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FIR under IPC 304A quashed: Surgeon gets relief for death at home post-op


FIR under IPC 304A quashed: Surgeon gets relief for death at home post-op

“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.

Read Also: Pune: 11 Doctors including Chief Cardiac Surgeon Booked under IPC 304A for death of patient

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.

 

Source: with inputs
13 comment(s) on FIR under IPC 304A quashed: Surgeon gets relief for death at home post-op

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  1. user
    Dr. Vijay Sikka MBBS, MS surgery. February 14, 2019, 7:39 pm

    It is not negligence it is complication of surgery. May be a tie may have slipped or there may be bleeding disorder .
    If a lawyer or Govt or Contractor commits mistake do they pay compensation.
    Why doctors be punished. It is because we doctors are not united.

  2. user
    Dr Paresh N Pujara February 12, 2019, 12:10 pm

    This is a clear case of medical negligence. Surgeon had injured vessels PM report shows cause of death haemorrhage There is a difference between complications and Negligence. Complications means not preventable Not in hands of surgeon. While Negligence means preventable Here if surgeon performs surgery with due care he can control bleeding and save life of pt. if you tell this is not Negligence then Nothing is Negligence. And medical fraternity is imune from Negligence.

  3. user
    Dr Vijay Sikka MBBS, MS (SURGERY) February 14, 2019, 7:43 pm

    A knot can slip any time or post operatively after 10days or so secondary haemorrage can occur.
    Surgeon can not be held as negligent

  4. Sir you don\’t have either medical and legal knowledge. Who said that that the complications means non preventable? There was question in MD/Ms exam how to prevent complications of so and so. You better read and then comment against a colleague

  5. user
    Dr paresh pujara February 12, 2019, 7:55 pm

    Sir This platform is for healthy Discussion. For court case we should prove what we want and it is different

  6. user
    Dr paresh pujara February 12, 2019, 7:35 pm

    Respected sir. In Jecob case pt was terminal stag cancer pt. and cause for case is empty oxygen bottles Doctors had not done anything. In Dr jaysree Ujaval case pt of haemophilia Blunt abdomen injury The cause of case is Dr went at 11pm and not wait for physician. As a surgeon her duty is over after refering to physician when medical officer is present in hospital. So in both case decisions in favour of doctors. This is not applied in this case

  7. user
    Dr Paresh Pujara February 12, 2019, 7:21 pm

    Sir iam medicolegal legal Advocate. My qualifications MBBS MS LLB. Kindly read on net about complication and Negligence. This is acase of Negligence in performing surgery. Negligence in post op treatment. If this is not negligence then what is negligence in medical field?

  8. Police is either ignorant, or trying to be ignorant. Don\’t they know the Supreme court judgement in \”Jacob Mathew v. State of Punjab\” case?

  9. user
    Dr Geraldine Sanjay February 11, 2019, 8:00 pm

    Oh my God , terrible.
    These mutilating surgeries for family planning should be stopped.There are long term complications also for these tubectomy surgeries.

  10. user
    Dr RAMESHVARDHAN February 11, 2019, 1:34 pm

    LikTern countries, AUTOPSY should be made mandatory FOR ALL THE DEATHS WHICH TAKES PLACE IN THE HOSPITALS , THIS WILL BE GREAT USE TO FIND CASUSE OF DEATH, AND ALSO HOW TO OVERCOME THE PROBLEMS TO OVERCOME SUCH THINGS IN FUTURE. UNLIKE IN THE PAST , THERE ARE ABOUT 500 TEACHING MEDICAL COLLEGE HOSPITALS IN INDIA, HAVING DEPARTMENTS OF FORENSIC MEDICINE & AS WELL AS DEPARTMENT OF PATHOLOGY , BY TAKING ADVANTAGE OF THESE DEPARTMENTS, WE CAN IMPOROVE OUR KNOWLEDGE AND DEVOLOPE A HUGE NETWORK OF DATA BANK , WHICH CAN BE GREAT USE IN FUTURE PLANNING AND PREPARATION TO OVER COME PROBLEMS RELATED TO OUR PROFESSION AND ALSO TO GOOD HEALTH AMONGST OUR PUBLIC. I AM SURE ANY BODY WILL BE UPSET TO ACCEPT THE DEATH , FOLLOWED BY A SIMPLE ELECTIVE PROCEDURE LIKE TUBECTOMY ? ( STERLIZATION) . That too in hale and healthy lady .

  11. user
    Dr Geraldine Sanjay February 11, 2019, 8:05 pm

    It is not a simple procedure. We are harming the woman & the man by taking away the gift of fertility.It is very sad that we are following these outdated eugenic procedures to control the population.We are breaking the Natural Law of God.These families suffer in the long term.