IPC 304 or 304 A: Supreme Court Protection to Gynaecologist couple booked for Culpable Homcide

Delhi: The gynecologist couple, who was booked under IPC Section 304 (culpable homicide not amounting to murder) in a case of gross medical negligence has recently received major respite for the honourary Supreme Court.

The couple, Dr Deepa and Dr Sanjeev Pawaskar moved to the apex court after the Bombay High Court had turned down their anticipatory bail pleas a few days ago.

The concerned case relates to a patient who underwent cesarean operation during her course of delivery under the care of the doctor couple. After the operation at the accused couple’s hospital, the woman and the newborn baby were normal and were discharged two days later.

However, the next day the woman fell sick and her relatives called up Dr Deepa, who asked them to go to a medicine shop and let her speak with the chemist there over the phone.

The doctor spoke with the chemist who then gave some medicines to the relatives of the woman. However, even after taking the medicines, the woman did not feel better and was taken to the same hospital.

Both Dr Deepa and Dr Sanjeev were not present at the hospital at that time, but they told the woman’s family that they should admit her. When the woman’s condition deteriorated the next day, the doctors at the hospital shifted her to another hospital, where she died.

The doctors at the second hospital informed the victim’s kin that she had died due to negligence on part of both the doctors, following which a case was registered against them.

During the earlier hearing, the Bombay High Court noted that there was no effort to refer the woman to another doctor in the absence of Dr Deepa Pawaskar and she (Dr Deepa) continued to prescribe medicines telephonically.

“There was no resident medical officer or any other doctor to look after the patient in the absence of Dr Deepa and Dr Sanjeev Pawaskar even when the couple knew that they would not be available in the hospital,” the court said.

“Prescription without diagnosis would amount to culpable negligence. This amounts to gross negligence from the point of the standard of care and recklessness and negligence, which is a tricky road to travel,” the order stated.

The accused couple, in their pleas, argued that they could not be charged with culpable homicide not amounting to murder and should, at the most, be booked under section 304 (A) (causing death due to negligence). Under section 304 (A), a person, if found guilty, faces a maximum punishment of two years in jail. Under section 304, a convicted person can be sentenced to life imprisonment.

 “An error in diagnosis could be negligence and covered under section 304 (A) of the Indian Penal Code. But this is a case of prescription without diagnosis and, therefore, culpable negligence,” Justice Jadhav said.

“When a doctor fails in his duty, is it not tantamount to criminal negligence? The courts cannot ignore the ethical nature of the medical law by liberally extending the legal protection to the medical professionals…,” the order said.

In conclusion, the court rejected the pleas but stayed its order till August 2 to allow the accused couple to file appeals against the order.

Now, after filing Special Leave Petition before the apex court against the HC order, the couple has finally got relief. A bench of honorable Justice AM Sapre and Justice UU Lalit granted the couple protection from arrest and directed them to co-operate in the investigation process.

Attached is the order: