SANDEEP N. BHATT, J.

1. The present application is filed for seeking following reliefs:

“i) that Your Lordships be pleased to pass appropriate order and be pleased to quash and set aside the FIR qua the applicationer, being C.R.No.1-84/2015 registered at Vastrapur Police station, Ahmedabad city, for the offences punishable under Sections 304-A, 114 of IPC; & C.C. No.7243/2015.

ii) that Your Lordships be pleased to stay the further proceedings in connection with the FIR qua the applicationer, being C.R.No 1-84/2015 registered at Vastrapur Police station C.C. No.7243 during pendency of this application;

iii) that any just and proper order may be passed.”

2. Brief facts of the case as per the case of the applicant in this application are as such that on 25.08.2015 Godavariben - mother of the complainant was admitted in Sanjivani Super Specialty Hospital, Vastrapur, Ahmedabad with a complaint of high grade fever, lower abdominal pain, generalized weakness, under care of Dr. Vinay Bhomiya. Thereafter, the Sonography was done and it was found that there was highly calcified stent in left renal system extended from kidney to urinary bladder with big stones in kidney ureter and bladder. The stent was inserted by some Doctor before about 15 years and though she was advised to get it removed within a month. she forgot to get it removed and it remained for 15 years as a result multiple calculi were found in the kidney and urinary bladder. However, the doctor advised to get the stent removed. It is further the case of the applicant in this application are as such that the present applicant and Dr. Nagendra Mishra were consulted. Both the doctors advised her for undergoing an operation to remove the big stone and stent which was there since last more than 15 years.

2.1. It is further the case of the applicant in this applicant that two difficult operations were performed on 28.8.2014 and 2.9.2014. Some big stones were broken with lithotomy and stone was removed. She was discharged from the Hospital on 7/9/2014 with instruction to come after one month for removal of stent. It is further the case of the applicant in this applicant that on 06.10.2014, Godavariben came to the hospital for removal of stent, however as she was having fever and infection, for two days she was treated for fever and infection. On 08.10.2014 - the stent was removed.

2.2. It is further the case of the applicant in this applicant that after some time she started bleeding and blood was seen in urine bag. Numbers of efforts were made and Dr. Agrawal Expert Urologist was also consulted and it was found that she was bleeding, number of blood transfusions were also given. However, on 9.10.2014 in early hours she died. It is further the case of the applicant in this applicant that as per the laboratory test reports, the patient had very low percentage of hemoglobin and when she was admitted to the hospital, she had 8.8% hemoglobin whereas normally it should be between 11.5 to 16.4 gm percent. The platelets counts were 1,56,000 that was within the normal range. It is further the case of the applicant in this applicant that on number of times the reports were taken out so far as the blood is concerned and however, gradually the hemoglobin was reduced and that too to the extent of 3.7%, platelets counts reduced to 59000 only where as it should be 1,50,000 to 4,50,000. The platelet counts were reduced to such an extent that once the blood starts oozing from any injury or puncture, it would not stop. It is further the case of the applicant in this applicant that as, in a short time after she developed complications of BP no surgery could be performed to stitch the vein from where the blood was oozing. Even nobody could come to know as to from which site the blood was oozing from the vein. It is further the case of the applicant in this applicant that so far as these circumstances are concerned, no Doctor can be blamed for such situation. more particularly the present applicant who simply extracted the stent which was inserted before about one month.

2.3. It is further the case of the applicant in this applicant that the postmortem is also not performed properly, as, it mentions about the rupture kidney but CT scan done few hours before death does not show any rupture in the kidney. The patient was managed in best possible way by the team of Doctors including Urologist, Physician, Anesthetist. It is further the case of the applicant in this applicant that the victim succumbed to death only because of some extraneous reasons and complications for which the applicant cannot be held responsible and, therefore, prima facie the offence is not made-out qua the applicant. Hence, the present application is preferred.

3. Heard learned advocate Mr. Vishal K Anandjiwala representing the applicant and Mr. Dhawan Jayswal, learned Additional Public Prosecutor (APP) representing the respondent – State. Though complainant is served through the concerned Police Station, none appears on behalf of respondent No.2 nor filed any affidavit to contest this application.

