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2018 Supreme(J&K) 81
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
M.K. HANJURA, J.
Dr. Muqarab Hussain and Anr. - Petitioner
Versus
State of J&K. - Respondent
Pet u/s 561-A No. 285 of 2014 MP Nos. 01 of 2017 and 334 of 2014
Decided On : 16-04-2018
For the Petitioner:Mrs. Rozina Afzal, Advocate.
For the Respondent: Mr. Ashish Kotwal, Dy. AG.
The legal framework for prosecuting medical professionals for negligence under criminal law requires a higher degree of negligence, supported by expert medical opinion and prima facie evidence. Negligence in the context of medical profession differs in civil and criminal law, and the element of mens rea must be shown to establish criminal liability.
Headnote:
On 26th August, 2005, a pregnant woman died in a hospital due to alleged negligence by the petitioners, who were doctors. The police initiated an investigation, and a charge-sheet was filed against the petitioners for an offence under Section 304-A RPC. The petitioners challenged the order before the Court, arguing that the charge was based on unreliable statements and lacked expert medical opinion. The Court analyzed the legal principles established in Jacob Mathew v. State of Punjab & Anr. and Dr. Suresh Gupta v. Govt. of N.C. T. of Delhi, emphasizing the need for a higher degree of negligence to establish criminal liability. The Court also highlighted the guidelines for prosecuting medical professionals, including the requirement for prima facie evidence from a competent doctor. The Court found that the police failed to follow these guidelines and violated the principles established by the Supreme Court. Additionally, the Commissioner of Inquiry's report concluded that no negligence could be attributed to the petitioners. Considering the prolonged legal proceedings and lack of substantial evidence, the Court quashed the order and all related proceedings.
1. The petitioners-doctors by profession, have by invoking the inherent jurisdiction of this Court under and in terms of Section 561-A Cr.P.C, sought the indulgence of this Court in quashing the order impugned dated 16th May, 2014 passed by the learned Judicial Magistrate, 1st Class, Surankote, Poonch in case titled, “State Vs. Muqarab Hussain and Another” (bearing File No. 131/2006), arising out of FIR No. 148/2005 for an offence under Section 304-A RPC.”
2. The factual scenario of the case is that on the 27th day of August, 2005, the police authorities of Police Station, Surankote came to know from a reliable source that on the 26th day of August, 2005, one-Shamim Akhter W/o Mohd. Rafi, Caste Thakar R/o Chandi Madh, who was pregnant and was admitted by her husband in Sub District Hospital, Surankote (in brevity, SDH) died on the hospital bed at about 10 P.M along with the newly born baby. According to the attendants, the lady died in the hospital due to the negligence of the operating doctors. On the receipt of this information, the police authorities initiated inquest proceedings under Section 174 Cr.P.C, whereafter it was on 08th of September, 2005 that a case for an offence under Section 304-A RPC was registered against the petitioners with which the investigation commenced.
3. During the course of the investigation of the case, what came to the fore is that the deceased was admitted in S.D.H, Surankote by the petitioners and they failed to treat her properly. They handled her with negligence, as a consequence of which she breathed her last in the hospital itself. On the culmination of the investigation of the case, the police authorities of Police Station, Surankote, Poonch laid a report on the 09th day of October, 2006 against the petitioners before the Court of JMIC, Surankote in terms of Section 173 Cr. P.C.
4. At the pre-trial stage, the learned Magistrate after taking a cue from the law laid down in case titled, “Jacob Mathew v. State of Punjab & Anr.”, reported in “AIR 2005 Supreme Court 3180” directed the police authorities to re-investigate the matter in the light of the guidelines laid down in the said judicial precedent. The police authorities subsequently filed a charge-sheet before the Court of learned Magistrate, Surankote on the 01st day of October, 2013 on the same set of facts and circumstances, as detailed earlier. The learned Magistrate, Surankote charged the accused for the commission of an offence under Section 304-A RPC by his order dated 16th May, 2014 whereafter the prosecution was asked to produce the evidence in support of its case.
5. Aggrieved by the order dated 16th May, 2014 of the learned Magistrate, the petitioners assailed the same before this Court in this petition, filed under Section 561-A Cr. P.C on the grounds, inter alia, that it was at the behest of the relatives of the deceased that an FIR was registered on the 08th day of September, 2005 against the petitioners at Police Station, Surankote for the commission of an offence under Section 304-A RPC. It is further stated that the inhabitants of the locality where the deceased dwelled, raised a hue and cry, whereafter Mr. A.K. Raina (IAS) was appointed as a Commissioner of inquiry vide Government Order No. 179-HME of 2006 dated 24th March, 2006 read with Government Order No. 193-HME of 2006 to conduct an inquiry against the petitioners for their alleged negligence in handling the deceased. The Inquiry Officer, as per the mandate of the Government Order (supra), conducted an inquiry in the matter, in which he concluded that no negligence can be attributed and imputed to the petitioners for causing the death of the deceased.
6. The petitioners have proceeded to state that when the charge-sheet was produced before the Court of Sub Judge JMIC, Surankote, Poonch, the learned Court observed that the surgery of the deceased was conducted by the surgeon specialist and not by the petitioner No. 2, who was an Assistant Surgeon and the petit
