The Patient lost his eye an injury, but Doctor charged for causing death by Negligence U/sec. 304-A, acquitted by hon. High court. - Adv. ROHiT ERANDE. ©
Adv. ROHiT ERNADE ©
Case Details : HON. HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.
Dr. D.L. Budwal.
V/s. Gurpreet Kaur.
High Court Website link :
https://phhc.gov.in/enq_caseno.php?case_id=dTZWWk83MHZnYmNBV1V1UmtwZDFuczhCaUpXODJSWUxyeVN5SUZSOFNkQT0=
Facts in short :
2.
On 25.07.2015,with
no improvement the son of the complainant/respondent he was taken
to Akal Eye Hospital, Jalandhar where
the doctor informed her that the eye of her son had been permanently damaged.
She thereafter visited various hospital at Jalandhar and Amritsar for treatment but due to the negligence of
the petitioner, the eye of her son was
permanently damaged because of which an artificial right eye had to be affixed.
It was alleged that when the complainant visited the hospital
of the petitioner to complain regarding the damage to the eye
of her son she was threatened and abusive language
was used against her.
3.
On the basis of the
facts narrated above, a complaint came to be
filed under Sections 326, 304-A, 447, 504, 506 IPC titled as Gurpreet
Kaur Vs. Dr. D.L. Budwal on
30.09.2016 (Annexure P-1). Based on
the evidence lead the petitioner came
to be summoned to face trial under Section 304-A IPC vide order dated 18.09.2019 (Annexure P-2) and the Doctor impugned said
compliant before the Hon. High Court .
4.
It was contended by
the Counsel for the petitioner contends
that the summoning order has been
issued mechanically under Section 304-A IPC without any application of mind and without
considering the fact that Jagdeep
Singh whose eye got permanently damaged has not died and, therefore, in
the absence of any death caused by
negligence, the question of the petitioner being summoned
to face trial under Section
304-A IPC does not arise.
5.
He contends that while passing the impugned summoning order
the court has not considered the
judgments in Jacob Mathew Vs. State of Punjab & Anr. 2005(3) RCR (Criminal) 836 and Martin F. D'Souza Vs.
Mohd. Ishfaq 2009(2) RCR (Criminal) 64 as per which an error of judgment on the part of a professional
could not be called negligence and a private complaint against the doctor cannot be entertained unless
the complaint is supported by the evidence
of another competent doctor. He
contends that in the present case, there
is no evidence of any doctor from a government institution who has supported the complaint of the
respondent/complainant with respect to the purported
negligence of the petitioner.
6.
The Consumer
Complaint for damages filed against the Petitioner Doctor also came to be
dismissed on merits with the conclusion that there was no negligence or deficiency in service on the part of the Petitioner Doctor and day after said
decision, the Criminal Compliant came to be filed !!.
Defense for the Original Complainant :
The
Counsel for the complainant admitted the fact that since no death had
taken place, the summoning order under
Section 304-A IPC could not have been passed.
He also does not deny the factum of their being no opinion
from a government hospital
supporting the case of the complainant regarding
the purported negligence of the petitioner.
Held :
1. The
Hon. High Court at the outset various provisions of Criminal Law. It referred
to the judgments of Hon. Supreme Court. In the case of M/s Pepsi Foods Ltd. Vs. Special Judicial Magistrate
1997
(4) RCR (Criminal) 761 it was held as under:-
“ 26. Summoning of an accused
in a criminal case is a serious
matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to
bring only two witnesses to support
his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate
summoning the accused must reflect
that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the
nature of allegations made in the complaint and the evidence
both oral and documentary in support
thereof and that would be sufficient for the complainant to succeed in bringing charge home to the
accused. It is not that the Magistrate
is a silent spectator at the time of recording of preliminary evidence
before summoning of the accused.
Magistrate has to carefully
scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then
examine if any offence is prima facie committed by all or any of the accused.”
2. The
Court then turned to the provision Section 304-A IPC and the said provision is
reproduced herein below:-
“ 304-A. Causing
death by negligence. —Whoever causes the
death of any person by doing any rash or negligent act not amounting
to culpable homicide,
shall be punished
with imprisonment of either
description for a term which may extend to
two years, or with fine, or
with both.
3.
Then it turned to the celebrated
judgment of Hon.Apex Court wherein prosecution of Doctors U/Sec.304A is concerned
- Jacob Mathew Vs. State of Punjab & Anr. 2005(3) RCR (Criminal)
836 wherein it has been held
as under:-
“ 51. We sum up our conclusions as under :-
(1)
Negligence is the breach of a duty caused 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. The definition of negligence as given in
Law of Torts, Ratanlal & Dhirajlal (edited
by Justice G.P. Singh), referred
to hereinabove, holds good. Negligence becomes actionable on account of injury resulting
from the act or omission
amounting to negligence attributable to the person sued. The essential
components of negligence are three : 'duty', 'breach'
and 'resulting damage'.
(2)
Negligence in the context
of medical profession necessarily calls
for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is
different from one of professional
negligence. A simple lack of care, an error of
judgment or an accident, is not proof of negligence on the part of a medical
professional. So long as a doctor follows
a practice acceptable to the medical profession of
that day, he cannot be held liable
for negligence merely because a better alternative course or method of treatment was also available or
simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which
the accused followed.
