Dr. Ved Khuller vs State

K.K. Gupta, J.—Mrs. Ved Khuller is a doctor by profession and is running a clinic at Jammu. She has been challaned by Police Station

Pacca Danga, Jammu for the commission of an offence u/s 304-A, Ranbir Penal Code for allegedly causing death of Janki Devi because of

negligence. She had filed this application u/s 561-A, Code of Criminal Procedure for quashing the abovesaid proceedings pending in the court of

Chief Judicial Magistrate, Jammu.

Brief facts of the case as alleged by the prosecution in the challan are that on August 9,1983, Dharam Chand, father of Janki Devi, reported that

his daughter was married to one Puran Singh, son of Dharam Singh, resident of village Dhatrian, Tehsil Jammu, five years ago and she had given

birth to a female child who is now aged four years. It was further reported by him that the relations of her daughter had become strained with her

inlaws who used to beat her and one month earlier they beat her severely and turned her out from their house. She came to live with her parents

and afterwards with the intervention of some respectable persons he sent her daughter to her in-laws. A day earlier he came to know that his

daughter had died and he suspected her in-laws to be responsible for her death which according to him be in connivance with the doctor. On

receipt of this report police initiated proceedings u/s 174, Code of Criminal Procedure and after obtaining post-mortem report they registered a

case u/s 304-A, Ranbir Penal Code against the Petitioner herein, which resulted in her prosecution. The case was produced in the court of Chief

Judicial Magistrate, Jammu who has charged the Petitioner u/s 304-A, Ranbir Penal Code.

Learned Counsel appearing for the Petitioner has argued that there is not an iota of evidence on the file showing the involvement of the Petitioner

in the case or her negligence in any manner. According to him the Petitioner has wrongly been charged. He has further argued that in fact the report

was against the in-laws of the deceased Janki Devi and the Petitioner has wrongly been charged by the trial court, which charge cannot be

sustained under law, in any manner. He has further submitted that proceedings against the Petitioner in fact amount to abuse of the process of the

court and as such the proceedings are required to be quashed. On the other hand the learned Chief Government Advocate has pointed out that the

medical report is against the Petitioner who performed the operation and because of her negligence Janki Devi died on the operation table.

I have perused the statements of the prosecution witnesses recorded by the police u/s 161, Code of Criminal Procedure. It does not come out

from these statements that the Petitioner was in any manner negligent in causing the death of the deceased. The prosecution, it seems, has based

their case on the medical report, i.e., post-mortem findings given by the Board of doctors. That finding is that the deceased died due to cardiac

arrest as a result of surgical interference. Subsequently in regard to a query made by S.H.O. Police Station Pacca Danga the Board of doctors

made clarification that surgical interference was done on genitalia of the deceased. They, however, declined to answer any other query regarding

the negligence of the Petitioner in positive by stating that whether the death was due to negligence of the doctor or not was to be decided by the

court and not by the Board of doctors and the Board was concerned only with the opinion regarding the cause of death. There is also on the file

the explanation given by the Petitioner in regard to the query made by the investigating officer. In this query she has explained the circumstances

which led to the death of the deceased. This letter written by the Petitioner to S.H.O. reads as under:

Refer your No. 2317/5-1 dated 16.11.1983 regarding the report of late Inder Kour, wife of Sarup Singh, caste Megh Hindu, R/o village TatriaL,

Teh. and Distt. Jammu. The facts of the case are:

On 6.8.1983 she came to my clinic for examination for secondary sterility. A routine examination was done and she was advised to have D&I

(tubal potency test) done. She reported back on 8.8.1983. Before undertaking the minor procedure routine injections of siquil 10 mg and atropine

0.6 mg were given inter-muscular. She was also given injection W.K. wein as a precautionary measure for infection at about 2.00 p.m.

After waiting for one hour as per usual routine she was put on the table at 3 p.m. The parts were cleaned with dettol swab. She became nervous

for which she was reassured that this was nothing but cleaning of the area. The u/s turned to the other side for testing the uterine cannula. Suddenly

she became restless and uttered 'leave me alone. I am feeling alright.' I asked the assistant to feel the pulse and meantime removed my own gloves

and started feeling the pulse. Unfortunately the pulse had become imperceptible and the heart had also stopped. At once vigorous chest massage

was started. Inj. Decadran given and inhalation started but all these efforts proved futile. The patient collapsed before any procedure could be

undertaken due to cardiac arrest.

