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Judgment
The applicant has filed this application under
Section 482 of the CR.P.C. for quashment of criminal
proceedings initiated against her for an offence under
Section 304-A of the IPC which is pending as RT
No.1221/2014 before the learned Judicial Magistrate First
Class, Ashta District Sehore.
Brief facts of the case are that the applicant
is a Gynecologist Doctor and presently posted as Medical
Officer in Sultaniya Hospital, Bhopal. In order to promote and
facilitate family planning at remote area/villages, the State of
M.P. has launched a scheme where the District
Administration organized a camp and the qualified Doctors
from District Hospital or specialized centres were deputed to
perform sterilization operation at place and facility provided
by District Administration. On 27/11/2014 one such camp
was organized at Health Center at Ashta District Sehore and
the petitioner as part of her duty was instructed to supervise
the said camp. The deceased Kiran Bai was kept in
observation by the Health Care Centre at Ashta and the duty
doctor present there after being satisfied with the recovery
and success of operation has discharged her. Due to some
complication attached with surgical process the condition of
the patient/deceased Kiran Bai deteriorated. She
approached the Health Care Centre at Ashta, where she
was referred to Bhopal and the deceased died during
treatment. The post-mortem was conducted and in the
opinion of the Doctor, the cause of death due to Cardio
Respiratory failure as a result of Perforation Peritonitis and
its complications. Thereafter without conducting any
investigation with respect to the negligence of the petitioner
and in gross violation to the circular of State Government
issued on 11/11/2011, FIR was registered against the
petitioner under Section 304-A of the IPC and investigation
was started. Thereafter, charge sheet was filed before the
Court under Section 304-A of the IPC. Petitioner has raised
an objection before the trial Court regarding the
maintainability of the case on the ground that the petitioner is
a government servant and, therefore, she cannot be
prosecuted without prior sanctioned under Section 197 of the
Cr.P.C. The said objection was dismissed vide order dated
03/03/2017. Being aggrieved by that order, the petitioner has
filed the present petition.
Learned counsel appearing on behalf of the
petitioner argues that the petitioner is a Doctor by profession
and, therefore, she is protected by guidelines issued by the
Hon''ble Apex Court in the case of Jacob Methew vs. State
of Punjab, 2005 (6) SCC 1. He further submits that the
petitioner is a government servant and she was on duty at
the time of incident and, therefore, she cannot be prosecuted
without taking prior sanctioned under Section 197 of the
Cr.P.C. The State Government has issued the guidelines
where it has been stated that investigating officer or Station
In-charge of Police Station will not register an FIR without
taking an expert opinion with respect to negligence of the
Doctor. These guidelines were issued in compliance of the
directions issued by the Hon''ble Apex Court in the case of
Jacob Methew (supra) and, therefore, the same are binding
on the Investigating Officer as well as the trial Court.
For the said purpose, learned counsel for
the applicant relied on a judgement passed by the Apex
Court in the case of Manorama Tiwari vs. Surendra Nath
Rai, 2016(1) SCC 594 as well as the judgement passed by
this Court in M.Cr.C. No.10383/2013 ( Dr. Neha Chaurasia
vs. State of MP, 2016 SCC Online MP 4127.
