KUSUM Vs. PRABHAVATI

JUDGEMENT

(1.) By this petition under Section 482 of the Cr.P.C. the petitioner has challenged the order dated 3-8-2010 passed by the learned Judicial Magistrate, Class I, Indore in Criminal Case No. 18881/10 taking cognizance and registering case under Section 304-A of the IPC against the present petitioner Dr. Kusum Maru and also issuing bailable warrants against her. The prosecution case briefly stated is that the respondent complainant Smt. Prabhavati was pregnant and took treatment at the Lal Hospital Clinic, Indore (Govt. Hospital). On 17-6-2009 at 9.30 p.m. having pain, she was taken to the hospital by her husband and relatives. The office of the staff and duty doctors did not look after her properly and on 18-6-2009 at about 7 p.m. the complainant was taken for delivery and only nurses Tilotma Singh Shaiffali and Jaya Pandey, Dai Manorama, Sweeper Hemlata and one Kiran outsider were present. Kiran demanded Rs. 2000/- and she gave this money to one duty doctor Kirti Chaturvedi at 10.30 a.m. The doctors of the hospital thereafter came there and operated upon the respondent. The doctor came out and informed that the baby was already dead since last eight hours Being aggrieved a complaint was put up before the Collector regarding the negligence of the hospital staff and doctors. The Collector ordered an enquiry. The committee submitted its report and the private complaint was lodged in the police station of Central Kotwali, Indore. After investigation, a criminal offence was registered only against Kiran (Ayah). The respondent, thereafter filed a private complaint against Kiran, Shaiffali, Manse Tilotma, Jaya Pandey, Sweeper Hemlata, Ayah Hemlata, Dr. Kirti Chaturvedi, Dr. Mukta Jain, Dr. Kusum Maru and the JMFC, Indore took cognizance and issued bailable warrants against all the persons and hence the present application for quashment of the said order.

(2.) Counsel for the petitioner-Dr. Kusum Maru has vehemently urged that the Committee had given report that the case related to medical negligence and that the accused should be proceeded against. Counsel for the petitioner-Dr. Kusum Maru has vehemently urged that the petitioner cannot be proceeded against primarily because sanction is necessary for her prosecution and the same has not been obtained from the Competent Authority and hence the order taking cognizance of the Trial Court should be set aside. Moreover, the complainant respondent had lodged a report at the Central Kotwali police station and the police did not find any negligence on the part of the petitioner and the same has not been taken into consideration by the Trial Court. Counsel submitted that the order taking cognizance be quashed. Moreover, if at all a case is related to medical negligence, only the Medical Board has power to enquire and a private committee cannot be thus appointed by the Collector, The negligence cannot be in any way attributed to the present applicant-Dr. Kusum Maru, Counsel submitted that there was not an iota of evidence available on record against the applicant and moreover there was no such negligence as is being alleged. Counsel also urged that an appeal had been filed before the M.P. State Govt. Public Health and Family Welfare Department of Ministry and by an order dated 7-2-2012 the appeal has been accepted and it has been found that Dr. Maru had not been informed of the admission of the deceased and the patient had been admitted by the doctor on emergency duty and it was not the duty of Dr. Maru. However, as soon as the petitioner had examined the respondent-Prabhavati; she had directed an operation and thereafter when the petitioner was operated the child had already died and the Appellate Authority had allowed the appeal and set aside the order passed by the Committee. This order was not considered according to the Counsel for the petitioner by the Trial Court as well as the Revisional Court. More importantly the focus of challenge to the impugned order is on the basis of the fact that the present petitioner-Dr. Kusum Maru is a Class I Medical Officer appointed at Lal Hospital Poly Clinic, Govt. Hospital, Indore and had an excellent career through out. Moreover, under the provision of law since the incident has occurred in the course of her duties attending to a patient; then to prosecute such a person who is a Government servant no Court shall take cognizance of such an offence except with the previous sanction of the State Government under Section 197 of the Cr.P.C. Counsel submitted that there was no doubt that the petitioner was discharging her duties and hence permission is required from the State Govt. under Section 197 of the Cr.P.C. which is mandatory in nature and Counsel submitted that there could be no deviation from the said procedure and the prosecution of the petitioner was without jurisdiction and petitioner had come to Court within time and it was proper stage to quash the proceedings. Counsel prayed that the impugned order taking cognizance be set aside on these grounds alone since the order was completely without jurisdiction.

(3.) Counsel for the petitioner placing reliance on Prakash Singh Badal and another Vs. State of Punjab and others, 2007 AIR(SC) 1274 to state that there must be a nexus between the act of the accused and death of the victim. The Apex Court had held that the expression extends only those acts or omissions done by public servant in discharge of official duty and it was necessary to obtain sanction for prosecution under Section 197 of Cr.P.C. Moreover the official act would be determined from stage to stage and the test is "abuse of office", the act must be confined to the time related to the criminal acts performed under colour or authority of public servants and not performed for their pleasure or benefits and then the protection would not be available to the petitioner. Otherwise the Apex Court had clearly held that sanction would be necessary. However, relying on Jacob Mathew Vs. Stare of Punjab and another, 2005 5 MPHT 462 Counsel submitted that the Apex Court had considered several situations and concluded that the Govt. of India or the State Govt. in consultation with the Medical Council of India was to lay down to certain guidelines to govern the criminal prosecution of doctors. The Apex Court also had categorically observed that the Investigating Officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in Government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam's test laid down in (1957) I WLR 582, to the facts collected in the investigation. "A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or useless the Investigation Officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld." And hence Counsel submitted that no such special expert opinion was taken in the matter except the report of the committee. It was not in accordance with the provisions of law.