How can a doctor be booked under IPC 304A in absence of death: HC rescues doctor wrongly implicated for criminal negligence
Chandigarh: Coming out in a rescue of a doctor who was wrongly implicated under the section of the IPC 304 A (Death due to negligence) when the patient has not died, the Punjab and Haryana High Court has quashed all the proceedings against the doctor.
While quashing, the court noted how a doctor can be booked under the 304A of IPC in absence of death.
The case goes back to the year 2015 when the patient, Singh who suffered from an eye injury was taken to the hospital by his mother, the complainant Gurpreet Kaur.
During treatment, when the patient's condition did not improve even after being provided with the medicines by the accused doctor, the complainant took him to another hospital, Akal Eye Hospital in Jalandhar, where she was informed by the doctor that her son's eye has permanently been damaged.
The complainant alleged through her complaint filed in the court that she had taken the patient to various hospitals for the treatment of her son in Jalandhar and Amritsar but due to the negligence caused by the petitioner Dr DL Budwal, the patient's eye was permanently damaged because of which an artificial right eye had to be affixed. The patient's mother also said that when she went to the doctor (petitioner), he threatened her and used abusive language against her.
Based on all the facts and evidence filed by the patient's mother, the doctor had been summoned by the trial court under section 304-A (death caused by negligence) of The Indian Penal Code by the order dated 18.09.2019.
The doctor through his plea before the Hon'ble court stated that the accusation against him was false and unmaintainable under section 304-A of the IPC because the patient had not died. Therefore, the question of death caused by negligence cannot arise.
The doctor also added in his plea in the High Court court that, if the trial court under section 202 of Cr. PC had held an inquiry of the allegations and asked for a police investigation, the court would have been aware of the fact that there was no death caused by negligence. He also through his petition stated that there was no evidence of any doctor from a government hospital who had supported the complaint of the patient concerning the alleged negligence caused by the doctor(petitioner).
The doctor also alleged in his petition that, the patient's mother had earlier filed a complaint against him for the said negligence caused under section 12 of the consumer protection act, 1986 in the district consumer disputes redressal forum where it was held that "there was no negligence or deficiency in service on the part of the doctor (petitioner)", the said order was passed on 29.09.2016.
The counsel for the patient on the other hand through his plea stated that he agreed that there was no death caused by the alleged negligence on the part of the doctor, and there was indeed no opinion from a government hospital supporting the case of the complaint regarding the negligence caused by him.
The court after hearing both parties and analyzing the precedents by the Hon'ble Supreme Court stated that it was apparent that no death due to negligence had taken place and therefore, the question of summoning the doctor under section 304-A of IPC would not have arisen.
The court also marked that, when it was disclosed to the trial court, about the police complaint filed, the court could have asked for the police reports and could have been satisfied with the genuineness of the allegations put on the doctor.
"In view of the aforementioned discussion it is apparent that no death has taken place and, therefore, the question of summoning of the petitioner under Section 304-A IPC would not arise. The Magistrate has passed the summoning order mechanically just by adverting to the evidence lead without any application of mind as to how an offence under Section 304-A IPC was made out in the absence of death. In fact, once it was disclosed to the Magistrate that a police complaint had been made regarding the allegations as mentioned in the complaint, the Magistrate was well within his powers to hold an enquiry in terms of Section 202 Cr.PC to satisfy himself as to the genuineness of the allegations and could have also called for the police report regarding the action taken on the said complaint, if any. Therefore, in cases where the allegations and the preliminary evidence lead in support of those allegations are hazy the court can, and in fact should, hold a preliminary enquiry in the manner that it deems fit before proceeding to summon an accused. That is the purpose and purport of Section 202 Cr.PC."
The court, while referring to the judgments passed, in the precedents, "Jacob Mathew's case and Martin F. D'Souza's" case held that proceedings could not have been initiated against the doctor in the absence of any report submitted by the competent doctor testifying the negligence on the part of the doctor(petitioner). Further, the court also referred to the consumer forum's decision of dismissing the complaint filed by the patient's mother against the doctor and held that, "on the merit of the petition filed by the doctor, all the proceedings against the doctor are hereby quashed in the interest of justice."
"In the present case, as per the judgments in Jacob Mathew's case (supra) & Martin F. D'Souza's case (supra) criminal/civil proceedings could not have been initiated against the petitioner in the absence of any report/evidence submitted by a competent doctor or committee of doctors testifying as to the negligence on the part of the petitioner. Further it is apparent that the Consumer Forum had dismissed the complaint of the complainant on 29.09.2016 holding that there was no negligence or deficiency of service and the present compliant came to be instituted on 30.09.2016 wherein no reference whatsoever was made of the dismissal of the complaint by the Consumer Forum. Had this fact been disclosed in the complaint, the impugned summoning order might not have been passed."
"In view of the above, I find merit in the present petition and the same is therefore allowed and the Complaint No.17 dated 30.09.2016 under Sections 326, 304-A, 447, 504, 506 IPC titled as Gurpreet Kaur Vs. Dr. D.L. Budwal pending in the court of JMIC, Dasuya, District Hoshiarpur (Annexure P-1) along with summoning order dated 18.09.2019 (Annexure P-2) under Section 304-A IPC and all further proceedings arising therefrom are hereby quashed in the interest of justice."
https://medicaldialogues.in/pdf_upload/crm-m53363201912102022finalorder-1-189835.pdf
