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