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Friday, February 28, 2014

Quashing of complaint - Medical Negligence - Judicial Negligence - Private complaint against accused after two years of discharge of patient as the Hospital issued a cheque bounce notice against the cheque issued towards fee by patient - Accused filed a petition to quash the complaint - High court wrongly framed an issue that the patient was died and under the same impression dismissed the petition of accused - correction petition filed by accused was also allowed in review pending appeal with out notice to accused - Apex court held that it is nothing but a Judicial Negligence , other wise with out pleadings , how the high court come to a conclusion that the patient is dead and after judgment how the high court correct the mistake as typographical when the order itself based on that finding and as such set aside the order of the High court and allowed the petition = Daljit Singh Gujral & Ors. .. Appellants Versus Jagjit Singh Arora & Ors. .. Respondents = 2014(Feb.Part) judis.nic.in/supremecourt/filename=41269

Quashing of complaint - Medical Negligence - Judicial Negligence - Private complaint against accused after two years of discharge of patient as the Hospital issued a cheque bounce notice against the cheque issued towards fee by patient - Accused filed a petition to quash the complaint - High court wrongly framed an issue that the patient was died and under the same impression dismissed the petition of accused - correction petition filed by accused was also allowed in review pending appeal with out notice to accused - Apex court held that it is nothing but a Judicial Negligence , other wise with out pleadings , how the high court come to a conclusion that the patient is dead and after judgment how the high court correct the mistake as typographical when the order itself based on that finding and as such set aside the order of the High court and allowed the petition = 

the  judgment  is
vitiated by an error apparent on the face of the record, which goes  to  the
very root of the matter in a case relating to medical negligence.=

 We are dealing with the case of  medical  negligence  and  we  wonder
whether this case borders on judicial negligence or the  negligence  of  the
parties to point out that the issue was wrongly  framed.  
Pleadings  of  the
parties nowhere state that the patient is dead.  
Learned  Single  Judge,  it
is seen, has framed  two  issues,  after  perusing  the  records  and  after
hearing the arguments of the learned  counsel  for  the  parties.   
When  we
peruse the records, as already stated, we do not  find  any  statement  that
the wife of Respondent No. 1 is no more.  
The entire thought process of  the
Judge centered round  on  an  incorrect  premise  that,  due  to  the  gross
negligence on the part of the appellants,  the  wife  of  Respondent  No.  1
died.

14.   We may also  further  indicate  that  the  learned  Single  Judge  has
expressed the opinion so expressively  in  the  judgment  which  practically
forecloses all the defences available to the parties, who  are  supposed  to
face the trial.  The learned Single Judge, though ultimately indicated  that
the view is only a prima facie view, but a reading of the  entire  judgment,
it would show otherwise.   Judgment  cannot  be  sustained  on  any  ground.
Consequently, the judgment dated 16.11.2012 as well as the subsequent  order
11.2.2013 passed in the review petition, would stand set aside.    The  High
Court is directed to rehear Crl. Misc. Petition No.M-25733 of  2011  afresh.


15.   The Appeals are, accordingly, allowed.

2014(Feb.Part) judis.nic.in/supremecourt/filename=41269
K.S. RADHAKRISHNAN, VIKRAMAJIT SEN
                                                                 REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                    CRIMINAL APPEAL NOS. 506-508 OF 2014
              [Arising out of SLP (Crl) Nos.2421-2423 of 2013]


Daljit Singh Gujral & Ors.              .. Appellants

      Versus

Jagjit Singh Arora & Ors.                    .. Respondents



                               J U D G M E N T



K. S. RADHAKRISHNAN, J.


1.    Leave granted.


2.    We are of the  considered  view,  after  hearing  the  senior  counsel
appearing for the Appellant and the party-in-person, that  the  judgment  is
vitiated by an error apparent on the face of the record, which goes  to  the
very root of the matter in a case relating to medical negligence.

3.    The Appellants herein approached the High Court of  Punjab  &  Haryana
under Section 482 of the Criminal Procedure Code (for short  “Cr.P.C.”)  for
quashing complaint Case  No.7506/09/11  dated  9.6.2008  and  the  summoning
order 26.7.2011 passed by the Court of Judicial  Magistrate  (First  Class),
Chandigarh.

