ANJANA AGNIHOTRI Vs. STATE OF HARYANA

JUDGEMENT

(1.) This Appeal is directed against the judgment dated 23.04.2008 of the Punjab and Haryana High Court whereby the High Court upheld the order of Additional Sessions Judge dated 24.09.2004 by which the order dated 30.11.2000 of the learned Sub-Divisional Judicial Magistrate, Dabwali discharging the appellants for having committed offences under Section 304A Indian Penal Code, 1860 and Section 18-C/27-B of the Drugs and Cosmetics Act, 1940, was set aside.

(2.) The prosecution story is that Santosh Rani (deceased) was admitted to the Agnihotri Hospital run by the appellants herein. On 15.11.1998 at about 5.00 a.m. Santosh Rani was expecting a child and she was advised caesarian operation. Such operation was conducted at about 8.00 a.m. and a male child was born. After the birth of the child the doctors felt that blood was required to be given to Santosh Rani. Thereafter, her husband Nand Lal and brother Bhajan Lal offered to give blood and this blood was taken and transfused to Santosh Rani at about 2.30 p.m. At about 2.00 a.m. the next morning Santosh Rani expired. Thereafter, Mulkh Raj, brother of the husband of the deceased filed an FIR with the police. It is important to note that in the FIR it is stated that in the hospital the blood of Nand Lal and Bhajan Lal was taken by the dispenser and Dr. Agnihotri of the hospital. It is further stated that these two persons tested the blood and transfused it to Santosh Rani and oxygen was also administered.

(3.) The main allegation against the appellants in the case is that they did not attend to Santosh Rani from 2.30 p.m. to 2.00 a.m. The Trial Court on the application of the accused discharged them relying upon the judgment of this Court in Jacob Mathew vs. State of Punjab and Anr. (2005) 6 SCC 1 case. The Additional Sessions Judge set aside the order of discharge and the order of Additional Sessions Judge in revision has been upheld. In Jacob Mathew's Case this Court clearly held that in criminal law medical professionals are placed on a pedestal different from ordinary mortals. It was further held that to prosecute the medical professionals for negligence under criminal law, something more than mere negligence had to be proved. Medical professionals deal with patients and they are expected to take the best decisions in the circumstances of the case. Sometimes, the decision may not be correct, and that would not mean that the medical professional is guilty of criminal negligence. Such a medical profession may be liable to pay damages but unless negligence of a high order is shown the medical professionals should not be dragged into criminal proceedings. That is why in Jacob Mathew's case (supra)this Court held that in case of criminal negligence against a medical professional it must be shown that the accused did something or failed to do something in the given facts and circumstances of the case which no medical professional in his ordinary senses and prudence would have done or failed to do. Therefore, this Court also directed in such cases an independent opinion of a medical professional should be obtained in this regard. We may make reference to the following observations in Jacob Mathew's case (supra). While concluding the judgment this Court gave certain guidelines. We need not refer to all, however Para 48(7)which is relevant is as under: