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ALLAHABAD HIGH COURT
Sudhir Kumar Saxena, J.
Vipul Shah - Appellant
Versus
State of U.P. Thru. Prin. Secy.(Home), Civil Sectt. & Ors. - Respondent
Criminal Misc. No. 1670 of 2016
Decided On : 30-05-2016
Medical Negligence - Criminal Culpability - Sections 304/420 I.P.C. - Summary of Acts and Sections
Fact of the Case:
The case involved a petition challenging the charge-sheet and cognizance order against a doctor for prescribing a contraindicated medicine, allegedly leading to the death of a patient. The court analyzed the medical history, treatment, and subsequent medical opinions to determine criminal culpability.
Finding of the Court:
The court found that the charge-sheet and cognizance order under Section 304 I.P.C. were not justified, but a case for taking cognizance under Section 304-A/420 I.P.C. was made out. The court directed the Magistrate to pass a fresh order considering the observations.
Issues: The key issues included the doctor's criminal culpability for prescribing a contraindicated medicine, the cause of the patient's death, and the application of relevant sections of the Indian Penal Code.
Ratio Decidendi: The court emphasized that criminal prosecution should not be initiated in every case of medical failure and that doctors should be saved from unnecessary litigation to discharge their duties fearlessly. It also highlighted the distinction between Section 304 and Section 304-A I.P.C. in cases of medical negligence.
Final Decision: The court quashed the order taking cognizance under Section 304/420 I.P.C. and directed the Magistrate to consider cognizance under Section 304-A/420 I.P.C. The petitioner was directed to appear before the Magistrate within two weeks and apply for bail if surrendered.
Sudhir Kumar Saxena, J. –
This petition has been filed under Section 482 of Cr.P.C. challenging the charge-sheet dated 09.06.2015 and cognizance order dated 11.03.2016 passed by Chief Judicial Magistrate, Lucknow in Case Crime No. 246 of 2011, summoning petitioner under Sections 420/304 I.P.C.
2. Heard Sri Jyotindra Mishra, learned Senior Counsel assisted by Sri Kamlesh Mishra, learned counsel for petitioner as well as Sri. Sudhir Srivistava (complainant), in person.
3. It appears that petitioner had approached this Court by means of Writ Petition No. 8186 of 2011(MB) seeking quashment of the F.I.R. Division Bench of this Court while dismissing the said writ petition on 25.08.2011 observed that F.I.R. does disclose a cognisable offence and permitted petitioner to surrender before the courts below and move the application for bail which was to be considered expeditiously.
4. Matter was taken to Apex Court by means of S.L.P. no. 7122 of 2011 in which initially an interim order was passed but said S.L.P. was dismissed vide order dated 24.02.2016 which is being reproduced below :
“It is submitted at the Bar that the charge-sheet has already been filed in the matter, therefore, it is not a fit case for our interference to quash the FIR. Hence, the special leave petition is dismissed. However, it is open for the petitioner to urge all such contentions available for him in law at the time of considering of framing of charge by the trial court.
Further, as prayed, four weeks' time is granted to the petitioner to surrender and seek regular bail. If such an application is filed, the same shall be considered and disposed of in accordance with law expeditiously.
All pending application(s) stand(s) disposed of.”
5. After dismissal of the S.L.P., learned C.J.M. Passed the order dated 11.03.2016 which has been impugned in this petition. C.J.M. has observed that prima facie there is sufficient ground to take cognizance and it cannot be said that there is no material to take cognizance. Consequently, application moved by petitioner challenging the cognizance order was rejected.
6. Before coming to merits of the case, it is necessary to give brief facts which are culled out from the F.I.R.
7. Nidhi Srivastava, wife of informant Sudhir Srivastava was admitted in Sahara Hospital, Lucknow on 17.10.2010 from where she was discharged on 21.10.2010. For redressal of shoulder pain treatment was done by Dr. Vipul Shah (present petitioner) who even after noticing the damage in liver (ALT 121) prescribed 'Lefra' (Leflunomide 10mg) along with other medicines and called again. On 05.11.2010, Dr. Shah advised her to continue the same medicines for one month and half. Dr. Shah did not advise any diagnostic test for liver enzymes nor he informed about adverse effects of Lefra. On 22.11.2010, she became ill again and since then she was getting treatment from different doctors. She was shifted to Fortis Hospital, Delhi on 23.11.2010. Dr. Ashok Kumar, Rheumatologist informed that liver of informant's wife has been damaged as a result of Lefra. Ultimately, she expired on 17.01.2011 in the Fortis Hospital itself. Cause of death was shown to be Lefra induced hepatitis drug. Then, informant wrote to Torrent Pharmaceutical Limited which informed that the patient having liver problems should not be prescribed Lefra. Moreover, Dr. Shah did not prescribe any liver guard. He was not competent to prescribe Lefra as he is only orthopaedic Surgeon, as such, Dr. Shah has manifested medical negligence in treatment of complainant's wife causing her death. Moreover, Dr. Shah's credentials have been disputed by General Medical Council United Kingdom as well as United State of America. They categorically denied having licensed Dr. Vipul Shah. He is using forged certificate and claims to be an internationally acclaimed medical practitioner etc.
8. On this F.I.R. dated 12.08.2011, case was registered at Crime No. 246 of 2011, under Sections 420/304-A I.P.C., Police Station Kaiserbag
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