R.N. Singh and ors. Vs. Prem Singh - Court Judgment

Excerpt:
penal code - sections 166, 202, 304a and 504 and criminal procedure code--revision--allegations of death of child due to negligence of doctors & nurses--no allegation of negligence against doctor r--failure to take action against defaulting subordinate officers--held, it can amount to criminal negligence and it would be abuse of process of court if he is prosecuted.;the failure to take action against defaulting officers under the rajasthan civil services (classification control and appeals) rules or other such rules cannot tantamount to criminal negligence or commission of any of the offences mentioned by the complaint. i am, therefore, of the opinion that so far as dr. r.n. singh is concerned it would be abuse of the process of the court if he is prosecuted as there is no allegation of his negligence, in action, omission or commission tantamounting to any offence during the illness and alleged treatment of the boy unfortunately died.;order accordingly - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. - 1 but he failed to conduct proper inquiry, nor did he give the names of the defaulting nurses and doctors. 8. the failure to take action against defaulting officers under the rajasthan civil services (classification, control and appeal) rules or other such rules cannot tantamount to criminal negligence or commission of any of the offences mentioned by the complainant. there is no doubt that a boy has died while under treatment and the allegation is that instead of giving injection as prescribed the nursing staff insisted on the relative of the deceased earlier to bring some foodstuffs and on account of failure of the unfortunate father who was somehow deeply concerned with the treatment of the son who was struggling between life and death continued vomiting blood than, to entertain the nursing staff, with 'mirchibada and tea'.the child lost his precious life.orderg.m. lodha, actg. c.j.1. 'mirchibada scandal' while rome was burning nero was fiddling ?2. the allegation if proved would be startling, how non-supply of 'mirchibada with tea' by patient's parent attendants, costed precious life of 'child'.3. this is an application by four accused-petitioners doctors and nurses, for quashing the criminal proceedings against them, after a human life light has been extinguished due to their alleged negligence.4. prem singh, complainant, filed a complaint under sections 166, 202, 304a and 504, i.p.c. mentioning that he got his ailing son devendra aged 12 years admitted in the children ward, umed hospital, jodhpur, on . nov. 7,1983 at 6.00 p.m. who eventually died on nov. 8, 1983. at the time of admission devendra singh was vomiting blood. the duty doctor instructed the nurses to administer' injection after mixing glucose in the morning. the accused nos. 3 and 4 called the complainant in the duty room and asked him to bring 6 'mirchibada' and 6 cups of tea from janta sweet home, but the complainant declined to do so on the plea that his son was seriously ill and some other person may be asked to bring the same. on this it is alleged that they were annoyed and despite repeated requests they did not administer injection after mixing glucose and negligently treated the patient. the complainant then contacted dr. rajiv gupta accused no. 2 but he did not respond satisfactorily.5. thereafter on nov. 19, 1983 and nov. 20,1983 the complainant sent complaints to dr. r. n. singh petitioner-accused no. 1 but he failed to conduct proper inquiry, nor did he give the names of the defaulting nurses and doctors. thus dr. singh also did not respond.6. on the bedrock of the above allegations and the statements recorded the magistrate has taken cognizance against all the four accused including shri r. n. singh.7. mr. singhvi's contention is that so far as dr. r. n. singh is concerned, there is not even an iota of evidence that he was negligent, so far as from the period the boy was admitted vomiting blood and till the time the boy died. all that is said is that he was negligent in not taking action against doctors and nurses by way of disciplinary proceedings and did not disclose the real names of the persons who were on duty at that time.8. the failure to take action against defaulting officers under the rajasthan civil services (classification, control and appeal) rules or other such rules cannot tantamount to criminal negligence or commission of any of the offences mentioned by the complainant. i am, therefore of the opinion that so far as dr. r. n. singh is concerned it would be abuse of the process of the court if he is prosecuted as there is no allegation of his negligence, inaction, omission or commission tantamounting to any offence during the illness and alleged treatment of the boy who unfortunately died.9. if dr. singh did not take disciplinary proceedings against the nurses or doctors who may be held guilty for dereliction of duty by higher officers, for that complainant can approach them for disciplinary proceedings against dr. r. n. singh if he be so advised. however it will have to be appreciated that there is vast, wide, important, pertinent distance to be travelled between dereliction of duty which tantamount to a misconduct under the disciplinary proceedings and conduct rules, and in contrast negligence, rashness or any other omission or commission in discharge of duty as a doctor while treating the patient or functioning due to which the patient suffers or dies resulting in a criminal offence.10. the concept, contents, ingredients and requirements of an offence are far far more from that of mere disciplinary proceedings. it appears that in the present case the magistrate could not distinguish between the two and therefore he took cognizance against shri r. n. singh which is wholly misconceived, unjustified, unsustainable, unmerited and untenable.11. so far as dr. r. n. singh is concerned, i am convinced that it would be an abuse of the process of the court, if the proceedings are taken against him. therefore, they are quashed.12. however, so far as dr. rajiv gupta, smt. nirmala and kumari sushila are concerned the allegations in the complaint of prem singh and the evidence produced cannot be said to be missing the necessary ingredients of the offences for which they are being prosecuted. there is no doubt that a boy has died while under treatment and the allegation is that instead of giving injection as prescribed the nursing staff insisted on the relative of the deceased earlier to bring some foodstuffs and on account of failure of the unfortunate father who was somehow deeply concerned with the treatment of the son who was struggling between life and death continued vomiting blood than, to entertain the nursing staff, with 'mirchibada and tea'. the child lost his precious life. if such allegations are found to be true on evidence which is yet to be recorded in the presence of the accused, then the present one would be a case where, while the child was vomiting blood the nursing staff was anxious to have a feast of 'mirchi bada', repeating while rome was burning nero was fiddling'. their making merry while the child was struggling between life and death was reprehensible conduct of the nursing staff and it cost a precious life which was lost.13. the fact that the doctors on duty could not monitor (?) after they prescribed injection to be given to the patient, would also go to show that if proved it was a case of serious negligence on their part.14. however, it could not be proper to make any observation on the merits of the case at this stage because it would all depend on the evidence to be recorded. it is sufficient to say that the prosecution is fully justified and the accused nos. 2,3 and 4 viz. dr. rajiv gupta, smt. nirmala and kumari sushila are getting opportunity of getting clouds cleared about their serious lapses and negligence which have been alleged by the complainant.15. it is high time that the human life is not treated so lightly worse than chattel and if the complainant comes forward to make grievance in a criminal court of this nature it is expected that the rule of law and the judicial courts would take keen interest in such matters so that if the allegations are proved, in future such precious lives are saved by preventing dealing with by such accused in recurring negligent manner. of course it all depends upon the evidence and present observations should not be taken as observations against the accused for deciding the merits of the case.16. the result is that so far as the prosecution of dr. r. n. singh is concerned it is quashed. in respect of other accused persons the petition is dismissed. in case the accused applies for exemption from appearance on account of their hospital duties, it is expected that the magistrate concerned would be liberal enough to grant exemption rather than to refuse it, so that they treat the patient in the hospital of course without repeating such negligence, as has been alleged by the complainant.

