CRM M-25733 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM M-25733 of 2011 (O&M) Date of Decision: November 16, 2012 Daljit Singh Gujral and others ... Petitioners Versus Jagjit Singh Arora and others ... Respondents CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH 1 Whether Reporters of the local papers may be allowed to see the judgment?. 2) To be referred to the Reporters or not?. 3) Whether the judgment should be reported in the Digest?. Present: Mr. R.S. Cheema, Sr. Advocate with Mr. K.S. Nalwa, Advocate, for the petitioners. Mr. Jagjit Singh Arora, respondent No.1 in person. Paramjeet Singh, J.Medical profession is one of the most oldest professions of the world and is the most humanitarian one. There can be no better service than to serve the suffering, wounded and the sick. Doctors are treated as equivalent to Lord Vishnu. Unfortunately, not a days with the upcoming of corporate culture, medical profession which was highly respected is indicating decline of standards of medical profession for personal gains. In the present case, the INSCOL Hospital Management is facing the criminal complaint regarding the facilities, standards of professional medical CRM M-25733 of 2011 (O&M) 2 competence and appropriateness of their therapeutic and diagnostic methods. Present petition has been filed under Section 482 of the Code of Criminal Procedure for quashing of Complaint Case No.7506/9/2011 dated 09.06.2008 titled “Jagjit Singh Arora vs. Dr. Jayant Banerjee and others”. (Annexure P/4), pending in the Court of learned Judicial Magistrate First Class, Chandigarh and summoning order dated 26.07.2011 (Annexure P/12). Brief facts of the case are that on 01.08.2005 in the morning, Mrs. Inderjit Arora, wife of respondent no.1-complainant, (hereinafter referred to as the `patient') experienced pain in her left leg and also complained of shivering and mild fever. She approached Dr. Jayant Banerjee at his clinic Medi-hub, Madhya Marg, Sector 8-C, Chandigarh at 4.00 p.m. for medical check up and treatment. Dr. Banerjee, after some preliminaries advised Mrs. Arora to visit Prime Diagonistic Centre for a procedural test. After Echo Cardiography test, Dr. U.P. Singh referred Mrs. Arora to Dr. Banerjee, who referred her to one Dr. Sudhir Saxena, Cardiologist. Thereafter, the complainant visited the private clinic of Dr. Sudhir Saxena, who on preliminary check up advised her hospitalization and prescribed two medicines to Mrs. Arora and left rest of the treatment as per advice of Dr. Banerjee. Dr. Saxena also suggested immediate tests such as D-dimer test, repeat echo-cardiography test and spiel CT Chest scan. Upon the advise of Dr. Sudhir Saxena, Dr. Banjerjee referred Mrs. Inderjit Arora to INSCOL Multi-Speciality Hospital, Sector 34, Chandigarh where CRM M-25733 of 2011 (O&M) 3 Dr. Banerjee was later found to be positioned as Medical Superintendent. Mrs. Arora was admitted in the ICU of INSCOL Hospital (hereinafter referred to as the “Hospital”.) by Dr. Jayant Banerjee under scare of suspected ailment of Pulmonary Embolism. Mrs. Arora was not attended to by any specialist at INSCOL Hospital, but by Resident Medical Officer Dr. Paramjit Singh Mann, petitioner no.3. Later on Dr. Paramjit Singh Mann was found to be an unqualified doctor to treat her, as a result of which, the condition of Mrs. Arora worsened. She was administered highly potent TPA (Tissue Plassminogen Activator) injection valuing Rs.81,600/- meant for acute “Pulmonary Embolism”., although she was not suffering from any such ailment. On account of unnecessary administration of the said injection, the condition of Mrs. Arora seriously aggravated, as a result of adverse effects of administration of wrong injection causing grievous hurt to Mrs. Arora, resultantly she was almost driven to the brink of death. The condition of Mrs. Arora extremely deteriorated and she had to remain hospitalized in ICU of Fortis Hospital for about 2 months and thereafter, she was shifted to PGI, Chandigarh, where she remained admitted for one month. Ultimately, she died. During this period, she remained under severe bodily pain and also remained out of her ordinary chorus. The INSCOL Hospital not only charged for medicines not consumed, but also by setting aside all ethics of medical legal practices acted in a negligent manner. The appointment of unqualified Dr. Paramjit Singh Mann by the Hospital Management has resulted into wrong treatment and consequent death. There was also tampering with the documents of INSCOL Hospital record CRM M-25733 of 2011 (O&M) 4 to save the staff as well as the management. On the basis of above facts, the complaint was filed before the learned Judicial Magistrate First Class and number of witnesses were examined. Learned Magistrate after appreciating the evidence, summoned the petitioners to face trial vide order dated 26.07.2011, under Sections 420, 467/468/471/326/120-B of the Indian Penal Code and Section 15 of the India medical Council Act. Hence, the present petitioners have sought quashing of the impugned