4.    The Appellants herein are in  the  management  of  a  hospital  named,
INSCOL Multispecialty  Hospital,  Chandigarh.   On  1.8.2005,  the  wife  of
Respondent No.1, by name, Inderjeet Arora, approached  Dr.  Jayant  Banerjee
and, on his advice, she was referred to the above-mentioned  hospital.   She
was admitted in the ICU by Dr. Jayant Banerjee and was attended  by  doctors
of the hospital.  Later, she was discharged from the  hospital  on  2.8.2005
on the request of son of Respondent  No.1.  On  a  total  hospital  bill  of
Rs.1,01,858/- a sum of Rs.30,000/- was paid and, for rest of the  amount,  a
cheque was issued by Respondent No.1, husband of the patient.  On  9.8.2005,
the cheque was presented by the bankers of the hospital, but  the  same  was
dishonoured, which fact was brought to the notice of Respondent No.1 by  the
hospital  authorities.   Thereafter,  the  cheque  was  presented  twice  on
12.11.2005 as well as on 16.11.2005 but, on both occasions, the  cheque  was
dishonoured.   Later, a legal notice under Section  138  of  the  Negotiable
Instruments Act, 1881, was issued to Respondent  No.1  claiming  the  cheque
amount.  According to the Appellants, this annoyed  Respondent  No.1  and  a
complaint was filed against the doctors of the hospital  before  the  Punjab
Medical Council.   The Medical Board met on 3.10.2006 and,  after  examining
the complaint as well as the comments of the doctors,  passed  an  order  on
the same date exonerating Dr. Jayant Banerjee holding that proper  procedure
was followed and there was no gross negligence on the part of  the  hospital
authorities or the Doctors.   Respondent No.1, after a lapse of  two  years,
on 9.6.2008, filed a complaint  under  Section  156(3)  Cr.P.C.  before  the
Chief Judicial Magistrate, UT Chandigarh for  registration  of  FIR  against
the Appellants  for  the  commission  of  offence  under  various  sections,
including Section 15(2)(3) of the Indian Medical  Council  Act,  1956.   The
learned Judicial Magistrate, First Class, Chandigarh, on 13.6.2008 sent  the
complaint for registration as it was  under  Section  156(3)  Cr.P.C.    The
said order was challenged by the Appellants by filing  Crl.  Misc.  Petition
No.17013 of 2008 before the Punjab & Haryana High  Court.   The  High  Court
vide its order dated 19.2.2009  quashed  the  FIR  by  granting  liberty  to
Respondent  No.1  to  approach  the  Judicial   Magistrate,   First   Class,
Chandigarh.   Before  the  Judicial  Magistrate,  First  Class,  Chandigarh,
Respondent No.1 submitted that he did not want to press the complaint  under
Section 156(3) Cr.P.C., but requested  that  the  complaint  be  treated  as
under Section 202 Cr.P.C.  The learned  Magistrate,  entertaining  the  said
request, passed the order dated 26.7.2011 and  summoned  the  Appellants  to
face the trial for the offences punishable  under  Section  420/467/468/471/
326/120-B IPC and under Section 15 of the Indian Medical Council Act.

5.    Aggrieved by the summoning order, as already  stated,  the  Appellants
preferred Crl. Misc. No.M-25733 of 2011 before the High Court  for  quashing
the complaint Case No.7506/09/11.   The  High  Court  vide  impugned  order,
dismissed  the  Crl.  Misc.  Petition.   Later,  Respondent  No.1  filed  an
application being Crl. Misc. No.7776 of 2013 in  Crl.  Misc.  No.M-25733  of
2011, requesting the Court to carry  out  the  correction  of  the  judgment
praying that the word “death” or “died” be stated to be read  as  “brink  of
death”.   Review Petition was allowed by  the  High  Court  vide  its  order
dated 11.2.2013,  without  notice  to  the  appellants.   Those  orders,  as
already indicated, are under challenge in these appeals.

6.     We  heard  Shri  P.S.  Patwalia,  learned  senior  counsel  for   the
Appellants, as well as Shri Jagjit Singh  Arora,  who  appeared  in  person.
Shri Patwalia submitted that the judgment  as  well  as  the  order  in  the
review petition is vitiated by serious error on the face of the  record  and
liable to be set aside and the High Court be directed to rehear  the  matter
in accordance with law. Respondent No.1, the party-in-person, on  the  other
hand, submitted, on facts as well as on  law,  that  the  judgment  and  the
order in the review petition are unassailable  and,  therefore,  the  matter
could be examined by this Court on merits.