4. Learned advocate Mr. Vishal K Anandjiwala representing the applicant has submitted that looking to the chain of the incidents, whereby the applicant has other doctors have performed the surgery on the deceased and in appropriate manner. He has further submitted that applicant being a surgeon played his part and the other doctors were also present at the time of the surgery. When the patient has arrived at the hospital, at the point of time, patient was having some serious problem and was removed while extraction of stent by the present applicant on 8.10.2014. He has also submitted that so far as this aspect for removal of sent is concerned, operation is not required at all, the same is to be removed during from urine track. The stent is JJ style and that is to be extracted only. For that no operation was required. Therefore, there was no negligence on the part of the present applicant in extracting the stent which was inserted. He has further submitted that earlier on 25.8.2014, Godavariben was admitted in the hospital with a complaint of high grade fever, lower abdominal pain, generalized weakness, under care of Dr. Vinay Bhomiya. He has further submitted that on investigation, it was found that she had anemia, infection with big stone in the kidney, whole ureter and bladder along with forgotten JJ stent, which was inserted before about 15 years and therefore, the patient was referred to both the Doctors i.e. the present applicant and Dr. Mishra. The patient was examined by both the doctors and advised two stage operations for breaking the stone and removal of JJ stent. The patient's relatives were explained the risk of septicemia due to staged operation and high risk surgery and thereafter at the first instance the operation of breaking bladder stone lower half of ureteric stone along with stent and left PCN was performed on 29.8.2014.

4.1. He has further submitted that the second stage of operation of breaking the stone of upper half of ureteric stone and renal stone was performed on 2.9.2014. The patient was kept for observation for 3 days in ICU for treatment of septicemia and then shifted to the ward as she was improving and was discharged on 7.9.2014 with specific advice to get the stent removed after one month. In the operation dated 2.9.2014 the old stent which was inserted before about 15 years ago was removed and new stent was inserted and the advice was given to get it removed after one month. Even after discharge she was regularly seen in OPD. He has further submitted that The patient was again admitted on 6.10.2014 with complain of headache, abdominal pain and generalized weakness under Dr. Vinay Bhomia. She was seen by the applicant on 7.10.2014. During this period for about 5 months, Dr. Nagendra Mishra had gone abroad and therefore, he was not present. On 7.10.2014 she was examined by the applicant and thereafter on 8.10.2014 the JJ stent which was inserted was removed. Thereafter, the patient's position was changed from lithotomy to supine, which was managed and PCNL wound site scrapping was done. She was kept in operation theater till BP was normal and shifted to ward Urine was clear. He has referred to the Anesthesia note. He has submitted that this was the position that narrated earlier.

4.2. He has further submitted that at 3.00 pm the applicant was informed about low Blood Pressure and red colour urine, therefore, he again went to the hospital from his hospital at about 3.15 p.m., Dr Vinay Bhomia and his team was trying to access central venous line through right femoral in upper right thigh. However, it failed, so on the left side, it was tried, that also failed at multiple attempts. Thereafter, the patient was shifted to ICU at 4.15 p.m. In ICU central venous line in neck was put by ICU in charge doctor. The treatment for raising blood pressure and replacement of blood loss was started. He has further submitted that she was bleeding from both thigh punctures and PCN site. On further investigation, she was found to have disseminated intravascular coagulation (DIC) with altered coagulation. This was the cause for excessive bleeding from all the raw areas. DIC can be caused due to long term infection because of the forgotten stent with stones.

4.3. He has further submitted that thereafter, various attempts were made and to control the situation and the C.T. scan was also done, which suggest that no active bleeding from renal area and small perinephric collection and P.M. Report says large peritoneal hematoma, which could not be explained either by the doctor, who performed postmortem. He has further submitted that the the postmortem is also not performed properly. Therefore, he has submitted that the looking to the entire records and medical papers, the patient was managed in best possible way by the team of doctors including Urologist, Physician, Anesthetist. In normal course, JJ stent removal and scrapping does not lead to excessive bleeding, but she was also suffering from DIC, which led to excessive bleeding for which the doctors cannot be held responsible as negligent persons. He has has drawn my attention to the laboratory report, which is, as per his submission, regarding infection and DIC.

