1. This criminal misc. application under Section 482, Cr.P.C. has been moved for quashing the entire proceedings of complaint case no.387/03 including the cognizance order dated 6.11.03 passed by the Judicial Magistrate-1, Agra, under Section 304-A, IPC in case no.387/03, Vimal Kumar v. Dr. Barun Sarkar and others and also for quashing the order dated 30.11.04 rejecting the preliminary objections filed by the applicants before the Judicial Magistrate, Agra.
2. It appears from the record that applicant no.1, Dr. Barun Sarkar is a surgeon and former Associate Professor in Obsterics and Gynaecology, S.N. Medical College, Agra while applicant no.2, Dr. B. Lahiri is a pathologist and was formerly the Head of the Department of Pathology, S.N. Medical College, Agra.
3. An application under Section 156(3), Cr.P.C. was moved by Shri Vimal Kumar, O.P. No.2 against the applicants and one Dr. R.D. Sharma in the court of the Chief Judicial Magistrate, Agra. It was alleged in the application that the wife of the complainant named Sunita was having burning in her stomach for which she was under the treatment of Dr. Sudha Mittal and Dr. Pramod Mittal. The complainant was advised by these doctors to consult Dr. Barun Sarkar (applicant no.1). On 12.3.98 Dr. Barun Sarkar was consulted by the complainant at his nursing home, Delhi Gate, Hariparwat, Agra. Dr. Sarkar examined Smt. Sunita and got FNAC and other tests done. After perusal of the tests reports and ultrasound Dr. Sarkar told that the wife of the complainant was having cancer in the ovary. He also said that there was a tumer in the ovary. He advised the complainant to get the operation done of his wife as soon as possible in order to save her life. He also said that after operation she would be completely well. The complainant asked Dr. Sarkar to get other tests done and to provide treatment without operation at which Dr. Sarkar told that the operation was must otherwise she would not be saved. On the advise of Dr. Sarkar the complainant gave his consent for the operation. On 14.3.98 the patient Smt. Sunita was admitted in Sarkar Nursing Home where Dr. Barun Sarkar performed the operation on 15.3.98 and removed the tumor and the complete uterus of the patient. The uterus was removed without the consent of the complainant or the patient. Utreus was not having cancer. After the operation Dr. Barun Sarkar sent the sample of ovarian tumor for biopsy test at the pathology of applicant no.2, Dr. B. Lahri. Dr. Lahri gave his report on 21.3.98 in which the presence of cancer was found negative. The complainant raised suspicion upon the report as Dr. Lahiri had reported cancer in ovarian tumor before the operation. On asking by the complainant Dr. Sarkar again got the biopsy done at the pathology of Dr. Lahiri and the complainant himself got the test done at Sir Ganga Ram Hospital, New Delhi. In both the examinations cancer was found present. On 25.3.98 Smt. Sunita was discharged from the Sarkar Nursing Home and was referred to Dr. R.D. Sharma, Agra for Chemotherapy. The complainant had to pay Rs.35,000/- for the treatment at Sarkar Nursing Home. On 25.3.98 Dr. R.D. Sharma was consulted by the complainant and got a test done regarding ovarian cancer. After 21 days five chemotherapy treatment were given by Dr. R.D. Sharma and after every chemotherapy pathology tests and ultrasound were got done. Inspite of the treatment of Dr. Sharma no improvement was shown in the condition of the patient and therefore, Dr. Sharma referred her to Rajiv Gandhi Cancer Hospital, Delhi. On 4.7.98 Smt. Sunita was shown to Dr. Kataria at Rajiv Gandhi Cancer, Hospital, Delhi. After seeing the prescription of Dr. Sarkar, the reports and treatment done at Agra Dr. Kataria said to the complainant that the patient was wrongly treated and operated upon without knowing as to from where the cancer had started.
4. After getting the C.T. Scan, colonoscopy and endoscopy and other pathological tests and biopsy done of Smt. Sunita the matter was presented before the Medical Board. The Medical Board came to the conclusion that the cancer had started from the stomach and at a later stage had reached up to the ovary. The Medical Board was also of the opinion that the operation should not have been done by Dr. Sarkar as in the event when the cancer had spread in many parts of the body the treatment should have been started from the point from where the cancer had started. According to Medical Board, the operation and chemotherapy of the patient were wrongly done.
5. As the treatment of Dr. Sarkar, Dr. Lahri and Dr. Sharma had thrown the patient in critical condition, she was referred to AIIMS by Dr. Kataria where she was treated by Dr. P.K. Julka. Dr. Julka told that due to the treatment at Agra condition of the patient had deteriorated and by that time it was too late to treat her, however, after getting the necessary tests done she was treated at AIIMS where she died on 16.3.99.