7.    We have gone through the main judgment and the  order  passed  in  the
review petition in their entirety.  The learned Single  Judge  of  the  High
Court while deciding the case formulated  two  questions  ,  which  read  as
follows :-
      “1.    Whether  the  Managing  Director  and   the   Director,   being
           administrators of the Hospital can be made criminally liable and
           prosecuted under the provisions of the Indian Penal Code and for
           having appointed unqualified doctor which  resulted  into  wrong
           treatment and consequential death of  a  patient  and  can  they
           claim immunity from prosecution for the offences in  which  they
           have been summoned in the present complaint?
                                                         (emphasis supplied)


      2.    Whether the offences of cheating, tampering with  the  documents
           and causing grievous hurt are made out in conspiracy  with  each
           other?

8.    On the first point, after going through the facts in detail and  after
hearing the parties, the learned Single Judge concluded as follows :
      “In the present case, Petitioner Nos.1 and 2 being  Managing  Director
      and Director are directly criminally liable and their liability  stems
      from failure to use reasonable care in the  maintenance  of  safe  and
      adequate facilities  and  equipment  i.e.  ventilator  which  was  not
      available at the time when the patient was in need.   Needless to say,
      it is the duty of the petitioner No.1 and 2 to select and retain  only
      competent physician/doctor and medical supporting staff.  But in  this
      case, they had retained petitioner no.3 who is an unqualified  doctor.
      It is the duty of the petitioner nos.1 and 2 to  oversee  all  persons
      who practice medicine within its faculty and also owe duty  to  ensure
      quality of health care services.   Here  in  this  case,  there  is  a
      glaring failure on the part  of  petitioner  nos.1  and  2  to  retain
      competent and qualified doctors and equipping  the  facility.  In  the
      present case, the standard of negligence, breach  of  duty,  causation
      and damage  is  no  different  than  in  any  other  case  of  forming
      negligence.  Hence, for that reason, petitioners are  directly  liable
      for the injury caused to the patient because the  doctor  in  question
      was not having State Medical Council licence to practice  medicine  as
      per the Medical Council of India Act,  1961  and  Medical  Council  of
      India Rules  under  which  Medical  Council  of  India  certifies  the
      doctors/physicians and regulate competency and professional standards.
      There is a clear failure on the part of  petitioner  nos.1  and  2  to
      evaluate the qualification of petitioner no.3 who has been inefficient
      to adequately determine his competency.  Since there has  been  breach
      of duty by petitioner nos.1 and 2, they are  prima  facie  responsible
      for injury resulting from  that  breach/incompetence  as  well  as  in
      forging the  documents.   There  is  a  clear  failure  to  check  the
      credentials and employment history of petitioner no.3.”


On the second question, after referring to the various  statements  made  by
Dr. Sudhir Saxena and the evidence of complainant (CW9) and  also  referring
to the invoices CW-9/2 and CW-9/12, the learned Single  Judge  concluded  as
follows:


      “This prima facie proves forgery and  cheating  on  the  part  of  the
      petitioners.   The documentary evidence prima facie  proves  that  Dr.
      N.P. Singh never visited the hospital and the record of  the  hospital
      has been manipulated to save themselves.   There is a clear conspiracy
      between the petitioners and Dr. Jayant Banerjee  for  fleecing  money.
      The principles of law laid down in  Jacob  Mathew  (supra)  and  Kusum
      Sharma (supra) are not applicable in the present case.


      In view of  the  above  discussion,  this  Court  does  not  find  any
      illegality or perversity in the impugned summoning order.  It is  well
      settled law that while summoning an accused, the trial  Court  is  not
      required to give detailed reasons, only  prima  facie  application  of
      mind is a necessity.   In the present case, the  learned  trial  Court
      has passed a reasoned order for summoning the petitioners.”


9.    We notice that on reaching those conclusions,  as  already  indicated,
the very first issue framed  by  the  learned  Single  Judge  was  that  the
patient died due to wrong treatment and medical negligence.  Learned  Single
Judge was examining prima  facie  the  issue  of  medical  negligence  which
resulted in the death of the patient.  The entire approach  of  the  learned
Single Judge while entering a finding on the two questions framed  was  that
due to medical negligence, the patient died.  The said fact is reflected  in
the whole gamut of the judgment.   In  one  portion  of  the  judgment,  the
learned Single Judge has stated as follows :
      “The condition of Mrs. Arora extremely deteriorated  and  she  had  to
      remain hospitalized in ICU of Fortis Hospital for about 2  months  and
      thereafter, she was shifted to PGI,  Chandigarh,  where  she  remained
      admitted for one month. Ultimately, she died.”


Later, the learned Single Judge also opined as follows :-

      “The hospital authorities had  employed  unqualified  doctors  in  ICU
      which resulted into death of Mrs. Arora in spite of best  efforts  for
      shifting to other  hospital,  like  Fortis  and  PGI.   Initial  wrong
      treatment in the INSCOL Hospital where the  unqualified  doctors  were
      employed resulted into death of respondent no.1’s wife which certainly
      amounts to an offence under the provisions of the Indian Penal Code.”

