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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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