High Court Punjab-Haryana High Court

Dr. K.K. Locham vs State Of Punjab on 19 May, 2011

Punjab-Haryana High Court
Dr. K.K. Locham vs State Of Punjab on 19 May, 2011
   IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                   CHANDIGARH


                        Crl. Misc. No. M-10111 of 2011 (O&M)

                               Date of Decision: May 19, 2011

Dr. K.K. Locham

                                             .        ....Petitioner

                               Versus


State of Punjab

                                                    ... Respondent

CORAM: HON'BLE MR. JUSTICE ALOK SINGH

     1.    Whether reporters of local news papers may be
           allowed to see judgment?

     2.    To be referred to reporters or not?

     3.    Whether the judgment should be reported in the Digest?

Present:   Mr. Rajiv Atma Ram, Senior Advocate
           with Mr. Arjun Partap Atma Ram, Advocate,
           for the petitioner.

           Mr. K.D. Sachdeva, Addl. A.G., Punjab,
           for the respondent-State.


Alok Singh, J.

Present petition is filed seeking regular bail in case

FIR No. 41, dated 20.02.2011, under Sections 304 of the

Indian Penal Code, registered at Police Station, Civil Lines,

Patiala.

Record reveals that on 31.01.2009, a fire broke out

in the Nursery Unit of Rajindra Hospital, Patiala, due to
CRM M-10111 of 2011 2

which 4 infants who were being treated for jaundice on the

phototherapy machine died of burns. His Excellency

Government of Punjab vide order dated 31.01.2009 was

pleased to appoint Justice K.C. Gupta (former Judge of this

Court) to enquire into the incident of death of new born

babies due to fire which broke out in the Gynae Department

of Rajindra Hospital, Patiala. Justice K.C. Gupta, former

Judge of this Court, vide his report dated 30.01.2010 has

opined as under:-

“There is a lack of supervision at every level.

Professor K.K. Locham is Head of Pediatric

Department as well as incharge of Nursery Unit.

Being head he is liable vicariously for the grave

negligence committed by his staff in their duty. Dr.

K.K. Locham failed in his ability to see likely harm to

be caused to the infants lying on platform of

phototherapy unit by the falling or bursting of loose

tubes in the sealing of the unit and did not provide

any safeguard in the shape of fixing plastic seats or

Plexiglas under the tubes to avoid possible harm to

the infants. Being head and incharge of the unit, a

legal duty was cast upon him to take all possible

safety measures and to exercise due legal care and

caution. Thus, he is also vicariously liable for grave

negligence committed by the staff.”

CRM M-10111 of 2011 3

Justice K.C. Gupta has also opined that one

fabricated phototherapy unit was available; the phototherapy

has florescent tubes which cannot burst due to short circuit;

the florescent tubes contain inert gases i.e. Combination of

Krypton, Argon or Xenon which are not flammable; fire in the

phototherapy machine had not taken place due to short

circuit but had taken place as it was a night of extreme cold

and by negligence the heater was kept by the staff very close

to the phototherapy unit which made the heat to focus on the

particular point on the cotton sheet or blanket which caught

fire causing the breaking of tube which fell down on the

infants lying on the platform and they were roasted; staff

nurse on duty, the doctor on duty and the Class IV employee

on duty were either sleeping or were away from the duty

place and they are responsible for grave act of omission or

commission of negligence.

Record further reveals that on 31.01.2009, the day

of incident, petitioner was not on duty, therefore, he was not

suspended, while Principal, doctor on duty Dr. Neha Sharma,

staff nurse on duty Rita and Class IV employee on duty Satya

were placed under suspension for negligence in performance

of their duties. The Secretary, Department of Research and

Medical Education, Punjab, had issued letter dated

02.04.2010 to the Senior Superintendent of Police, Patiala,

with copy to the Director General of Police enclosing a copy of
CRM M-10111 of 2011 4

the report of Justice K.C. Gupta. The Superintendent of

Police (Operations), Patiala, submitted his report after

enquiry that doctor on duty, nurse on duty, Class IV

employee on duty were not sleeping, however, they all were

present in the doctor’s room; that near the phototherapy unit

a heater with heating element in dilapidated condition was

there. He has further stated in his report that since Dr. Neha

Sharma was doing M.D. and was on temporary duty in the

Hospital, therefore, she is not guilty for the fire. The

Superintendent of Police (Operations), Patiala, has also found

in his report that Dr. K.K. Locham (present petitioner) is a

head of Pediatric Department and he was knowing that the

wiring system in the room was of poor standard and can

cause loss of life at any time, but he did not made any efforts

to improve the same, therefore, Dr. K.K. Locham, Nurse

Reeta and Class IV employee Satya are guilty for causing

death to 5 new born infants due to burning, therefore, are

guilty for offence punishable under Section 304 of the Indian

Penal Code. On 20.02.2011 almost two years after the date of

incident, FIR was registered on the basis of the enquiry

report of Superintendent of Police (Operations) and petitioner

was arrested and he is in judicial custody since then.

Learned Senior Advocate, appearing on behalf of

the petitioner, has vehemently argued that on the fateful day,

petitioner was not on duty. He has further argued that
CRM M-10111 of 2011 5

although S.P. (Operations) has found in his enquiry report

that in the room the electric wire system was very poor

quality which can cause loss of life, however, from the report

of Justice K.C. Gupta, fire in the phototherapy machine had

not taken place due to short circuit but was caused because

heater was placed very close to the phototherapy unit which

made the heat of the focus on the particular point on the

cotton sheet or blanket which caught fire causing the

breaking of tube which fell down on the infants lying on the

platform resulting in the death of infants. Learned Senior

Advocate has further argued that there is a difference

between the report of Justice K.C. Gupta and the report of

Superintendent of Police (Operations). Learned Senior

counsel has further argued that since petitioner was not on

duty on the date of incident and as per report of Justice K.C.

Gupta, fire was not result of the short circuit and fire was

caught because heater was put very close to the machine

which could have been avoided by the doctor on duty and

nurse on duty, therefore, present petitioner, being head of

the Department cannot be said to be negligent in his duties.

He has further argued that it was the duty of the doctor on

duty i.e. Dr. Neha Sharma and nurse i.e. Rita, on duty, to

keep the heater at safe distance and to monitor the heater

and heating. He has further argued that Superintendent of
CRM M-10111 of 2011 6

Police (Operations) has wrongly exonerated Dr. Neha Sharma

and has found petitioner guilty.

In the opinion of this Court, since petitioner is in

judicial custody w.e.f. 20.02.2011 and was not on duty on

the date of incident i.e. 31.01.2009; it was prima facie duty of

the doctor on duty and nurse on duty to remain present in

the ward and to monitor the heater and phototherapy

machine, therefore, there seems to be valid ground to enlarge

the petitioner on bail.

In the peculiar facts and circumstances of the

present case, present petition is directed to be allowed. Let,

petitioner be enlarged on bail on furnishing his personal

bond and two sureties to the satisfaction of the learned Chief

Judicial Magistrate, Patiala. It is clarified that any

observation made herein before is solely for the purpose of

disposal of this petition for bail and shall not be construed

opinion on the merit of the case.

May 19, 2011                                         ( Alok Singh )
vkd                                                         Judge