Heard learned counsel for the parties and
perused the record. From perusal of the record it reveals that
the applicant has filed the present application under Section
482 of the Cr.P.C. for quashment of criminal proceedings
initiated against him. The petitioner is Doctor by profession
and for the purpose of facilitate family planning at remote
area/villages, the State of M.P. has launched a scheme for
which District Administration organized a camp and qualified
Doctors from District Hospital or Specialized Centers were
deputed to perform sterilization operation at place and facility
provided by District Administration. On 27/11/2014 one such
camp was organized at Health Center at Ashta District
Sehore and the petitioner as part of her duty was instructed
to supervise the said camp. In the said camp, one Kiran Bai
was admitted and after success of operation, she has been
discharged. However, due to some complication attached
with surgical process the condition of the patient/deceased
Kiran Bai deteriorated and ultimately she died during her
treatment at Bhopal. Thereafter, the post-mortem was
conducted and a case was registered against the petitioner
under Section 304-A of the IPC. It is not disputed that the
petitioner is a public servant at the time of incident and she
was discharging her duty, therefore, the petitioner cannot be
prosecuted without prior sanctioned under Section 197 of the
Cr.P.C. The Hon''ble Apex Court in the case of Manorama
Tiwari (supra) in para 12 has held as under :-
"12. In view of the above-settled position of law, we are of the opinion that in the present case, the High Court has erred in law in dismissing the criminal revision filed by the appellants and affirming the order of the Magistrate rejecting their application as to maintainability of the criminal complaint without sanction from the State Government. In our opinion, it is a clear case where the appellants were discharging their public duties, as they were performing surgery on the patient in the Government Hospital. It is not disputed that the appellants were the medical officers in the Government Hospital. As such, the criminal prosecution of the appellants initiated by the respondent (complainant) is not maintainable without the sanction from
the State Government. That being so, we are inclined to allow this appeal."
In light of the judgement passed by the
Hon''ble Apex Court in the case of Jacob Methew (supra),
the State Government has issued a circular dated
11/11/2011 laid down the guidelines for lodging the FIR
against the Doctor. As per the said guidelines, before
registering the FIR against the Doctor, an opinion from the
expert or committee is required to be obtained. However, in
the present case, no such opinion from the expert or a
committee has been taken by the State Government before
registering the FIR against the applicant.
In the case of Dr. Neha Chaursai (supra),
this Court in para 10 has held as under :-
"10. The law relating to the prosecution of doctors for medical negligence amounting to an offence u/s. 304-A has been well settled. There was however some confusion for a short while as to whether there was any distinction in the standards and procedure between the prosecution of a doctor for an offence u/s. 304-A IPC and a civil action for compensation before a Court of Competent Jurisdiction. In Jacob Mathew v. State of Punjab -(2006) 6 SCC 1, a three judge bench of the Supreme Court had laid down in paragraph 52, that before a criminal court takes cognizance or the police proceeds against a doctor for an offence u/s. 304-A, both shall secure a report from an independent doctor or a board of doctors, preferably practising in the same filed as the doctor sought to be proceeded against, who opines that the doctor to be prosecuted, acted in "gross negligence" to the known standards of the medical profession. However, in Martin F. D''Souza v. Mohd. Ishfaq - (2009) 3 SCC 1, one of the Ld. Judges in a two Judge Bench of the Supreme Court, extended the requirement of an opinion by an independent doctor or a medical board as a condition precedent, even to proceed against a doctor for medical negligence under the consumer/civil law, by relying upon judgement of the Supreme Court in Jacob Mathew''s case, supra. The opinion of the justice Markandey Katju in Martin D''Souza supra was held to be per incuriam by the Supreme Court in V. Krishna Rao v. Nikhil Super Speciality Hospital (2010) 5 SCC 510, to the extent that the same extended the protection of an opinion of a doctor or a medical board as a precondition to initiating proceedings for negligence against a doctor before the Consumer Forum. It held that the law laid down in Jacob Mathew providing for an opinion/report of another doctor or a medical board as a condition precedent, was only restricted to prosecution of doctors under the criminal law for an offence u/s. 304-A.
Thus, by applying the law laid down by the
Supreme Court in the case of Jacob Methew''s (supra) the
proceedings against the petitioner herein is clearly in breach
of law and thus an abuse of the process. The FIR against
the petitioner was registered even before the report of the
Medical Board was available or even called for by the Police.
It is undisputed fact in the present case that the petitioner is
a public servant thereby necessitating the requirement of a
sanction under Section 197 of the Cr.P.C.
Thus, in light of the aforesaid, the present
application is allowed and the criminal proceedings which
are pending against the petitioner as RT No.1221/2014
before the Court of Judicial Magistrate First Class, Ashta,
District Sehore is hereby quashed.