IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Criminal Misc.6017-M of 2005
DATE OF DECISION : SEPTEMBER 25, 2008
DR. SAROJ SETHI & ANR. ....... PETITIONER(S)
VERSUS
STATE OF PUNJAB & ANR. .... RESPONDENT(S)
CORAM : HON'BLE MR. JUSTICE AJAI LAMBA
PRESENT: Mr. Gautam Dutt, Advocate, for the petitioner(s).
Mr. HS Brar, DAG, Punjab.
Mr. SS Gill, Advocate, for respondent No.2.
AJAI LAMBA, J. (Oral)
This petition under Section 482, Code of Criminal Procedure,
has been filed with a prayer for quashing FIR No.177 dated 21.7.2002
under Sections 304-A, 201, 34, Indian Penal Code, Police Station, Sirhind
(Annexure P-1) and subsequent proceedings, including the final report
submitted under Section 173, Code of Criminal Procedure.
The FIR was lodged at the instance of Naresh Kumar
(respondent No.2) with the allegations that his wife-Veena Rani had
complaint of tonsils on account of which she had fever from time to time.
Veena Rani was medically checked up at Government Hospital, Fatehgarh
Sahib, where Dr.Saroj Sethi (petitioner No.1) advised surgery. Necessary
Criminal Misc.6017-M of 2005 2
medical check up was conducted on the person of Veena Rani and she
was, accordingly, admitted on 17.7.2002. The surgery was scheduled for
18.7.2002, as per the instructions of the doctor. At about 8.30 a.m., Veena
Rani was taken to the Operation Theater. At about 11.45 a.m., a Class-IV
official came and stated that the surgery had been conducted successfully.
Soon thereafter, however, the complainant found an Ambulance parked
outside the Emergency and the driver informed the complainant that the
patient had become serious and was being sent to the P.G.I., Chandigarh.
The Ambulance had been called by Dr.Saroj Sethi (petitioner No.1).
Veena Rani was, accordingly, shifted in the Ambulance. On the way,
artificial respiration was given by the accompanying doctors. On reaching
P.G.I., Chandigarh, the doctor posted in the Emergency Ward informed
that Veena Rani had expired.
Initially, respondent No.2-complainant had stated that he did
not want to take any action. Respondent No.2, at that point in time, was
perplexed due to shock on account of death of his wife. After having
become conscious of the fact, respondent No.2 wanted to see the record of
treatment. Dr.Saroj Sethi did not, however, show any document regarding
surgery. After receipt of report of post-mortem, all the papers had been
seen whereupon respondent No.2 became confident that the death had
occurred during the course of treatment given by the petitioners on
account of their negligence and, therefore, action be taken.
The main contention of the learned counsel for the petitioners
is that the Hon’ble Supreme Court of India in Jacob Mathew v. State of
Punjab and another, AIR 2005 Supreme Court 3180, has summed up the
Criminal Misc.6017-M of 2005 3
cases of the present nature and has held that negligence in the context of
medical profession necessarily calls for a treatment with difference.
Reliance has been placed on sub-paras (2), (5) and (7) of para 49, which
read as under:-
“(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.”
“(5) The jurisprudential concept of negligence differs in
Criminal Misc.6017-M of 2005 4civil 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.”
“(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.”
In the context of the judgment, relevant portion of which has
been reproduced above, learned counsel for the petitioners has drawn the
attention of the court towards three reports received at various points in
time, in regard to the quality of treatment given to Veena Rani. In para-9
of the petition, the opinion given by the Board of Doctors of the
Department of Forensic Medicine, Government Medical College and
Hospital, Patiala, on 8.10.2002, has been reproduced and the same reads
as under:-
“From PMR and report of HPE of viscera, the cause of death
in our opinion in the case noted above is Asphyxia due to
chocking as a result of Aspiration of blood in the Respiratory
Passage.”
Thereafter, it seems that a specific query was put by the
police, during the course of investigation, to the Board of Doctors of
Government Medical College and Hospital, Patiala, as to whether there
Criminal Misc.6017-M of 2005 5
was any negligence on the part of the doctors or not. The following report
was submitted by the Board of Doctors on 13.1.2003:-
“After going through the available record of the above
mentioned case, it is not possible to opine about the query
asked for.”
Since no conclusion was drawn by the Board of Doctors, the
authorities in the P.G.I., Chandigarh, were requested to give an opinion.
A letter dated 2.6.2003 was received from the P.G.I., Chandigarh,
addressed to the Senior Superintendent of Police, Fatehgarh Sahib,
relevant portion of which has been reproduced in para-11 of the petition.
The same reads as under:-
“Early and delayed haemorrhage is a known complication of
tonsillectomy. Based on the available facts the members of
the board are unable to comment on the specific question of
negligence of concerned doctors as it depends on many
factors including facilities available in hospital and technical
assistance available at the time of operation. This can best be
judged by medical experts working under similar conditions.”
