Thus the situation in the present case cannot be
properly described as absence of medical opinion pointing out
negligence on the part of the petitioner, but rather as the available
medical opinion is such as cannot be comprehended by a lay
person to conclude on the relevant aspect without further
clarification by experts. There are circumstances creating a strong
suspicion about the death of Suraj being an anaesthetic death.
Once this is so, the role of the petitioner required to be
investigated into and proper medical opinion on the aspects
relevant for determining the culpability of the petitioner ought to
have been obtained. An attempt to obtain the same was made, but
it did not succeed, as the medical opinion at least for a layman
is not clear on the point needing determination. This has to be
distinguished from non availability of medical opinion. It is that
the medical opinion given requires further clarification, which
perhaps more appropriately could have been obtained at the
investigation stage itself. However, the question is whether
because of lack of clarity in the medical opinion, it should be held
that the prosecution of the petitioner is liable to be quashed for
want of medical opinion to establish her culpability in the matter.
The Magistrate’s view was that it should not be and an
opportunity be given to the prosecution to seek clarification of the
medical opinion, as given by the expert committee. The question
is, whether this view of the Magistrate needs to be interfered with
in exercise of the writ jurisdiction.
The writ jurisdiction available to this Court is of extra
ordinary nature. It is to be exercised to correct a patent error of
law apparent on the face of record. Moreover, it is discretionary.
Similarly, the jurisdiction under Article 227 of the Constitution is
meant to be exercised to ensure that the subordinate Courts
function within the bounds of their authority. The view of the
matter, as taken by the Magistrate, does not seem to be patently
erroneous.
BENCH AT AURANGABAD
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
CRIMINAL WRIT PETITION NO. 819 OF 2013
Dr. Suvarna Arjun Jaybhaye
VERSUS
The State of Maharashtra
CORAM : ABHAY M. THIPSAY, J.
PRONOUNCED ON : 17th February, 2014
Citation; 2014 (1) Crimes 467 Bom
The petitioner is the accused in S.C.C. No. 965/2012
pending before the 3rd Judicial Magistrate, First Class, Beed. The
said case is in respect of an offence punishable under section
304A of the Indian Penal Code (IPC). The petitioner had made an
application (Exhibit 14) before the Magistrate contending that
there was no material in the chargesheet to sustain the
accusations, and that, she be, therefore, discharged. This
application was opposed to by the Assistant Public Prosecutor,
Incharge of the case. The learned Magistrate after hearing the
parties rejected the said application, by an order dated
03.08.2013.
By the present Petition, invoking the constitutional
jurisdiction of this Court under Article 226 and 227 of the
Constitution of India and the inherent powers of this Court, the
petitioner is praying that the said order passed by the learned
Magistrate be quashed and set aside and any other just suitable
The facts of the case leading to the prosecution of the
2.
and equitable order may be passed in favour of the petitioner.
petitioner, as reflected from the police report and accompanying
documents submitted before the trial Court, are as follows :
On 02.08.2011, one Suraj Shendge, aged 5 years, was
brought to Ruby Medical Services, Beed by his uncle Ganpat
Shendge, the First Informant. It was advised that M.R.I. to
be conducted on the said Suraj, who had swelling on his
right leg. Suraj was otherwise normal and was able to walk
and talk in a normal way. The petitioner is a medical
practitioner. In addition to M.B.B.S. degree, she has
obtained diploma in Anaesthesia at Yeshwantrao Chavan
Memorial Hospital at Pune. The petitioner administered
general anaesthesia to the said Suraj, so that M.R.I. could
be conducted. That, it took about one and half hour to
conduct the M.R.I. and during this period, Suraj was
required to be administered repeated doses of anaesthesia.
Suraj, however, did not regain consciousness at all. Suraj
was, therefore, taken to Deep Hospital, Beed, but as the
hospital authorities refused to admit him, he was taken to
Civil Hospital, Beed, where he was declared to be dead.
Ganpat Shendge, uncle of Suraj thereafter lodged a
report with Shivajinagar Police Station, Beed in respect of said
incident, which came to be registered as A.D.R. no. 23/2011.
