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Judgment
Petitioner has filed the present petition under section 482 of the Cr.P.C seeking quashment of an FIR registered against him at Crime No.277/2019
in Police Station Palasia, Indore for the offence punishable under sections 336, 337, 338, 308 & 384 of the IPC.
Facts of the case in short which led to the registration of FIR against the petitioner are as under:
Petitioner is a medical practitioner having a degree of MBBS and Master of Surgery (MS). According to him, he is specialized in Minimal Access
Surgery and vide certificate dated 14.11.2014 the Association of Minimal Access Surgeons of India (FMAS) has certified that he has been qualified in
the art and science of minimal access surgery. As per the allegation in the FIR, on 07.03.2018 complainant Shambhu Dayal Agrawal, R/o D/120,
Awas Nagar, Dewas came to M.Y Hospital, Indore for treatment of his daughter viz. Ku.Divya Agrawal, aged 21 years as she was suffering from
pain in her abdomen. They met the present petitioner who is posted in the surgery department of the M.Y Hospital, Indore. After preliminary
examination of Ku Divya, petitioner advised for a minor operation and told that the operation theater of MY Hospital is contaminated and supporting
staff is no competent hence it would be better to take admission in Medi Care Hospital, Old Palasia Indore for which the expenses would be
Rs.30,000/- for operation. The petitioner further assured that he is performing such type of operations regularly. On his advice, the complainant has
admitted his daughter in Medi Care hospital and after pathological test on 30.05.2018 performed the operation. After two days of the operation, the
health condition of Ku. Divya has started deteriorating. The complainant met the petitioner and requested him to examine his daughter further. He
again called him in his clinic on 04.06.2018 and again he demanded Rs.70,000/- for another operation and when he objected Ku. Divya has been
forcibly discharged from the hospital by the petitioner. On 06.06.2018 the complainant admitted his daughter in Choitram Hospital and came to know
that the petitioner has committed negligence in the operation by putting two clips at a wrong place in her liver. Hence, another P.T.B.T operation was
conducted in Choitram Hospital for which he spent further Rs.1,00,000/-. After discharge from Choitram Hospital again his daughter became sick, he
had to take her to JM Hospital, Coimbatore by air on 23.07.2018. The complainant has further alleged that although the petitioner is a surgeon of
breast cancer, however, to extract money from him he has negligently performed the surgery of gall bladder of his daughter and left her to die and still
she could not recover. Based on the complaint made by the complainant, the Police investigated the matter and recorded the statement of Ku.Divya
and other witnesses and after completing the investigation Challan has been filed on 19.06.2019 against the petitioner for the offence punishable under
sections 336, 337, 338, 308 & 384 of the IPC, hence the present petition before this Court for quashing of the FIR by the petitioner.
According to the petitioner, Ku.Divya informed him regarding her stomach ache because of which she was unable to eat properly for a long time.
He examined her medically and also gone through the previous reports and after clinical diagnosis, he found that she is suffering from chronic
cholecystitis with cholelithiasis commonly known as swelling infection in gall bladder because of stone. He explained them regarding the disease, about
the treatment i.e. laparoscopy cholecystectomy operation and also advised for some tests to be conducted before such operation. The complainant has
agreed for operation and signed the consent letter for operation. On 30.05.2018 she was admitted in Medi Care Hospital and on 31.05.2018 near about
7 hrs. she was shifted to operation theater and operation was started. During operation swelling in gall bladder was seen and small contracted
thickened gall bladder was stuck with callous triangle in the stomach. It was also found by him that calloos triangle was completely frozen and artery
of the liver was not normal. He performed cholecystectomy very cautiously and carefully and applied abdominal drain on sub haptic region. As there
was no bleeding and Billary leakage, the port side was closed and at around 8.30 hrs. she was shifted to the recovery room in stable condition. On
01.06.2018 petitioner again visited the hospital and examined the patient and found her in stable condition and the abdominal drain output was minimal.
She did not make any complaint of stomach ache or fever to him. However, on 02.06.2018 she started vomiting during the night and after receiving
information he immediately rushed to the hospital without any delay and advised for some tests and sonography. After examining the report it was
found that she had an injury on bile-duct. Looking to the serious condition of the patient he requested Dr.Vinit Gautam, G.I. Surgeon to visit the
hospital for an examination of the patient. Dr.Vinit Gautam visited the hospital and informed that there is a bile-duct injury which is the common and
post-operative complication of laparoscopy cholecystectomy and is curable. He suggested for percutaneous transhepatic billary drainage (P.T.B.D)
and since the facility of P.T.B.D was not available in Medi Care Hospital, therefore, the petitioner referred and she was shifted to Choitram hospital
on the same day. Thereafter he is not aware of the condition of the patient and on 04.09.2018 the complainant filed a complaint against him before the
Chief Medical Officer, who constituted a panel of doctors to enquire about the allegations. The said panel of doctors submitted a report (Annexure
P/5) in which she was not found guilty. Later on 19.06.2019 in the police station, Palasia Indore complainant filed the FIR against him.