Judgment:
ORDER

G.M. Lodha, Actg. C.J.

1. 'Mirchibada Scandal' While Rome was burning Nero was fiddling ?

2. The allegation if proved would be startling, how non-supply of 'Mirchibada with tea' by patient's parent attendants, costed precious life of 'Child'.

3. This is an application by four accused-petitioners Doctors and Nurses, for quashing the criminal proceedings against them, after a human life light has been extinguished due to their alleged negligence.

4. Prem Singh, complainant, filed a complaint Under Sections 166, 202, 304A and 504, I.P.C. mentioning that he got his ailing son Devendra aged 12 years admitted in the Children Ward, Umed Hospital, Jodhpur, on . Nov. 7,1983 at 6.00 P.M. who eventually died on Nov. 8, 1983. At the time of admission Devendra Singh was vomiting blood. The duty doctor instructed the nurses to administer' injection after mixing glucose in the morning. The accused Nos. 3 and 4 called the complainant in the duty room and asked him to bring 6 'mirchibada' and 6 cups of tea from Janta Sweet Home, but the complainant declined to do so on the plea that his son was seriously ill and some other person may be asked to bring the same. On this it is alleged that they were annoyed and despite repeated requests they did not administer injection after mixing glucose and negligently treated the patient. The complainant then contacted Dr. Rajiv Gupta accused No. 2 but he did not respond satisfactorily.

5. Thereafter on Nov. 19, 1983 and Nov. 20,1983 the complainant sent complaints to Dr. R. N. Singh petitioner-accused No. 1 but he failed to conduct proper inquiry, nor did he give the names of the defaulting nurses and doctors. Thus Dr. Singh also did not respond.

