Criminal Application No..1877 of 2010

11th July, 2011

Petitioner Counsel: Mr. A.A. KATHANE
Respondent Counsel: Mrs. K.D. DESHPANDE

Cases Cited:
Jacob Mathew vs State Of Punjab & Anr., Appeal (crl.) 144-145 of 2004 [Para 3]
Martin F. D'Souza vs. Mohd. Ishfaq, Civil Appeal No. 3541 of 2002, decided on 17 February, 2009 [Para 4]
Dinesh s./o, Bhawarlal Sarda Vs. State of Maharashtra and Ors., 2008 ALL MR (Cri) 3124 [Para 7]
State of Andhra Pradesh Vs. Vangaveeti Nagaiah, 2009 ALL MR (Cri) 2466 (S.C.) [Para 7]
R. Kalyani Vs. Janak C. Mehta and Ors., (2009) 1 SCC 516 [Para 8]
Smt. Aleyamma Varghese Vs. Deewan Bahadur Dr. V. Varghese and Ors., 1997 (1) CPR 310 [Para 8]
Joseph @ Pappachan and Ors. vs. Dr. George Moonjely and Ors., 1995 ACJ 253 [Para 9]
Mrs. Shanta .vs. State of A.P. and Ors., III (1997) CPJ 481 (DB) [Para 10]

JUDGMENT

JUDGMENT :- Rule. Rule made returnable forthwith. The application is taken up for hearing by consent. Heard Mr.A.A.Kathane, Adv. for the Applicant and Mrs. K.D. Deshpande, Adv. for the Respondent No.1/State.

2. By this application, the applicant prays for quashing and setting aside the First Information Report and the Chargesheet in the Summary case no. 9898 of 2010 pending on the file of the Judicial Magistrate First Class, Court No. 4, Nagpur.

3. In Jacob Mathew vs State Of Punjab & Anr., Appeal (crl.) 144-145 of 2004, decided on 5 August, 2005 by three judges bench of the Apex Court, in respect of the professional negligence, it is held as under:

" In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices.

4. In Martin F. D'Souza vs Mohd. Ishfaq, Civil Appeal No. 3541 of 2002, decided on 17 February, 2009, it is held thus :

" 41. A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. For instance, he would be liable if he leaves a surgical gauze inside the patient after an operation vide Achutrao Haribhau Khodwa & others vs. State of Maharashtra & others, AIR 1996 SC 2377 or operates on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade.

5. The Criminal proceedings can proceed further if it appears a case of gross medical negligence and there is sufficient material collected during the investigation to proceed with the criminal case. The test is whether uncontroverted allegations constitute the elements of crime at primafacie view of the matter and make out a case against the accused?

6. In the case in hand, the accusation is under Section 338 read with Section 34 of the Indian Penal code. On 7/05/2010, at about 01.00 a.m., the pregnant patient Rizwana herein was operated by a team of Doctors namely 1. Dr Manish Omprakash Baheti, 2.Dr.Nidhi Suresh Kharabe, 3 Dr.Jayalakshmi Vaguncharan Behara to remove her baby Boy by caesarian operation. They had left the gossipi boma (surgical mop) negligently inside the abdomen of Rizwana. When she complained about the pains in the abdomen on 01/06/2010, she was given medicines for couple of days at Daga Hospital. Rizwana had suffered medical complicationsinjury in the form of two holes to her intestines with pus formed and intestinal walls pasted to each other. In the result, from the intestines, 1.5 ft intestine had to be removed and the intestines were rejoined. The statements of witnesses recorded during the investigation indicated the case of gross medical negligence on the part of the team of doctors who performed the caesarian operation, which caused grievous hurt endangering life of said Rizwana. Primafacie, a strong case appears to have been made out to prosecute the applicantaccused for the aforesaid accusations. Civil liability for damages is entirely on different footing of medical negligence than a gross medical negligence amounting to crime if resulting in grievous injury endangering the life of an patient. The vicarious liability of the senior doctor or the Hospital administration for damages is on a different footing.

