1. By filing the instant petition under Section 482 of the Code of Criminal Procedure [for short ‘Cr.P.C.’], the petitioner is seeking quashing of F.I.R. whereby a case has been registered against the petitioner vide Crime No.16/2022 at Police Station Harda, District Harda under Section 304 and 201 of the IPC.
2. After hearing submissions made by learned counsel for the parties and to resolve the controversy involved in this case, it is necessary to take into account the relevant facts of the case which are as under :- 2.1 The prosecution has come up with a case that the deceased Praveen S/o Balram Pawar, aged about 30 years succumbed to death due to the fault of the petitioner and as such complaint was made by one Prabha Bai Pawar W/o Balram Pawar stating that on 27.12.2021 at about 19:00 hours to 20:00 hours the incident occurred and F.I.R. was lodged on 14.01.2022 alleging that Balram Pawar brought Praveen to the hospital of the petitioner on 27.12.2021 as Praveen was facing some ailment and complaining about pain in abdomen, chest, shortness of breath and overall weakness. It is alleged that the condition of Praveen Pawar was not good and after giving the preliminary treatment, he was referred to the District Hospital, Harda. It is alleged that the petitioner was running the Hospital without admission facilities in the said care center wherein initial treatment was provided.
2.2 It is also alleged that preliminary treatment given in the hospital of the petitioner was not of appropriate standards and total medical negligence was shown. As a result, the deceased was required to be admitted in the District Hospital, Harda wherein during the treatment, Praveen expired. However, according to the petitioner, the deceased was congested with mild necrotic changes but F.I.R was registered and prosecution was lodged against the petitioner registering a case against him.
2.3 The post mortem examination of the deceased was conducted at the District Hospital, Harda on 28.12.2021, which reads as under :-
“In my opinion after postmortem finding of Praveen is suggestive of death due to cardio-respiratory arrest. However, definitive cause is not ascertained that is why viscera and blood sample preserved and sent for forensic department for chemical analysis and further investigation.
Duration of death : within 6-24 hours.”
3. As per the petitioner, the deceased was referred to the District Hospital, Harda where it was observed that he was a chronic abuser of drugs and was under treatment in his hospital for last 03-04 years. However, the offence got registered against the petitioner alleging that overdose of medicines were given to the deceased.
4. It is also submitted that the petitioner is a qualified doctor with MBBS degree and is registered with Nepal Medical Council. Before registration of F.I.R., no enquiry was conducted against him by any expert committee so as to ascertain any kind of medical negligence on the part of the petitioner while treating the deceased in his hospital. As per the petitioner, in his hospital, the deceased was treated with utmost sincerity and honesty and there was no medical negligence. The petitioner has earned a good reputation in the town and he cannot be held responsible in any manner and cannot be alleged to have caused death of the deceased. As per the petitioner, there is no material available so as to demonstrate any fault on the part of the petitioner. The deceased was provided proper treatment and also the required medical facilities. The offence under Section 304 and 201 of IPC was wrongly registered against him and directly or indirectly, he is not at all connected with the alleged incident and cannot be held responsible for the death of the deceased. The petitioner, therefore, relied upon several judgments of the Supreme Court and also of this Court saying that on basis of pronouncements of Supreme Court and High Court in number of cases, the F.I.R registered against the petitioner is liable to be set aside.
5. In support of his submissions, Shri Eshaan Datt, learned counsel for the petitioner has placed reliance on the Supreme Court pronouncements in Jacob Mathew vs. State of Punjab and another (2005) 6 SCC 1; Mahadev Prasad Kaushik vs. State of Uttar Pradesh and another (2008) 14 SCC 479 and S.K. Jhunjhunwala vs. Dhanwanti Kaur and another (2019 2 SCC 282 and the orders passed by this Court in Dr. Rajesh Batra vs. The State of Madhya Pradesh (M.Cr.C. No.8190 of 2020) and Dr. Rajeev Jain vs. The State of Madhya Pradesh (M.Cr.C. No.34597 of 2022).