6. On the bedrock of the above allegations and the statements recorded the Magistrate has taken cognizance against all the four accused including Shri R. N. Singh.

7. Mr. Singhvi's contention is that so far as Dr. R. N. Singh is concerned, there is not even an iota of evidence that he was negligent, so far as from the period the boy was admitted vomiting blood and till the time the boy died. All that is said is that he was negligent in not taking action against doctors and nurses by way of disciplinary proceedings and did not disclose the real names of the persons who were on duty at that time.

8. The failure to take action against defaulting officers under the Rajasthan Civil Services (Classification, Control and Appeal) Rules or other such Rules cannot tantamount to criminal negligence or commission of any of the offences mentioned by the complainant. I am, therefore of the opinion that so far as Dr. R. N. Singh is concerned it would be abuse of the process of the Court if he is prosecuted as there is no allegation of his negligence, inaction, omission or commission tantamounting to any offence during the illness and alleged treatment of the boy who unfortunately died.

9. If Dr. Singh did not take disciplinary proceedings against the nurses or doctors who may be held guilty for dereliction of duty by higher officers, for that complainant can approach them for disciplinary proceedings against Dr. R. N. Singh if he be so advised. However it will have to be appreciated that there is vast, wide, important, pertinent distance to be travelled between dereliction of duty which tantamount to a misconduct under the disciplinary proceedings and Conduct Rules, and in contrast negligence, rashness or any other omission or commission in discharge of duty as a doctor while treating the patient or functioning due to which the patient suffers or dies resulting in a criminal offence.

10. The concept, contents, ingredients and requirements of an offence are far far more from that of mere disciplinary proceedings. It appears that in the present case the Magistrate could not distinguish between the two and therefore he took cognizance against Shri R. N. Singh which is wholly misconceived, unjustified, unsustainable, unmerited and untenable.

11. So far as Dr. R. N. Singh is concerned, I am convinced that it would be an abuse of the process of the Court, if the proceedings are taken against him. Therefore, they are quashed.

12. However, so far as Dr. Rajiv Gupta, Smt. Nirmala and Kumari Sushila are concerned the allegations in the complaint of Prem Singh and the evidence produced cannot be said to be missing the necessary ingredients of the offences for which they are being prosecuted. There is no doubt that a boy has died while under treatment and the allegation is that instead of giving injection as prescribed the nursing staff insisted on the relative of the deceased earlier to bring some foodstuffs and on account of failure of the unfortunate father who was somehow deeply concerned with the treatment of the son who was struggling between life and death continued vomiting blood than, to entertain the nursing staff, with 'Mirchibada and tea'. The child lost his precious life. If such allegations are found to be true on evidence which is yet to be recorded in the presence of the accused, then the present one would be a case where, while the child was vomiting blood the nursing staff was anxious to have a feast of 'Mirchi Bada', repeating while Rome was burning Nero was fiddling'. Their making merry while the child was struggling between life and death was reprehensible conduct of the nursing staff and it cost a precious life which was lost.

13. The fact that the doctors on duty could not monitor (?) after they prescribed injection to be given to the patient, would also go to show that if proved it was a case of serious negligence on their part.

14. However, it could not be proper to make any observation on the merits of the case at this stage because it would all depend on the evidence to be recorded. It is sufficient to say that the prosecution is fully justified and the accused Nos. 2,3 and 4 viz. Dr. Rajiv Gupta, Smt. Nirmala and Kumari Sushila are getting opportunity of getting clouds cleared about their serious lapses and negligence which have been alleged by the complainant.

15. It is high time that the human life is not treated so lightly worse than chattel and if the complainant comes forward to make grievance in a Criminal Court of this nature it is expected that the rule of law and the Judicial Courts would take keen interest in such matters so that if the allegations are proved, in future such precious lives are saved by preventing dealing with by such accused in recurring negligent manner. Of course it all depends upon the evidence and present observations should not be taken as observations against the accused for deciding the merits of the case.

16. The result is that so far as the prosecution of Dr. R. N. Singh is concerned it is quashed. In respect of other accused persons the petition is dismissed. In case the accused applies for exemption from appearance on account of their hospital duties, it is expected that the Magistrate concerned would be liberal enough to grant exemption rather than to refuse it, so that they treat the patient in the hospital of course without repeating such negligence, as has been alleged by the complainant.