Lady Dr. Ajit Kaur vs The State of Punjab

S.S Dewan, J.—With the aid of this petition und er Section 482 of the Code of Criminal Procedure, Dr. Ajit Kaur Petitioner implores this Court to quash the proceedings and the F.I.R. lodged against her u/s 304A, Indian Penal Code which is pending in the Court of Additional Chief Judicial Magistarte, Ludhiana. A prayer for the quashing of the order dated November 29, 1914, by which the Petitioner was charged of offence u/s 304-A, Indian Penal Code, is also made.

Without going into the details of the grounds taken up in the petition, in substance the allegations made against the Petitioner amount to this Smt. Maninder Kaur aged about 26 years wife of Bhavjinder Singh become pregnant sometime in the month of September, 1982 and she used to go to the Petitioner at City Nursing Home and Hospital at Ludhiana for antenatal check up. It is alleged that on 15th June, 1983, Smt. Maninder Kaur went to the Petitioner for routine checkup and the latter administered drip and same other medicines to her to precipitate delivery and at the time of delivery she also used forceps. It is further alleged that as a result of rash and negligent act of the Petitioner, the new born baby became sick cyanosed and had apnoic spells and be died on 22-6-1983 in the C.M.C Hospital, Ludhiana. On these allegations made by Bachan Singh, father of Smt. Maninder Kaur, FIR. No. 502 dated August 13, 1983, u/s 304-A, Indian Penal Code, was registered at Police Station Division No. 5, Ludhiana After obtaining the opinion of the Civil Surgeon, Ludhiana, a challan was presented before the trial Court. When the matter came up before the Court, the following charge was framed against the Petitioner:-

That you on 22-6-1983, at Ludhiana caused the death of male child born to Maninder Kaur d/o Bachan Singh by doing a negligent act not amounting to culpable homicide; that you forced the pre-mature delivery of male child on 15-6-1983 and handled the delivery in negligent manner and thereby committed an offence punishable u/s 304A, I.P.C.

The Petitioner then moved the present petition u/s 482 of the Code of Criminal Procedure for quashing the proceedings which are now pending in the Court of Additional Chief Judicial Magistrate, Ludhiana.

The principal contention raised on behalf of the Petitioner is that as the very basis of the proceedings pending before the trial Court i.e. the charge framed against the Petitioner does not indicate the commission of any offence by her and her prosecution for such a charge is wholly illegal, in other words an abuse of the process of the Court.

After hearing the learned Counsel for the parties, I find that the contention has ample merit If we fix our attention on the charge, which has been reproduced in the earlier part of the judgment, it would be noticed that the main allegation against the Petitioner was that she administered drip and other medicines to Maninder Kaur to force labour pains and that because of her negligent act, the new born baby became sick and died in the C.M.C. Hospital, Ludhiana on the seventh day of his birth. I am not able to understand what is the offence that is committed by the Petitioner, even taking the entire averments found in the F.I.R. to be true. It is significant to note that the police had obtained the opinion of the Civil Surgeon, Ludhiana, before presenting the challan in the trial Court. The Civil Surgeon had opined that the Petitioner bad given proper treatment under the circumstances and that for inducing labour pains, she was the best Judge and the question of applying forceps was always decided during the delivery prdcess. It is thus manifest that even the opinion of the Civil Surgeon does not specify that there was any ill effect due to the alleged induced delivery. Therefore, the possibility of the child dying a natural death due to illness cannot be ruled out. The case of the Petitioner is that a day earlier when Smt. Maninder Kaur came to for ante-natal check up she had high blood pressure and there was no weight gain for one month indicating chronic placental insufficiency and therefore, she advised her for induced delivery She claimed that she explained the whole procedure of induced delivery to the patient''s father who had agreed without any hesitation. According to the Petitioner, the patient had high temperature and she gave her anti malarial treatment and alter about eight hours of the delivery, the child started getting fits and she immediately referred him to C.M.C. Hospital, Ludhiana, for better treatment. In the state of evidence produced on the record, it is not possible to hold that the action of the Petitioner was even proximately the cause of death of the child it is settled now that in assessing the penal responsibility of the accused in the case, it has to be borne in mind that a very high degree of negligence must be found, negligence which must amount to recklessness or utter indifference to consequence and not merely negligence of tort. In the present case, the position is slightly different and the negligence attributed to the Petitioner, if at all, is of a lesser degree and it is difficult to pin her with penal responsibility so that the act might amount to a crime. The only fault found with the Petitioner by the Civil Surgeon, Ludhiana, was that she did not obtain the consent of the patient or her parents for induced delivery but that is not sufficient to charge her with criminal liability and entailing punishment.

Mr. Ujagar Singh has brought to my notice the decision of the Kerala High Court in Chamnad Essential Oils and Other Allied Manufacturing Company v. Circle Inspector of Police Puthur (1974) M.L.J (Cri) 191, where after elaborating the scope and power that can be exercised by the High Court u/s 561-A, Criminal Procedure Code, making reference to almost all the leading decisions, the learned judge has summarised the position by observing that u/s 561-A if the allegations made in the first information statement and the ease diary statement of the witnesses during the investigation u/s 161, Criminal Procedure Code, as well as the charge laid by the police u/s 173, Criminal Procedure Cods, do not disclose any offence against the accused, the High Court can interfere at any stage of the proceeding and the interference to quashing the proceedings, however, can be recourse to only on two conditions viz. if the prosecution allegations even when accepted as true, do not establish any offence against the accused and where an offence against the accused is established if the allegations are believed but there is no evidence at all to support the aligner. It was further held that is always open to the High Court to interfere where the facts are preposterous that the High Court feels satisfied that on the admitted facts there is no case against the accused and when the High Court is clearly of the opinion that further prolongation of the proceeding would amount to harassment, it is in the interest of justice that the High Court should interfere

In this regard, I may point out the observation of the Supreme Court in R.P. Kapur Vs. The State of Punjab, , wherein their Lordships of the Supreme Court have given some categories of cases in which the inherent jurisdiction to quash proceedings can and should be exercised. I feel that it is enough for me to indicate the second category mentioned therein, viz, where the allegations in the first information report or the complaint, if they are taken at their face value and accepted in their entirely, do not constitute the offence alleged. In such cases, no question of appreciating evidence arises. It is a matter merely of looking at the complaint or the first information report to decide whether the offence alleged is disclosed or not

As I have already stated supra elaborately, the allegations contained in the F.I.R. No. 502 dated 13.8 1983 lodged by Bachan Singh do not disclose or constitute the offence alleged and therefore, it cannot be said that the petition u/s 482, Code of Criminal Procedure would be premature For these reasons, I allow this petition and quash the proceedings now pending in the Court of Additional Chief Judicial Magistrate Ludhiaua.