6. Shri Agnihotri, learned counsel for the State has opposed the submission of learned counsel for the petitioner and submits that there is nothing wrong in registration of offence against the petitioner and also submitted that in view of the allegations made and the material collected during the course of investigation, F.I.R. cannot be quashed. He has submitted that this is not a proper stage to reappreciate the evidence collected by the prosecution and therefore, F.I.R. cannot be quashed. According to Shri Agnihotri, it is not a case of quashing the F.I.R. because on the basis of allegations made by the complainant, it is apparent that negligence has been done while treating the deceased and when situation was beyond control, he was referred to the District Hospital, Harda. He submits that petition is misconceived, therefore, it deserves dismissal.
7. Considering the submissions made by learned counsel for the parties, perusal of record and looking to the legal position as has been laid down by the Supreme Court in the case of Jacob Mathew (supra), the Apex Court observed as under :-
“18. In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of 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 necessary for every professional to possess the highest level of expertise in that branch which he practises. In Michael Hyde and Associates v. J.D. Williams & Co. Ltd. [2001 PNLR 233 (CA)] Sedley, L.J. said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable.
41. Laxman Balkrishna Joshi v. Trimbak Bapu Godbole [(1969) 1 SCR 206 : AIR 1969 SC 128] was a case under the Fatal Accidents Act, 1855. It does not make a reference to any other decided case. The duties which a doctor owes to his patients came up for consideration. The Court held that a person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for that purpose. Such a person when consulted by a patient owes him certain duties viz. a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to be given or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires. The doctor no doubt has a discretion in choosing the treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency. In this case, the death of the patient was caused due to shock resulting from reduction of the fracture attempted by doctor without taking the elementary caution of giving anaesthesia to the patient. The doctor was held guilty of negligence and liability for damages in civil law. We hasten to add that criminal negligence or liability under criminal law was not an issue before the Court, as it did not arise and hence was not considered.
48.(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”.
48.(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. Further, in the case of Mahadev Prasad Kaushik vs. State of Uttar Pradesh and another (2008) 14 SCC 479, the Supreme Court observed as under :-
“32. The standard to be applied for judging whether a person charged has been negligent or not would be that of an ordinary competent person exercising ordinary skill in that profession. It was further observed that mere deviation from normal professional practices is not necessarily evidence of negligence. An error of judgment on the part of the professional is also not negligence per se. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. Medical profession is often called upon to adopt a procedure which involves higher element of risk, but which a doctor honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow would depend on the facts and circumstances of a given case. It was, therefore, held that the prosecution of the doctor was ill founded and accordingly, it was quashed.”
9. Further, in the case of S.K. Jhunjhunwala vs. Dhanwanti Kaur and another (2019) 2 SCC 282 relying upon the legal position laid down in the case of Jacob Mathew (supra), the Supreme Court has observed as under :-
“47. It is apt to remember the words of the then Chief Justice of India when he said in Jacob Mathew case [Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 : 2005 SCC (Cri) 1369], which reads as under :-
47. The subject of negligence in the context of medical profession necessarily calls for treatment with a difference. There is a marked tendency to look for a human actor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. An empirical study would reveal that the background to a mishap is frequently far more complex than may generally be assumed. It can be demonstrated that actual blame for the outcome has to be attributed with great caution. For a medical accident or failure, the responsibility may lie with the medical practitioner, and equally it may not. The inadequacies of the system, the specific circumstances of the case, the nature of human psychology itself and sheer chance may have combined to produce a result in which the doctor's contribution is either relatively or completely blameless. The human body and its working is nothing less than a highly complex machine. Coupled with the complexities of medical science, the scope for misimpressions, misgivings and misplaced allegations against the operator i.e. the doctor, cannot be ruled out. One may have notions of best or ideal practice which are different from the reality of how medical practice is carried on or how the doctor functions in real life. The factors of pressing need and limited resources cannot be ruled out from consideration. Dealing with a case of medical negligence needs a deeper understanding of the practical side of medicine. The purpose of holding a professional liable for his act or omission, if negligent, is to make life safer and to eliminate the possibility of recurrence of negligence in future. The human body and medical science, both are too complex to be easily understood. To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires an in-depth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability.”
10. In the case of Dr. Rajesh Batra vs. The State of Madhya Pradesh and another (M.Cr.C. No.8190 of 2020), this Court, considering several judgments of Supreme Court, observed as under :-
“17. A similar law has been laid down by the Supreme Court in the case of Kalyani Rajan vs. Indraprastha Apollo Hospital and others, reported in 2024 (1) MPLJ Page 1.