When it comes to
the failure of taking precautions what has to
be seen is whether those precautions
were taken which the ordinary experience of men has found to be sufficient; a failure to use special
or extraordinary precautions which might have prevented the particular happening
cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the
practice as adopted, is judged in the
light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence
arises out of failure to use some
particular equipment, the charge would fail if
the equipment was not generally available at that particular time (that is, the time of the incident) at which it
is suggested it should have been used.
(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's case [1957] 1 W.L.R. 582, 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 action in
civil law but gross nor of a higher degree may provide
a ground cannot
form the basis for prosecution.
(6)
The word 'gross'
has not been used in Section 304A of Indian Penal Code, 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 304A of
the Indian Penal Code has to be read as qualified by the word 'grossly'.
(7)
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.
(8)
Res ipsa loquitur
is only a rule of evidence and operates in the
domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating
to negligence. It cannot be pressed
in service for determining per se the liability for negligence within the domain of criminal law. Res
ipsa loquitur has, if at all, a limited application in trial on a charge
of criminal negligence.
a.
In view of the principles laid down hereinabove and the preceding discussion, we agree with the
principles of law laid down in Dr.
Suresh Gupta's case (2004) 6 SCC 422 and re-affirm the same. Ex abundanti cautela, we clarify that what
we are affirming are the legal principles
laid down and the law as stated in Dr. Suresh Gupta's case. We may not be understood as having expressed
any opinion on the question whether
on the facts of that case the accused could or could not have been held guilty of criminal negligence as that
question is not before us. We also
approve of the passage from Errors, Medicine and the Law by Alan Merry and Alexander McCall Smith which has been cited with approval in Dr. Suresh Gupta's
case (noted vide para 27 of the report).
Guidelines-re: prosecuting medical professionals
b.
As we have noticed
hereinabove that the cases of doctors (surgeons and physicians) being subjected
to criminal prosecution are on an increase. Sometimes
such prosecutions are filed by private complainants and sometimes by 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 rash or negligent act within the domain
of criminal law under Section 304A of Indian Penal Code. 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 in his reputation cannot be compensated by any standards.
c.
We may not be understood
as holding that doctors can 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
prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled
for or unjust compensation. Such malicious proceedings have to be guarded against.
d.
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 Bolam's 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 leveled against him). Unless his arrest is necessary for furthering the investigation
or for collecting evidence or unless
the investigation officer feels satisfied that
the doctor proceeded against would not make himself available to face the prosecution unless
arrested, the arrest
may be withheld. ”
Similarly, the Hon'ble Supreme Court in Martin
F. D'Souza Vs. Mohd. Ishfaq 2009(2) RCR (Criminal) 64 held as under:-
“ 117. We, therefore, direct
that whenever a complaint is received
against a doctor or hospital by the Consumer Fora (whether District,
State or National)
or by the Criminal Court then before
issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or Criminal Court
should first refer the matter to a
competent doctor or committee of doctors, specialised in the field relating to which the medical negligence is
attributed, and only after that
doctor or committee reports that there is a prima facie case of medical
negligence should notice be then issued to the concerned doctor/hospital. This is
necessary to avoid harassment to doctors
who may not be ultimately found to be negligence. We further warn the police officials
not to arrest or harass
doctors unless the facts
clearly come within the parameters laid down in Jacob Mathew's case (supra), otherwise the policemen
will themselves have to face legal action.”
4.
In view of the aforementioned
discussion it is apparent that no death has
taken place and, therefore, the
question of summoning of the petitioner
under Section 304-A IPC would not arise. The
Magistrate has passed the summoning
order mechanically just by adverting to the evidence lead without any application of mind as to how an offence under
Section 304-A IPC was made out in the
absence of death. In fact, once it
was disclosed to the Magistrate that
a police complaint had been made regarding the allegations as mentioned in the complaint, the Magistrate was well within
his powers to hold an enquiry
in terms of Section 202 Cr.PC to
satisfy himself as to the genuineness of the allegations and could have
also called for the police report
regarding the action taken on the said complaint, if any. Therefore, in cases where the allegations and the preliminary evidence lead in support of those allegations are hazy the court
can, and in fact should, hold a preliminary enquiry
in the manner that it deems fit before
proceeding to summon an accused. That
is the purpose and purport of Section
202 Cr.PC.
While
allowing the Writ petition it was held that in the present case, as per the
judgments in Jacob Mathew's case (supra)
& Martin F. D'Souza's case (supra) criminal/civil proceedings could not have been initiated against
the petitioner in the absence
of any report/evidence submitted by a competent
doctor or committee
of doctors testifying as to the negligence on the part of the petitioner. Further it is apparent that the Consumer
Forum had dismissed
the complaint of the complainant on 29.09.2016 holding that there was no negligence or deficiency of service and
the present compliant came to be instituted
on 30.09.2016 wherein no reference whatsoever was made of the dismissal of the complaint by the Consumer
Forum. Had this fact been disclosed in the complaint, the impugned
summoning order might not have been
passed.
This
is really a surprising and unfortunate case. The Doctor in the present case had
to run from pillar to post for the justice. Who’ll compensate him ? the
Government ? The Law related to Sec.304A is now settled since Jacob Mathew’s
judgment of 2005, still such blatant actions are being taken. The IMA should look
into such cases and supports its members.
Thanks
and Regards
(Adv.
ROHiT ERNADE)
Pune.©
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