Sunday 14 June 2015

When court can issue process against doctor for medical negligence?


Dr. Pramod Jadhav, who was Examined by the complainant 
even before the issuance of process.   His evidence is recorded 
on 16/11/2002.   Dr. Pramod Jadhav is having qualification 
as M.B.B.B., M.S., though his specialization is in E.N.T.   His 
evidence   would   reveal   that   after   examining   the   discharge 
card, which contains the treatment given to Vijay at M.G.M. 
Hospital, he has stated on oath as under : 
“     Due   to   such   treatment   [discharge  
card   treatment],   patient   can   die,   such  
treatment was wrongly given ”.
While considering the above, one need not go by 
the words used by the deponent in strict manner.   The same 
is   having   the   element   of   negligence.       Now   the   degree   of 
negligence   has   to   be   proved   by   complainant   at   later   stage 

when he will be required to adduce evidence to prove charge. 
The   learned   Magistrate   and   the   learned 
revisional Court, therefore, were right in issuing the process 
against the present applicants for the offence punishable u/s 
304­A of the Indian Penal Code, which is confirmed by the 
learned revisional Court.  
Ultimately,   it   will   be   for   the   complainant   to 
prove the charge by adducing required evidence.   A private 
complainant   can   not   always   have   the   knowledge   of   the 
medical   science,   however,   in   the   present   case,   there   is 
evidence  on  record to show that Dr. Jamil  Deshmukh  who 
was   not   expected   to   prescribe   and   administer   alopathic 
medicine, has done it and in order to save him, Dr. Sarode 
has stepped in on the case papers.  Coupled with Dr. Jadhav's 
evidence, I see no reason to take other view than taken by the 
Courts   below   in   respect   of   the   issuance   of   process   against 
these 2 applicants.   Hence, both these Criminal Applications 
are dismissed. 
   IN THE HIGH COURT OF JUDICATURE AT BOMBAY   
                                BENCH AT AURANGABAD                                                                                      
      
CRIMINAL APPLICATION NO. 1729 OF 2003
Vijay   S/o   Balkrishna Sarode
Age : 35  Yrs.,  Occ.  : Medical
Practitioner, R/o :  Shri 
          ..... APPLICANT/
          [ORIGINAL ACCUSED NO. 4]


      V E R S U S

The   State  of  Maharashtra

                      

CORAM : V.M.DESHPANDE, J.
                                
DATE OF JUDGMENT : 13th FEBRUARY, 2015
 Citation;2015 ALLMR(CRI)1889

These two Criminal Applications filed u/s 482 of 
the   Code   of   Criminal   Procedure   can   be   decided   by   this 

common   Judgment,   since   both   arises   out   of   the   Judgment 
and   order   passed   by   the   learned   4th  Additional   Sessions 
Judge, Aurangabad dated 27/07/2003 in Criminal Revision 
No. 15/2003, whereby the learned revisional Court dismissed 
the   Revision   filed   by   them   and   confirmed   the   order   of 
issuance of process against them for the offence punishable 
u/s 304­A of the Indian Penal Code by the learned Judicial 
Magistrate   First   Class,   16th  Court  in   R.C.C.   No.  1285/2002 
2.
dated 27/12/2002.  
The   brief     facts   leading   to   the   present 
proceedings u/s 482 of the Code of Criminal Procedure can 
be narrated as under  :
 Respondent No. 2 Laxman Shamrao Ingle is the 
complainant.   He filed Private Complaint in the Court of the 
learned Magistrate.   In the said Complaint, the applicant in 
Criminal Application No. 1730/2003, Dr. Jamil Deshmukh is 
shown as accused No. 1, whereas the applicant in Criminal 
Application   No.   1729/2003,   Dr.   Vijay   Balkrishna   Sarode   is 
shown as accused No. 5.   Besides these applicants, 4 others 
were also shown as accused persons in the said criminal case. 

For the sake of convenience, the parties will be 
3.
referred to as per their original position in the Complaint.  
4.
Undisputedly,   accused   No.   1   possesses 
qualification of B.H.M.S. and is registered under the Bombay 
Homeopathic Medical Council Act, 1954 [hereinafter referred 
to as the 'Act' for the sake of brevity], whereas accused No. 5 

is duly qualified Doctor.     The Complaint proceeds that the 
complainant   was   required   to   admit   his   son   Vijay   on 
09/03/2001   for   giving   alopathic   treatment   in   M.G.M. 
Medical College and hospital at Aurangabad.     According to 
the   Complaint,   accused   No.   1   though   a   Homeopath, 
prescribed   alopathic   medicines   and   administered   various 
injections intravenous to Vijay.     It is further alleged in the 
Complaint   that   in   spite   of   administering   heavy   doses   of 
injection,   such as voveron, ciprofloxacilline  and others,  the 
condition  of his son Vijay was deteriorating and, therefore, 
when  the  complainant enquired  about the  prognosis  of  his 
son, accused No. 1 abused him and forcefully discharged his 
son Vijay.   That time, his son went in 'coma'.  The Complaint 
further proceeds that thereafter he was required to take his 
son to the Govt. Medical College, Aurangabad where he was 

told   that   the   condition   of   his   son   is   critical   and   his   both 
kidneys   are  failed.       The  Complaint   further   states  that   the 
Doctors of Govt. Medical College, Aurangabad remarked as to 
how at such critical
stage,   the   patient   was   discharged. 
Vijay,   who   was   admitted   in   the   Govt.   Medical   College, 


