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1999 Supreme(All) 909
HIGH COURT OF ALLAHABAD
G.P.Mathur, J.
Dr.Smt.Prabha Malhotra
Versus
State
Criminal Misc. Application 10433 of 1991
Decided On : 07 July 1999
Criminal Misc. Application 10433 Of 1991
Vinod Kumar Sharma,
The offence under Section 269 IPC requires an unlawful or negligent act which the accused had reason to believe was likely to spread infection of any disease dangerous to life.
Headnote:
CRIMINAL LAW - QUASHING OF PROCEEDINGS - SECTION 269 IPC - UNLAWFUL OR NEGLIGENT ACT LIKELY TO SPREAD INFECTION OF DISEASE DANGEROUS TO LIFE - INGREDIENTS OF OFFENCE - NECESSITY OF REASON TO BELIEVE THAT ACT IS LIKELY TO SPREAD INFECTION - MERE SUSPICION OR DOUBT NOT SUFFICIENT.
Fact of the Case:
A complaint was filed against doctors of a nursing home alleging negligence in the treatment of a patient who died after childbirth. The complainant alleged that the doctors failed to inform the patient about the abnormal position of the child in the womb, which led to a caesarean operation. He also alleged that the patient was given an enema which caused her to have loose motions and her condition deteriorated. The doctors suspected a heart problem and advised the complainant to bring a heart specialist.
Finding of the Court:
The court found that the allegations made by the complainant did not constitute an offence under Section 269 IPC. The court held that the doctors did not unlawfully or negligently do any act which they had reason to believe to be likely to spread infection of any disease dangerous to life. The court also found that there was no allegation or material to show that the act of the doctors was likely to spread any infectious disease.
Issues: Whether the acts of the doctors constituted an offence under Section 269 IPC.
Ratio Decidendi: The court held that the ingredients of the offence under Section 269 IPC were not made out. The court held that the expression "reason to believe" under Section 26 IPC requires sufficient cause to believe that something is true, and mere suspicion or doubt is not enough. The court also held that the acts of the doctors, as alleged by the complainant, did not amount to an unlawful or negligent act likely to spread infection of any disease dangerous to life.
Final Decision: The court allowed the petition and quashed the proceedings against the doctors.
( 1 ) THIS petition under Section 482 Cr. P. C. has been filed by Dr. Smt. Prabha Malhotra. Dr. Narendra Malhotra, Dr. Rajendra Malhotra and Dr. Smt. Jaijit Malhotra for quashing the proceedings of case Crime No. 39 of 1990 under Section 269 IPC pending in the Court of judicial Magistrate (City), Agra.
( 2 ) THE petition was admitted on 29-8-91 and further proceedings in the trial Court were stayed. On the same day, State was given four weeks time to file counter affidavit. However till today neither any counter affidavit has been filed nor anyone has put in appearance on behalf of the complainant P. K. Anand. The Court has, therefore, to proceed on the footing that the averments made in the affidavit are correct.
( 3 ) P. K. Anand lodged a F. I. R. on 27-1-90 at P. S. Nai Ki Mandi alleging that his wife Smt. Neelam aged about 38 years had four issues. When she became pregnant again she got herself examined in Malhotra Nursing and Maternity Home (hereinafter referred to as the Nursing home) On 30-9-89 by the applicant No. 1 Dr. Smt. Prabha Malhotra who said that everything was normal but she should take prescribed some medicines which were taken by her. Thereafter she got herself regularly examined in the Nursing Home. On 14-2-90 she was admitted in the nursing Home for delivery. Dr. Smt. Prabha Malhotra and Dr. Rajendra Malhotra then informed the complainant that the child was not in normal position and after taking his consent, a caesarean operation was performed and a girl was born. Some bottles of glucose were given to smt. Neelam as she had become very weak. On 17-2-90 the applicant No. 1 gave soap enema to smt. Neelam due to which she had loose motion six times and her condition became precarious. The applicant No. 1 then told the complainant that she had got a heart stroke and some heart specialist may be called. The complainant then called Dr. M. C. Gupta who, after having electrocardiogram, done told the complainant that the functioning of the heart was normal. The complainant also got his wife examined by Dr. P. K. Mittal who agreed with the opinion of Dr. M. C. Gupta. Thereafter a bottle of blood was given to Smt. Neelam on 17-2-90 which brought about some improvement in her condition. The complainants wife was discharged from the nursing Home on 25-2-90. It was thus alleged that the doctors associated with the Nursing home were grossly negligent and they had committed offence under Section 269 IPC.
( 4 ) IT appears that the police did not register the case and on the application moved by the complainant under Section 156 (3) Cr. P. C. the learned Magistrate passed an order directing station Officer (Incharge), P. S. Nai Ki Mandi to register a case and to investigate the same. In pursuance of the aforesaid order, a case was registered at the Police Station on 10-3-90. After investigation, the police submitted a final report on 5-6-90. In pursuance of a notice issued to the complainant he appeared before the learned Magistrate and filed a protest petition supported with affidavits of himself, Smt. Neelam Anand and Smt. Shanta Rani Anand. The learned magistrate thereafter passed an order on 13-8-91 summoning the applicants to face trial under section 269 IPC.
( 5 ) I have heard Sri V. K. Sharma for the applicants and have examined the record. Section 269 ipc provides that whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment which may extend to six months. The expression "reason to believe" has been defined under Section 26 IPC and it lays down that a person said to have "reason to believe" a thing, if he has sufficient cause to believe that thing but not otherwise. A person can be supposed to know where there is a direct appeal to his senses. Suspicion or doubt cannot be raised to the level of "reason to believe". The allegation in the complaint, i