4.4. He has placed reliance on the judgment of the Hon’ble Apex Court in the case of Jacob Methew Vs. State of Punjab & another reported in AIR 2005 SC3180, more particularly, para 49 is relevant and has submitted that in the present case, there is no mesne rea on the part of the doctors. It is a noble profession where the Doctors are trying to give relief to the patients from their agonies and pains. Even the Expert Urologist of Government Hospital has stated in his opinion that the operation carried out was as per standard protocol and there is no mentioning of negligence on the part of present applicant. He has further submitted that during the pendency of this application, on 18.4.2018, this Court has passed the order by considering that the opinion obtained by the Investigating Officer of Dr. Shrenik Shah, Urologist on 16.4.2018 and he has drawn my attention towards that portion by referring the order of the Co-ordinate Bench of this Court in the present matter dated 18.4.2018 and has submitted that in view of the fact that now it is settled position of law that applicant cannot be held liable in view of the judgment of judgment of the Hon’ble Apex Court in the cases of (i) Jacob Methew (supra), (ii) Dr. Sou Jayshree Ujwal Ingole versus State of Maharashtra & Another reported in (2017) 14 SCC 571 [LQ/SC/2017/551] and (iii) Zubedaben Bachubhai Desai versus State of Gujarat rendered in Criminal Misc. Application No.1412 of 2010, and has submitted that in view of this factual as well as legal position, this Court should exercise the powers under Section 482 of the Criminal Procedure Code, 1973 as no fruitful purpose would be served to continue with the proceeding pursuant to the impugned F.I.R. and such process of trial would amount to harassment to the applicant and therefore, he prays to allow this application by exercising its inherent powers in view of the judgment of the Hon’ble Supreme Court in the case of State of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604 [LQ/SC/1990/744] .

5. Conversely, Mr. Dhawan Jayswal, learned Additional Public Prosecutor (APP) representing the respondent – State has drawn my attention to various documents on record and provided the following points:

(i) The deceased, Godavariben, was admitted to Sanjivani Super Specialty Hospital, Vastrapur, Ahmedabad. The initial surgery was performed by the present applicant and Dr. Nagendra Mishra on 28.8.2014, and a second operation took place on 2.9.2014 to remove a stone from the kidney/urinary tract.

(ii) On 6.10.2014, Godavariben visited to the hospital, and at that time, after collecting some reports, further surgery was performed on 8.10.2014 to remove the stent that had been inserted during the previous operation. The present applicant and Dr. Vinay Bhomiya were present during this procedure.

(iii) Complications arose after the surgery, and Godavariben was declared dead on 9.10.2014. Subsequently, a complaint was filed with the concerned Police Station, which initially registered the case as an accidental death (No.27 of 2014).

(iv) The Vastrapur Police sought an opinion from a team of five doctors at Sola Civil Hospital, Ahmedabad (Government Hospital). The team opined that negligence in the treatment, involving the present applicant, Dr. Nagendra Mishra, and Dr. Vinay Bhomiya, was the cause of the patient's death.

(v) Based on this opinion, the police registered an offense under Sections 304A and 114 of the Indian Penal Code on 4.5.2015. Subsequent investigation led to the filing of a charge-sheet, and a criminal case (No.7243 of 2015) is currently pending.

(vi) The committee of doctors noted that the postmortem report indicated around three liters of blood in the stomach and an injury to the left kidney, suggesting bleeding as the cause of death. Additionally, it was observed that no prior written permission from the patient's family/relative was obtained before the surgery.

(vi) With the committee's opinion confirming negligence by the doctors, Mr. Dhawan Jayswal argued that there is no reason to scuttle the proceeding pursuant to the impugned FIR. He maintained that the present applicant's involvement in the offense punishable under Sections 304-A and 114 of the IPC is supported by prima facie evidence. He urged the Court not to exercise its power under Section 482 of the Criminal Procedure Code, emphasizing that such power should be exercised very sparingly in the view of the judgment of the Hon’ble Apex Court in the case of Neeharika Infrastructure Pvt. Ltd. versus State of Maharashtra and Others reported in 2021 SCC OnLine SC 315.

6. I have heard the learned advocates representing the respective parties. I have considered the submissions made at the bar by the respective parties. I have gone through the judgments cited at the bar by the parties.

6.1. In view of the fact that the prima facie the case is that the present applicant was giving the treatment to the deceased for the removal of stone and stent in certain manner. It transpires that prima facie, during the course of this surgery, it appears that the deceased sustained injuries to the kidney, leading to complications post-surgery. Despite efforts by the medical team at Vastrapur hospital, the deceased unfortunately passed away. The postmortem report highlights the presence of blood in the stomach and an injury on the left kidney. Additionally, a committee of doctors from Sola Civil Hospital, Ahmedabad, has given an opinion that suggests negligence on the part of the medical professionals involved, including the present applicant.