18/03/2001.  
Aurangabad   in   unconscious   stage,   ultimately   died   on 
The   Complaint   further   proceeds   that   after   the 
5.
death   of   his   son,   when   he   made   inquiry   with   the   original 
accused Nos. 2, 3 viz. trustees, Dean of the M.G.M. College, 
he was informed that  accused No. 1 Jamil Deshmukh, being 
a Homeopathic Doctor, he is not supposed to give alopathic 
he has not given treatment, he in collusion with accused No. 
1 represented that he had given treatment to the deceased 
son of the complainant.  
treatment.  The Complaint states that accused No. 5, though 
6.
The verification statement of complainant 
was recorded before the learned Magistrate.   Even before the 
issuance   of   process,   2   witnesses   Bhimrao   Ganpat   Gadekar 
and   Dr.   Parmod   Eknathrao   Jadhav   were   examined   by   the 

complainant.   
The learned Magistrate, on 27/12/2002, passed 
7.
order and thereby issued process against all accused for the 
offence punishable u/s 304­A of the Indian Penal Code read 
with section 15 (3) of the Medical Council Act, 1956.  
All   accused   persons   filed   Revision   in   the 

8.
Court   of   Sessions   Judge,   Aurangabad   challenging   the 
correctness of the order of issuance of process by the learned 
Magistrate.     The   said   Revision   was   registered   as   Criminal 
Revision No. 15/2003.  The said Revision was allotted on the 
file of 4th Additional Sessions Judge, Aurangabad.  
The learned Revisional Court, after hearing the 
parties   to   the  Revision,  partly  allowed  the   Revision.       The 
revisional Court maintained the order of issuance of process 
against accused No. 1 Dr. Jamil Deshmukh and accused No. 5 
Vijay Balkrishna Sarode for the offence punishable u/s 304­A 
of the Indian Penal Code.  
The learned revisional Court set aside the order 
of issuance of process against all the accused u/s 15 (3) of 
the Medical Council Act, 1956.   

The   learned   revisional   Court   dropped   the 
proceedings against original accused Nos. 2, 3, 4 and 6.  
9.
It   is   against   this   order   passed   by   the   learned 
revisional Court, the original accused Nos. 1 and 5 are before 
this Court through these two Criminal Applications filed u/s 

482 of the Code of Criminal Procedure.  
Heard Mr. A.P.Bhandari, the learned counsel for 
10.
the   Applicants,   Mr.V.H.Dighe,   the   learned   A.P.P.   for 
Respondent No. 1 – State and  Mr.   B.V.Dhage,,   the   learned 
counsel in both the Applications for the original complainant 
With the assistance of the learned counsel, I have 
gone through the record and proceedings placed before this 
Court,     which   was   called   at   the   time   of   admission   of   the 
present Criminal Applications.  
in extenso.
11.
Mr.   Bhandari,   the   learned   counsel   for   the 
applicants   submitted   that   the   order   passed   by   the   Courts 
below issuing process u/s 304­A of the Indian Penal Code is 
required to be set aside in as much as there is nothing on 

record to show that the accused persons were responsible for 
the   death   of   Vijay.       He   submitted   that,   even   the   entire 
complaint and the documents are taken in its face value, it 
does not show that there was any negligence on the part of 
these two Doctors.     He further submitted that, in fact, the 
observations made by the learned revisional Court shows that 
against the medical advise, the complainant took discharge of 

his son and thereafter he was admitted in the Govt. Medical 
College, Aurangabad and, therefore, there is every possibility 
that   at   Govt.   Medical   College,   Aurangabad   there   was   no 
proper treatment given to his son, resulting to his death.  He 
relied upon the authoritative pronouncement of Hon'ble Apex 
Court reported in Jacob Mathew  Vs.  State of Punjab and 
another AIR 2005 Supreme Court 3180.  

12.
Per   contra,   the   learned   counsel   for   the 
complainant   submitted   that   the   negligence   on   the   part   of 
these 2 Doctors is writ large.   According to him, though Dr. 
Jamil  Deshmukh was a Homeopath,  he  has prescribed and 
administered various alopathic injections and Dr. Sarode is in 
collusion with him.  

