Dr. Smt. Beena Yadu vs State

Uma Nath Singh, J.

This order in the criminal revision No. 426/2002 arising out the order dated 8-3-2002 passed by learned Chief Judicial Magistrate, Damoh, in Criminal Case No. 3474/1997 shall also dispose of connected Criminal Revision No. 348/2002 filed against the order dated 15-3-2002 passed by learned Chief Judicial Magistrate. Damoh, in criminal case No. 3474/1997.

It is said that on 9-3-1997 a child delivered at 06.30 by one Smt. Manisha Jain under care and supervision of staff nurse died in a Government Hospital allegedly due to negligence of the applicant. It is also said that being a Government. Medical Officer in the District Hospital, Damoh, the applicant had treated Smt. Manisha Jain wife of Ravindra Kumar Jain, the complainant herein, privately and had also received a fee of Rs. 80/-. It is also a case of the prosecution that the applicant had demanded Rs. 2,000/- and since the money had not been paid, the applicant had refused to attend to the patient in the hospital. It is also alleged that despite a request sent to the applicant, she had not attended to the patient and she had reached only at 07.30 and had declared the child dead. On a report lodged by the complainant on 12-3-1997, the police registered an offence and also filed a charge-sheet u/s 304A of IPC. The applicant, accordingly, filed an objection application under Sections 239 and 258, Cr. P. C., in view of protection granted to a public servant u/s 197, Cr. P. C. The said objection appears to have been rejected only on the ground that since a newly born child died, there is a prima facie material that the applicant was negligent.

It is said that during investigation the police recorded statements of complainant Ravindra Kumar Jain, one Mukesh Kumar Jain and also that of the staff Nurses namely Neelima Mishra and Smt. Preeti Masih. It is also said that Smt. Preeti Masih had attended to Smt. Manisha Jain and had found that the patient had not developed any problem and therefore, the applicant had not been sent for to attend to her. It is also said that the dead body of the child was not subjected is post-mortem examination.

The applicant being employed as a Class I Officer has taken a plea that she is not removable from her office save by or with due sanction of the State Government and thus, a sanction u/s 197 of Cr. P. C, is required for her prosecution. The applicant has also taken a plea that there is a dearth of materials constituting a prima facie offence u/s 304A of I.P.C. against her.

A part from relevant documents filed with the revision, a report of the Office of Civil Surgeon-cum-Chief Hospital Superintendent, Damoh dated 4-7-2002 addressed to the Police Station Officer, Damoh, was submitted by the Government Advocate during the hearing from the said report, it appears that the wife of the complainant had been admitted in the Hospital on 9-3-1997 by emergency duty Medical Officer Dr. Sailendra Khatri. It also appears that the applicant had been assigned a duty to attend to emergency patients only on a call from the Hospital. It also appears that the applicant was not called by Dr. Sailendra Khatri to attend to the wife of the complainant. Further also from the documents attached with the said report, it appears that the applicant had been called only to attend to the Smt. Malti in Maternity Ward at 07.15 p.m., one Khuman at 07.30 p.m. and one Pannabai at 06.00 p.m. and none else. Thus, there was no such call to attend to Smt. Manisha Jain wife of the complainant.

As far as the ingredients of Section 304A, I.P.C. are concerned, they are attracted only in respect of a death caused due to culpable negligence. An offence u/s 304A of I.P.C. is committed either by doing a rash act or a negligent act. A criminal negligence is a gross and culpable negligence or a failure to exercise reasonable and proper care and precaution to guard against causing an injury either to the public generally or to an individual in particular, having regard to all the circumstances. It is a rash and negligent act falling short of culpable homicide. Thus, the report of the Civil Surgeon with attested copies of emergency calls from the Hospital to the applicant, does not support the charge and other materials on record also do not show a culpable negligence on the part of the accused/applicant.

Under the circumstances, the case appears to be covered by a latest judgment of the Hon''ble Apex Court Dilawar Balu Kurane Vs. State of Maharashtra, holding that at the charge stage, a Judge is not to act merely as a Post-office but has to consider the total effect of evidence or documents produced before the Court. Further, a criminal proceeding can be quashed if there is only a remote chance of charges culminating into conviction. That apart, for an offence u/s 304A of I.P.C., the act of the accused causing death must be the causa causans as held by Hon''ble Apex Court in a judgment, reported as Ambalal D. Bhatt Vs. The State of Gujarat, .

Similarly, in an earlier judgment of the Hon''ble Apex Court, reported as Suleman Rehiman Mulani and Another Vs. State of Maharashtra, , it was held that for an offence u/s 304A of I.P.C., there should be a direct nexus between death of person and rash and negligent act of accused. Besides, in a case reported as Rakesh Ranjan Gupta Vs. State of U.P. and Another, , the Hon''ble Apex Court while dealing with Section 304A of I.P.C. has held that delay on the part of a doctor to attend on a patient, at the worst, be a case of civil negligence and not of culpable negligence.

As regards point of sanction u/s 197, Cr. P. C., the applicant took objection after filing of charge sheet and at the time of taking cognizance there of. Thus in view of a judgment Hon''ble Apex Court, reported as Shri Vishnu Tulsidas Sipahimalani Vs. Smt. Kanta Suresh Sipahimalani, , plea of the applicant for sanction u/s 197 of Cr. P. C. ought to have been considered. The applicant was said to be on duty as an emergency Medical Officer on call and thus, the allegation being connected with acts of discharge of official duties of the applicant, could not have been taken cognizance of without a previous sanction in terms of Section 197 of Cr. P. C. and more so in view of the judgment of Hon''ble Apex Court, reported as R. Balakrishna Pillai Vs. State of Kerala, .

Thus in the absence of incriminating materials to support framing of a charge u/s code of I.P.C. and in view of bar u/s 197, Cr. P. C. to cognizance against the applicant thereunder, in the facts and circumstances of the case, the impugned orders dated 8-3-2002 and 15-3-2002 passed by learned Chief Judicial Magistrate, Damoh, not being sustainable in Law are hereby set aside and the criminal revision Nos. 348/2002 and 426/2002 are allowed.