complaint as well as the summoning order. The petitioners have averred in the petition that petitioners are in administration of the INSCOL Multi-speciality, Sector 34-C, Chandigarh. Doctors and the medical staff are under their control. Wife of Respondent no.1- complainant was initially under treatment of Dr. Jayant Banerjee, thereafter, Dr. Sudir Saxena, Cardiologist and the consent form was got signed from Mr. A.S. Arora, son of patient i.e. wife of respondent no.1. It is also averred in the petition that some of the amount was due towards respondent no.1. It is also averred that the doctor has adopted the standard medical protocol and procedure in treatment and referring the patient. As per the opinion of Dr. Jagmohan Verma, Dr. Rupinder Singh and Dr. N.P.Singh at no stage medical negligency has been proved against Dr. Jayant Banerjee. Earlier, an FIR was registered regarding this incident, the same was quashed by this Court in CRM M-17013 of 2008 titled as “Daljit Singh Gujral vs. U.T., Chandigarh”. vide order dated 19.02.2010 (Annexure P/6) and liberty was granted to the respondent-complainant to appear before the JMIC who was expected to be guided by the principles of CRM M-25733 of 2011 (O&M) 5 law laid down in Jacob Mathew vs. State of Punjab, (2005) 6 SCC 1.Thereafter, Court summoned the petitioners vide impugned summoning order dated 26.07.2011 (Annexure P/12). The main grounds for challenge of the impugned complainant and summoning order are that learned Magistrate has failed to consider the delay in matter. It is further averred that learned Magistrate has totally ignored the law laid down by the Hon'ble Supreme Court with regard to medical negligence cases. There is no positive conclusive evidence that there is gross negligence on the part of the petitioners while treating the patient. The evidence on record has not been correctly appreciated by the learned Judicial Magistrate First Class before issuing the summoning order. There are other allegations regarding the alleged demand of money by the complainant-respondent no.1. Notice of motion was issued. In response thereto, respondent no.1 filed his detailed reply. In reply, the respondent has taken a stand that Mr. Daljit Singh Gujral and Ms. Nimrat Gujral are in the administration of INSCOL Multi-specialty Hospital, Sector 34-C, Chandigarh, doctors, nurses and other hospital staff are under their administrative control. The respondent without referring to the line of treatment has stated in his reply that Mrs. Inderjit Arora, wife of the complainant, was rushed to the Hospital in emergency condition. She was not examined by the qualified doctors/specialists which is essentially required to be provided by the Multi-disciplinary ICU Care team. The INSCOL Hospital is maneuvered and managed by Mr. Daljit Singh Grewal and Ms. Nimrat Gujral – husband and wife as Managing Director and Director respectively, who are non- CRM M-25733 of 2011 (O&M) 6 professionals in medical disciplines. This hospital is thriving on proven touting techniques and treatment by quack impersonating as Doctor in ICU in connivance with INSCOL Authorities, with the main object of money fleecing from ailing persons under false scare of deadly diseases while lacking in standard equipment and medical treatment facilities in ICU and with almost no full time qualified specialist doctors on rolls. In support of his assertion, the complainant – respondent has examined one CW8 Satinder Kumar, Accountant INSCOL. During his examination, he proved affidavit (Ex.D3). This affidavit was given before the Additional Commissioner, Income Tax on 16.11.2007 and it was endorsed and rectified by Mr. D.S. Gujral which clearly admits the involvement of Ms. Nimrat Gujral too in illicit touting activities amounting to criminal conspiracy. The contents of the affidavit filed before Additional Commissioner, Income Tax admits straight involvement and direct role played by Ms. Nimrat Gujral in touting activities in conjunction with its medical, finance, Marketing Departments and unscrupulous element of greedy in-human class camouflaged under the garb of some Doctors, Consultants and Clinics, quacks deceitfully routing/ steering ailing persons to INSCOL under commission earning understandings with INSCOL authorities which is a conclusive proof of factual consent and connivance. This duo is the perpetrator of all unlawful criminal acts and activities in organizing, abetting and executing their evil designs of money fleecing in criminal conspiracy with others at INSCOL Hospital. Besides this, reference has been made to the qualification of Dr. Paramjeet Singh Mann, CRM M-25733 of 2011 (O&M) 7 who has studied in Ukraine and his qualifications were not recognized by Medical Council of India. He is not registered with any State Medical Council. The hospital authorities had employed unqualified doctors in ICU which resulted into death of Mrs. Arora in spite of best efforts for shifting to other hospital, like Fortis and PGI. Initial wrong treatment in the INSCOL Hospital where the unqualified