Case Note & Summary
The applicant, Smt. Nirmalaben w/o Narayanbhai Parmar, filed a criminal application under Section 482 of the Code of Criminal Procedure, 1973, aggrieved by the judgment and order dated 5.7.2007 passed by the Additional Sessions Judge, Gondia, in Criminal Revision No.24 of 2006. The revisional court had quashed the process issued by the trial court under Section 304A of the Indian Penal Code, 1860, against respondent no.1, Dr. B.K. Choudhary, a medical practitioner. The applicant alleged that respondent no.1, who was not qualified to perform major surgery or administer anaesthesia, performed a caesarean operation on her daughter, resulting in her death due to negligence. The applicant argued that the revisional court quashed the process without proper reasons and that the doctor's lack of qualification and negligence were evident. Respondent no.1 contended that his certificate/degree entitled him to perform surgery and caesarean operations, and he produced a copy of the same. The High Court heard the learned counsel for both parties and the learned APP. The court noted that the revisional court had made marshalling of facts at a stage when no evidence had been led, which was improper. However, the court held that in view of the Supreme Court decisions in Martin F D'Souza v. Mohd. Ishfaq (AIR 2009 SC 2049), Jacob Mathew v. State of Punjab (AIR 2005 SC 3180), and Dr. Suresh Gupta v. Govt. of N.C.T. of Delhi (2004 Cri.L.J. 3870), the order quashing the process at this stage was correct. The court partly allowed the criminal application, upholding the quashing of process but directing the Magistrate to first obtain a report from the committee contemplated by the Supreme Court decisions by referring the entire matter to it. The observations made by the revisional court on merits were not to be considered by the Magistrate, who was to proceed according to law after receiving the reports.
Headnote
A) Criminal Law - Medical Negligence - Section 304A Indian Penal Code, 1860 - Quashing of Process - The applicant's daughter died after a caesarean operation performed by respondent no.1, a B.A.M.S. doctor. The trial court issued process under Section 304A IPC. The revisional court quashed the process. The High Court upheld the quashing but directed the Magistrate to first obtain a report from a committee as per Supreme Court decisions before proceeding further. Held that at the stage of process, without expert evidence, quashing was correct, but the matter must be referred to a committee for opinion on negligence (Paras 1-6).
Issue of Consideration
Whether the revisional court was correct in quashing the process issued under Section 304A IPC against a doctor for alleged medical negligence, and what procedure should be followed in such cases.
Final Decision
Criminal application is partly allowed. The order of the revisional court quashing the process at this stage is upheld. However, the Magistrate shall now, in the light of the Supreme Court decisions, first obtain a report from the committee by referring the entire matter to the committee contemplated by the said decisions. Observations made by the revisional court on merits shall not be considered by the Magistrate, who shall proceed according to law after reports are received.
Law Points
- Medical negligence
- criminal liability
- Section 304A IPC
- expert committee report
- quashing of process
- inherent powers under Section 482 CrPC
