Dr.(Smt.) Anita Sahu vs Dhannalal And Others

This petition under section 482 of the Cr.P.C. has been preferred on behalf of the applicant against the impugned order dated 25.7.2016 passed by the

Special Judge (S.C. and S.T. (Prevention of Atrocities) Act, Hoshangabad, in Criminal Revision No.400071/2016, arising out of order dated 4.5.2016

passed by J.M.F.C. Hoshangabad, District Hoshangabad, in Criminal Case No.610/2016, whereby cognizance of the offence under sections 304-A of

the I.P.C. read with section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as

‘the Act’) has been taken by the court below against the applicant and the offence has been registered.

In the present case, the admitted facts are that respondents no.1 and 2 are members of the Scheduled Tribe community. Respondent no.1 was

married to one Smt.Somati Bai, younger sister of respondent no.2. At the relevant time the applicant was posted as Medical Officer in Community

Health Center, Pipariya.

Facts of the case, in brief, are that in the month of September, 2011 wife of the respondent no.1 was pregnant and was being treated by the

applicant. It is alleged that in the intervening night of 9-10th September, 2011, Smt.Somtibai suffered labour pain and, therefore, respondent no.1 and 2

along with other relatives took Smt.Somatibai to Govt. Hospital, Pipariya where staff nurse Smt.Kusum Pachori was present. After going through

earlier prescriptions, the staff Nurse advised the complainant to call the applicant as the patient was being treated by the applicant. The applicant was

not present in the hospital, therefore, the respondents went to the house of the applicant and requested the applicant to come to the Hospital. The

applicant assured that the complainant may go back to the Hospital and she would follow them soon. However, till 2.30 AM the applicant did not

reach the hospital. Thereafter, sister Pachouri informed the applicant that health of the patient is deteriorating; therefore, the applicant must come to

the Hospital immediately. However, the applicant did not turn up till 4.30 AM. When the applicant was again informed about the critical health

condition of the patient, the applicant suggested them that they should bring the patient at her private nursing home. The applicant deliberately did not

come to the Hospital. At about 8.30 AM, the patient delivered a baby child. At about 9.30 AM, the applicant reached the hospital and started attending

other patients. When complainant and other relatives requested the applicant to attend Smt.Somatibai, she insulted the complainant by their caste.

Thereafter, she referred the patient to the Govt. Hospital. It was alleged that Smt.Somatibai died thereafter.

Information of the incident was given to the concerned authorities, however, no action was taken against the applicant. Therefore, the respondents

filed a complaint before the JMFC Hoshangabad under section 200 Cr.P.C. In support of the complaint, the complainant got himself as well as other

witnesses examined. The trial court after considering the material available on record took cognizance of the offence and held that prima facie

offence punishable under section 304-A of the I.P.C. as well as under section 3(1)(x) of the Act is made out. Being aggrieved with the order of

learned trial Court, the applicant preferred a revision before the court of Special Judge, Hoshangabad. The learned Special Court after appreciating

the evidence on record dismissed the revision filed by the applicant by affirming the order of the trial court.

Learned counsel for the applicant submitted that the patient was brought to the Hospital at 4.00 AM as is evident from Admission Ticket. Further,

the delivery of child took place on 8.25 AM and everything was normal. It is submitted that the applicant reached the Hospital at 9 AM and

immediately attended the patient and found that heamoglobin was only 6.2 and as the patient immediately required blood, therefore, the applicant

referred her to the District Hospital. However, the patient died at the gate of the District Hospital. It is further submitted that the allegation leveled

against the applicant is false and baseless. The applicant was on duty at Pachmarhi from 8 AM on 9.9.2011 till 8 AM on 10.9.2011. Thereafter, she

came back to Pipariya at 9 AM as it takes 1 hour from Pachmarhi to reach Pipariya. She immediately attended the patient which is evident from Bed

Head ticket. It is further submitted that the allegation with regard to insulting the respondents by referring to their caste is prima facie afterthought as

in the earlier petition filed by the complainant to the authorities no such allegation has been leveled that the applicant defamed the respondents by

referring to their caste. It is an attempt just to misuse the provisions of the Act. Apart from it, the alleged act of negligence is related to dereliction of

duty as public servant and the applicant is a Gazetted public servant and her service can only be dismissed only by the order of the Govt. Hence,

sanction under section 197 of the Cr.P.C. is must. Without getting sanction from the State Govt., the applicant cannot be prosecuted for commission of

the offence punishable under section 304-A of the I.P.C. Thus, the proceedings of the case are required to be set aside else it will cause great

prejudice to the applicant.