doctors were employed resulted into death of respondent no.1's wife which certainly amounts to an offence under the provisions of the Indian Penal Code. Employing the unqualified doctors is squarely covered by the ingredients of offence under various Sections of IPC for which the Managing Director and the Director i.e. Petitioner no.1 and 2 are responsible and liable to be prosecuted because they have employed unqualified staff resultantly playing with the life of the patients. Many other things have been mentioned in the reply which are not required to be referred at this stage. I have heard the learned counsel for the petitioners, as well as respondent no.1 and with their assistance perused the record. Learned counsel for the petitioners vehemently argued that the report of Punjab Medical Council dated 03.10.2006 (Annexure P/3) establishes that the main case as alleged by the complainant was completely ruled out. Punjab Medical Council categorically observed that as per the record, the injection was administered to the patient, the disease can manifest at any time during the course of treatment, Doctor has made reasonable diagnosis under the circumstances and the set up available at that point of time. Doctor adopted standard medical protocol and procedure CRM M-25733 of 2011 (O&M) 8 in treating and referring the patient. From the record and as per the opinion of the doctors at no stage medical negligence has been proved. It is further contended by the learned counsel for the petitioners that at the relevant time, no ventilator was available in the hospital when the TPA injection was administered to the patient. It is further argued by the learned counsel for the petitioners that although the ventilators were available in the Hospital but were occupied by other patients. Since the condition of the patient deteriorated then it was felt that the ventilatory support is required. It is argued that Dr. Manoj, Associate Professor, PGI (CW-7) in his statement has not stated that the treatment that was given to the patient was wrong or a deviation from the standard medical procedure. The patient after shifting to the Fortis Hospital was never treated for any side effect of TPA. Learned counsel for the petitioners has further vehemently argued that the Judicial Magistrate under Section 156(3) Cr.P.C. is required to follow the guidelines laid down by the Hon'ble Supreme Court of India in Jacob Mathew vs. State of Punjab, (2005) 6 SCC 1.Reference to para nos. 50, 51 and 52 of the said judgment has been made by the learned counsel for the petitioners. Learned counsel for the petitioners further contended that a perusal of the summoning order dated 26.07.2011 (Annexure P/12) clearly shows that without taking any medical opinion regarding the requisite standard of treatment and violation of medical practice or procedure, the Judicial Magistrate has proceeded. Learned counsel also made reference to the judgment of Hon'ble Supreme Court in CRM M-25733 of 2011 (O&M) 9 Kusum Sharma and others vs. Batra Hospital and Medical Research Centre, (2010) 3 SCC 480.Learned counsel for the petitioners has further contended that the learned Magistrate has summoned the petitioners under Sections 467, 468, 471 IPC, but the order of the learned Magistrate is absolutely silent with regard to the documents if any, forged by the petitioners. Learned Judicial Magistrate First Class has wrongly summoned the petitioners under Sections 326/420 IPC. Learned counsel for the petitioners further contended that summoning of a person is a serious matter. There are no chances of conviction. In such circumstances, the petitioners could not have been summoned. Learned counsel further contended that petitioner No.1 is the Managing Director and petitioner no.2 is the Director. They are at all not involved in the medical negligence. The Hon'ble Supreme Court in Maksud Saiyed vs. State of Gujarat and others, (2008) 2 SCC (Crl.) 692 has held that the Directors of the company can not be held vicariously liable. Mr. Jagjit Singh Arora, respondent No.1 in person vehemently opposed the contentions of the learned counsel for the petitioners and contended that the Medical Council of India vide letter not MCI-211(2) (530)/2006-Ethics/18176 dated 03.12.2007 had ordered enquiry through the Senior Superintendent of Police, Chandigarh during pendency of appeal against the order dated 03.10.2006 passed by Punjab Medical Council on the complaint made by respondent no.1. Thereafter, the CRM M-25733 of 2011 (O&M) 10 Medical Council wrote a letter dated 21.11.2008 to the Registrar, Punjab Medical Council, Mohali which reads as under:- “The Registrar, Dated 21-11-2008 Pb. Medical Council, SCO 25.Phase-1, Mohali. Sub: Inquiry against Dr. P S Mann and Dr. Jayant Banerji. Ref: MCI letter not MCI-211(2) (530)/206-Ethics dated 3/12/07 & 10584 dated 17.09.09 Sir, In terms of above referred letters of MCI, New Delhi to SSP, Chandigarh to constitute an inquiry into the following issues and take a necessary action as per law and inform MCI accordingly. Issues:
