“Doctor was duly qualified being M.B.B.S. M.S. (General Surgery). It is not alleged that he was drunkard or he used the tools which were not meant for surgery. He performed surgery in several cases.”
Chandigarh: In a major relief to a surgeon who was posted with the community health centre in Fatehabad the Punjab and Haryana High Court recently quashed an FIR that was against the doctor under Section 304-A of Indian Penal Code for causing death by negligence. The court ordered that the offence of the doctor needs to be proved to prosecute him.
The case concerns a lady brought who was brought to the Guhla hospital, on July 28, 2011, for sterilisation operation. She was operated on by the surgeon Dr Bansal. She was fit and healthy when she was discharged after the surgery.
However, upon reaching home, the patient complained of acute pain. She was being brought back to the hospital but she died on the way.
Alleging negligence, the family headed towards the local police and filed a complaint against the doctor. The doctor was soon booked under IPC 304 A. After the FIR was lodged, the doctor approached the city court. The local court, however, issued an order against the doctor.
The doctor then moved to the High Court and drafted a petition. He explained that he was a government doctor and was performing official duties and conducting sterilisation operations but government’s permission was not taken before prosecuting him. He also submitted the post mortem revealed the cause of death of patient as was shock and haemorrhage and the expert also gave an opinion that there is no negligence on the part of the operating surgeon.
However, in his plea, he stated that regardless of the expert committee’s opinion, the police booked him under the section 304-A of IPC.
The High court went through the entire case in detail, noting the existing law for gross negligence as well as the literature related to the sterilisation operations. The court noted in detail the decision of the expert committee that noted inquiry committee. Inquiry Committee observed that patient walked from the bed to the Ambulance and from Ambulance to her home. It was further observed that when the attendants were bringing her back to the hospital they returned midway, presuming her to be dead. They never consulted any doctor at CHC, Guhla. The inquiry committee absolved the doctor of medical negligence.
I am of the view that in this case, it is not alleged that the petitioner was not possessing necessary qualifications. He performed several operations and there were no complication in other cases but in one case of Paramjit Kaur, she went in the government vehicle to the house and there she complained of acute pain. When she was being brought back to the hospital, she died on the way and was taken back by her attendants.
Now, question would arise as to what is the prima facie evidence of negligence?
Doctor was duly qualified being M.B.B.S. M.S. (General Surgery). It is not alleged that he was drunkard or he used the tools which were not meant for surgery. He performed surgery in several cases.
The court noted Section 304A IPC which states
304A. Causing death by negligence.—Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Seeing the applicability of the section in this case, the court noted
For offence under Section 304A IPC, it must be proved that the Act was rash and negligent. The doctor performed surgery and except the fact that subsequently, the patient on reaching home, complained of acute pain, will not be sufficient to conclude that the petitioner doctor was negligent in performing surgery.
The court then gave doctor the relief, quashing all proceedings against him
After considering the law laid down in the cases of Jacob Mathew and Dr.Sou Jayshree Ujwal Ingol (supra), I am of the view that the present case is a fit case, where powers under Section 482 Cr.P.C. should be exercised to quash the proceedings, leaving the complainant to claim compensation from the Government, if he so desires.
Further, in this case, the petitioner was a government doctor. He was performing official duties and was conducting sterilization operations. Several operations were conducted. Therefore, the sanction of the petitioner was required from the competent authority to prosecute the petitioner under Section 197 Cr.P.C., since alleged act was done by the petitioner in the discharge of his official duties. The said sanction was required before the Court could take the cognizance.