In rebuttal to the aforesaid contention, learned counsel for respondents no.1 and 2 submitted that the death of wife of the respondent no.1 had taken

place on account of negligence of the applicant as she was on duty at the time of admission of the deceased in the Hospital and she was duty bound to

attend the deceased. On account of her apathy and inhuman behavior and negligent act, the patient died. Hence, the applicant is responsible for

commission of the offence punishable under sections 304-A of the I.P.C. Apart from it, when during the treatment applicant was insisted to attend the

deceased, she made objectionable comments by referring to the caste of the respondents in public view to insult and defame them. It is further

submitted that the paper with regard to having duty on different places at the time of incident has been prepared falsely and the Department has

exonerated her wrongly on bias enquiry. Reliance has been placed upon the judgment of the Apex Court in the case of Mohanan Vs. Prabha G.Nair

and another, reported in (2004) AIR (SC) 1719. In the circumstances, prayer is made to dismiss the petition.

Having heard rival contention advanced by learned counsel for the parties and on perusal of the record, it is found that the complaint was made by

the respondents to the various authorities which are on record, do not disclose any allegation with regard to calling the respondents and deceased by

their caste or insulting them in any manner. In the circumstances, when the complaint is made after three years, its correctness seems to be inherently

improbable as no prudent person can ever reach a just conclusion that the allegation having such infirmity is sufficient for proceeding against the

accused and appear manifestly attended with malafide.

So far as the commission of offence punishable under section 304-A of the I.P.C. is concerned, it is related to the inaction of the applicant as a

public servant allegedly causing death of wife of the respondent no.1. There is no allegation that wrong treatment was administered to the deceased.

The allegation is only that she did not attend the patient in time while she was dutybound to attend the patient. The record submitted by the applicant

which are the copy of the public document show that at the relevant time her duty was at different places and her attendance is also recorded at

different places. However, subordinate employee one Nurse claimed that the applicant was on duty at the relevant time. Undoubtedly, the aforesaid

fact is disputed as the other witnesses also stated that when they approached the applicant, she did not say that she was not on duty. She simply said

that she would take own time to come and attend the patient. Therefore, at this stage, it cannot be said that the applicant was not on duty at the

relevant time.

However, the aforesaid act is related to not discharging the official duty with due diligence. The act of the applicant comes under the purview of

criminal negligence. Hon’ble the Apex court in the case of Jacob Mathew Vs. State of Punjab and another, reported in (2005)6 SCC 1, has dealt

with the act of criminal negligence committed by the medical expert causing death of the patient and the prosecution for offence punishable under

sections 304-A of the I.P.C. and held as under :-

“(a) to prosecute a medical professional for negligence under 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 senses and prudence would have done or failed to do.

The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.

(b) For negligence to amount to a criminal offence, the element of mens rea must be shown to exist. It is recklessness that constitutes mens rea in

criminal law as far as negligence is concerned. The moral culpability of recklessness is not located in a desire to cause harm. It resides in the

proximity of the reckless state of mind to the state of mind present when there is an intention to cause harm. There is, in other words, a disregard for

the possible consequences. The consequences entailed in the risk may not be wanted, and indeed the actor may hope that they do not occur, but this

hope nevertheless fails to inhibit the taking of the risk. Certain types of violation, called optimizing violations, may be motivated by thrillseeking. These

are clearly reckless.

In order to hold the existence of criminal rashness or criminal negligence it shall have to be found out that the rashness was of such a degree as to

amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The element of criminality is introduced

by the accused having run the risk of doing such an act with recklessness and indifference to the consequences. The negligence to be established by

the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.

(c) The word “gross†has not been used in Section 304-A IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must

be of such a high degree as to be “grossâ€. The expression “rash or negligent act†as occurring in Section 304-A IPC has to be read as

qualified by the word “grosslyâ€. To impose criminal liability under Section 304-A, the Penal Code, it is necessary that the death should have been

the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of

another’s negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non.