1. Verification of the qualifications of Dr. PS Mann.
2. If PS Mann has complied with requirements of Indian Medical Council Act 1956 as amended upto 2002.
3. If PS Mann is treating patients against rules laid down in MCI Act 1956 & Regulations 2002.
4. If PS Mann was recruited by Dr. Jayant Banerji- Investigative Observations:
1. PS Mann studied abroad for medical studies in Ukrain from 1997 to 2003 at WHO approved institution named “Gorky's Donetsk State Medical University”. and was allowed to practice medicine in Ukrain as an approved Physician there.
2. As per Section 13, 15, 25 of IMC Act 1956 as amended to 2002 and Rule 1.1.3 and 1.6 of MCI Regulations 2002, PS Mann is prohibited to practice Medicine in India without passing Screening Test for the overseas qualifications to be recognized for registration with MCI or any State Medical CRM M-25733 of 2011 (O&M) 11 Council. It has been found that neither he has passed the screening test and as such not he is registered with any medical council. On the contrary, he is registered with “Indian Board of Alternative Medicine, Calcutta”., which is not recognized by MCI under Rule 1.1.3 of MCI Regulations 2002.
3. In an on going court proceedings, PS Mann has submitted an affidavit that he was treating the patients in INSCOL Hospital (Imparting Modern Allopathic treatment) at Chandigarh under the instructions of Registered Doctors which according to us is a violation of Rule 1.6 of MCI Regulations 2002.
4. PS Mann was recruited by Dr. Jayant Banerji Regn. No.26111 (Pb.M.C) in concurrence with Management of INSCOL on 05/06/05 and designated as Resident Medical Officer and still working at INSCOL Hospital since then. Interpretation/Clarifications – Reconfirmation under IMC Act PS Mann is pre-fixing the word Doctor before his name and presenting himself as `Dr. PS Mann' which is understood is general that he was a recognized medical practitioner as per Section 14(2a) of IMC Act, 1956 as amended to 2002. In order to take necessary action, please clarify specifically if PS Mann is eligible to write `Doctor' before his name for India as Dr. P.S. Mann without passing screening test and without registration with MCI/State Medical Council. This would enable us to complete our investigations and take necessary legal action accordingly.”
