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PATNA HIGH COURT
Chakradhari Sharan Singh, J.
Dr. Sanjay Singh @ Dr. Sanjay Kumar
Singh & Ors. —Petitioners
versus
State of Bihar & Anr. —Opp.Parties
Criminal Miscellaneous No.48105 of 2013 Arising Out of PS.Case No. 402 Year 2013
Decided on 8.4.2016
For the Petitioners:Mr. Sandeep Kumar, Mr. Sanjay Kumar, Mr. Ashutosh Kumar, Advocates
For the State: Mr. Kumar Ranjit Ranjan, APP
For Opp.Party No. 2: None
IMPORTANT POINT
Indiscriminate prosecution of medical professionals in a criminal case is counter-productive and does no service to society.
Headnote:(A) Torts—Medical Negligence—Practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care—Neither very highest nor a very low degree of care and competence, judged in light of the particular circumstances of each case, is what law requires—A person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men—Mere deviation from normal professional practice is not necessarily evidence of negligence—So long as it can be found that procedure which was in fact adopted was one which was acceptable to medical science as on that date, medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure. (Para 10)
(B) Indian Penal Code, 1860—Section 304 read with Sections 34 and 88—Criminal Procedure Code, 1973—Section 482—Medical negligence—Cardiology—Death of patient after operation—Whenever a complaint is received against a doctor or hospital by a consumer forum or criminal court, then, before issuing notice to doctor or hospital against whom allegation is made, it should first refer the matter to a competent doctor or committee of doctors specialized in field relating to which medical negligence is attributed—Only after report of such doctor or committee confirms that there is prima facie a case of medical negligence made out, doctor or hospital should be noticed—Allegations made in FIR do not come within parameters laid down by Supreme Court in various decisions for the purpose of prosecution of a medical professional—Petitioners have qualification to conduct surgery and advise medication and other procedures—It is bounden duty and obligation of civil society to ensure that medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension—Lodging of First Information Report by informant-Opposite Party has been used as a tool for pressurizing doctors/hospital for oblique purposes which warrant High Court to invoke its extra-ordinary inherent jurisdiction under Section 482 of Cr.P.C.—Criminal proceedings quashed. (Paras 5 and 14)
Result: Quashing Petition allowed.
Chakradhari Sharan Singh, J.—Dealing with criminal prosecution of a medical professional for an act done in discharge of his professional obligation, the Supreme Court, in its oft quoted decision in the case of Jacob Mathew v. State of Punjab and Another, reported in (2005) 6 SCC 1, made following observation of immense significance:-
“29. If the hands be trembling with the dangling fear of facing a criminal prosecution in the event of failure for whatever reason--whether attributable to himself or not, neither a surgeon can successfully wield his life-saving scalper to perform an essential surgery, nor can a physician successfully administer the life-saving dose of medicine. Discretion being better part of valour, a medical professional would feel better advised to leave a terminal patient to his own fate in the case of emergency where the chance of success may be 10% (or so), rather than taking the risk of making a last ditch effort towards saving the subject and facing a criminal prosecution if his effort fails. Such timidity forced upon a doctor would be a disservice to the society.”
2. Chapter IV of the Indian Penal Code lays down exceptions and Section 88 of the Indian Penal Code reads thus:
88. Act not intended to cause death, done by consent in good faith for persons benefit ? Nothing, which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied to suffer that harm, or to take the risk of that harm.
3. The illustration, under Section 88 of the Indian Penal Code, conceives of a situation where a surgeon intending in good faith, performs an operation of a person, knowing well that such operation is likely to cause death of the said person, such action of a surgeon is saved by general exception under Chapter IV of the Indian Penal Code. Section 88 of the Indian Penal Code, in most unambiguous term, provides that nothing is an offence by reason of any harm, which it may cause, or be intended by doer to cause to any person for whose benefit it is done in good faith and it is not intended to cause death.
4. In the present case, the petitioners are qualified doctors/surgeons of a private hospital in Patna and seek quashing of the First Information Report of Shastrinagar Police Station Case No. 402 of 2013, registered for the offence punishable under Section 304 read with Section 34 of the Indian Penal Code, invoking this Court’s inherent jurisdiction under Section 482 of the Code of Criminal Procedure.
5. I have heard Mr. Sandeep Kumar, learned Counsel, appearing on behalf of the petitioners and Mr. Kumar Ranjit Ranjan, learned Additional Public Prosecutor for the State.
6. Despite service of notice to the informant, the informant/Opposite Party No. 2, upon notice, entered appearance by filing vakalatnama through the learned Counsel. There is no representation, however, on her behalf, despite repeated call.
7. According to the First Information Report, the husband (since deceased) of the informant had gone to Paras HMRI Hospital on 18.09.2013, at 08:00 AM for his check up, along with his previous medical records. The Superintendent of the Hospital, Dr. Anand Kumar, referred him to Dr. Sanjay Kumar Singh, a Cardiologist in the Hospital. It appears that name of Dr. Anand Kumar has wrongly been mentioned in the First Information Report and one Anand Padere was the Superintendent of the Hospital, who is petitioner no. 2 in the present application. The petitioner no. 1, Dr. Sanjay Kumar Singh, was the Cardiac Surgeon in the Hospital, as per the statement made in the present application. The petitioner No. 1, describing the condition of the husband of the informant to be critical, advised him to go for Angiography and immediate admission in the Hospital. According to the informant, her husband w