7. Mr.Kathane, Adv. for the applicant placed reliance on the ruling in the case of Dinesh s./o, Bhawarlal Sarda Vs. State of Maharashtra and Ors. reported in 2008 ALL MR (Cri) 3124 to submit that investigation can be quashed in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India, or, under inherent powers under section 482 of the Cr.P.C., if no cognizable offence was disclosed in the FIR. In such cases, there is no question of appreciating evidence as merely upon perusal of complaint, the High Court may hold that it is manifestly unjust to allow proceedings to proceed or go further. The learned Advocate further placed reliance on the ruling in the case of State of Andhra Pradesh Vs. Vangaveeti Nagaiah reported in 2009 ALL MR (Cri) 2466 (S.C.). In the said case, the Supreme Court held that at the time of framing the charge it can be decided whether prima facie case has been made out showing commission of an offence and involvement of the charged persons. At that stage also evidence cannot be gone into meticulously.

8. In R. Kalyani Vs. Janak C. Mehta and Ors. reported in (2009) 1 SCC 516, the Supreme Court held that vicarious liability can be fastened only by reason of a provision of a statute and not otherwise and for said purpose, a legal fiction has to be created. In the case of Smt. Aleyamma Varghese Vs. Deewan Bahadur Dr. V. Varghese and Ors. reported in 1997 (1) CPR 310, it is held as under:

" The crucial question to be considered is whether there is any negligence on the part of the opposite parties in leaving behind a large sponge before closing abdomen after caesarian operation. That a large sponge was left behind cannot be disputed as it is proved beyond doubt......... Though RW1 stated that it was the normal practice to count the instruments and sponges before the abdomen was closed after the operation and such procedure was followed in this case also we are unable to accept that part of evidence as it is established beyond doubt in the instant case that there was foreign body namely a large sponge in the abdomen and that led to all complications which could not be diagnosed by the doctors at the first opposite party hospital. There was no attempt for taking CT scan of the abdomen. Normally the counting is done by the nursing staff and the doctors cannot be expected to do that and therefore, we cannot say that there is any negligence on the part of the doctors in failing to count the sponge. Both by Dr.Rajan Thomas, the Head of the Surgery of the Lisie Hospital and also RW1 havedeposed that the counting was done by the scrub nurse. In the circumstances, we can only hold that there is negligence on part of scrub nurse in counting the sponges which led to the complications. We have, therefore, no hesitation to hold that the first opposite party as employer is vicariously liable to compensate the complainant for all the loss suffering and complications sustained by the patient."

9. The learned Counsel for the applicant further placed reliance on the ruling in the case of Joseph @ Pappachan and Ors. vs. Dr. George Moonjely and Ors. reported in 1995 ACJ 253 wherein it is held as under :

" In the light of our finding that the first defendant was negligent in performing the P.P.S. operation, he is primarily liable for his negligent act and the second defendant as the owner of the hospital is vicariously liable for the negligent act of the first defendant. Regarding the vicarious liability of those who run the hospital or the negligent acts of the doctors employed by them, the question is no longer resintegra. Persons who run a hospital are in law under the self same duty as the humblest doctor; whenever they accept patient for treatment, they must use reasonable care and skill to cure him of his ailment. The hospital authorities cannot, of course, do it by themselves; they have no ears to listen through the stethoscope, and no hands to hold the surgeon's scalpel. They must do it by the staff which they employ: and if their staff are negligent in giving the treatment, they are just as liable for that negligence as anyone else who employ others to do his duties for him. "

10. Reliance is also placed by the learned Counsel for the applicant on the case of Mrs. Shanta .vs. State of A.P. and Ors. reported in III (1997) CPJ 481 (DB). The Andhra Pradesh High Court held as under :

" The Court in exercise of its power under Article 226 of the Constitution can grant monetary compensation for contravention of fundamental rights guaranteed by the Constitution. That is an invaluable right and one of the most practicable modes of redress available for the contravention of the fundamental rights by the State or its servants in the purported exercise of their powers. When the State or its servants failed to discharge their duty, when their omissions are such that are seen causing serious injuries, as in the case of the petitioner, we have no hesitation in holding that besides any remedy under the private law for damages, the petitioner shall be entitled to be compensated by the Government or the State for the negligence of its servants - the third respondent and other Doctors and members of the staff of Government Maternity Hospital, Afzalgunj. "

11. Under section 482 of the Code of Criminal Procedure, the inherent power can not be used to stifle or scuttle legitimate prosecution. The inherent power has to be used sparingly with abundant precaution to prevent unnecessary delay in the trial or to prevent procrastination of the proceedings. The FIR and the investigation done in this case can not be labeled as tainted or biased or baseless in any manner. The answer to the question mentioned in para 5 above must, therefore, be in the affirmative.

12. For the aforesaid reasons, I do not find merit in the Application. Hence, it is dismissed. No order as to costs.

Apllication dismissed..