Court shows door to unscrupulous complainant on opinion

Jammu, November 26
Sub-Judge (Special Mobile Magistrate), Kathua-Sunil Sangra has dismissed a criminal complaint filed by one Parkash Singh S/o Saran Singh R/o Village Kamla, Tehsil and District Kathua alleging medical negligence by Dr. A.K. Gupta of Gupta Hospital and Research Centre, National Highway, Kali Bari, Kathua while conducting an operation for removing a stone in the kidney.
After hearing Advocate V.S. Baloria appearing for the complainant and Chief Prosecuting Officer-Bodh Raj appearing for the State, the Special Mobile Magistrate, Kathua-Sunil Sangra observed that the position which crystallizes after due filtration of the facts and circumstances of the case as well as medical opinion of Dr. Sunil Gupta-Professor and Head, Department of Surgery, Govt. Medical College, Jammu it is established that the complainant suffered complicacy after his post-operation due to non-adhering to Doctor’s advice for blood transfusion. The court further observed that in the present case after going through the expert medical opinion the court finds that there is no direct or indirect evidence to create a nexus between the operation for removal of stone from kidney and the treatment administered by Dr. A.K. Gupta was negligent in treating the complainant. The expert appointed by the court in the present case i.e. Dr. Sunil Gupta HOD Surgery GMC, Jammu has not found any negligence on the part of Dr. A.K. Gupta but he found complicacy of post-surgery occurred due to complainant’s own negligence for not following the advice of the Doctor after surgery.
The Special Mobile Magistrate Kathua while referring two Supreme Court Judgments titled Martin F. D’souza V/s Mohd. Ishfaq, AIR 2005 SC 2049 and Achutrao Haribhau Khodwa V/s State of Maharashtra observed that medical negligence is a complicated subject and the liability of a Doctor always depends upon┬áthe circumstances of a particular case and the Apex Court has issued the guidelines that whenever a complaint is received by a Forum or Criminal Court it should first refer the matter to a competent Doctor or Committee of Doctors specialized in the field relating to which the medical negligence is attributed and only after that doctor or committee reports that there is a prima facie case of medical negligence and only thereafter the notice should be issued to the concerned doctor/hospital. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. The Apex Court has further warned the Police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew’s case, otherwise the policemen will themselves have to face legal action.
In the instant case a patient Parkash Singh on September, 10, 2016 lodged a complaint against Dr. A.K. Gupta of Gupta Hospital and Research Centre, Kathua levelling serious allegations of medical negligence and the Special Mobile Magistrate, Kathua vide his order dated September, 10, 2016 exercised his powers under Section 202 CrPC and initiated the preliminary enquiry and directed the SSP Kathua and SHO, Police Station, Kathua to obtain the medical opinion from HOD Surgery, Govt. Medical College, Jammu with regard to the allegations of medical negligence levelled by the complainant. The police accordingly approached the expert alongwith the entire medical records and the HOD Surgery vide his communication No.428 dated October, 18, 2016 completely ruled out the medical negligence on the part of Dr. A.K. Gupta and reprimanded the complainant for not adhering to the advice of Dr. A.K. Gupta who had advised blood transfusion on July, 15, 2016 when the patient had visited him.
It is worthwhile to mention herein that Dr. A.K. Gupta during the pendency of the criminal complaint filed a petition in the State High Court seeking quashment of the malafide complaint lodged by the Patient and also setting aside of the order dated September, 10, 2016 passed by Judicial Magistrate 1st Class, Kathua. In the petition Dr. A.K. Gupta alleged that the criminal complaint was filed by the complainant just to blackmail and to extract money from him and he further alleged in his petition that a local scribe approached him for striking a deal for settling the matter out of court to which he had not agreed. Dr. A.K. Gupta at the time of consideration of the petition by the High Court had submitted that the patient who was in league with the local scribe had demanded Rs.20.00 lacs for not pressing the complaint before the court below at Kathua. The State High Court on October, 25, 2016 disposed of the petition with a direction to the Special Mobile Magistrate, Kathua to pass appropriate orders in the matter in the light of the preliminary enquiry report submitted by SSP Kathua to the court below on October, 22, 2016 wherein the expert medical opinion had been annexed ruling out the case of medical negligence.
The Special Mobile Magistrate, Kathua after the receipt of the directions from the State High Court and after considering the preliminary enquiry report dated October, 19, 2016 passed a detailed order with the observations that having considered the preliminary enquiry report based on medical opinion in the peculiar aforesaid facts and circumstances in its cumulative, the inescapable conclusion reached is that the complaint, in court’s considered opinion, is without merit and therefore, it can be safely said and held, that nothing substantial has been brought on record which would support the allegations of the complainant and the preliminary enquiry report dated October, 19, 2016 and medical opinion of Dr. Sunil Gupta HOD Surgery GMC, Jammu dated October, 18, 2016 are accepted and complaint dated September, 10, 2016 filed under Section 156(3) CrPC by complainant is rejected.
With these observations and directions the Special Mobile Magistrate, Kathua Sunil Sangra dismissed the complaint filed by Parkash Singh. JNF

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