6. On the application of the complainant, Vimal Kumar an FIR was registered against the applicants and Dr. R.D. Sharma at P.S. Hari Parvat, Agra on 15.8.2000 at 10.45 p.m.
7. The matter was investigated upon by the police. During investigation a Medical Board was constituted by the CMO, Agra vide order dated 18.4.01 to find out the cause of death of Smt. Sunita. The Medical Board reached to the conclusion that at the time when the patient was taken for treatment before Dr. Barun Sarkar and others a case of primary ovarian Carcinoma was made out. Biopsy of uterus and ovary showed metastatic adenous carcinoma and the chemotherapy was the right treatment. The panel of doctors also reached to the conclusion that the doctors at Agra gave correct treatment in the circumstances of the case.
8. During investigation statements of the witnesses particularly of Dr. Smt. T. Kataria of Delhi, Dr. P.K. Julka of AIIMS, New Delhi were recorded, who said that the cancer was rightly treated at Agra by the applicants and Dr. R.D. Sharma and no carelessness was shown in the treatment. After investigation final report was submitted by the police. After the final report protest petition was filed by the complainant, Vimal Kumar on which the CJM rejected the protest petition and accepted the final report submitted by the police. Thereafter, Vimal Kumar filed revision against the order of the CJM accepting the final report and that revision no.151/02 was dismissed by the Sessions Court vide order dated 17.12.02. The Sessions Court also found that from the evidence collected by the I.O. no offence was made out. Thereafter, a complaint case was filed by the complainant, Vimal Kumar against the applicants and Dr. Sharma on which the statements of the complainant and Dr. Amar Singh were recorded along with the documentary evidence. After perusal of the record the learned J.M. 1St , Court No.39, Agra summoned the applicants and Dr. R.D. Sharma for the offence punishable under Section 304-A, IPC vide order dated 6.11.03. Against that order a criminal misc. application no.4134/04 was filed by the aggrieved doctors in the High Court. This application was disposed of with the direction that the applicants may file objections before the trial court regarding their case at the time of framing of the charge. In compliance of the order of the High Court dated 24.5.04 objections were filed by the applicants before the trial court which were rejected by the trial court on 30.11.04, hence, the present application for quashing of the entire proceedings of the concerned complaint case no.387/03, Vimal Kumar v. Dr. Barun Sarkar and others and the orders dated 6.11.03 and 30.11.04 has been filed.
9. Affidavits have been exchanged between the parties.
10. Heard Mr. S.P.S. Raghav, learned senior counsel for the applicants assisted by Mr. R.P. Dwivedi, learned AGA for the State, Mr. Shahab Tiwari for the complainant and perused the record.
11. It has been contended by Mr. Learned counsel for the applicants that no negligence was committed by the applicants in the treatment of Smt. Sunita. She was properly attended by the applicants, who were professionally qualified having vast experience in their respective fields. They got every necessary test done before performing the operation and because there is no cure for the treatment of cancer at the advance stage, hence, the patient died of her natural death for which the applicants cannot be blamed.
12. To the above, it was argued by the other side that the applicants had not property treated the patient, the divergent pathological reports were given by Dr. Lahiri before and after operation, that the doctors at Delhi had specifically told that the patient was wrongly treated.
13. In order to appreciate the arguments I would like to discuss about the medical negligence and the powers of the High Court under Section 482, Cr.P.C. for quashing the criminal proceedings.
14. It is the settled position of law that the inherent power of the High Court under Section 482, Cr.P.C. for quashing the criminal proceedings can be invoked only in the cases where on the face of the complaint or the papers accompanying the same no offence is made out for proceeding with the trial. In other words, the test is that taking the allegations and the complaint, as they are, without adding or subtracting anything, if no offence is made out, the High Court will be justified in quashing the proceedings. (Municipal Corporation of Delhi v. Ram Kishan Rohtagi, AIR 1983 SC 67 and Drugs Inspector v. B.K. Krishnaiah, AIR 1981 SC 1164).
15. So far as the question of medical negligence is concerned, in that regard it would be pertinent to mention that for fixing of criminal liability of a doctor or surgeon the standard of negligence required to be proved should be so high as can be described as "gross negligence" or recklessness". It is not merely lack of necessary care, attention and skill. A doctor cannot be held criminally responsible for patient's death unless his negligence or incompetence showed such disregard for life and safety of his patient as to amount to a crime against the State.