6.2. In this background, considering the argument of learned advocate for the applicant that applicant was giving the treatment only and he has no intention to cause any damage to the patient – deceased. That contention itself is not sufficient considering the material available on record and the judgments cited at the bar in the cases of (i) Jacob Methew (supra), more specifically, paragraph 49 is relevant, as under:

“49. We sum up our conclusions as under:-

(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 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 of 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 comes 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 for judging the alleged negligence. So also, the standard 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 skills 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 of negligence.

(4) The test for determining medical negligence as laid down in Bolam's case [1957] 1 W.L.R. 582, 586 holds 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 304A of 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 304A of the 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.”

And (ii) Dr. Sou Jayshree Ujwal Ingole (supra), here also, at the same line on the medical negligence, the Coordinate Bench of this Court has also given the judgment on the same line, more specifically, para 10 is relevant by relying on the judgment in the case of Jacob Methew (supra).

6.3. There is no dispute about the proposition of law concerning Section 304A and medical negligence. However, in the present case, it has been revealed that there was an apparent error committed by the team of doctors at Vastrapur Hospital during the performance of surgery and the removal of the deceased's stent. The applicant being an Urologist, who has performed surgery cannot escape from his liability at this stage and more particularly, when the committee of five doctors have specifically opined, which cannot be brushed aside under the guise that now Investigating Officer of Dr. Shrenik Shah, Urologist, at such belated stage, has opined that there is no negligence on the part of the doctors without assigning any cogent and convincing reasons for doing so.

6.4. It is fruitful to refer the judgment of the Hon’ble Apex Court in the case of Mahadev Prashad Kaushik versus State of Uttar Pradesh reported in 2009 1 GLH 220, which says that when there is allegations are made including Section 304A of the IPC, prima facie, it has been established that it is a case of medical negligence on the part of the doctors merely because of the parameters laid down in the case of Jacob Methew (supra), and doctors cannot be let off the hork and not exempted from the criminal investigation.

6.5. It is also fruitful to refer the judgment of the Hon’ble Apex Court in the case of B. Jagdish and Another vs. State of Andhra Pradesh reported in (2009) 1 SCC 681 [LQ/SC/2008/2500] . There is limited jurisdiction under Section 482 of the Criminal Procedure Code and in absence of trial, this Court, in exercise of powers under Section 482 of the Criminal Procedure Code, cannot quash the complaint. It is also fruitful to refer the judgment of the Hon’ble Apex Court, regarding the limitation in exercising the power under Section 482 of the Criminal Procedure Code, in the case of State Of Rajasthan v. Fatehkaran Mehdu reported in (2017) 3 SCC 198 [LQ/SC/2017/182] . Here also, the Court found that normally, the Court should not exercise the extraordinary discretionary power under Section 482 to quash the proceedings.

6.6. Therefore, considering the presence of the postmortem report and the expert committee's findings, which prima facie indicate negligence on the part of the doctors during the surgical procedure, I am of the view that a prima facie case has been established against the present applicant. Hence, it is not appropriate to exercise my inherent powers under Section 482 of the Criminal Procedure Code at this juncture to scuttle the process of the criminal trial. The applicant will have ample opportunities to defend their case during the trial by presenting and cross-examining witnesses.

6.7. Further, in the judgment of the Hon’ble Apex Court in the case of Neeharika Infrastructure Pvt. Ltd. versus State of Maharashtra and Others reported in 2021 SCC OnLine SC 315, and more particularly para 80 is relevant, which is as under:

“80. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or “no coercive steps to be adopted”, during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or “no coercive steps to be adopted” during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:

i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;

ii) Courts would not thwart any investigation into the cognizable offences;

iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;

iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the ‘rarest of rare cases (not to be confused with the formation in the context of death penalty).

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;

ix) The functions of the judiciary and the police are complementary, not overlapping;

x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;

xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;

xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;

xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or “no coercive steps to be adopted” and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or “no coercive steps” either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.

xviii) Whenever an interim order is passed by the High Court of “no coercive steps to be adopted” within the aforesaid parameters, the High Court must clarify what does it mean by “no coercive steps to be adopted” as the term “no coercive steps to be adopted” can be said to be too vague and/or broad which can be misunderstood and/or misapplied."

I am of the opinion that prayers made in the present application is not required to be granted at this stage as no case is made out to exercise my inherent powers under Section 482 of the Criminal Procedure Code. Let all the contentions raised by the parties are tested by the trial court after appreciating the evidence available on the record, in accordance with law.

7. Accordingly, the present application is dismissed with no order as to costs.

8. Notice stands discharged. Interim relief, if any, stands vacated.