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2018 Supreme(Pat) 1595
IN THE HIGH COURT OF JUDICATURE AT PATNA
SANJAY PRIYA, J.
Dr. Amar Kumar, son of late Dr. Tapesh Chandra Thakur - Petitioners
Versus
The State of Bihar and ors. - Opposite Parties
Criminal Miscellaneous No.160 of 2016
Decided On : 04-12-2018
Advocate Appeared:
For the Petitioners:Mr. N.K. Agrawal, Sr. Advocate Mr. Suresh Chand Giri, Advocate
For the Opposite Parties :Mr. Umeshanand Pandit, APP Mr. A.K. Mishra, Advocate
The main legal point established is the application of the principles of negligence in medical malpractice cases, emphasizing the duty, breach, and resulting damage as essential components.
Headnote:
Negligence - Medical Malpractice - Indian Penal Code - Section 304 - 156(3) Cr.P.C. - 202 Cr.P.C.
Fact of the Case:
The complaint alleged that a doctor and his compounders were involved in the death of the complainant's son due to medical negligence. The police initially did not register a case, and a protest petition was filed alleging collusion with the accused. The court found prima facie evidence of negligence and mens rea based on the complaint and witness statements.
Finding of the Court:
The court found prima facie evidence of negligence and mens rea based on the complaint and witness statements.
Issues: The issues involved medical negligence, police collusion, and the sufficiency of evidence to establish a prima facie case.
Ratio Decidendi: The court relied on the principles of negligence as outlined by the Hon’ble Supreme Court in the case of Jacob Mathew vs. State of Punjab and anr. It emphasized the essential components of negligence: duty, breach, and resulting damage.
Final Decision: The court dismissed the application and upheld the lower court's decision to proceed with the case.
1. This application under Section 482 of the Code of Criminal Procedure has been filed for quashing the order dated 20.01.2015 passed by the Judicial Magistrate, Bhagalpur, in Complaint Case No.1141 of 2014 by which the learned Magistrate after holding enquiry has found prima facie case against the Petitioner for the offence under Section(s) 304 Indian Penal Code.
2. It is alleged in the Complaint filed by Dayamanti Mishra that her son, Uttam Kumar Mishra, sustained injury in his left arm in the motorcycle accident on 06.06.2006 as a result of which there was swelling on his hand. She consulted village Doctor, namely, Rajesh Kumar Mishra, on 07.06.2006, who advised and referred him to Dr. Amar Kumar (Petitioner). It is alleged that on 08.06.2006 at about 8.00 AM, in the morning, son of the Complainant went to Clinic of the Petitioner along with his friend, Vivek Thakur where, after investigation Doctor advised for operation. The son of the Complainant deposited a sum of rupees three thousand for test, medicines etc. The son of the Complainant asked the Doctor to talk to his father on mobile phone before operation. The Doctor talked to husband of the Complainant on telephone, who told not to start operation till arrival of the Complainant in Clinic, but the Doctor ignoring the advice of husband of the Complainant took him in the operation theater in her absence at 4.00 PM. The Complainant, in the meantime, reached in the Clinic along with her Dewar, Pankaj Kumar Mishra. She enquired from the Compounder at 5.00 PM about condition of her son, Uttam Kumar, who told that operation is continuing. The Doctor all of sudden came out from the operation theater at 7.00 PM and falsely informed the Complainant that condition of his son is serious and asked her to take him to Mayaganj Hospital immediately. The son of the Complainant by that time had died. The Petitioner called Ambulance and put the dead body of her son along with his two Compunders on the Ambulance and they proceeded towards Mayaganj Hospital. But, on the instruction of Compounders, the driver of the Ambulance took the Ambulance to Zero Mile instead of Mayaganj Hospital. The Complainant raised objection then both the Compounders told the Complainant that her patient has already died at 5.00 PM and told her to take the dead body, otherwise, they will kill her. In the meantime, three unknown persons came on motorcycle and both Compounders fled away on the motorcycles. Thereafter, the Complainant and her Dewar, Pankaj Kumar Mishra, made request with the driver of the Ambulance to take her back in the Clinic at Bhagalpur. The Complainant again reached in the Clinic of Dr. Amar Kumar at 8.30 PM and found that Dr. Amar Kumar had locked his Clinic from outside. The driver put the dead body out of the Ambulance and fled away with the Ambulance. Neighbouring people along with media persons arrived and took photograph and advised the Complainant to lodge First Information Report and get postmortem of the dead body done. The Dewar of the Complainant made call to police. The police took the dead body in emergency ward of JLNM Hospital. Relative of the Complainant came between 11.00 PM to 1.00 AM (night). The police handed over the dead body at 1.30 AM in the night after taking signature of five persons on plain paper. The police neither registered the First Information Report nor get the postmortem of the dead body done. Thereafter, the Complainant along with her villagers took the dead body of her son, Uttam Kumar Mishra, to her house in Godda on 09.06.2006. Younger son of the Complainant, Amit Kumar Mishra, who is posted in Indian Military Force in Manipur came to village on 10.06.2006 and dead body was cremated at 7.00 PM at Kahalgaon crematorium. The Complainant has alleged that Doctor and his two Compounders in conspiracy have illegally taken rupees three thousand on the plea of fees and without doing any operation gave wrong medicines to her son, who became unconscious.
