On these background, learned counsel for the petitioner submits that it is well settled that if a case against the doctor is filed the requirement of proceeding further examination by the expert as held in the case of “Martin F. D’Souza V. Mohd. Ishfaq” reported in (2009) 3 SCC 1 wherein para 106 the Hon’ble Supreme Court has held as under:-
“106. We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer For a (whether District, State or National) or by the criminal court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or the criminal court should first refer the matter to a competent doctor or committee or doctors specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie of medical negligence should notice be then issued to the doctor/hospital concerned. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew case, otherwise the policemen will themselves have to face legal action. {Para 5}
11. In the case in hand the learned Magistrate has chosen option no. 4 and doing so he has proceeded in accordance with law. Further, it transpires that the learned court has not taken care of judgement delivered by the Hon’ble Supreme Court in the case of Martin F. D’Souza(supra) as well as “ Jacob Mathew Vs. State of Punjab” reported in 2005 (6) SCC 1.
12. In these two cases the concern of the court was that unnecessarily a bonafide action of any doctor may not be subject matter of civil wrong as well as criminal wrong and in that aspect in both the judgements it has been directed that the case will be proceeded against the doctors after taking expert opinion and the case in hand expert report was there which is contained in annexure-9 and thereafter final form was submitted. In that view of the matter the Court finds that proceeding further on the protest petition when the finding of the expert committee is in favour of the petitioner amounts to abuse of process of law.
13. To put criminal law in motion by examining two witnesses is also deprecated by the Hon’ble Supreme Court in the case of ‘Pepsi Foods Ltd. V. Special Judicial Magistrate’ (1998) 5 SCC 749.
14. In the case in hand, doctor has discharged his responsibility. The operation was successful. The patient was brought to the ward thereafter the condition of the father of father of the O.P. No.2 was deteriorated. In the case of Martin F. D’Souza(supra) the Hon’ble Supreme Court has noted the facts that the courts and the Consumer Forum are not experts in medical science, and must not substitute their own views over that of specialists. It is true that the medical profession has to an extent become commercialized and there are many doctors who depart from their Hippocratic oath for their selfish ends of making money.
However, the entire medical fraternity cannot be blamed or branded as lacking in integrity or competence just because of some bad apples.
15. It is well known that inspite of best effort made by the doctor sometime they are not successful and this does not mean that doctor must be held guilty. The Court comes to the conclusion that the case of the petitioner is fully covered with the aforesaid two judgments of the Hon’ble Supreme Court in the case of Martin F. D’Souza(supra) as well as “ Jacob Mathew Vs. State of Punjab” reported in 2005 (6) SCC 1.
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 588 of 2013
Dr. Vijay Kumar Vs The State of Jharkhand
CORAM:MR. JUSTICE SANJAY KUMAR DWIVEDI
Dated: 22/03/2023
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