30 March 2023 5:00 AM GMT
The Jharkhand High Court has held that proceeding further on a protest petition when the finding of the expert committee constituted in a medical negligence case is in favour of the doctor, amounts to abuse of process of law.The court passed the above order in a criminal miscellaneous petition that was filed to quash the entire criminal proceeding, including the order taking cognizance passed...
The Jharkhand High Court has held that proceeding further on a protest petition when the finding of the expert committee constituted in a medical negligence case is in favour of the doctor, amounts to abuse of process of law.
The court passed the above order in a criminal miscellaneous petition that was filed to quash the entire criminal proceeding, including the order taking cognizance passed by the Chief Judicial Magistrate of Sahibganj in connection with a case whereby cognizance had been taken under section 304-A read with section 34 of the IPC against the petitioner-doctor.
Initially a case was registered wherein it was alleged that the complainant had brought his father to the petitioner's clinic in Sahibganj for a hernia operation. As per the complainant, at 7.30 PM his father was taken to the operating room, and after 30 minutes, he was taken out of the operation theatre and shifted to another room. During that time the complainant was waiting for his father to regain consciousness when he claims to have noticed that his father's veins had stopped. Following that, the doctor attended the patient, went to his room, and sent a message that the patient had died; when the doctor was called up again, he failed to show up, it is alleged.
One of the complainants had filed a written application before the Officer-In-Charge of the police station which was investigated by the police and the final form was submitted by the police stating mistake of facts.
Alternatively, Mr. Pandey Neeraj Rai, the petitioner's counsel, submitted that the petitioner who is a practising doctor had successfully operated on the patient. Later, when he received information about the patient's unwell condition, he immediately attended to the patient and upon a medical checkup found the patient dead.
However, he further stated, the complainant had called about 100 to 150 persons at the Nursing Home and the mob was led by five accused persons and the nursing home was ransacked, and the staff members of the Nursing Home were assaulted. The mob was shouting to kill the petitioner, Court was told.
On the basis of this, a written report was registered against five named accused persons and 100 to 150 unknown for the offences under sections 341, 323, 427, 504, 34 of the IPC. Subsequently, after investigation a charge sheet was submitted and cognizance was taken by the Chief Judicial Magistrate in the case.
He then pointed out that the court took cognizance of the protest petition filed by the Opposite Party No.2 under Section 304-A read with Section 34 of the IPC which was against the mandate of law. The National Human Rights Commission and National Minority Commission was informed by the Opposite Party No.2 and thereafter an enquiry committee was directed to be set up against the petitioner. The committee arrived at a conclusion that there was no technical evidence to hold that the deceased died due to negligence while conducting the said hernia operation.
Mr. Rai finally submitted that to allow the proceeding to continue and to take cognisance on the protest petition despite the opinion of the expert committee that there was no negligence on the part of the doctor is bad in law.
While referring to the protest petition, Justice Sanjay Kumar Dwivedi stated that undoubtedly once the final form is submitted, the Magistrate has four options:-
(1) He may agree with the conclusion of the police and accept the final report and drop the proceeding.
(2) He may take cognizance under Section 190(1)(b) CrPC and issue process straightaway to the accused without being bound by the conclusion of the investigating agency where he is satisfied that upon the facts discovered by the police, there is sufficient ground to proceed.
(3) He may order for further investigation if he is satisfied that the investigation was made in a perfunctory manner.
(4) He may without issuing process and dropping the proceedings under Section 190(1)(a) CrPC upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202 CrPC and thereafter whether complaint should be dismissed or process should be issued.
Justice Dwivedi was of the opinion that the Magistrate chose the fourth option and in doing so he proceeded in accordance with law, however, he had not taken into account the judgement delivered by the Supreme Court in the case of Martin F. D’Souza (supra) as well as “Jacob Mathew Vs. State of Punjab” reported in 2005 (6) SCC 1 wherein the concern of the Apex Court was that a bonafide action of any doctor may not be made a subject matter of a civil or criminal wrong unnecessarily. It was also directed that the court could only proceed against the doctor after taking expert opinion.
In the case in hand an expert report was already there and only then a final form was submitted. In that view of the matter the Court found that proceeding further on the protest petition when the finding of the expert committee was in favour of the petitioner amounts to abuse of process of law.
"In the case in hand the doctor has discharged his responsibility. The operation was successful. The patient was brought to the ward thereafter the condition of the father of the O.P. No.2 was deteriorated. In the case of Martin F. D’Souza(supra) the Hon’ble Supreme Court has noted the facts that the courts and the Consumer Forum are not experts in medical science, and must not substitute their own views over that of specialists. It is true that the medical profession has to an extent become commercialized and there are many doctors who depart from their Hippocratic oath for their selfish ends of making money. However, the entire medical fraternity cannot be blamed or branded as lacking in integrity or competence just because of some bad apples." Justice Dwivedi noted.
Justice Dwivedi finally pointed out, "It is well known that inspite of best effort made by the doctor sometime they are not successful and this does not mean that doctor must be held guilty. The Court comes to the conclusion that the case of the petitioner is fully covered with the aforesaid two judgments of the Hon’ble Supreme Court."
Case Title: Dr. Vijay Kumar vs. The State of Jharkhand Cr.M.P. No. 588 of 2013
Citation: 2023 LiveLaw (Jha) 9
Click Here To Read/Download Judgment