. Mr. Jagjit Singh Arora, respondent no.1 further contended that petitioner nos. 1 and 2 being the Administrators had recruited an unqualified doctor which could not provide treatment. As such, the CRM M-25733 of 2011 (O&M) 12 Director and the Managing Director are the directing mind and Will of the Hospital and are responsible for the act. Petitioner no.3 was appointed and recruited by the petitioner Nos.1 and 2 who was unregistered medical practitioner and was working in the intensive care unit of INSCOL. As such, petitioner nos. 1 and 2, as well as petitioner no.3 are liable for the act. Medical Council of India has held that petitioner no.3 was not a qualified doctor as he was neither registered with any State Medical Council not with Medical Council of India. In these circumstances, the petitioners are responsible and are criminally liable under the provisions of the Indian Penal Code. This is not a case of vicarious liability, rather it is identifiable under the doctrine of identification. Petitioner nos. 1 and 2 are the persons who are actually brain and mind of the Hospital through which the crime is being committed. The patient rushed in the emergency to the Hospital impressed by its name and fame being multi-speciality hospital. not petitioners in order to escape criminal liability are thriving on the corporate entity. In such circumstances, piercing the veil is a necessity. Here is a case, wherein petitioner nos. 1 and 2 are thriving to get patient through toutism. This fact has been admitted by the petitioners in an affidavit given before the Income Tax Authority which has been duly brought on record and proved by the complainant's witnesses before the Trial Court. The petitioner has shrewdly avoided to attach highly revealing and implicating evidence led by Mr. Rajpul Kapur (CW-2), officials of the Income Tax Department (CW-3), Punjab Medical Council (CW-5) and Chandigarh Police (CW-6). Even the self implicating statement given in evidence on CRM M-25733 of 2011 (O&M”
18. 11.2010 before learned Judicial Magistrate First Class by Satinder Sharma (CW-8), Manager Administration & Accounts, INSCOL has not been deliberately attached as it proves the original documents pertaining to medical treatment of Mrs. Inderjit Arora which were surrendered after about 5 years under the orders of learned JMIC. The company could be equated with a human body. They do have a brain and a nervous centre which controls the entire body. They have people i.e. the Directors and the staff, as their hands and legs under the instructions of whom work of the nervous system is carried out. Lord Denning has equated the brain and nervous system to the Directors and Managers who represent the directing will of the company. In fact, the state of mind of these managers is the state of mind of the company and is treated by law as such. So, also in the criminal law, in cases where the law requires a guilty mind as a condition of a criminal offence, the guilty mind of the Managing Director and the Director will render themselves guilty. Mr. Jagjit Singh Arora, respondent No.1 further contended that the hospitals are prohibited from practicing medicines in almost every State. It is the Doctors/Physicians who practice medicine. The Managing Director and the Director of the Hospital are liable for its failure to provide satisfactory proof of professional qualification of its doctors who are employed by them. In fact petitioner nos. 1 and 2 have breached their general duty to monitor the competency of Physician (Doctor) or its medical staff. In these circumstances, the petitioners are responsible because the person who treated the wife of respondent no.1 was a person CRM M-25733 of 2011 (O&M) 14 who was not even a qualified doctor, rather falls in the definition of quack. Respondent no.1 opposed the contention of the learned counsel for the petitioners that guidelines in Jacob Mathew's case (supra) are required to be followed. Respondent No.1 vehemently contended that this is a clear case where the doctor employed by the petitioners was not a qualified person. As such, no reasonable care as required under the Medical Rules has been applied. The principle laid down in the Jacob Mathew's case (supra) as well as in Kusum Sharma's case (supra) are not applicable. Observations in Para nos. 50,51 and 52 of Jacob Mathew's case (supra) do not apply to the case of the petitioners rather they are favourable to the respondent. Here is a case where the documents have been tampered with specifically consent letter of Aman Arora, younger son of respondent no.1 is a forged and fabricated document original of which has not been produced by the petitioners till date. The said document is forged and fabricated, drafted and handwritten by Dr. Jayant Banerji and witnessed by Dr. P.S. Mann as has been admitted by Mr. Satinder Sharma, an employee of INSCOL, while appearing as witness before the learned Judicial Magistrate (Annexure P/11). A.S. Arora was not even present in Chandigarh, rather he was in Delhi on relevant day. There is specific allegation of forging the records and conspiracy between the petitioners and the others. In these circumstances, this Court cannot go into the veracity of the evidence while adjudicating petition for quashing of complaint. Respondent No.1 further contended that there is a categorical CRM M-25733 of 2011 (O&M) 15 evidence on record which has been rightly appreciated by the learned Judicial Magistrate while summoning the petitioners as accused. CW8 Satinder Kumar, Accountant INSCOL during his examination has proved affidavit Ex.D3. This affidavit was given before Mr. Harinder Kumar, Additional Commissioner, Income Tax on 16.11.2007 which is endorsed and ratified by Mr. D.S. Gujral and which also clearly admit involvement of petitioner no.2 – Ms. Nimrat Gujral in illicit touting activities amounting to criminal conspiracy which has been placed on record as Annexure R/3. The criminal role played by the petitioners is imminent from the evidence brought on record. The specific evidence of Mr. Rajpaul Kapoor (CW2), Punjab Medical Council (CW5) and the Chandigarh Police (CW6) clearly make out a case against the petitioners. Respondent No.1 further contended that otherwise also, the disputed facts cannot be decided in a petition under Section 482 Cr.P.C. There are disputed questions of fact which can only be appreciated after considering the evidence led before the Court. I have heard and considered the rival contentions of parties and perused the record. From the arguments addressed by the learned counsel for the petitioners as well as respondent no.1 and from perusal of the record, following points arise, in the present petition, for determination:- 1. Whether the Managing Director and the Director, being administrators of the Hospital can be made criminally liable and prosecuted under the provisions of the Indian Penal Code CRM M-25733 of 2011 (O&M) 16 and for having appointed unqualified doctor which resulted into wrong treatment and consequential death of a patient and can they claim immunity from prosecution for the offences in which they have been summoned in the present complaint?.
