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JAMMU AND KASHMIR HIGH COURT
M.K Hanjura, J.
Dr. Shyam Kumar Gupta —Petitioner
versus
State and Ors. —Respondents
Pet u/s 561-A No.625 of 2017, MP No.1 of 2017
Decided on 26.12.2017
Counsel for the Parties:
For the Petitioner:Mr. D.S Chouhan, Advocate
For the Respondent: Mr. S.S Nanda, Sr. AAG
IMPORTANT POINT
A simple lack of care, an error of judgment or an accident cannot form a proof of the negligence on the part of a medical professional.
Headnote:Ranbir Penal Code, 1989 (1032 A.D.)—Section 304A—Medical negligence—FIR registered pursuant to order for registration of case on a private complaint filed by father of deceased—Deceased diagnosed with stones in Gallbladder Was operatedby petitioner in Govt. Hospital—Victim died at his house after 34 days of operation—Father of deceased filed complaint before Director of Heath Services alleging negligence against petitioner and a committee of three doctors was constituted which submitted report that though common Bile Duet was injured by petitioner while conducting laparoscopic Cholecystectomy which was a known complication, no negligence could be attributed to doctor who had taken due preoperative and post operative care and followed standard protocols of treatment—Petition for quashing FIR—A simple lack of care, an error of judgment or an accident cannot form a proof of negligence on part of medical professional—For negligence to amount to an offence, element of mens rea must be shown to exist—Degree of negligence should be much higher i.e. gross or of a very degree—Lack of necessary care, attention or skill in treating the patient were completely ruled out by committee of Experts—FIR was liable to be quashed.
(Paras 18 to 22)
Result: Petition allowed.
JUDGMENT
M.K Hanjura, J.—The petitioner, Shri Shyam Kumar Gupta, has craved the indulgence of this Court in granting him the following reliefs:—
“(A) To Quash and set aside the Order/Judgment dated April, 24, 2017 passed by the learned Chief Judicial Magistrate, Jammu, in File No. NIL/Misc. dated 17.03.2013 titled “Rajinder Parkash vs. Dr. Shyam Kumar Gupta”, whereby, the Station House Officer, Bakshi Nagar, Jammu, was directed to register First Information Report under Section 304-A Ranbir Penal Code, Svt.1989 (1932 A.D) as against the petitioner and investigate the case under law, without considering the Medical Opinion No. GNH/J/1809 dated 09.03.2013 rendered by a team of experts pursuant to the Order No. DHSJ/5100/3631-35 dated 16.02.2013 passed by the Director Health Services, Jammu, as also the Report of Medical Board comprising of very senior Doctors constituted by the Principal, Government Medical College, Jammu, pursuant to the Order dated 23.02.2016 passed in Criminal Complaint No. NIL/MISC dated 17.03.2013 titled “Rajinder Parkash Vs. Dr. Shyam Kumar Gupta”, read with the FIR No.60/2017 registered at Station House Officer, Bakshi Nagar, Jammu for commission of offence under Section 304-A Ranbir Penal Code, Svt. 1989 (1932 A.D).
(B) The respondents No. 1 to 3, especially the respondent No.3-Station House Officer, Bakshi Nagar, Jammu, be restrained to proceed ahead with investigation of First Information Report No.60/2017 for commission of offence under Section 304-A Ranbir Penal Code, Svt. 1989 (1932 A.D).
(C) The respondent No.4-Rajinder Parkash, be proceeded against for filing the wrong affidavit before this Hon’ble Court in Writ Petition (Other) No.214/2015 titled “Poonam Sharma and Ors. vs. State of J&K and Ors.”.
(D) Pass any other Order as this Hon’ble court may deem fit and proper in the facts and circumstances of the present case.”
2. The facts, as these stem out from the instant petition, are that, the petitioner completed his Post Graduation (MS Surgery) from SKIMS in the year 2005. It is stated that the petitioner is also a member of Royal College of Physicians and Surgeons of Glasgow (United Kingdom) which is one of the prestigious institutions in the world. It is stated further that the petitioner initially came to be appointed in the Health Department as an Assistant Surgeon in the year 2005 and in the year 2011 he was posted as a B-Grade Surgeon Specialist in the Government Hospital at Sarwal and is presently working as a Lecturer in the Department of Surgery, Government Medical College, Jammu.
3. It is contended by the petitioner that one Jai Kumar visited Government Hospital, Sarwal, complaining pain on the right side of the abdomen. After his examination and the tests conducted, he was found to be having stones in the Gallbladder and was accordingly advised to undergo surgery for the removal of the Gallbladder. On 10th January, 2013, after all the preliminary tests and other requirements and after getting written informed consent from the patient and his attendants for undergoing surgery and anesthesia, the patient was operated and he gave up the ghost on 15.02.2013 at his residence.
4. It is stated that after sometime the patient complained of some discharge from the drain which was put in during the surgery for which he was observed and in order to get better care of the patient, he was referred to Tertiary Care Hospital, Government Medical College Hospital, Jammu to get specialized treatment and also in view of the fact that the Government Hospital, Sarwal, which is a District Hospital does not have such facilities as are available in the Government Medical College Hospital, Jammu. The said Jai Kumar, upon issuance of the referral letter to the Government Medical College Hospital, Jammu on 19th January, 2013 was discharged from the Government Hospital, Sarwal. Pursuant to the said communication the patient subsequently had reported at Government Medical College Hospital, Jammu and was put on trea