(d) Indiscriminate prosecution of medical professionals for criminal negligence is counter-productive and does no service or good to society. A medical

practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with

negligence patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be

for the complainant to clearly make out a case of negligence before a medical practitioner is charged with out proceeded against criminally. A surgeon

with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of

medicine to his patient. If the hands be trembling with the dangling fear of facing a criminal prosecution in the event of failure for whatever reason-

whether attributable to himself or not, neither can a surgeon successfully wield his life-saving scalpel to perform an essential surgery, nor can a

physician successfully administer the life-saving does of medicine. Discretion being the better part of velour, a medical professional would feel better

advised to leave a terminal patient to his own fate in the case of emergency where the chance of success may be 10% (or so), rather than taking the

risk of making a last ditch effort towards saving the subject and facing a criminal prosecution if his effort fails. Such timidity forced upon a doctor

would be a disservice to society.

The criminal law has invariably placed medical professionals on a pedestal different from ordinary mortals. The Penal code enacted as far back as in

the year 1860 sets out a few vocal examples, in Sections 88, 92 and 93.

(e) As we have noticed hereinabove that the cases ofdoctors (surgeons and physicians) being subjected to criminal prosecution are on an increase.

Sometimes such prosecutions are filed by private complainants and sometimes by the police on an FIR being lodged and cognizance taken. The

investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act

of the accused medical professional amounts to a rash or negligent act within the domain of criminal law under Section 304-A IPC. The criminal

process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest,

which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered to his

reputation cannot be compensated by any standards.

(f) We may not be understood as holding that doctorscan never be prosecuted for an offence of which rashness or negligence is an essential

ingredient. All that we are doing is to emphasise the need for care and caution in the interest of society; for, the service which the medical profession

renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a

complainant prefer recourse to criminal process as a tool for pressurising the medical professional for extracting uncalled for or unjust compensation.

Such malicious proceedings have to be guarded against.

(g) Statutory rules or executive instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State

Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future

which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint

may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another

competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before

proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a

doctor in government service, qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion

applying the Bolam [Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582 : (1957) 2 All ER 118] test to the facts collected in the

investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against

him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the

doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.â€​

Hon’ble the Apex Court has laid down that a private complaint may not be entertained unless the complainant produces prima facie evidence

in the Court in the form of credible opinion given by another doctor to support the charge of rashness or negligence on the part of the accused doctor.

Considering the aforesaid guidelines, so far as present case is concerned, there is no such opinion of any other medical expert that the death of the

deceased had taken place on account of rashness or alleged negligent act of the applicant.

Further the Apex Court in the case of Manorama Tiwari and others Vs. Surendra Nath Rai, reported in (2016)1 SCC 594, has held that the

prosecution of Govt. doctor with the allegation to cause death by negligent act under section 304-A of the I.P.C. requires sanction under section 197

of the Cr.P.C. Hon’ble the Apex Court also placing reliance on paras 50, 51 and 52 of the judgment in the case of Jacob Mathew (supra) and also

quoted judgment of Constitutional Bench in the case of Matajog Dobey Vs. H.C.Bhari, reported in AIR 1956 SC 44, referring to para 15, laid down

that prosecution of Govt. doctor with the allegation to cause death by negligent act under section 304-A of the I.P.C. requires sanction under section

197 of the Cr.P.C.

The facts in the case of Mohanan (supra) relied by counsel for the respondents are quite different from the facts of the present case. In Mohanan

(supra), High Court quashed the proceedings which were pending at the stage of enquiry and Apex court quashed the order of the High Court and

directed that the applicant complainant should have been given an opportunity to present the case before the Magistrate. Thus, the facts of that case

are not applicable in the present case.

In view of the above-settled preposition of law, this Court is of the opinion that in the present case, the courts below have erred in law in

dismissing the criminal revision filed by the applicant and affirming the order of the Magistrate. Thus, this petition is allowed and the impugned orders

passed by the revisional court as well as trial court are set aside. Consequently, criminal proceedings pending against the applicant is hereby quashed.

A copy of this order be sent to the trial court concerned for information and compliance.