2. Whether the offences of cheating, tampering with the documents and causing grievous hurt are made out in conspiracy with each other?. Point No.1 The present case arises in context of criminal liability of hospital administration wherein the wife of respondent no.1 was treated at the Hospital INSCOL by a doctor who is the employee of the hospital allegedly unqualified for appointment as doctor and wherein petitioner No 1 and 2 are claiming immunity from prosecution on the ground that the Hospital being an administrative entity, the authorities being as incapable of practicing medicines cannot be made criminally liable. The hospital's responsibility for the negligence of its doctors in the present day scenario is gaining momentum and cannot be ignored, since the corporate sector indulged in the practice of medical treatment through its doctors/ physicians and medical staff. In fact, it is physician who practices and treats the patient in hospital and under the Medical Council Rules hospital is prohibited from practicing medicine in almost every State. Hospital administration is responsible for supervising medical treatment provided by a doctor practicing in its facility. In the present case, the Petitioner No.3 doctor employed by the hospital was incompetent and was not even CRM M-25733 of 2011 (O&M) 17 qualified not was registered with any State Medical Council. Hence, the hospital has breached its general duty to monitor the competence of the doctors on its medical staff and is liable for `corporate direct negligence'. It is not a case of the hospital that the doctor exercised his own individual clinical judgment without any supervision by hospital administrators i.e. petitioner nos. 1 and 2. Admittedly, the hospital represents and holds out the doctors as its agents/employees and the patient relies on that representation. The reputation of the hospital matters. If the hospital authorities makes the patient or its attendants/legal heirs aware that the doctor is not their agent is doing only contract work or explicitly informs the patient that doctors are not its employees, in such circumstances, the hospital and the its management may be to some extent considered for the purpose of immunity from prosecution. Respondent no.1 has filed complaint against the hospital administration as well as the doctor treating her wife. The hospital cannot delegate duty to render competent services to the patients in their emergency departments and is supposed to employ a competent staff specifically the physicians/doctors. This is specifically necessary because in emergency situation patient or their attendants are generally not in a position to distinctively choose the hospital. In the present case, the patient approached the INSCOL Hospital considering it as providing multi- speciality and multi-faceted medical services. But subsequently it transpired that the doctor treating the patient was an unqualified person who was not even recognized / registered by any State Medical Council. CRM M-25733 of 2011 (O&M) 18 This is lapse on the part of administrators i.e. petitioner nos. 1 and 2 as they have failed to exercise both care and skill that any reasonable person would be expected to show have exercised in looking after their own affairs. The Directors of the company are individuals empowered by the Articles of Association of the company to determine its strategic directions and the policy. Although the nature of the company is a lifeless legal entity, human intervention is required to direct its actions and therefore, determines its identity. Ultimate responsibility for the acts committed by company rests on the shoulders of the Directors. Petitioner Nos. 1 and 2 are the persons actually concerned with the running of the hospital and directly responsible for its actions. So, by appointing petitioner no.3 an unqualified doctor who treated the patient has a clear link between criminal act as well as the decision of the Management i.e. petitioner Nos. 1 and 2. So, the link of petitioner nos. 1 and 2 with the criminal act of petitioner no.3 is clear as it was decision of petitioner nos. 1 and 2 being management of hospital to appoint petitioner no.3 who was in fact not qualified. So, the petitioner nos. 1 and 2 are also liable for the act of petitioner no.3. From the evidence on record it is clearly established that the patient was