Shri Z.A.Khan, learned Senior Advocate appearing for the petitioner submitted that petitioner is a qualified surgeon having a degree of MS from
Devi Ahilya Vishwavidyalaya, Indore in general surgery. He has also passed fellowship in the minimal access surgery examination held at Banaras
Hindu University, Varansasi on 10th August, 2014 and has been awarded the certificate in the 9th International Congress of AMASI held on
14.11.2014 in Dubai. The minimally invasive (laparoscopic) surgery has become a major part of general surgery and since the last two decades, the
same is being used more widely throughout the world. The doctors having MS in general surgery are eligible to get the training of minimal access
abdominal surgery programme. This programme adequately prepares the general surgeon in the art of minimal access surgery. The duration of
training is one year in an approved programme, therefore, there is no dispute that the petitioner being a general surgeon having specialization in
laparoscopy cholecystectomy. Looking to the clinical diagnosis of the patient the petitioner has rightly operated with due care and precaution. As of
today, he has performed more than 300 surgeries of similar nature. There was no irresponsible or wrongful act on the part of the petitioner while
treating the patient. The complainant himself decided to admit his daughter in Medi Care Hospital. He has not produced any material before the Police
to show that he contacted the petitioner in MY Hospital for the operation. A panel of doctors has examined the patient and submitted the report in
favour of the petitioner. The patient suffered the type-4 bile-duct injury after the operation which is very common in such operations. The complainant
was explained the percentage of failure of the operation, however, he signed the consent letter. It is very common to occur a bile-duct injury during
the attempt or after the operation. In support of his contention, he has placed reliance over the judgment passed by the Apex Court in the case of
Jacab Mathew vs. State of Punjab and another reported in AIR 2005 SC 318.0 He has referred paras-19, 26, 27, 29, 30, 31, 49, 51, 52 & 53 of the
said judgment and submits that the Apex Court in the aforesaid judgment has held that in order to prosecute a medical professional for negligence
under the criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no
medical professional in his ordinary sense or prudence would have done or failed to do. A simple lack of care and error of judgment or an accident is
not proof of negligence. A professional may be held liable for negligence on one or two findings; either he was not possessed of the requisite skill
which he professed to have possessed or he did not exercise with reasonable competence in a given case the skill which he did possess. The test for
determining medical negligence as laid down in Bolam's case holds good in its applicability in India. Finally, Shri Khan, learned Senior Advocate
submitted that the criminal process once initiated against a medical professional would cause a serious embarrassment and harassment to him. At the
end of trial, he may be exonerated by acquittal or discharge but the loss which he has suffered in his reputation cannot be compensated by any
standard. There is no material to establish the charges against the petitioner, therefore, this court in the exercise of powers under section 482 can
quash the FIR filed against him at this stage alone.
Shri Vikas Yadav, learned Govt. Advocate argued that the petitioner is posted as a general surgeon in MY Hospital, Indore. The complainant
visited MY Hospital for treatment of his daughter but to extract money he advised him for operation in a private hospital. The hospital has no facility
of post-operational care in case of any complication. After the complication in the surgery, the complainant was advised for P.T.B.D operation which
was not available in the Medi Care Hospital, therefore, laparoscopy cholecystectomy operation ought not to have been performed by the petitioner in
Medi Care Hospital. Still, the daughter of the complainant has not recovered properly and taking food through a tube.
Learned counsel appearing for the complainant has also argued in support of the arguments advanced by the learned Govt. Advocate. He stated
that it is a matter of trial as to whether the petitioner has advised the complainant to admit his daughter in Medi Care Hospital to extract the money
instead of treating her in MY Hospital, Indore. The allegations made in the FIR constitute an offence punishable under sections 336, 337, 338, 308 &
384 of the IPC and no finding cannot be recorded by this Court at this stage to the effect that the petitioner has not committed any offence. In the
case of Jacab Mathew (supra) itself, the Apex Court has held that we may not be understood as holding that doctors can never be prosecuted for an
offence for which rashness or negligence is an essential ingredient and emphasized the need for care and caution in the interest of society while
recording the finding by the trial Court. The Apex Court has not held that no FIR can be registered against a medical practitioner. The charges,
especially under sections 336, 337 & 338 are liable to be examined by the trial Court after recording the evidence. At present the charges have not
been framed against the petitioner, therefore, the present petition is pre-mature and liable to be dismissed.
I have gone through the case diary and considered the submission of learned counsel for the parties.
