JUDGMENT
H.R. Malhotra, J.
1. This is a revision petition made under the Provisions of Sections 397 and 401 read with Section 482 of the Code of Criminal Procedure for setting aside the impugned order dated 29th November, 2003 passed by the Metropolitan Magistrate in a complaint case No. 206/1/95 for commission of offence punishable under Section 304-A IPC.
2. Vide impugned order the Metropolitan Magistrate had recalled the summoning order made earlier against the petitioner a Doctor by profession and D.M. in Neurology.
3. The case originated by filing a private complaint under Section 304-A IPC against the petitioner as the complainant ‘s daughter who was patient of Epilepsy was under the treatment of the petitioner since 1994. On 16th March, 1995 at around 1 P.M. Alpana Saha since deceased had developed fits. Since she had been under the treatment of the petitioner for quite sometime, therefore, the father of the deceased immediately called the petitioner at his residence . The petitioner arrived there to attend the deceased. Alpana was immediately removed to Mool chand hospital. The petitioner removed her in his own car. On reaching the hospital, the petitioner asked the Nurse to inject dye to the patient. Since Dr. Dahiya, Radiologist was not present, therefore, according to the complainant, the petitioner Dr. Vaneet Suri directed the Nurse Veena to inject the dye. Immediately after administering the same, the deceased started shreaking and screaming with pain and had to be taken to ICCU where she died on the night of 17th March, 1995/18th March, 1995 because of reaction of the dye. This necessitated the complainant to move the Court by filing a private complainant against the petitioner for commission of offence punishable under Section 304-A. The Metropolitan Magistrate ordered investigation under the Provisions of Section 156(3) of the Code of Criminal Procedure. The Investigator made discreet investigation and came to the conclusion that no lapse could be attributed to the petitioner and also no criminality to be attached to the act of the petitioner he having taken reasonable and due precaution by treating the deceased and that the death occurred incidentally and not in the manner as alleged by the complainant in his complaint and that there was no element of rashness or negligence on the part of the petitioner, yet the Metropolitan Magistrate proceeded to record evidence and summoned the petitioner as an accused. The petitioner thereafter made an application before the Metropolitan Magistrate seeking recalling of the summoning order. That application was entertained as law permitted recalling of the summoning order in view of Mathew ‘s Judgment at that time. The Metropolitan Magistrate dealt with the matter at great length and gave a detailed judgment dealing with each aspect of the matter and also having regard to the report of the Investigating Officer and the decision of the District Consumer Forum rejecting the claim of the complainant, recalled the order of summoning on the ground that the cause of the death of the deceased was not due to rash and negligent act of the petitioner.
4. This order has been impugned by way of filing the revision petition. It is urged by the learned Counsel for the petitioner that recalling order is bad in law as the Metropolitan Magistrate had no authority in law to recall his own order in view of the Judgment rendered by the Apex Court in Adalat Prasad v. Rooplal Jindal and Ors. . It is further contended that the petitioner doctor insisted on C.T. Scan despite the fact that the Nurse Veena refused to carry out such test in the absence of the concerned Dr. Dahiya and the petitioner being not familiar with the procedure of C.T. Scan and dye injection, yet insisted for such test without knowing its consequences. It is further the grievance of the petitioner’s counsel that the test dose was required to be given first followed by injection but in this case no test dose was given but straightway dye was injected and this resulted in causing reaction to the deceased resulting in her death because of rash and negligent act of the petitioner. On the other hand, learned Counsel appearing for the respondent contended that C.T. Scan was done under the supervision of Dr. Yashpal Dahya , Consultant Radiologist and not by the petitioner. It is further urged that the petitioner had attended the deceased immediately after receiving a telephonic call at her residence and had taken the deceased to the hospital immediately in his own car as she had suffered fits of epilepsy. It was further submitted that without loss of time, he immediately took the deceased to the C.T. Scan room where C.T. Scan was done under the supervision of Dr. Yashpal Dahiya.
5. The trial court record was called for, for the purpose of examining the same and satisfying itself about the correctness, legality or proprietary of the findings arrived at by the Metropolitan Magistrate. I have perused the impugned order. The learned Metropolitan Magistrate dealt with the matter threadbare. I must say it is a well reasoned order. The court of Sessions or the High Court can interfere under the Provisions of Section 397 Cr.P.C. if some irregularity or illegality is noticed in the impugned order. After reading the impugned order in details I cannot desist from complementing the Metropolitan Magistrate who dealt with the matter so threadbare and deeply that there is hardly any scope left for the superior court to interfere in the impugned order. As is seen the complainant had the following broad allegations against the petitioner.
1. The CT Scan was done by Dr. Vinit Suri who was not competent and no Radiologist was present at that time.
2. No pre-test dose was given.
3. He was not competent or qualified to supervise the procedure of contrast CT scan.
4. No anti dose was readily available as Dr. Vinit Suri was asking for Avil.
5. There was strike in the hospital and scanning department was not functional.
6. The post mortem of the deceased was not conducted and his signatures were obtained on blank papers by extending threats.
7. In the death certificate, the hospital did not mention the cause of death.
6. Reading of the police report filed pursuant to the directions of the Metropolitan Magistrate under Section 156(3) Cr.P.C. indicates that the doctor was completely exonerated finding no involvement of the doctor resulting in death of Ms. Alpana.