At the  time  of  issuance of process, the  learned 
13.
Magistrate is not expected to deal with each and every aspect. 
Suffice it to say, the learned Magistrate must be satisfied on 
the basis of the Complaint, verification statement, available 
documents   and   the   other   material   that   there   exists  prima  
facie case 
to   proceed   with   against   the   accused   persons. 
The learned Magistrate is not required to go into the deep 

probative   value   of   the   material   on   record.       The   learned 
Magistrate   before   issuing   process,   undisputedly,   has   to 
exercise   his   judicial   mind.       However,   at   that   stage,   the 
learned Magistrate  is required to find out whether  there is 
sufficient ground to proceed against the accused or not.   He 
is   not   required   to   determine   the   adequacy   of   evidence   of 
probability of the accused being guilty.     It is not expected 
from the learned Magistrate, at this stage, to embark upon 
meticulous examination of evidence or material.  
14.
The   learned   counsel   has   tried   to   submit   that 
from the observations of the learned revisional Court that on 
14/03/2001   in   the   morning   at   7.30   a.m.,   the   complainant 
himself   has   got   his   son   discharged   from   M.G.M.   Hospital 
against   medical   advise.       He   submitted   that   the   learned 

last portion of paragraph 8 of the Judgment.  
revisional  Court gave  clear­cut finding to that  effect in the 
15.
Firstly, there was no occasion for the revisional 
Court   to   make   such   observation.     The   learned   Magistrate 
after   scrutinizing   the   complaint,   the   documents   and   the 
evidence adduced on record before issuance of process, was 

prima   facie  satisfied   that   there   is   material   against   accused 
Nos.   1   and   2   and   thereafter   issued   process.     In   fact,   the 
learned revisional Court has ultimately confirmed   the said 
order.  
16.
The learned counsel invited my attention to the 
said consent letter, which according to him, is given by the 
present complainant.   The perusal of the said letter, reflect 
that the signature of the  complainant is obtained on blank 
paper and thereafter the material is written.  This can be seen 
with   naked   eyes  since   there   is   unusual   space   appearing   in 
between   the   completion   of   the   material   and   the   signature 
complainant.  
17.
Further,   the   medical   papers   ultimately   shows 

that the name of Dr. Sarode is appearing, thereby, prima facie 
the allegation made by the complainant in the Complaint that 
name   of   accused  No.   5  Dr.  Sarode  is   used  only  to   protect 
accused   No.   1   Dr.   Jamil   Deshmukh   and   Dr.   Sarode   is   in 
collusion with him, get support.   
What is important to note is that the evidence of 
18.
Dr. Pramod Jadhav, who was Examined by the complainant 
even before the issuance of process.   His evidence is recorded 
on 16/11/2002.   Dr. Pramod Jadhav is having qualification 
as M.B.B.B., M.S., though his specialization is in E.N.T.   His 
evidence   would   reveal   that   after   examining   the   discharge 
card, which contains the treatment given to Vijay at M.G.M. 
Hospital, he has stated on oath as under : 
“     Due   to   such   treatment   [discharge  
card   treatment],   patient   can   die,   such  
treatment was wrongly given ”.
19.
While considering the above, one need not go by 
the words used by the deponent in strict manner.   The same 
is   having   the   element   of   negligence.       Now   the   degree   of 
negligence   has   to   be   proved   by   complainant   at   later   stage 

when he will be required to adduce evidence to prove charge. 
The   learned   Magistrate   and   the   learned 
20.
revisional Court, therefore, were right in issuing the process 
against the present applicants for the offence punishable u/s 
304­A of the Indian Penal Code, which is confirmed by the 
learned revisional Court.  
Ultimately,   it   will   be   for   the   complainant   to 
21.
prove the charge by adducing required evidence.   A private 
complainant   can   not   always   have   the   knowledge   of   the 
medical   science,   however,   in   the   present   case,   there   is 
evidence  on  record to show that Dr. Jamil  Deshmukh  who 
was   not   expected   to   prescribe   and   administer   alopathic 
medicine, has done it and in order to save him, Dr. Sarode 
has stepped in on the case papers.  Coupled with Dr. Jadhav's 
evidence, I see no reason to take other view than taken by the 
Courts   below   in   respect   of   the   issuance   of   process   against 
these 2 applicants.   Hence, both these Criminal Applications 
are dismissed.  Rule discharged.  
22.
At   this   stage,   the   learned   counsel   for   the 

applicants submitted that interim order was in operation in 
their   favour   since   2003   and,   therefore,   requested   that   for 
reasonable period the interim stay operating in their favour 
be extended.  
23.
Looking   to   the   fact   that   the   interim   order   was 
operating in favour of the applicants since 2003, the interim 

stay granted in their favour on 29/09/2004 shall remain in 
operation for further period of 8 weeks from today.   After the 
expiry of said 8 weeks,   the interim order shall be vacated 
automatically without reference to this Court.  
        


     
   [V.M.DESHPANDE, J.]


Print Page

No comments:

Post a Comment