As per the allegations against the petitioner in the FIR, the complainant went to MY Hospital, Indore for treatment of his daughter and met the
present petitioner but he advised him for operation in private Medi Care Hospital. He has not operated with due care and caution and thereafter he
had to shift his daughter to Choitram Hospital for further operation and from there to Coimbatore in Tamil Nadu for which he has incurred huge
expenses. Prima facie, there is material in the Final Report submitted by the prosecution that in the laparoscopy cholecystectomy operation the clips
were put at the wrong place. The Medi Care Hospital was not having the facility of P.T.B.D. operation. In the case of Jacab Mathew (supra) the
Apex Court has held that a simple lack of care and error of judgment or an accident is not a proof of negligence on the part of the medical
professional. So long as the doctor follows the practice acceptable to the medical profession of that day he cannot be held liable for negligence merely
because of the better alternate course or method of treatment was also available. When it comes to the failure of taking precautions, a failure to use
special or extraordinary precautions which might have prevented the particular happening cannot be a standard of judging the allegation of negligence.
It has also been held that a professional may be held liable for negligence on one of the two findings either he hs not possessed the requisite skill which
he professed to have possessed or he did not exercise with reasonable competence in a given case the skill which he did possess. In the present case,
there is no dispute that the petitioner possesses the requisite skill to operate but the issue is whether he did it with reasonable competence. The lack of
care constitutes a gross deficiency in service. The allegation against the petitioner is that to extract the money he advised the complainant for
operation in a private hospital by giving a dirty picture of a govt. hospital and he has acted so rashly or negligently which endangered the life of
Ku.Divya. As per the allegations against the petitioner by putting clips at a wrong place in the liver he has caused grievous hurt to the patient and by
doing the said act so rashly and negligently he endangered human life. These are matters of trial and no finding can be given at this stage in this
petition under section 482 of the Cr.P.C. The Apex Court in the case of Jacab Mathew has not held that there is no complete bar in registering FIR
against a medical practitioner or a doctor can never be prosecuted for an offence for which rashness or negligence is an essential ingredient.
Counsel for the petitioner submits that FIR is liable to be quashed especially for the offence under Section 308 IPC as same is not attracted in the
facts and circumstances of the present case, as there is no material available on record to show that the petitioner had any knowledge or intention to
cause death of the daughter of complainant and that the nature of injuries as recorded in the medical report as also on the parts of the body of the
complainant, would not point towards an offence under Section 308 IPC. He submits that merely because the injuries are grievous would not mean
that an offence punishable under Section 308 IPC is made out.
That Section 308 IPC is in two parts. The first part deals with a situation where if an act is done by a person, with such intention or knowledge and
under such circumstances that, if he by that act caused death, then such person would be guilty of culpable homicide not amounting to murder and
shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. The second type of
circumstance contemplated under the said Section is when hurt is caused to any person by such act, as mentioned in the first part of the section, then
the quantum of punishment would increase to imprisonment of either description for a term which may extend to seven years, or with fine, or with
both. Therefore, physical hurt is not a necessary prerequisite for invoking the provisions of Section 308 IPC, which fact is borne out from a bare
reading of the aforesaid section, and any hurt which is caused to the victim would only serve to enhance the quantum of sentence. There is no
material or any opinion of the expert doctor in the field in this present case, against the petitioner that the injury was sufficient, in the ordinary course
of nature, to cause death. If death cannot be caused by such injury, there is no question of the petitioner being prosecuted under Section 308 IPC. A
bare reading of the provision of Section 308 IPC would show that even when no hurt is caused, the offence may be made out if other ingredients are
fulfilled. A comprehensive reading of provision only reveals what has been stated by the Supreme Court in the case of Sunil Kumar Vs. NCT of Delhi
and others, 1998 (8) SCC 557 as below -
4............................................offence punishable under Section 308 IPC postulates doing of an act with such intention or knowledge and
under such circumstances that if one by that act caused death, he would be guilty of culpable homicide not amounting to murder. An attempt
of that nature may actually result in hurt or may not. It is the attempt to commit culpable homicide which is punishable under Section 308
IPC whereas punishment for simple hurts can be meted out under Sections 323 and 324 and for grievous hurts under Sections 325 and 326
IPC.
Because of the foregoing discussion, no case is made out for quashing of the entire FIR filed against the petitioner at this stage except charge under
section 308 of IPC. Hence, FIR registered under No.277/2019 in Police Station Palasia, Indore for the offence punishable under sections 308 of the
IPC is quashed. Accordingly, the petition is partly allowed. However, the petitioner is at liberty to raise all the grounds before the trial Court at the
time of framing of charges and the trial Court shall decide the matter without being influenced by the observations made in this order.