It comes out from the contents of this letter that the deceased was taken to the operation theatre and while performing preliminaries for operation

she became nervous and restless and afterwards died. The Board of doctors which conducted the post-mortem has not given any opinion whether

surgical interference was the result of any negligence on the part of the Petitioner. The cause of death has been shown to be due to cardiac arrest.

Now it is to be seen whether this cardiac arrest occurred due to the negligence of the Petitioner. In Modi's Medical Jurisprudence, 1977 Edition,

at page 116, Modi has observed as under:

Fright, dread, anger or any other emotional excitement may lead to such a degree of shock as to result at once in a fatal termination probably

due to haemorrhage. This will be more so in those persons who have an unstable nervous system or who have some organic disease, especially of

the heart or large blood vessels.

A woman, who was brushing her tooth, accidentally swallowed a mouthful of harmless mouth wash, she cried out that she had swallowed poison

and immediately died.

A young woman walking with her sweat-heart along a country road received such a fright from a horse pushing its white head through a hedge by

her side that she collapsed in her companion's arm and died.

It is nowhere, either in the report of the Board of doctors or in the prosecution evidence, that cardiac arrest of the deceased had occurred due

to negligence of the Petitioner. The abovesaid observations of Dr. Modi makes it clear that cardiac arrest can take place because of several other

reasons. In this regard the explanation given by the Petitioner to"" the investigating agency cannot be ignored. It is clear from that explanation that

the deceased at the time of performance of preliminaries for the operation became nervous and restless all of a sudden and died. It was certainly

cardiac arrest in her death and it can happen in view of the observations of Dr. Modi, without the negligence of the doctor.

In order to prove an offence u/s 304-A, Ranbir Penal Code following ingredients are required to be established:

(1) Death of the person in question;

(2) Accused caused such death;

(3) Such act of the accused was rash or negligent although it did not amount to culpable homicide.

Simple lack of care as such may constitute civil liability and it cannot be treated to be enough to prove a charge of homicide by negligence. Mere

carelessness is not sufficient for a conviction under this section. This section, like other sections of the Code, requires a mens rea or guilty mind and

the rashness or negligence must be such as can fairly be described criminal. In the present case the main allegation of the complainant was that the

husband and inlaws of the deceased might have connived with the doctor to cause death. That fact has not been proved by the prosecution. It has

been pointed out by the learned Counsel for the Petitioner that the Petitioner is a renowned Gynaecologist, having served in Government hospitals

for a long time as a specialist and this fact has not been controverted by the prosecution. Nothing has been shown or come out from the record

that the Petitioner did not take sufficient care while performing preliminaries to the operation. In order to perform an operation surgical interference

was necessary and if it has caused cardiac arrest, it cannot be attributed, in any manner to the negligence of the Petitioner. The learned Chief

Government Advocate has pleaded that since the charge has been framed against the Petitioner, present petition for quashing the proceedings

cannot be maintained. I however, do not agree with this contention of the learned Chief Government Advocate. Their Lordships of the Supreme

Court in case, Union of India (UOI) Vs. Prafulla Kumar Samal and Another, , have laid down the criteria for framing of charge. It has been

observed that the test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of

universal application. It is further.laid down in that case that by and large, however, if two views are equally possible and the Judge is satisfied that

the evidence produced before him while giving rise to some suspicion, but not grave suspicion against the accused, he will be fully within his right to

discharge the accused. Considering these observations, it cannot be said that the trial court has to act as a post office or a mouthpiece of the

prosecution but has to consider the broad probabilities of the case, total effects of the evidence and the documents produced before the court. By

mere framing of the charge, the powers vested in the court u/s 561-A, Code of Criminal Procedure cannot be taken away especially when there is

no evidence on record for framing of the charge and the proceedings clearly amount to the abuse of the process of the court.

For the foregoing reasons, I think it is a fit case in which the powers conferred u/s 561-A, Code of Criminal Procedure are required to be

exercised in order to set right the abuse of the process of the court. The proceedings pending before the learned Chief Judicial Magistrate, Jammu,

against the Petitioner are, therefore, quashed.