AJAI LAMBA, J. - (1.) THIS petition under Section 482, Code of Criminal Procedure, has been filed with a prayer for quashing FIR No. 177 dated 21.7.2002 under Sections 304-A, 201, 34, Indian Penal Code, Police Station, Sirhind (Annexure P-1) and subsequent proceedings, including the final report submitted under Section 173, Code of Criminal Procedure.
(2.) THE FIR was lodged at the instance of Naresh Kumar (respondent No. 2) with the allegations that his wife-Veena Rani had complaint of tonsils on account of which she had fever from time to time. Veena Rani was medically checked up at Government Hospital, Fatehgarh Sahib, where Dr. Saroj Sethi (petitioner No. 1) advised surgery. Necessary medical check up was conducted on the person of Veena Rani and she was, accordingly, admitted on 17.7.2002. The surgery was scheduled for 18.7.2002, as per the instructions of the doctor. At about 8.30 a.m., Veena Rani was taken to the Operation Theater. At about 11.45 a.m., a Class-IV official came and stated that the surgery had been conducted successfully. Soon thereafter, however, the complainant found an Ambulance parked outside the Emergency and the driver informed the complainant that the patient had become serious and was being sent to the P.G.I., Chandigarh. The Ambulance had been called by Dr. Saroj Sethi (petitioner No. 1). Veena Rani was, accordingly, shifted in the Ambulance. On the way, artificial respiration was given by the accompanying doctors. On reaching P.G.I., Chandigarh, the doctor posted in the Emergency Ward informed that Veena Rani had expired. Initially, respondent No. 2-complainant had stated that he did not want to take any action. Respondent No. 2, at that point in time, was perplexed due to shock on account of death of his wife. After having become conscious of the fact, respondent No. 2 wanted to see the record of treatment. Dr. Saroj Sethi did not, however, show any document regarding surgery. After receipt of report of post-mortem, all the papers had been seen whereupon respondent No. 2 became confident that the death had occurred during the course of treatment given by the petitioners on account of their negligence and, therefore, action be taken.
(3.) THE main contention of the learned counsel for the petitioners is that the Hon'ble Supreme Court of India in Jacob Mathew v. State of Punjab and another, 2005(3) RCR(Crl.) 836 : 2005(2) Apex Criminal 649 : AIR 2005 Supreme Court 3180, has summed up the cases of the present nature and has held that negligence in the context of medical profession necessarily calls for a treatment with difference. Reliance has been placed on sub-paras (2), (5) and (7) of para 49, which read as under :- "(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used." "(5) The 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 form the basis for prosecution." " (7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent." In the context of the judgment, relevant portion of which has been reproduced above, learned counsel for the petitioners has drawn the attention of the court towards three reports received at various points in time, in regard to the quality of treatment given to Veena Rani. In para-9 of the petition, the opinion given by the Board of Doctors of the Department of Forensic Medicine, Government Medical College and Hospital, Patiala, on 8.10.2002, has been reproduced and the same reads as under :- "From PMR and report of HPE of viscera, the cause of death in our opinion in the case noted above is Asphyxia due to chocking as a result of Aspiration of blood in the Respiratory Passage." ;