admitted to the hospital in emergency, she was assigned to Dr. Paramjeet Singh Mann, petitioner no.3, resident doctor. During the course of hospitalization patient remained under his treatment for which A.S. Arora, son of respondent no.1, allegedly gave consent. The said consent form too however is alleged to be a forged and fabricated CRM M-25733 of 2011 (O&M) 19 document. The reality is that most of the people who are provided a doctor for treatment by hospital, believe it to be a qualified specialist doctor. In these days, hospitals prodigiously market themselves as providers of health care. But, in the present case the doctor being unqualified there was failure to diagnose the disease and condition of the patient and therefore along with doctor himself (petitioner no.3) responsibility justifiably lies on petitioner nos. 1 and 2. The hospital has non-delegatable duty to render competent service to patient in the emergency department. In the present case, petitioner nos.1 and 2 being Managing Director and Director are directly criminally liable and their liability stems from failure to use reasonable care in the maintenance of safe and adequate facilities and equipment i.e. ventilator which was not available at the time when the patient was in need. Needless to say, it is the duty of the petitioners No.1 and 2 to select and retain only competent physician / doctor and medical supporting staff. But in this case, they had retained petitioner no.3 who is an unqualified doctor. It is the duty of the petitioner nos. 1 and 2 to oversee all persons who practice medicine within its faculty and also owe duty to ensure quality of health care services. Here in this case, there is a glaring to failure on the part of petitioner nos. 1 and 2 to retain competent and qualified doctors and equipping the facility. In the present case, the standard of negligence, breach of duty, causation and damage is no different than in any other case of forming negligence. Hence, for that reason, petitioners are directly liable for the injury caused to the patient because the doctor in question was not having State Medical Council CRM M-25733 of 2011 (O&M) 20 licence to practice medicine as per the Medical Council of India Act, 1961 and Medical Council of India Rules under which Medical Council of India certifies the doctors / physicians and regulate competency and professional standard. There is a clear failure on the part of petitioner nos. 1 and 2 to evaluate the qualification of petitioner no.3 who have been inefficient to adequately determine his competency. Since there has been breach of duty by petitioner nos. 1 and 2, they are prima facie responsible for injury resulting from that breach / incompetence as well as in forging the documents. There is a clear failure to check the credentials and employment history of petitioner no.3. It is common that all medical mal-practice claim originate in the hospital and hospital is a logical starting place for addressing problems of professional incompetence. In a modern days, medical institutions / hospitals demonstrate that they furnish far more than the mere facilities for treatment. They appoint physicians / surgeons for medical diagnoses, care, treatment and therapy. They receive payments for such services through Medical Insurance Policies like Medical Claim etc. Petitioner Nos. 1 and 2 being Managing Director and Director under the garb of separate legal entity of the hospital cannot be allowed to play with the life of the patients and cannot be permitted to practice fraud and cheating the innocent people who come as patient. Under Section 2 of the Companies Act, 1956, all the Directors comes under the definition of “Officer”. and under the Companies Act, Managing Director exercise the substantial power of management of the affairs of the company. Lord Denning in H.L. Bolton Company versus CRM M-25733 of 2011 (O&M) 21 T.J.Graham & Sons, (1956) 3 All E.R. 624 equated the brain and nervous system to the directors and managers who represent the directing will of the company. He held that:- “.... The state of mind of these managers is the state of mind of the company and is treated by law as such.... So also in the criminal law, in cases where the law requires a guilty mind as a condition of a criminal offence, the guilty mind of the directors or the managers will render the company themselves guilty.”
