Anaesthetist allegedly posing as gynaecologist, medical negligence! HC refuses to quash criminal proceedings

The Court observed that the subsequent prosecution for medical negligence was rightly initiated, as it was supported by expert medical opinion, thereby complying with the Supreme Court’s guidelines in Jacob Mathew v. State of Punjab

The doctor was booked for medical negligence during the treatment of the complainant's daughter-in-law for her first pregnancy. She was undergoing treatment for the pregnancy under the accused doctor's supervision at a Jaipur-based hospital.

Back in January 2007, when the patient was admitted to the hospital, the doctor had assured the complainant of a normal delivery. However, allegedly, the treating doctor left for Ajmer the next day, leaving the patient in the hands of unskilled employees. Later, the child died due to the umbilical cord being wrapped around his neck.

It was alleged by the complainant that the newborn child died only due to the grave medical negligence of the accused doctor and the hospital employees, which could have been saved by a skilled medical expert.

Based on the complaint, an FIR was registered, and after the initial investigation, the police authorities submitted a negative final report on 14-12-2007, as no cognizable offence was found to be proved against the accused.

Following this, the investigating officer filed an application mentioning that after conducting further investigation, a decision was taken to file a charge sheet in the matter. Accordingly, permission was sought to return the file/case diary for filing the charge sheet. The Trial Court permitted this, and consequently, a charge sheet was filed and the Trial Court took cognisance of the offences punishable under Sections 304-A and 420 of the IPC and issued process against the accused.

Against the order framing charges, the accused filed a criminal revision petition, which was dismissed by the Revisional Court. Thereafter, the accused doctor approached the HC bench seeking relief.

While considering the matter, the HC bench observed that the first question that required consideration was whether, after filing the negative final report, and without there being any protest petition by the complainant, the trial court had the power to return the file/negative final report for the purpose of filing a charge sheet against the accused or not.

Examining Sections 173(3) and 173(8) of the CrPC, the HC bench held that a bare perusal of Section 173(8) of the CrPC specified that the investigating agency is not precluded from conducting further investigation despite submitting a final report and any other evidence found can be filed before the Magistrate with a further report.

"As per Section 173(3) Cr.P.C., the superior officer of police, pending the orders of the Magistrate, can direct officer-incharge of the police station to make further investigation and Section 173(8) Cr.P.C. specifies that despite submitting a final report, the investigating agency cannot be precluded from conducting further investigation and in case any further evidence is found, the same can be filed before the Magistrate with the further report," noted the bench.

Referring to the judgment in the case of Ramachandran v. R. Udhayakumar, it was observed by the bench that the Supreme Court had held in this case that even if a negative final report was forwarded to the Magistrate, there is no bar in CrPC on further investigation of the matter and since the decision to further investigate the matter was taken by the investigating agency itself, there was no requirement for order of the Magistrate.

At this outset, the HC bench observed, "Thus, in view of above, it is clear that in the present case also the trial court has committed no mistake in returning the negative final report to the investigating agency and to allow filing of the charge sheet on discovery of new evidence during further investigation. Such process adopted either by the investigating agency or by the trial court is neither erroneous, nor illegal."

While dealing with the accused's submission that the FIR did not contain any allegations of medical negligence or of cheating, the Court noted that

"As regards argument raised on behalf of the petitioner that the FIR does not contain any allegations of medical negligence or of cheating, suffice to observe that it is settled proposition of law that FIR is not an encyclopedia and should be read with the material collected by the investigating agency during investigation. In the instant case, during further investigation, it is found that the petitioner was not a qualified Gynecologist and deceptively shown herself to be an expert Gynecologist so as to induce the innocent pregnant women to get themselves treated by her during their pregnancy and for delivery of the child as well. It has also been found that there were no technical experts or facility of sonography in hospital to conduct sonography of pregnant lady, which was a serious lapse as the position of foetus could be properly detected only through such technical facilities by the technical experts. It was also found that even there were serious lapses on the part of the petitioner. Therefore, merely the fact that FIR did not contain specific allegations constituting medical negligence or cheating, but after further investigation, there was sufficient material to infer that such offences have been committed by the petitioner, only on account of mere lack of proper words in the FIR, the same cannot be quashed by this Court."

Thereafter, the Court dealt with the doctor's argument that not obtaining the report of a medical expert was in contravention of the guidelines set out by the Supreme Court in Jacob Mathew v. State of Punjab. Referring to the concerned judgment, the HC bench observed,

"Meticulous examination of the aforesaid decision would reveal that a medical professional can be held liable for negligence in the cases where he does not possess requisite skill, which he professed to have possessed or, he did not exercise with reasonable competence in the given case, the skill which he did possess. The Hon’ble Supreme Court has also clearly observed that the investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of accused medical professional amounts to rash and negligent act within the domain of criminal law under Section 304-A IPC. Hence, Hon’ble Supreme Court directed that report of medical experts in such cases is necessary for prosecuting the medical professional."

"In the instant case, as referred to hereinabove, during furher investigation, CID(CB)/the investigating agency has taken into account the reports given by Rajasthan Medical Council as well as Department of Obstetrics and Gynecology, SMS Medical College, Jaipur. Therefore, it cannot be said that any of the guidelines laid down by the Hon’ble Supreme Court in the case of Jacob Mathew (supra) has been violated in the instant case either by the investigating agency or by the trial court," it also observed.

Accordingly, the court concluded that since was chargesheet was filed based on the reports by the competent medical experts/bodies, the prosecution had complied with the guidelines laid down in the case of Jacob Mathew.

"This Court is conscious of the settled legal position that the inherent powers under Section 482 Cr.P.C. are to be exercised with great caution and only in exceptional circumstances, where the material on record clearly discloses an abuse of the process of law or a grave miscarriage of justice resulting from failure to adhere to due process either by the investigating agency or by the concerned court. However, upon a careful examination of the entire record, this Court does not find any such illegality, irregularity or perversity warranting interference in exercise of its inherent jurisdiction under Section 482 Cr.P.C. Accordingly, the present criminal miscellaneous petition is devoid of merit and is hereby dismissed," observed the bench, while dismissing the plea.

"However, it is made clear that this Court has not made any comments so as to affect the trial of the case against the petitioner and the observations made by this Court are confined to the scope of exercise of inherent jurisdiction under Section 482 Cr.P.C. and not for either influencing or affecting the trial of the case," it clarified.

To view the order, click on the link below:

https://medicaldialogues.in/pdf_upload/rajasthan-hc-306884.pdf

Also Read: No Doctor would risk Reputation, Professional, Economic Stability by engaging in Medical Negligence: HC