Investigation, as contemplated under section 174 of the Code of
Criminal Procedure (hereinafter referred to as “the Code”), was
carried out. Since the case related to an allegation against a
Medical Practitioner of having caused death by rash or negligent
act, as per the Government Notification no. MIS2005/Pra.Kra.
78/05/Act, the opinion of a Committee of Medical Experts formed
under the Chairmanship of the Civil Surgeon, Beed, was sought
for. After the opinion was received, no further investigation was
carried out and on the basis of the investigation that had been
carried out under the provisions of section 174 of the Code, a
chargesheet came to be filed against the petitioner.
3.
The allegation against the petitioner is that she had
negligently or recklessly administered anaesthesia to the said
Suraj, in much larger quantity and this incorrect or improper
doses of anaesthesia resulted in the death of Suraj.
When the postmortem examination on the dead body
4.
of Suraj was performed on 02.08.2011, the opinion as to the
probable cause of death was reserved and viscera was preserved
for Chemical Analysis. After the microscopic examination report,
the final opinion as to the probable cause of death of Suraj was
given as “HYPOXIA DUE TO RESPIRATORY FAILURE”.
The main contention advanced by Mr. S.S. Jadhavar,
5.
the learned counsel for the petitioner is that there was absolutely
no evidence that the death of Suraj had been caused due to any
rash or negligent act of the petitioner. It is submitted that the
petitioner is a duly qualified anaesthetic and she had taken all the
necessary precautions while administering anaesthesia. It is
submitted that simply because the patient died, negligence cannot
be attributed to a Medical Practitioner. It is submitted that the
expert committee has not attributed any rashness or negligence
in treating the patient, to the petitioner, and that, in the absence
of a medical opinion attributing negligence or rashness to the
petitioner, her prosecution was not maintainable.
6.
Mr. Jadhavar submitted that in order to hold a
medical practitioner criminally liable for negligence, there ought to
be medical opinion to that effect. He submitted, it would not be
open to attribute negligence to a medical professional unless a
body of the medical experts would hold such an opinion; and that,
it would not be for laymen to decide, whether the medical
practitioner had, in fact, been negligent or not. Mr. Jadhavar
placed strong reliance on the authoritative pronouncement of the
Supreme Court of India in Jacob Mathew V/s State of Punjab
and another {AIR 2005 S.C. 3180(1)} in support of his
contentions.
Indeed, the said decision rendered by Their Lordships
7.
of the Supreme Court of India lays down the legal position about
ig
the liability of medical professionals and medical practitioners for
negligence. The observations made by Their Lordships indicate
that it would not be open for a lay person to judge whether a
medical practitioner had indeed acted in a rash or negligent
manner, without medical opinion to that effect. A need to form
such an opinion only after taking prevailing practices acceptable
to medical profession was emphasized. The conclusions arrived at
by Their Lordships are summed up in para 49 of the reported
judgment. The most relevant part thereof, in the context of the
present Petition, is found at Sr. Nos. 6 and 7 in the said para. The
same is wroth reproducing here:
“(6) The word ‘gross’ has not been used in Section 304A of
IPC, yet it is settled that in criminal law negligence or
recklessness, to be so held, must be of such a high degree as to
be ‘gross’. The expression ‘rash or negligent act’ as occurring in
Section 304A of the IPC has to be read as qualified by the word
(7)
‘grossly’.
To prosecute a medical professional for negligence
under criminal law it must be shown that the accused did
something or failed to do something which in the given facts
and circumstances no medical professional in his ordinary
senses and prudence would have done or failed to do. The
hazard taken by the accused doctor should be of such a nature
There is sufficient material to show that after
8.
that the inquiry which resulted was most likely imminent.”
administration of anaesthesia Suraj never recovered. The cause of
death is, as aforesaid, ‘Hypoxia due to respiratory failure’. It is well
known that modern anaesthesia is complex and by no means free
from danger, and that, as such a number of precautions are
necessary to be taken while administering anaesthesia. {See
Parikh’s Textbook of Medical Jurisprudence, Forensic Medicine
and Toxicology (Sixth Edition) (published by CBS Publishers &
Distributors) (Page 1.47).}
9.
It is however true, that considering the legal position
about the liability of a Medical Practitioner for prosecution in
respect of an offence punishable under section 304A of the IPC,
as made clear by Their Lordships of Supreme Court of India in the
aforesaid reported judgment in the case of Jacob Mathew (supra),
it would not be open for Investigating Agency or to the Court to
conclude about the death of Suraj having been caused due to the
rash or negligent act of the petitioner in the absence of any
material to show that the petitioner had deviated from the normal
and accepted practice in the profession and had not taken the well
known minimum precautions, while administering anaesthesia.
10.
A perusal of the chargesheet reveals that specific
opinion of the Committee of expert was sought by the Investigating
Agency in the course of investigation, on ‘whether Suraj had died
because of the administration of anaesthesia’. However, inspite of
collecting all the relevant documents from the Investigating
Agency, no categorical answer in that regard has been given by the
Committee of experts formed under the Chairmanship of District
Civil Surgeon. The opinion of the expert committee is as follows:
१) मयत नामे, सुरज सोमनाथ शेडगे याचा मृतयू हा भूलीनंतरचया गुतागुंतीमुळे झाला आहे.
२) अिभलेखानुसार भूलतजाने रगणाला वाचवणयाचा अथक पयतन केलयाचे िनषपन होते.
Translated in English, it would read thus:
1)
The death of Suraj Somnath Shendge has been
caused due to complications arising after administration
of anaesthesia.
2)
As per the record, the anaesthetic is found to have
made strenuous efforts to save the patient.
11.
I have gone through the order passed by the learned
Magistrate rejecting the petitioner’s application for discharge. The
Magistrate observed that the report given by the Committee did
not show that the accused (petitioner) is not responsible for the
post anaesthesia complication, which resulted into death of Suraj.
He was of the view that had the Committee given a report that the
accused was not responsible for the post anaesthesia complications
and for the death, then there would be no case for prosecution. The
Magistrate observed that report of the Committee was, however,
‘ambiguous’, and therefore, it needed an opportunity to be given to
the prosecution to lead evidence. The Magistrate’s view was that
whether for the post anaesthesia complications accused
(petitioner) could be held responsible or not, would be decided on
the basis of evidence.
I have carefully considered the matter. Though,
12.
ordinarily, the chargesheet must contain positive material to
show negligence or rashness on the basis of an accused and as
per the law laid down by the Supreme Court of India in Mathew’s
case (supra), such material must include opinion of medical
experts in that regard, the circumstances of the present case are
rather peculiar. Medical opinion was sought to be obtained, but it
has not been given. The opinion : viz: ‘that the anaesthetic made
strenuous efforts to save the patient’ is not very relevant in the
context of the question as to whether there had been initial
rashness or negligence on the part of the petitioner, while
administering anaesthesia. After all, the petitioner is a Medical
practitioner and on having noticed that the condition of the
patient was becoming critical, it would natural on her part to
make all the possible efforts to save life of the patient. That,
however, would not establish a negative namely, that the
petitioner was not negligent while administering anaesthesia.
13.
This appears to be a case where inspite of efforts
made by the Investigating Agency, no opinion from the medical
experts could be obtained, either supporting the allegations or
refuting the same. The opinion given by the Committee of experts
ig
appears to be vague and evasive. Clarification as to what is meant
by ‘death has been caused due to complications after
administration of anaesthesia (भूलीनंतरचया गुंतागुंतीमुळे); and what were
the complications and whether they had arisen because of the
lack of taking any proper precaution by the Anaesthetic’ would be
necessary for deciding the propriety of prosecuting the petitioner.
The Investigating Agency, perhaps, could have insisted on a more
clear opinion from the Committee of experts, but as the position
stands today, it is not possible to understand the significance of
the medical opinion that is available in the chargesheet – whether
it either indicates negligence on the part of the petitioner, or the
absence thereof.
14.