18. Thus, it is clear that unless and until the committee constituted as per the directions given by the Supreme Court in the case of Jacob Mathew (supra) gives its report about the medical negligence of the doctors, the doctors should not be prosecuted.
19. Admittedly, respondent no.2 has not approached the Committee of Experts to prove medical negligence of the applicant. Accordingly, prosecution of the applicant on account of medical negligence cannot be allowed to continue.
20. Resultantly, charge sheet as well as further proceedings in RCT No.86/2020 pending in the Court of Chief Judicial Magistrate, Katni against the applicant are hereby set-aside.”
11. Further, this Court in the case of Dr. Rajiv Jain vs. The State of Madhya Pradesh (M.Cr.C. No.34597 of 2022), relying upon several judgments of Supreme Court, held as under :-
“33. In case of Kalyani Rajan(supra), the Supreme Court has observed that it is a general tendency of the family members of victim with whom any unfortunate event occurs to make allegation against the doctor with an intention to punish him. The Supreme Court has observed that professionals deserve total protection. It is also observed that Section 88, 92 and 370 of Penal Code give adequate protection to the professionals and particularly medical professionals.
34 Further, the Supreme Court in case of Martin F D’Souza(supra) in paragraphs 42 and 43 has held as under:-
42. When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalised for losing a case provided he appeared in it and made his submissions.
43. To fasten liability in criminal proceedings e.g. under Section 304-A IPC the degree of negligence has to be higher than the negligence which is enough to fasten liability in civil proceedings. Thus for civil liability it may be enough for the complainant to prove that the doctor did not exercise reasonable care in accordance with the principles mentioned above, but for convicting a doctor in a criminal case, it must also be proved that this negligence was gross amounting to recklessness.
35. From the overall facts and circumstances of the case it is clear that in the present case there is no ingredients for prosecuting offence of Section 304-A of IPC. Though, it is alleged that there was some manipulation in the prescription written by the petitioner and overwriting in the admission slip, but his intention was not to cause any damage or any injury to anyone. As such, requirement of forgery is also not fulfilled.
36. Considering the submissions made by counsel for parties and the cases on which counsel for complainant has placed reliance, this Court has no hesitation to say that suffering of the parents of the deceased undoubtedly cannot be evaluated but it does not mean that at the same time a person who is not the cause for giving that suffering should be held responsible and be allowed to face the prosecution which is otherwise an abuse of process of law. No doctor thinks to cause any loss to his patients because ultimately it goes against him and his reputation. For the professionals success is their earning and failure in their attempt push them back. If such type of practice is appreciated and allowed to be continued that would shake the moral of the doctors. It is known to everybody that death is the only truth in this Universe and it is inevitable. There are so many reasons to face the death but without knowing actual cause on only apprehension anybody cannot be held responsible for the same. There must be strong evidence available so as to form an offence against a doctor when he was treating his patient and making efforts to save the life.”
12. In view of the aforesaid legal position laid down and on perusal of record, it is clear that no material is available on record to indicate that any medical negligence has been committed by the petitioner and no report of the expert committee has been called for, as is found essential and necessary by this Court in the case of Dr. Rajesh Batra (supra) in the light of legal position laid down by the Supreme Court in the case of Jacob Mathew (supra), therefore, I am of the opinion that in absence of any report of expert committee constituted as per the direction given by the Supreme Court in Jacob Mathew (supra), medical negligence of the doctor cannot be a ground for registration of offence and doctors should not be prosecuted for the same. In the present case, it is clear that before registration of F.I.R. against the petitioner, no such report was called for and the matter was never referred to any expert committee to ascertain medical negligence on the part of petitioner and therefore, F.I.R. registered against the petitioner under Section 304 and 201 of the IPC is not proper and as such the same deserves to be set aside. However, respondent No.2 is directed that if still she is willing to initiate prosecution against the petitioner, she may approach the expert committee to prove the medical negligence and if that is done and the report of expert committee comes against the petitioner, proper proceedings can be initiated by the respondent-State to prosecute the petitioner.
13. With the aforesaid observation, the petition is allowed and the impugned F.I.R. is quashed.
