ORDER
P. Swaroop Reddy, J.
1. This petition is filed to quash the proceedings in C.C. No. 1727 of 2004 on the file of the learned Judicial Magistrate of First Class, Luxettipet, Adilabad District.
2. The facts are as follows : On 15-3-2003 at 9-30 a.m. the deceased, Linga Reddy met with an accident, as the car belonging to an Advocate dashed him. He was taken in the same car to the private hospital of the present first petitioner, where the second petitioner, who is an Anesthetist, along with the first petitioner treated him. The deceased died around 2-30 p.m. According to the complainant, the first respondent, the deceased died on account of the negligence of the doctors. He gave a complaint to the police on the same day. After investigation the police submitted final report dated 30-10-2003, to which the first respondent filed protest petition. After recording the sworn statement of the first respondent on 15-12-2004, the learned Magistrate has taken cognizance of the case. The order of the learned Magistrate dated 20-12-2004 reads:
Verified the statement of LW-1 and contents of the complaint. There is prima facie case to proceed with the offence. Hence cognizance is taken against both the accused for the offence under Section 304-A, IPC. Issue summons to A-1 and A-2 call on 6-1-2005.
The said order is challenged in this criminal petition.
3. Now, the contention of the learned Counsel for the petitioners is that there was absolutely no negligence on the part of the petitioners and that the learned Magistrate has erroneously taken cognizance of the case against the petitioners under Section 304-A, IPC.
4. The learned Counsel for the petitioners contends that first of all, there is inconsistency in the case of the first respondent with regard to the fact, as to how the deceased died. As per his initial case, as given in the complaint, on the date of the accident, the deceased was taken to the Hospital of the first petitioner, where the first petitioner along with Anesthetist gave an injection, on account of the injection and on account of the negligence of the Doctors, the deceased died. That at 12-00 noon and at 1.30 p.m. he also contacted the Doctor saying that the deceased was serious and as the doctor was negligent, the deceased died. Thus, in the initial complaint, it is alleged that on account of the injection given and negligence, the deceased died. As per the protest petition filed by him, in the Court, the deceased was admitted in the hospital of the A-1, during the course of treatment sutures were applied to the injury of the leg of the deceased, after A 2 gave anesthesia and during treatment canula was arranged to the hand of the injured and during and after suturing to the injury the Dextrose was completed (it appears to be a mistake, and it may be the intention of the complainant that dextrose was administered through canula). After that all the family members of the deceased went away and the first petitioner also left the patient to attend other patients and that the deceased was under the treatment of A-1 and A-2 from 12-00′ noon to 1-30 p.m. When the complainant and his family members have approached the Doctors, he revealed that they have given anesthesia in some excess dose, so the patient will come into consciousness after some hours. At about 2-30 p.m., the complainant went to the Hospital for seeing the patient and found him dead due to hemorrhage, as there was heavy bleeding from the canula arranged by the Doctor, as the canula was opened; that the Doctor has not taken proper care during the treatment to observe the patient minute-to-minute and even he also failed to provide medical attendance to observe the patient while he was in unconscious state due to anesthesia. Thus, at one place first respondent-complainant contends that the deceased died due to the injection given by the doctors, at another place he alleges that there was excess anesthesia and at another place on account of the bleeding through canula. The learned Counsel for the petitioners contends that there is no consistency in the allegations of the first respondent.
5. The contention of the first respondent is that the deceased died on account of the negligence of the doctors. Whether it is on account of the injection or administration of excess Anesthesia or bleeding through canula, the fact remains that the deceased died in the hospital of the first petitioner.
6. Now the question is whether there was any negligence on the part of the petitioners so as to attract the provisions of Section 304-A, IPC.
7. As per the final report, filed by the Investigating Officer, the doctor who conducted autopsy on the dead body of the deceased, stated that the death was due to the cardio respiratory failure due to cardiac shock. The case sheet reveals:
that the patient was admitted in the hospital with an injury to his left leg and small abrasion on right knee. Since the injury on left leg needs to be sutured, anesthesia was given and injury was sutured. The case sheet shows that some antibiotics, painkillers were administered to the patient, and some time thereafter the patient developed breathless-ness. Therefore, Adrenil injunction which is a life saving drug was given to the patient. In spite of administering life saving drug etc., patient could not be survived. The cause of death given by the Medical Officer, who conducted post-mortem examination goes to show that the patient died due to cardiac problem. The Postmortem examination report shows that the deceased was fally heart clotted blood found in the left ventricle. This observation mentioned in the post-mortem examination report goes to show that such observation will be noticed generally in case of patient with some abnormalities in the heart. Injuries received by the patient and the medicines administered to him will not in any way lead to death of deceased. I have also contacted the doctor who conducted post-mortem examination and also other doctors and discussed with them about the ailment of the patient and medicines administered to him and the doctors clearly stated to me that there is no negligence on the part of Dr. Reghava Rao or Anesthetist.