10.   We, therefore, notice that the entire reasoning of the learned  Single
Judge was centered round the  fact  that  he  was  dealing  with  a  medical
negligence case in which the patient died.    In  fact,  the  very  question
framed by the Court itself  refers  to  the  death  of  the  patient.    The
learned Single Judge, as already indicated, finally dismissed  the  petition
filed by the Appellants on 16.11.2012.

11.   The Respondents herein then preferred Crl. Misc.  Application  No.7776
of 2013 praying for correcting  some  omission/typographical  error  in  the
judgment.   The  learned  Single  Judge  entertained  that  application  and
expressed  the  view  that  no   notice   need   be   sent   to   the   non-
applicants/appellants since the application is only for  the  correction  of
accidental  omission/typographical  errors  crept  in  the  judgment   dated
16.11.2012.  The  learned  Single  Judge  opined  that  the  Court  has  the
inherent power to correct the typographical/clerical mistake brought to  the
notice of the Court.   The  learned  Single  Judge,  therefore,  passed  the
following order on 11.2.2013 :
      “Registry is directed to make following corrections and put up a  note
      at the end of the judgment in the shape of  corrigendum  so  that  the
      same may be read as part of the judgment dated 16.11.2012:


      “1.   The word “died” at page No.3 be read as “was brought to brink of
           death.”


      2.    The word “death” be read as “condition to  brink  of  death”  at
           page nos.3, 7 and 16  and  where  the  word  “dead”  or  “death”
           appears in the judgment, it should be as “the brink of death”.


      3.    “Grewal” be read as “Gujral” at page no.5.


      4.    “rectified” be read as “ratified” at page no.6.


      5.    “Medical Council” be read as “Chandigarh Police” at page No.10.


      6.    “Section 14(2)” be read as “Section 15(2a)” at page no.11.


      7.    “and mind of” be read as “behind” at page no.12 and 22.


      8.    “nervous centre” be read as “nerve centre” at page no.13.


      9.    “Faculty” be read as “Facility” on Page No.19,


      10.   “Dr. N.P. Singh” be read as “Dr. Sudhir Saxena” at page 24.”


12.   We do not agree that the learned Single Judge  was  merely  correcting
an accidental omission or typographical error.  By correcting the  judgment,
the very foundation and the issue formulated, broken down and  fell  on  the
ground and the issue framed by the learned Single Judge, lost its  sanctity.
  The learned Single Judge cannot correct an issue  which  has  been  framed
and answered.  As already indicated, the first issue framed is  with  regard
to the “wrong treatment and consequential death of a  patient”  and  it  was
that issue which was answered, then we  fail  to  see  how  the  application
preferred by the Respondents for review can be  treated  as  an  application
for correcting accidental omission or typographical error, that too  without
notice to the appellants herein.

13.    We are dealing with the case of  medical  negligence  and  we  wonder
whether this case borders on judicial negligence or the  negligence  of  the
parties to point out that the issue was wrongly  framed.  Pleadings  of  the
parties nowhere state that the patient is dead.  Learned  Single  Judge,  it
is seen, has framed  two  issues,  after  perusing  the  records  and  after
hearing the arguments of the learned  counsel  for  the  parties.   When  we
peruse the records, as already stated, we do not  find  any  statement  that
the wife of Respondent No. 1 is no more.  The entire thought process of  the
Judge centered round  on  an  incorrect  premise  that,  due  to  the  gross
negligence on the part of the appellants,  the  wife  of  Respondent  No.  1
died.

14.   We may also  further  indicate  that  the  learned  Single  Judge  has
expressed the opinion so expressively  in  the  judgment  which  practically
forecloses all the defences available to the parties, who  are  supposed  to
face the trial.  The learned Single Judge, though ultimately indicated  that
the view is only a prima facie view, but a reading of the  entire  judgment,
it would show otherwise.   Judgment  cannot  be  sustained  on  any  ground.
Consequently, the judgment dated 16.11.2012 as well as the subsequent  order
11.2.2013 passed in the review petition, would stand set aside.    The  High
Court is directed to rehear Crl. Misc. Petition No.M-25733 of  2011  afresh.


15.   The Appeals are, accordingly, allowed.


                                                    eard Hear……………………………..J.
                                             (K. S. Radhakrishnan)



                                                    eard Hear……………………………..J.
                                            (Vikramajit Sen)
New Delhi,
February 27, 2014.

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