In the context of what had been stated in letter dated 2.6.2003
viz. the facts can be best judged by medical experts working under similar
conditions, it seems that a report from the panel of doctors of Civil
Hospital, Fatehgarh Sahib, was sought. The report was submitted on
23.3.2004, which reads as under:-
“On reviewing the abovesaid record the board is of the
opinion that the probable sequence of events leading to death
were secondary or reactionary haemorrhage after operation
leading to asphyxia due to chocking as result of aspiration of
blood in the respiratory passage and then cardiac arrest.
Therefore, the board is of the opinion that there
Criminal Misc.6017-M of 2005 6may have been negligence on the part of both the doctors in
the abovesaid case.”
The contention of the learned counsel for the petitioners is
that in the context of the judgment rendered by the the Hon’ble Supreme
Court of India in Jacob Mathew’s case (supra), the case does not spell out
negligence on the part of the petitioners.
Learned counsel for the respondent-State has argued that
there is material available on the record to indicate that death of Veena
Rani was a result of negligence. Veena Rani was a young lady of 38 years
and had gone for a minor surgery, such as removal of tonsils. Report
dated 23.3.2004, reproduced above, indicates negligence and, therefore, it
would be a question of evidence to be determined by the trial Court. The
earlier reports were inconclusive in regard to the opinion whether there
was negligence on the part of the petitioners or not. A perusal of report
dated 23.3.2004 does not leave any measure of doubt that the petitioners
were negligent.
What is required to be considered in these proceedings is
whether the petitioners have been able to make out a case for quashing
under Section 482, Code of Criminal Procedure.
Reports dated 8.10.2002 and 23.3.2004 are consistent in
regard to the cause of death viz. Asphyxia due to chocking as a result of
aspiration of blood in the respiratory tract. Report dated 23.3.2004 has
clarified, on consideration of the entire record, that the probable sequence
of events leading to death were secondary or reactionary haemorrhage
(escape of blood from the vessels which naturally contain it) after
operation leading to asphyxia (a condition arising when body is deprived
Criminal Misc.6017-M of 2005 7
of oxygen) due to chocking as a result of aspiration of blood in the
respiratory passage and then cardiac arrest. The Board of Doctors have
further clarified that the cause of death may have been due to negligence
on the part of both the doctors (petitioners).
So, what is to be considered is as to whether this court can
take affidavits and counter affidavits and conclude that the petitioners
were not negligent.
Surely, in proceedings under Section 482, Code of Criminal
Procedure, this Court cannot record a finding that the petitioners were not
negligent or that there was simple lack of care, an error of judgment or an
accident. It would only be after leading evidence that the trial court
would be in a position to record that the petitioners had followed a
practice acceptable to medical profession on that day and, therefore,
cannot be held liable for negligence. In these proceedings, it cannot be
held that the hazard taken by the accused-doctors was of such a nature that
the injury which resulted was most likely imminent.
I have taken into account the fact that the surgery on the
person of Veena Rani was elective surgery and not under emergency
conditions. The petitioners claim themselves to be competent doctors.
The facilities required for such surgery were available at the hospital
where Veena Rani was operated upon. Post surgery, the bleeding was
required to be arrested or controlled. After operation, blood was allowed
to flow causing asphyxia and the body was deprived of oxygen as is
indicated by report dated 23.3.2004, reproduced above. Whether the
doctors had taken proper preventive measures to avoid the situation, or the
Criminal Misc.6017-M of 2005 8
condition was not attended to during post-operative period, resulting in
gross negligence, is an issue that can only be addressed by the trial court
after taking evidence.
Notice is required to be taken of para-53 of the judgment in
Jacob Mathew’s case (supra), which reads as under:-
“53. 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 levelled 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.”
I have taken note of the fact that the post-mortem
Criminal Misc.6017-M of 2005 9
examination was conducted. The entire record has been perused and
considered in the same condition as the patient was treated and, thereafter,
the cause of death, the sequence of events and negligence on the part of
the petitioners has been observed. There is, thus, sufficient evidence,
although prima facie, in view of the stage of the case, to indicate
commission of offence, to allow the trial Court to proceed. The opinion
has been given by the Board of Expert Doctors and, therefore, at this stage
it cannot be ignored. The Board of Doctors is an independent body, who
have given an independent,impartial and unbiased opinion indicating
negligence. The opinion forms the basis for submission of final report
under Section 173, Code of Criminal Procedure. The court is already
seized of the matter.
In view of the above, the petition is dismissed.
In view of the delay already caused, the trial court is required
to proceed with the trial expeditiously.
Learned counsel for the petitioners has prayed for exemption
from personal appearance of the petitioners.
Having regard to the nature of proceedings, the prayer is
allowed. Personal appearance of the petitioners shall remain exempt,
however, on the conditions to be imposed by the trial Court.
September 25, 2008 ( AJAI LAMBA ) Kang JUDGE