IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 313 of

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1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 313 of Dr. Mahendra Prasad Jha, 2. Dr. Khurshid Ahmed, 3. Dr. Animesh Priya, 4. Inder Narayan Mahto, 5. Pawan Kumar Mondal Petitioners Versus The State of Jharkhand Opposite Party CORAM : HON BLE MR. JUSTICE H. C. MISHRA For the Petitioners: For the State: : Mr. Indrajit Sinha, : Mr. Bibhash Sinha, : Mr. Ajay Kr. Sah, : Miss Suchitra Pandey : Mr. Shekhar Sinha, A.P.P / Heard learned counsel for the petitioners and learned counsel for the State. 2. The petitioners are aggrieved by the order dated passed by Shri A. K. Mishra No. 2, learned Judicial Magistrate, Dhanbad, in Dhanbad P.S. Case No. 559 of 2004, corresponding to G.R. Case No of 2004, whereby the application filed by the petitioners u/s 239 of the Cr.P.C., for discharge, has been rejected by the Court below, finding that there are sufficient materials in the case diary for framing charge u/s 304 A/ 34 of the Indian Penal Code. 3. Petitioner Nos. 1, 2 & 3 are the medical practitioners whereas petitioner Nos. 4 & 5 are their Assistants and they have been made accused in Dhanbad P.S. Case No. 559 of 2004, corresponding to G.R. Case No of 2004 for the offence u/s 304 A / 34 of the Indian Penal Code on the written report submitted by the informant Surendra Prasad, who had admitted his wife for treatment in the clinic of Dr. Mahendra Prasad Jha, the petitioner No.1. It is stated that the doctor had advised surgical operation on the patient, and accordingly on the surgical operation was performed, as it appears from the F.I.R., for removal of the gall bladder. 4. It is alleged in the F.I.R. that the patient was taken in the operation theatre at about 5:00 p.m. where the other accused persons were also present and at about 10:00 p.m. in the night the informant was called in the operation theatre where he was informed about the death of his wife, in the course of operation. On the basis of the written information given by the informant, the police case was instituted and investigation was taken up. After investigation the police submitted the

2 -2- charge-sheet for the offence u/s. 304 A/ 34 of the Indian Penal Code against all the accused persons and accordingly, the cognizance was taken against the petitioners. Subsequently, the petitioners filed their application for discharge, which was rejected by the Court below by the impugned order dated From the case diary, it appears that the post mortem examination of the deceased was done by a Board of Doctors. The concluding portion of the post mortem report reads as follows :- Opinion: 1) In our opinion cause of death was shock as a result of Bacteremis and sepiticaemia. 2) Time elapsed since death was 12 hours to 18 hours before the time of postmortem examination. 3) Surgical operation was found done for the purpose of cholecyrtectomy & the gall bladder was found removed out. Re-exploration of the Abdomen having been done, cannot be ruled out. 4) Except the proper surgical wounds, no injury was found anywhere in the Internal organs of the body. 6. Learned counsel for the petitioners has submitted that the petitioners have been falsely implicated in this case as there was no negligence in the treatment of the deceased, rather in the course of surgical operation she had died. It has been submitted that the chargesheet has been filed in this case only on the basis of the statement of the witnesses that due to the negligent treatment the patient died. Learned counsel for the petitioners has further pointed out from the post-mortem examination report that the death of the deceased, in the opinion of the medical board was caused due to shock as a result of Bacteremis and Sepiticaemia. It is also submitted that it is apparent that except the proper surgical wounds there was no injury anywhere in the internal organs of the body. Learned counsel has accordingly, submitted that the case of the petitioners is fully covered by the decision of the Hon ble Supreme Court of India in the case of Jacob Mathew Vs. State of Punjab & Anr., reported in (2005) 6 SCC 1, wherein elaborate and detailed guidelines have been laid down by the Hon ble Supreme Court of India, after discussing earlier precedents about the criminal liability of a medical practitioner in such cases. Learned counsel accordingly, submitted that in view of the law laid down by the Hon ble Supreme Court of India, it is a fit case for discharge and the impugned order cannot be sustained in the eyes of Law.

3 -3-7. Learned counsel for the State on the other hand has opposed the prayer and has submitted that upon investigation it was found that the death of the deceased was caused due to the medical negligence of the petitioners and accordingly, charge-sheet was submitted against the accused persons. It has also been submitted that in view of the materials against the petitioners in the case diary the Court below has rightly rejected the application of discharge of the petitioners. 8. After having heard learned counsels for both the sides and upon going through the record, I find that the post-mortem report of the deceased does not speak of any medical negligence on the part of the petitioners, rather it clearly speaks that the death was due to shock as a result of Bacteremis and Sepiticaemia and except proper surgical wounds there was no injury anywhere in the internal organs of the body. No negligence in the surgical operation was found to be the cause of the death of the deceased. 9. In the case of Jacob Mathew (Supra) the Hon ble Supreme Court has elaborately dealt with the negligence of the medical practitioners and has summed up the conclusions as follows :- 48. We sum up our conclusion as under: ** ** ** ** (3) A professional may be held liable for negligence on one of the 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 the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. (4) The test for determining medical negligence as laid down in Bolam case, WLR at p. 586 holds good in its applicability in India. (5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.

4 -4- (6) 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 gross. The expression rash or negligent act as occurring in Section 304-A IPC has to be read as qualified by the word grossly. 10. In Kusum Sharma & Ors. Vs. Batra Hospital and Medical Research Centre & Ors., reported in (2010) 3 SCC 480, the Apex court has relied upon the case of Jacob Mathew (Supra) and upon considering the leading cases of medical negligence both in our country and other countries, has laid down the law as follows :- 89. On scrutiny of the leading cases of medical negligence both in our country and other countries specially the United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well-known principles must be kept in view: I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor. VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence. VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and compet

5 -5- ence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. VIII. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck. IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension. X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurising the medical professionals/hospitals, particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners. XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals. 90. In our considered view, the aforementioned principles must be kept in view while deciding the cases of medical negligence. We should not be understood to have held that doctors can never be prosecuted for medical negligence. As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind. 11. In the present case, except the statement of the witnesses that due to the negligent treatment the patient died, there is nothing to show as to actually what gross negligence was committed by the petitioners in the treatment of the wife of the informant. Even the postmortem report of the deceased does not speak of any medical negligence on the part of the petitioners, rather it clearly speaks that the death was due to shock as a result of Bacteremis and Sepiticaemia and except proper surgical wounds there was no injury anywhere in the internal organs of the body. No negligence in the surgical operation was found to be the cause of the death of the deceased. As such, in view of the law settled by the Apex Court in Jacob Mathew s case (Supra) and Kusum Sharma s case (supra), I am of the considered view that no offence can be said to be made out against the petitioners, though there may be some ground for action in civil law against the petitioners, but the same cannot form the basis for

6 -6- criminal prosecution and compelling the petitioners to face the trial shall amount to misuse of the process of Court. 12. In view of the aforementioned discussions, the impugned order dated passed by Shri A. K. Mishra No. 2, learned Judicial Magistrate, Dhanbad, in Dhanbad P.S. Case No. 559 of 2004, corresponding to G.R. Case No of 2004 is hereby, set aside. Consequently, the petitioners stand discharged. This application is accordingly, allowed. (H.C.Mishra, J.) D.S.

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