Thus, the post mortem examination does not reveal that the deceased died on account of any hemorrhage.
8. As contended by the learned Counsel for the petitioners, in case there was such a hemorrhage through canula, as stated in the protest petition, wherein it is specifically stated that on account of the bleeding the stretcher of the patient was full of blood that oozed from the body of the patient and that the patient died due to hemorrhage, there was no possibility of the first respondent omitting to mention the same in the complaint, given at the first instance. If really there was no much bleeding, there was absolutely no possibility for him to omit the same in the complaint where it is stated that the deceased died on account of the injection and negligence of the doctors.
9. Thus, it has to be taken that what is mentioned in the complaint given at the first instance, is correct, as per which the deceased died on account of the injection being given and on account of the negligence of the doctors. Even in the complaint, it is not mentioned as to what was the negligence of the doctors. It is not on record as to what were the acts of omission or commission that have caused the death of the deceased.
10. Even before the police, when he was examined on 15-3-2003, the first respondent stated that the deceased was taken by Sri Satyanarayana Rao, Advocate to the Hospital and knowing that all the family members of the first respondent went to the Hospital; that on account of the second petitioner giving some injection and on account of reaction of such an injection the deceased died. Thus, in this statement also, nowhere it is stated that the deceased died on account of the bleeding. Thus taking the entire allegations in the complaint and the statement recorded by the police, to be true also, the deceased died on account of some injection given, on account of the reaction and on account of the negligent treatment. What is the negligent treatment is not mentioned. Thus it has to be seen as to whether the deceased died on account of the alleged reaction of the injection and medical negligence is constituted to attract provisions of Section 304-A, IPC.
11. Both the learned Counsel have referred to the latest decision of the Hon’ble Supreme court in Jacob Mathew v. State of Punjab , wherein the Hon’ble Supreme Court has elaborately discussed the circumstances under which doctors are liable for the offence under Section 304-A, IPC. In paragraph 48 of the above judgment, the Hon’ble Supreme Court has summed up the conclusions, to say under what circumstances doctors would be liable for the offence under Section 304-A, which read (para 49):
(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 the 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 or 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 cames 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 of judging the alleged negligence. So also, the stand 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 skill 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 or negligence.
(4) The test for determining medical negligence as laid down in Bolam case (1957)1 WLR 582 hold 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 gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.
(6) The word “gross” has not been used in Section 304-A, IPC, 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 304-A, IPC 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.
Thus to constitute negligence, to attract the provisions of Section 304-A, IPC against the doctor, simple lack of care, an error of judgment or an accident is not enough. So long as a doctor follows a practice acceptable to the medical profession of that day, whether or not the doctor did not possess the requisite skills or did not exercise his skills with reasonable competence, for an act amounting to criminal negligence, the negligence should be much higher i.e., gross or of a very high degree. It must be shown that the accused did something or failed to do the same which can in such circumstances, no medical professional in his ordinary sense and prudence would have done or failed to do.
12. In that particular case, where the deceased died on account of non-availability of Oxygen cylinder and on account of the empty oxygen cylinder being put, it was held that it was not a case to attract the provisions of Section 304-A, IPC. If it is not an offence when an empty oxygen cylinder was put on account of which the deceased died of breathlessness, it is difficult to accept that when the deceased died on account of injection, even assuming that, that has caused reaction amounts to negligence. There is no allegation that the doctors have given the injection in such a careless manner that it caused his death. The allegation being that the injunction caused reaction. In any case, as observed by the Hon’ble Supreme Court, it may be a case for civil action, in case the respondent proves that there was such kind of negligence on the part of the doctor and certainly it is not a case for taking cognizance of the offence under Section 304-A, IPC. Thus, the proceedings initiated against the petitioners in C.C. No. 1727 of 2004 are liable to be quashed.
13. In the result, the criminal petition is allowed. The proceedings against the petitioners (A-1 and A-2) initiated in C.C. No. 1727 of 2004 on the file of the learned Judicial Magistrate of First Class, Luxettipet, Adilabad District are hereby quashed.