. Here in the petitioner nos. 1 and 2 in para no.2 of the petition has admitted that they are in the administration of INSCOL Hospital, meaning thereby, they are the principal officer responsible for the affairs of the hospital. Another glaring act on the part of the petitioner nos.1 and 2 can be noticed here that they are indulging in touting for procuring the patients which is clear from an affidavit filed before the Income Tax Authorities which has been placed on the file of the Trial Court as Ex.D3 which clearly spells out the touting activities of the petitioners. The said affidavit is signed by petitioner no.1. Although the legitimate and bona fide exercise of due diligence is permissible as defence by the responsible officers of a company. But the casual, careless and negligent attitude which has been shown in the present case cannot be tolerated, pardoned and excused. The legislative initiative to specifically fix the liability of corporate medical institutions is thus required. The horizon of criminal CRM M-25733 of 2011 (O&M) 22 liability of the Directors of the Companies will continue to expand with the passage of time. The Courts cannot lose sight of the ground realities and cannot shut their eyes and Court can in peculiar case pierce the corporate veil to identify the culprit. The corporate personality of a company is different from promoter Directors or the owners of the company. This is widely known principle in law and has its source in the celebrated case of Solomon vs. Solomon. The misuse of this principle has compelled this Court to lifting the Corporate Veil as Director of the Hospital Management are engaged in fraud and other criminal activities. Resultantly, the liability of crime committed by a corporate entity is attributed or identified to the person i.e. Directors who have a control over the affairs of the Hospital and the crime has been committed under their supervision. The main object of the doctrine of identification is to punish the person who are actually committing the crime and are brain and mind of the company through which the crime is being committed. In view of the above discussion, this Court is prima facie of the view that the petitioners have rightly been summoned. Point No.2 The petitioners have been summoned along with other co- accused under Sections 420, 467, 468, 471, 326, 120-B IPC as well as under Section 15 of the Indian Medical Council Act. The contention of the learned counsel for the petitioners that no offences are made out against the petitioners is not sustainable for the following reasons. There is a categorical evidence on record in the form of CRM M-25733 of 2011 (O&M) 23 statement of the complainant (CW9) regarding cheating, charging excessive amount for the medicines which was even never administered to the patient. Besides this, there is evidence of Dr. Sudhir Saxena (CW1- Annexure P/9 with this petition) with regard to the preparation of false and fabricated documents by the accused. The relevant part of the statement of Dr. Sudhir Saxena reads as under: “The consultation card was prepared by me which is in my handwriting and I also identify my signatures on the same, which is Ex.CW-1/A. The patient went back to Dr. Jayant Banerjee, who subsequently treated the patient. Further, I had no say in her treatment and was never associated with her treatment in any way at any hospital. I was never paid any kind of fee regarding Smt. Inderjit by the INSCOL Hospital or by any other hospital or doctor. I had not visited Inscol Hospital on 1.8.2005 or 2.8.2005 to see Mrs. Inderjit Arora. I had received letter Ex.CW-1/2, written to me by complainant J.Arora. I replied to the said letter vide my letter dt. 7.11.2005 which is Ex. CW-1/3 on which I identify my signatures. I also received one letter dt. 12.6.2006 from the complainant which is Ex.CW-1/4 and I also replied to this letter vide my reply dt. 14.7.2006, which is Ex.CW-1/5, on which I identity my signatures.”
. In addition to it, there is evidence of the complainant (CW9) that signatures of A.S. Arora, son of the complainant, have been forged and fabricated on the consent form. CW3, a witness from the Income Tax Department has proved that INSCOL hospital is engaged in illegal touting in medical profession. From the testimony of witnesses it is clear that even CRM M-25733 of 2011 (O&M) 24 the cardiologist was not present when the injection was administered to the patient and the bill was illegally raised. Raising of a false bill involves receiving valuable security by fraud, forgery and cheating, therefore, offence under Sections 467, 468, 471 IPC is prima facie made out. There is a categorical evidence that two invoices CW-9/2 and CW-9/12 are different, though they should have been the same. This prima facie proves forgery and cheating on the part of the petitioners. The documentary evidence prima facie proves that Dr. N.P. Singh never visited the hospital and the record of the hospital has been manipulated to save themselves. There is a clear conspiracy between the petitioners and Dr. Jayant Banerjee for fleecing money. The principles of law laid down in Jacob Mathew (supra) and Kusum Sharma (supra) are not applicable in the present case. In view of the above discussion, this court does not find any illegality or perversity in the impugned summoning order. It is well settled law that while summoning an accused the trial Court is not required to give detailed reasons, only prima facie application of mind is a necessity. In the present case, the learned Trial Court has passed a reasoned order for summoning the petitioners. In the present petition, disputed questions of facts are also involved which cannot be appreciated in these proceedings. These can only be appreciated at the time of trial. In view of the above discussion, present petition is dismissed. November 16, 2012 [Paramjeet Singh]. vkd Judge