16. Thus, when a patient agrees to go for medical treatment or surgical operation, every careless act of the medical man cannot be termed as 'criminal'. It can be termed 'criminal' only when the medical man exhibits a gross lack of competence or inaction and want of indifference to his patient's safety and it is found to have arisen from gross ignorance or gross negligence. Where a patient's death results merely from error of judgment or an accident, no criminal liability should be attached to it. Mere inadvertence or some degree of want of adequate care and caution might create civil liability but would not suffice to hold him criminally liable.
17. For every mishap or death during medical treatment, the medical man cannot be proceeded against for punishment. Criminal prosecutions of doctors without adequate medical opinion pointing to their guilt would be doing great disservice to the community at large because if the courts impose criminal liability on hospitals and doctors for everything that goes wrong, the doctors would be more worried about their own safety than giving all best treatment to their patients. This would lead to shaking the mutual confidence between the doctor and patient. Every mishap or misfortune in the hospital or clinic is not a gross act to try him for an offence of culpable negligence.
18. In para 52 of Jacob Mathew case (2005) 6 SCC 1 it was said by the Hon'ble Supreme Court that before holding a doctor guilty for medical negligence the Consumer Forum or the criminal court should refer the matter in issue to a competent doctor or committee of doctors specialised in the relevant field and when such doctor or relevant committee reports that a prima facie case of medical negligence is made out, only then the doctor should be taken to task.
19. In Martin F. D'Souza v. Mohd. Ishfaq case reported in 2009 (3) Supreme Court Cases 1 it was observed by the Apex Court that if a doctor is doing his duty with reasonable care he would not incur liability even if his treatment failed. In this Ruling it was also held that the standard of care expected from a doctor has to be judged in the light of knowledge and equipment available at the relevant point of time in performing a novel operation or prescribing a novel treatment to save the patient's life when no other treatment or method is available, even then resulting in death, or causing some serious harm, the doctor should not be held liable.
20. It was also held in this ruling that simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightaway liable for medical negligence by applying the doctrine of res ipsa loquitur. It was also said in this ruling that a doctor having required proper professional qualification to treat the patient cannot be held liable if the treatment fails.
21. In view of the above, if we go through the record of the present case, we would find that the wife of the complainant was a patient of ovarian tumor. Dr. Barun Sarkar, who took her first for treatment got every possible test done and reached to the conclusion that the surgery was necessary for saving the life of the patient. Even if it be assumed for the sake of the argument that the decision of the doctor to perform operation was wrong, that cannot be sufficient to hold him liable in the criminal side as the judgment taken by a doctor in the best interest of the patient cannot be the basis for fixing criminal liability upon him. There is nothing on the record that in performing the operation the doctor was negligent or he was not having specialised skill to perform the required surgery. He is said to be a doctor of repute in Agra and was associated with the Medical College at that place. Therefore, it cannot be said that the operation was performed by an unqualified doctor. After the operation he sent the extracted part for biopsy in which cancer was detected. Though cancer was not detected by Dr. Lahri before performing the operation by Dr. Sarkar but it is possible that it was a failure of test and because it was a bonafide one no liability can be fastened for that act of Dr. Lahiri. When Dr. Sarkar found that the patient was suffering from cancer he, to the best of his ability, referred her for chemotherapy treatment to Dr. Sharma who was also an expert in his field but the treatment at Dr. Sharma's clinic did not show any positive result. If positive results were not shown inspite of the best efforts of the doctor, then, it cannot be said that the doctor was negligent as discussed above. When Dr. Sharma found that the patient required best treatment at Delhi he referred her to Delhi. In all these circumstances, it cannot be said that the doctors at Agra showed any negligence in the treatment of the wife of the complainant.
22. Not only this, that in view of the above the doctors do not seem to be negligent in discharging their duties, the Medical Board constituted by the CMO, Agra also did not show that the doctors were negligent in providing treatment to the patient.
23. Here it is also pertinent to mention that the doctors, who attended the patient at Delhi i.e. Dr. Smt. T. Kataria and Dr. P.K. Julka AIIMS have stated before the I.O. that the doctors at Agra did not commit any negligence in the treatment of the patient. The complainant has not been able to bring anything on record which could show the medical negligence of the doctors at Agra, who attended his wife. Therefore, in view of the above, I am of the view that the final report submitted by the police was rightly accepted by the Magistrate. The summoning order was not passed in accordance with law on medical negligence and the order rejecting the objections of the applicants was also wrongly passed by the trial Magistrate.
24. From the record it is very much clear that no criminal liability was made out against the applicants and therefore, the proceedings against them are bad and are liable to be quashed by the High Court in exercise of its jurisdiction under Section 482, Cr.P.C.
25. Consequently, the petition is allowed. Orders dated 6.11.03 and 30.11.04 and the entire proceedings of complaint case no.387/03 are, hereby, quashed.