Prima facie, it appears that on the basis of the
material collected during investigation and also the medical
opinion, that the death had something to do with the administration
of anaesthesia. For administering anaesthesia, the petitioner was
responsible. Merely because the medical opinion is vague – or its
significance cannot be grasped by a lay person without further
clarification it cannot be considered as indicative of the fact of
the petitioner having taken all normal reasonable precautions
while administering anaesthesia.
15.
The case presents a peculiar picture. A child was
administered anaesthesia and did not recover thereafter. The
death is opined to have been caused by Hypoxia due to respiratory
ig
failure. Hypoxia is a pathological condition in which the body as a
whole (generalized hypoxia) or a region of the body (tissue hypoxia)
is deprived of adequate oxygen supply. In Parikh’s Textbook of
Medical Jurisprudence, Forensic Medicine and Toxicology (Sixth
Edition) (published by CBS Publishers & Distributors), the learned
author while discussing the topic of ‘Investigation of Anaesthetic
Deaths’ has classified the same in two groups. (i) deaths due to
anaesthesia, and (ii) deaths associated with annaesthesia and
surgical procedure. These two groups are again divided in sub
groups. It is neither necessary nor advisable to enter into a
theoretical discussion with respect to anaesthetic deaths, but
what needs to be mentioned is that hypoxia has been associated
with anaeshtetic deaths. On pages 1.49 to 1.51 of the said book,
the learned author has dealt with the aspect of investigation of
anaesthetic deaths, but it appears that in this case, the
investigation has not been done on the well accepted linesat least,
that it was so done, does not appear to be the case.
Thus the situation in the present case cannot be
16.
properly described as absence of medical opinion pointing out
negligence on the part of the petitioner, but rather as the available
medical opinion is such as cannot be comprehended by a lay
person to conclude on the relevant aspect without further
clarification by experts. There are circumstances creating a strong
suspicion about the death of Suraj being an anaesthetic death.
Once this is so, the role of the petitioner required to be
investigated into and proper medical opinion on the aspects
relevant for determining the culpability of the petitioner ought to
have been obtained. An attempt to obtain the same was made, but
it did not succeed, as the medical opinion at least for a layman
is not clear on the point needing determination. This has to be
distinguished from non availability of medical opinion. It is that
the medical opinion given requires further clarification, which
perhaps more appropriately could have been obtained at the
investigation stage itself. However, the question is whether
because of lack of clarity in the medical opinion, it should be held
that the prosecution of the petitioner is liable to be quashed for
want of medical opinion to establish her culpability in the matter.
The Magistrate’s view was that it should not be and an
opportunity be given to the prosecution to seek clarification of the
medical opinion, as given by the expert committee. The question
is, whether this view of the Magistrate needs to be interfered with
in exercise of the writ jurisdiction.
The writ jurisdiction available to this Court is of extra
17.
ordinary nature. It is to be exercised to correct a patent error of
law apparent on the face of record. Moreover, it is discretionary.
Similarly, the jurisdiction under Article 227 of the Constitution is
meant to be exercised to ensure that the subordinate Courts
function within the bounds of their authority. The view of the
matter, as taken by the Magistrate, does not seem to be patently
18.
erroneous.
On an independent consideration of the matter also, it
appears proper that the prosecution should be permitted to seek
clarification of the opinion given by the expert committee, which
could be done during the course of the trial. While deciding
whether or not to quash the prosecution in the present case, the
powers of the Investigating Agency to carry out further
investigation, as contemplated under section 173(8) of the Code
and the powers of the Court under section 311 of the Code, need
to be kept in mind. More particularly, it appears desirable that the
Investigating Agency carries out further investigation, at least for
the purpose of seeking clarification from the Committee of
experts, as to whether or not in their opinion, the petitioner had
been rash or negligent and whether the death of Suraj is
attributable to any rash and negligent act of the petitioner.
19.
Considering all the relevant aspects of the matter, this
does not appear to be a case where the prosecution of the
20.
The Petition is dismissed.
jurisdiction of this Court and its inherent powers.
petitioner should be quashed in exercise of the constitutional
( ABHAY M. THIPSAY, J. )
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