, it is clear that there is no allegation of negligence on the part of the petitioner except bald allegation on the basis of the inference drawn by a villager without help of any medical opinion. It is also submitted that there is no medical opinion that any negligence was committed by the petitioner. Learned Public Prosecutor submitted that there is a limited jurisdiction u/s 482 Cr.P.C. and whatever defence, the petitioner may have, she may present her defence in the trial, which can be looked into by the trial court after going through the evidence of the prosecution and all circumstances and, therefore, the proceedings SB Cr. Misc. Petition No. 778/2001 Dr. Kamla Gurwani v. State may not be quashed at this stage. I considered the submissions of learned Counsel for the parties and perused the entire record. It is clear from the statement of complainant Sharwan Kumar that the condition of Smt. Luni Devi was bad because of the delivery case and a nurse was called from the Government Hospital to the village from a small town Bidasar.

The nurse after examining the lady opined that it is a case, which should be sent to the Hospital forthwith. The complainant alongwith his relatives with the nurse Smt. Vishnu Kanta took the lady to the Government Hospital, Bidasar where a Government lady doctor examined Smt. Luni Devi after admitting her as indoor patient. She was given treatment upto 3.00 PM, which is apparent from the bed head ticket produced by the prosecution alongwith challan papers. The doctor advised that she be taken to higher hospital, upon which, the complainant took the victim Smt. Luni Devi to Sujangarh. Looking to the condition of the patient, the complainant himself requested the lady doctor of the Government Hospital, Bidasar and the nurse to accompany them. The lady SB Cr. Misc. Petition No. 778/2001 Dr. Kamla Gurwani v. State doctor of Bidasar as well as the nurse of the same hospital accompany the victim Smt. Luni Devi to the nearby place Sujangarh where they reached at 4.00 PM. By the time, the hospital was closed and staff was not available. This clearly shows that the condition of the lady from the beginning was going out of control and even her condition must have deteriorating in the Government Hospital, Bidadar, therefore, she was advised for more treatment from higher center and looking to the poor condition of the patient, the lady doctor of hospital alongwith nurse accompany the patient. A per the statement of complainant Sharwan Kumar himself the child born at the residence of the petitioner � the Government doctor where they voluntarily took the victim Smt. Luni Devi obviously because of the reason that nobody was available in the Government hospital, Sujangarh to take care of delivery case of Smt. Luni Devi. The complainant Sharwan Kumar in his statement during investigation admitted that Smt. Luni Devi delivered child at the residence of petitioner but did not disclose in his first statement whether the child born alive or dead. However, in SB Cr. Misc. Petition No. 778/2001 Dr. Kamla Gurwani v. State additional evidence recorded during investigation on 9th June, 1999 he admitted that the child was dead. The postmortem report dated 17.2.1999 given by the medical board also opined that the child was still born. Therefore, it is clear that despite efforts, the child could not be saved by the doctors and it is clear from the statement of technician as well as from the postmortem report of the child that instruments were used for getting the child delivered and there is statement of the witnesses that it was due to reason that ovary was not opening inspite of the efforts. It is clear from the evidence of all above witnesses referred above that there is no allegation that the treatment was not given to Smt. Luni Devi properly at Bidadar hospital.

The complainant alongwith his relatives went to Rathi Nursing Home after delivery and in his statement he admitted that child was kept at the residence of the doctor-petitioner obviously because of the reason that the child was already dead and a newly born baby could not have been kept unattended by all the persons if he/she was alive.

SB Cr. Misc. Petition No. 778/2001 Dr. Kamla Gurwani v. State From the evidence on record it is clear that the doctors and nurses as well as technician tried to give blood to deceased lady and took the blood of the complainant himself to save the lady. In view of the above all evidence it is clear that there is no iota of evidence which can prima facie on the basis of prosecution case proceed against the petitioner in the matter of giving treatment to the victim Smt. Luni Devi rather evidence produced by the prosecution and particularly, from the statement of the complainant and his relatives also it appears that efforts were made for safe delivery firstly and then to save Smt. Luni Devi and all efforts failed. At this place, it will be worthwhile to quote Section 88 IPC which runs as follows:

Act not intended to cause death, done by consent in good faith for person''s benefit.- Nothing which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm.

SB Cr. Misc. Petition No. 778/2001 Dr. Kamla Gurwani v. State In view of the above reason, prosecution of the petitioner will certainly be abuse of process of the court and therefore, the present petition deserves to be allowed, hence allowed and the prosecution against the petitioner u/s 304A IPC is quashed.