Back
BOMBAY HIGH COURT
Prithviraj K. Chavan, J.
Dr. Dilip Amonkar and Ors. —Petitioners
versus
State of Goa, Through Police Inspector, Vasco Police Station, Vasco, Goa and Ors. —Respondents
Criminal Revision Application No.37 of 2017 and Stamp Number Main No.2213 of 2017
Decided on 22.8.2017
For the Petitioner in Criminal Revision Application No.37 of 2017:Mr. S.D. Lotlikar, Senior Advocate with Ms. M. Furtado, Advocate
For the Petitioner in Stamp Number Main No.2213 of 2017:Mr. S.S. Kantak, Senior Advocate with Ms. A. Kamat, Advocate
For the Respondent No.1 in Criminal Revision Application No.37 of 2017 and Stamp Number Main No.2213 of 2017: Mr. S.R. Rivankar, Public Prosecutor
For the Respondent No.2 in Criminal Revision Application No.37 of 2017:Mr. S.S. Kantak, Senior Advocate with Ms. A. Kamat, Advocates
For the Respondent No.2 in Stamp Number Main No.2213 of 2017:Mr. S.D. Lotlikar, Senior Advocate with Ms. M. Furtado, Advocate
For the Respondent No.3 in Criminal Revision Application No.37 of 2017 and Stamp Number Main No.2213 of 2017: None
IMPORTANT POINT
Medical negligence—Report of Committee cannot be lightly brushed aside to find out prima facie case.
Headnote:(A) Criminal Procedure Code, 1973—Sections 228, 397 and 401—Framing of charge—Scope of revisional jurisdiction is very limited and it cannot be exercised to substitute view taken by Additional Sessions Judge on question of facts unless findings are shown to be perverse or untenable—What is required to be seen is existence of prima facie case on the basis of material produced by prosecution—If Court comes to conclusion that commission of offence is a probable consequence, case for framing of charge exists—Probative values of material on record cannot be gone into nor it can be said to be a mini trial—Purpose of framing charge is to ensure that Magistrate or Judge should be satisfied that accusation against accused is not frivolous—There is some material for proceeding against accused—It would be hazardous to act on discrepancies unless they are so fatal or glaring to affect credibility of prosecution case without affording reasonable opportunity to prosecution to substantiate allegations. (Para 17)
(B) Indian Penal Code, 1860—Section 304-A—Medical negligence—Death of patient—Framing of charge—Report of Committee cannot be lightly brushed aside to find out prima facie case and material against both petitioners who allowed surgery on patient to be conducted in operation theater of Hospital which was not upto mark and in an unhygienic condition, as per statement of petitioner no.1 himself—Consent form at Hospital was not filled up properly and not seen by petitioner no.1 before conducting operation—Petitioner no.1 also failed to see any investigation report—Whether death was proximate and efficient cause without intervention of another’s negligence or whether it was due to post complications after second surgical, can only be determined during trial on merits—Impugned order upheld. (Paras 24 and 30)
Result: Criminal Revision Application dismissed.
JUDGEMNT
Prithviraj K. Chavan , J.—Office objections in above Stamp Number Main No. 2213 of 2017 are waived.
2. Both the matters are taken up for final disposal and disposed of by a common judgment.
3. Heard.
4. Admit.
5. The learned Counsel for the respondents waive service of notice.
6. Legality, propriety, and correctness of the Order dated 15.06.2017 passed by the learned Additional Sessions Judge, South Goa, Margao, directing framing of charge against the petitioners under Section 304-A of IPC, is impugned by way of these two Criminal Revision Applications.
7. A few facts, necessary for deciding the applications, are as follows:—
The petitioner Dr. Dilip Amonkar (“petitioner no.1” for short is the Head of Surgery Department at Government Medical College, Bambolim. In another petition, the petitioner - Dr. Shantaram Surme (“petitioner no.2” for short) is also a Doctor by profession. Petitioner no.2 is the family Physician of deceased Ms. Ravina Rodrigues, aged about 16 years, for last 15 years. On 1.7.2010 Ms. Ravina Rodrigues was admitted at Pai Hospital, Vasco-da-Gama, with a complaint of severe abdominal pain. Dr. S. R. Pai, Director and Chairman of Pai Hospital, who is also a renowned Surgeon, requested petitioner no.1 to perform an emergent surgical operation upon Ms. Ravina, as he was to leave for New Delhi due to some urgent work. On 3.7.2010 petitioner no.1 appreciated that the case was of an emergent nature and, therefore, went to Pai hospital in an early hours of 3.7.2010 and found Ravina suffering from an acute appendicitis. He performed a surgical operation and removed the appendix. Post-operative care was taken by Pai Hospital. Ms. Ravina was discharged from Pai Hospital on 5.7.2010. Since Ravina suffered continues pain, she was readmitted by her mother in Pai Hospital on 9.7.2010 as patient was showing sign of distress. She was apparently treated by Dr. Shantaram Surme (petitioner no.2) and by Dr. Pai. When Dr. Pai called petitioner no.1, he suggested that patient be immediately shifted to GMC.
8. On 10.7.2010, Ravina was shifted to GMC at 7.30 p.m. One Dr. Rajesh Patil was on duty and heading the Unit of Surgery. On 11.7.2010, Ravina was re-operated and admitted to Ward no. 106 of GMC. On 15.7.2010, Ravina developed complications in the hospital. On 29.7.2017, Ravina died at GMC.
9. Since Ravina had undergone a surgical operation at Pai Hospital and subsequently in GMC on 29.7.2010, a medico-legal case vide no.10/5023 was registered and thereafter it was re-registered at Vasco Police Station bearing No.27/2010, under Section 174 of Criminal Procedure Code. Post Mortem report was submitted to the Police on 30.7.2010.
10. Ms. Ravika Rodrigues, married sister of Ravina filed a complaint with Vasco Police on 2.8.2010. After a complaint, Government of Goa conducted an inquiry by constituting a committee of six persons. The Committee Members were the Secretary (Health), Director of Health Services, Dean, Goa Medical College, Dr. Pramod Salgaonkar, Dr. Emidio Gomes and Joint Secretary (Health). After a report of the Inquiry Committee, a case was registered vide Crime bearing no.193/2011 against the petitioners under Sections 304, 468, 471, 201 read with Section 34 IPC. After conducting an investigation, Vasco Police has chargesheeted the petitioners along with Dr. Shridhar Pai for the offences punishable under Sections 304, 468, 471, 201 read with 34 IPC.
11. The learned Additional Sessions Judge heard the arguments before Charge and was pleased to quash and set aside Sections 304, 468, 471 and 201 read with Section 34 of IPC against the petitioners and Dr. Shridhar Pai and directed to frame the charge against petitioners no.1 and 2 under Section 304-A of IPC.
12. I have heard Shri S. D. Lotlikar, learned Senior Counsel for petitioner no.1, Shri S. S. Kantak, learned Senior Counsel for petitioner no.2 and Shri S.R.Rivankar, learned Public Prosecutor for respondent no.1.
13. In short, it is the contention of Shri Lo
