Gayantri Kumari & Anr. vs The State Of Bihar & Anr on 18 June, 2013 Patna High Court Cr.Misc. No.17687 of 2012 (4) dt.18-06-2013 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.17687 of 2012 ====================================================== 1. Gayatri Kumari , wife of Satendra Prasad, A.N.M., Primary Health Centre, Tarari, Police Station- Tarari, District-Bhojpur at Ara. 2. Sumitra Kumari, daughter of Inderdeo Mahto, Resident of Village- Tarari, Police Station- Tarari, District- Bhojpur at Ara. .... .... Petitioners. Versus 1. The State of Bihar. 2. Hari Narayan Singh, son of Ram Naresh Singh, Resident of Village- Surmana English, Police Station- Tarari, District-Bhojpur at Ara. .... .... Opposite Parties. ====================================================== Appearance : For the Petitioners : Mr. Dr. Amrendra Kumar, Advocate. Mr. Manish Rai Sharma, Advocate. For the Opposite Party no.2 : Mr. Akhileshwar Prasad Singh, Sr. Advocate. Mr. Binod Kumar No. 2, Advocate. For the State : Mr. Rajendra Prasad Nat, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD ORAL ORDER 4 18-06-2013 Heard learned counsel for the petitioners and learned counsel for the State. This is an application for quashing the order dated 20.01.2012 passed by Smt. Sarjo Kiriti, Judicial Magistrate, First Class, Ara, passed in Tarari P.S. Case No. 42 of 2011 by which cognizance has been taken under Sections 337, 338, 336/34 of the Indian Penal Code against these petitioners. The prosecution case as alleged that at the time of delivery the victim admitted in Primary Health Centre and she gave birth a female child. It is alleged that informant, the brother of the victim went to see the victim after she gave birth to a child and found the victim well after delivery. The doctor and nurse asked the informant to go out of the room as they have to cut the „Naar‟ of the child. Thereafter, the informant heard sound of cry then he went inside the room and saw that his sister crying in pain in waist and was besmeared with blood. Thereafter, it is alleged that two petitioners and the doctor advised him to take the victim for better treatment at Patna then victim was taken to Arrah and then to Patna when C.T. Scan was done and it was found that waist bone of the victim has been fractured. It is alleged that due to negligence of the doctor, the victim suffer and so action be taken against them. On the complaint, F.I.R. was lodged. Investigation proceeded and during investigation witnesses have stated that there is negligence on the part of the doctor and nurses. It has also come during investigation the weight of the child delivered was found to be 1kg. more weight than the weight of normal child as the weight of the normal child is 2-1/2 to 3/1/2 kg. hence there was oozing out of blood which caused abnormal bleeding to the victim. However, from perusal of the case diary it is apparent that there is no expert opinion about the nature of the negligence on the part of the doctor and nurses who were attending the victim. The general opinion of the layman mentioned in case diary that there was negligence on the part of the doctor and nurses. Learned counsel for the petitioner however, contends that petitioners are nurses and made accused in this case whereas no specific role has been attributed to them about their act of commission or omission. However, having regard to the fact that there is no mentioned what act of commission and omission has been committed by the doctor which can be alleged to be negligence on his part. However, there is no material and there is no specific assertion except that negligence has been committed in cutting the „Naar‟ of the child, though, there is no expert opinion nor opinion of the doctor who attended the victim subsequently at Patna and Ara about the nature of negligence and there is nothing in the case diary about any expert opinion to held that there was negligence on the part of the doctor or nurses to attract criminal liability. However taking into consideration the fact and circumstance of the case, decision reported in AIR 2005 SC 3180 (Jacob Mathew Vrs. State of Punjab) in para 53 quoted as follows; .......A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in Government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolams test to the facts collected in the investigation........ Hence to fasten the liability of the doctor in case of negligence on his part there must be an expert opinion of a doctor in Government Service. However, from perusal of the case diary I found that there is no opinion about negligence by a doctor in Government service, though, the victim was treated at Arrah and Patna at P.M.C.H. However, the charge sheet has been submitted on the general and omnibus opinion of the layman that there is negligence by the doctor. However, negligence is used for fastening the defendant with liability in civil law. However, the aspect of indiscriminate prosecution of medical profession considered by Supreme Court in A.I.R. 2005 SC held that indiscriminate prosecution of medical professional for criminal negligence is counter productive and does not good on service to society. However, it is well settled that jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law for negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot from the basis of prosecution. Hence in that view of the fact and circumstance of the case allowing cognizance and prosecution to continue who are none else then nurses without any specific role assigned to them either in the allegation made in complaint nor in the evidence collected during investigation shall be abused of the process of the court and there is no material against them for act of commission or omission in the given fact and circumstance of the case that no medical professional in his ordinary services and prudence would have done or fail to have done. It is pertinent to mention that there is difference in between negligence which leads to criminal liability and negligence which amount to a civil consequence. However, in criminal prosecution there must be shown negligence on the part of the doctor is gross negligence. However, negligence which is neither gross nor of a very higher degree may provide for tortuous action but cannot form the basis of criminal prosecution and prosecution on these materials is an abuse of the process of the court. Hence in that view of the matter the order taking cognizance is appreciation without due application of mind and allowing the prosecution to continue is abuse of the process of the court and hence the impugned is hereby quashed and petition is allowed.
Posted on: Mon, 20 Oct 2014 19:34:12 +0000
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