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PATNA HIGH COURT
Mohit Kumar Shah, J.
Dr. Prabha Sinha —Petitioner
Versus
State of Bihar through Senior
Superintendent of Police, Patna & Ors. —Respondents
Criminal Writ Jurisdiction Case No.930 of 2017
with
Criminal Writ Jurisdiction Case No. 1585 of 2017
Decided on 14.8.2020
Counsel for the Parties:
In Criminal Writ Jurisdiction Case No. 930 of 2017)
For the Petitioner:Mr. P.K. Sahi, Sr. Advocate
For the State : Mr. Saroj Kumar Sharma, AC to AAG-7
For the private respondent: Mr. Sandip Sahi
(In Criminal Writ Jurisdiction Case No. 1585 of 2017)
For the Petitioner:Mr.Vikas Kumar, Advocate
For the Respondents: Mr.Lalit Kishore, AG
IMPORTANT POINT
Medical Negligence—For negligence to amount to a criminal negligence, element of mens rea must be shown to exist.
Headnote:
(A) Torts – Medical Negligence – Criminal negligence is gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to public generally or to an individual in particular, which having regard to all circumstances out of which charge has arisen, it was imperative duty of accused person to have adopted – For negligence to amount to a criminal negligence, element of mens rea must be shown to exist and it is recklessness that constitutes mens rea in criminal law as far as negligence is concerned and there should be reckless state of mind and intention to cause harm and only then same would amount to criminal negligence.
(B) Medical Services – Medical Negligence – Causing death of quick unborn child and mother – Common intention – Cognizance of offence – From evidence on record and averments made in complaint petition, it is apparent that requisite treatment was administered by petitioner of first case, whereafter a test for Dengue was also conducted however, daughter of complainant had tested negative which might be on account of incubation period – It cannot be said that petitioners have not followed practice acceptable to medical profession which is apparent from prescriptions and test reports – Neither there is any evidence nor averment in complaint petition to show that petitioners had engaged in very high degree of negligence so as to constitute ingredients warranting prosecution of petitioners for criminal negligence or to show that petitioners did something or failed to do something which in given facts and circumstances, no medical professional in his ordinary senses and prudence would have done or failed to do resulting in a rash and negligent act – In absence of any evidence or material on record to show that death of daughter of complainant is direct result of rash and negligent act of petitioners and such act is proximate and efficient cause for death as also in absence of materials to show presence of reckless state of mind qua petitioners with intention to cause harm apart from there being no credible opinion of another competent doctor on record to support charge of rashness or negligence on part of petitioners as also in absence of any post mortem report showing cause of death of deceased, no case of having committed criminal rashness and negligence is made out qua petitioners – Impugned order quashed. [Indian Penal Code, 1860 – Sections 304 and 316/34 – Criminal Procedure Code, 1973 – Section 482]
Result: Petition allowed.
JUDGMENT
Mohit Kumar Shah, J.—The aforesaid batch of cases arise out of the same impugned order dated 24.12.2016 passed by the learned Additional Chief Judicial Magistrate (A.C.J.M.), Patna in Complaint Case No. 3229 (C) of 2016, hence both the cases have been taken up for hearing together, with the consent of the parties and are being disposed of by this common Judgment.
2. The aforesaid batch of cases have been filed against the order dated 24.12.2016 passed by the learned A.C.J.M., Patna in Complaint Case No. 3229(C) of 2016, whereby and whereunder cognizance has been taken against the aforesaid petitioners under Sections 304, 316/34 of the Indian Penal Code.
3. The case of the prosecution in brief as per the complaint filed by the complainant namely Prabhat Kumar Singh bearing Complaint Case No. 3229(C) of 2016, pending before the learned Court of Chief Judicial Magistrate, Patna dated 06.10.2016 is that the daughter of the complainant was married five years back with one Lokesh Kumar and subsequently she became pregnant whereupon she came under the treatment of Dr. Mrs. Prabha Sinha i.e. the petitioner of the first case (Cr.W.J.C. No. 930 of 2017). The deceased daughter of the complainant is stated to have gone to the hospital of the petitioner of the first case on 21.02.2016 where she was treated and certain medicines were prescribed apart from being advised to get certain tests conducted at Manas Lab situated in the said hospital namely, Manas Nursing Home whereupon all the pathological tests of the daughter of the complainant was done at the Manas Lab. On 13.09.2016, the daughter of the complainant had rushed to the doctor i.e. the petitioner of the first case on account of some problem in pregnancy, whereafter the petitioner of the first case had given some medicines as also had prescribed certain tests. Again the tests were conducted at Manas Lab after taking the blood sample of the deceased daughter of the complainant. Since the doctor had prescribed Dengue test, the complainant was quite perplexed and had visited the aforesaid lab in the evening whereupon he was told that there was nothing in the report and Dengue test had turned out to be negative, however, no report was given to the complainant and when the complainant had again requested the doctor sitting in the lab to repeat the Dengue test, since his daughter was pregnant since last seven months and was suffering from fever, the doctor sitting in the lab became angry and had abused the complainant, whereafter the complainant was forcibly ousted from the said premises. On the evening of the same day i.e. on 13.09.2016 the complainant had gone to meet the petitioner of the first case and had shown all the reports whereupon he was told that everything was fine, however, the complainant had requested the doctor to again get the Dengue test of his daughter conducted since she was suffering from fever since a long time, to which the petitioner of the first case had threatened the complainant and had called her staff who had then snatched the lab report from the hands of the complainant and had thrown him out of the clinic. It is the case of the complainant that the accused persons had always been negligent in treating his daughter and ultimately, when the daughter of the complainant was being treated in the aforesaid hospital by the petitioner of the first case, she became very serious on 16.09.2016 and at about 2:00 A.M. the nurse and staff of the petitioner of the first case informed the complainant that the baby had died in the abdomen of his daughter and she is very serious, hence the staff ousted the complainant along with her daughter from the nursing home at 2:15 A.M. on 16.09.2016 without being provided any prescription as also after having fleeced the complainant of a sum of Rs. two lacs within four days. It is the case of the complainant that having left with no option he had taken his daughter to Kurji Holy Family Hospital, had admitted her there and subseq