7. Perusal of the report sent by the police under Section 173(2) of the Code of Criminal Procedure also clearly shows that the police had asked for all the records from the hospital and from the C.T. Scan Centre and had recorded statements of various persons including Dr. Yashpal Dahiya who was directly connected with the C.T. Scan of the deceased. One Dr. Ghasil who was also connected with this case was examined. He too stated that C.T. Scan was conducted by Dr. Dahiya and not by the petitioner. Though the police indicated in the report that the petitioner/doctor never instructed to the nurse to inject the dye and he had only conveyed the history of the patient to Dr. Yashpal Dahiya, the head of the C.T. Scan who transmitted necessary instructions to nurse Beena and in turn nurse Beena had given a test dose before injecting the full dye.
8. Since the Magistrate before whom the report was submitted was not bound by such report and therefore, in order to satisfy further, he proceeded to record the evidence of the complainant and consequently summoned the petitioner as an accused. This led the petitioner to file the application for recalling the summoning order. Learned Magistrate who had dealt with the recalling of summoning order then perused the police report sent under Section 173(2) Cr.P.C., the statements of the witnesses recorded during the course of inquiry and also the decision rendered by the Consumer Forum where the father of the deceased had claimed a sum of Rs. 5 lacs from the petitioner and such claim resulted in dismissal. There too Dr. Dahiya had appeared and had unequivocally stated that he was present in the C.T. Scan Centre and that it was he who had given instruction to nurse to inject the dye after giving the test dose. The Consumer Forum after perusal of the evidence, came to the conclusion that no act of negligence could be attributed to the petitioner and thus dismissed the claim of the father of the deceased.
9. As regards allegations of not giving test dose, though it was not admitted by the petitioner that the test dose was not given but at the same time, it was urged on the strength of various medical text books that the test dose had become redundant and were not required yet it has come on record that the test dose was given on the instructions of Dr. Dahiya. Though this Court has looked into the entire record to find out if any irregularity or illegality was committed by the Metropolitan Magistrate while recalling the summoning order yet at the cost of repetition, I would again state that the impugned order is written in a perfect manner touching all the points which were raised by the respective parties and I really do not find any infirmity warranting interference, the impugned judgment being absolutely in order.
10. As stated above about the applicability of Adalat Prasad’s judgment, the same came much after the rendering of the decision by the Magistrate. At that time K.M. Mathew’s case was the law of the land and the Magistrate rightly applied the same while recalling the summoning order, he being empowered to do so in view of Mathew’s judgment. If the judgment rendered in Adalat Prasad case is given retrospective effect, the clock will be put back in all the cases as in that eventuality all the cases where orders of recall of summoning have been made in terms of K.M. Mathew’s case will have to be reversed. This, to my mind can never be the spirit of the changed law.
11. As regards the criminality fastened to the petitioner in causing the death of Ms. Alpana by rash and negligent act, learned Counsel appearing for the respondent urged that for fixing criminal liability on a Doctor or Surgeon, the standard required to be proved should be so high as can be described as gross negligence or recklessness. It is not merely lack of necessary care, attention and skill. In the case of Dr. Suresh Gupta v. Govt. of NCT reported in 12 (2004) Delhi Law Times page 866 the court observed as under:
Doctor cannot be held criminally responsible for patient’s death unless his negligence or incompetence showed such disregard for life and safety of his patient as to amount to a crime against the State.
12. On the strength of the judgment, learned Counsel for the respondent urged that every careless act of the medical man cannot be termed as ‘criminal’. It can be termed ‘criminal’ only when the medical man exhibits a gross lack of competence or inaction and wanton indifference to his patient’s safety and which is found to have arisen from gross ignorance or gross negligence. Where a patient’s death results merely from error of judgment or an accident, no criminal liability should be attached to it. Mere inadvertence or some degree of want of adequate care and caution might create civil liability but would not suffice to hold him criminally liable. Therefore, to convict a Doctor the prosecution has to come out with a case of high degree of negligence on the part of the doctor and that the act complained against the doctor must show negligence or rashness or such a higher degree as to indicate a mental state which can be described as totally apathetic towards the patient. Such gross negligence alone is punishable.
13. Learned counsel also referred to an authority rendered by Karnataka High reported in 1989 ACJ 393 where too facts of the case were similar to the fact of the case in hand. There too no post mortem was conducted and there were allegations that no test dose was given and also the accused doctor was not an anesthetic expert. The High Court held that the accused doctor possessed the degree of MBBS and FRCS. The High Court also held that merely because one in a lac cases bring about disastrous results it does not mean that non-giving of the test dose was an indication of rashness or negligence.
14. The case in hand is much on strong footings. Here in the case there is an evidence on record that test dose was given in the presence of Dr. Dahiya and that all due care and attention was taken at the time the patient was being treated. The petitioner who without loss of time came to the house of the patient in his own car exhibits concern for the patient. Furthermore he had taken the patient in his own car to Moolchand Hospital, stood by her side and he seems to have done all these things as he had been treating her earlier for the past six months and was familiar with her history. The petitioner is a highly qualified doctor and DM in Neurology. Though this is an unfortunate death of a young girl but to my mind, the doctor has suffered unnecessarily despite having been cleared by the investigators and also by District Forum.
15. The impugned order speaks voluminous about innocence of the doctor. He is already suffered for more than 10 years. Instead of focusing his talent on his medical profession, he has been facing this case for so long without there being any fault or lapse on his part.
16. Putting him to trial for no fault of him once again shall be to his detriment as further trial in any case is not warranted, he being completely innocent. No ground exists for interference in the order passed by the Metropolitan Magistrate either under the Provisions of Section 397 Cr.P.C. or under Section 482 of the Code of Criminal Procedure. Therefore the impugned order is maintained resulting in dismissal of the revision petition.