Dr. Vipul Shah v. State of U.P.
Case undder section 482/378/407 No. – 1670 of 2016, Decided on 30th May, 2016 by the Hon’ble Allahabad High Court.
Facts: Nidhi Srivastava, wife of informant Sudhir Srivastava was admitted in Sahara Hospital, Lucknow on 17-10-2010 from where she was discharged on 21-10-2010. For redressal of shoulder pain treatment was done by Dr. Vipul Shah who even after noticing the damage in liver (ALT 121) prescribed ‘Lefra’ (Leflunomide 10mg) alongwith other medicines and advised to visit again. On 5-11-2010, Dr. Shah advised her to continue the same medicines for one and half month. Dr. Shah did not advise any diagnostic test for liver enzymes nor he informed about adverse effects of Lefra. On 22-11-2010, she became ill again and since then she was getting treatment from different doctors. She was shifted to Fortis Hospital, Delhi on 23-11-2010. Dr. Ashok Kumar, Rheumatologist informed that liver of informant’s wife has been damaged as a result of Lefra. Ultimately, she expired on 17-01-2011 in the Fortis Hospital itself. Cause of death was shown to be Lefra induced hepatitis drug. Then, informant wrote to Torrent Pharmaceutical Limited which informed that the patient having liver problems should not be prescribed Lefra. Moreover, Dr. Shah did not prescribe any liver guard. He was not competent to prescribe Lefra as he is only an orthopaedic Surgeon. As such, Dr. Shah has manifested medical negligence in treatment of complainant’s wife causing her death. Moreover, Dr. Shah’s credentials were disputed by General Medical Council, United Kingdom as well as United States of America. They categorically denied having licensed Dr. Vipul Shah. He used forged certificate and claimed to be an internationally acclaimed medical practitioner, etc. On this F.I.R. dated 12-8-2011, case was registered at Crime No. 246 of 2011, under Sections 420/304-A I.P.C., Police Station Kaiserbagh, District Lucknow. After investigation, charge sheet was submitted under Sections 304/420 I.P.C. on 9-6-2015. Cognizance was taken on the same day by C.J.M., rejecting the application filed by Dr. Vipul Shah challenging the cognizance. Both charge sheet and cognizance order dated 11-3-2016 were challenged under Section 482 of Cr.P.C.
Observations: This is a technical area and even experts cannot say with certainty as to what could be the causes or single cause for death. Judges are also not expert of this science. After the patient was treated by Dr. Vipul Shah, a number of doctors including super specialty doctors at Agra, Fortis and SGRH, New Delhi treated the patient and according to the informant, even those doctors could not make correct diagnosis and diagnosis made by SGRH, New Delhi was doubted by Fortis Hospital. When super specialty Hospitals differ on diagnosis, could a single act ought to be faulted for death, especially when this medicine was allegedly taken only for 18 days.
She remained in various hospitals including two reputed hospitals nearly for two months. It is not on record that when she was admitted in SGRH or Pushpanjali Hospital, her liver had become completely damaged. There is no material whether she had taken all the medicines alongwith Lefra. Death was not instantaneous. Loaded dose of Lefra 100 mg was not prescribed, only 10 mg was prescribed. Death was caused nearly after two months and 20 days. Dr. Vipul Shah was suspended for three years by the Medical Council of India for prescribing a medicine without properly explaining the medicine’s adverse effect. Moreover, he was not a Rheumatologist. These materials, prima facie, show that Dr. Shah had prescribed the medicines without properly informing the attendant with the side effects, who may be or may not be in ignorance of its side effects. Can it be said that Dr. Vipul Shah was guilty of culpable homicide or will it be a case of gross criminal negligence? In the absence of any material showing that Dr. Shah had intention or knowledge that prescription of Lefra could cause death, could he be chargesheeted under Section 304 I.P.C.? Intention is an invisible fact which can be inferred from surrounding circumstances and pre and post conduct. Admittedly, the complainant had earlier been the patient of Dr. Shah who had treated his lower back pain with satisfaction. There was no enmity or reason for causing damage to liver. Moreover, during the period his wife was under treatment of different doctors, the complainant kept on informing and consulting Dr. Shah. This displays faith on him. There could be an act of ignorance, may be because of the anxiety to show early relief, especially when parameters had progressed as is apparent from the report of Sahara Hospital. The Doctor has to take number of decisions in the best interests of the patient on the spot. Reaction of medicines on every body is different, in fact every body is different. As such, in the absence of any specific material, it could not be possible to charge a doctor with mens rea. He is supposed to keep best interests of patient in mind. Every medicine has some side effect. Sometimes in order to check greater damage or bring immediate relief, contraindicated medicines are prescribed and liver or kidney are taken care of by prescribing protective guards. In the case of Carcinoma, drugs are prescribed which almost compromise the immunity of the body yet they are administered in order to save the life and liver and kidney guard medicines, enzymes,’ bacterias for protecting elementary canal are prescribed. For preventing greater damage and for guarding other important organs of the body, some decisions have to be left with the doctor and in such cases the doctor cannot be faulted by the court. Needless to say that doctors are human. They only treat according to their knowledge, experience and wisdom. Criminal prosecution should not be initiated in every case of failure. This Court can very well visualize the agony of the husband whose wife’s condition was worsening day by day and he was running from doctor to doctor, hospital to hospital to save his wife. His efforts, helplessness do arouse emotional outrage. His mental agony, pressure and suffering are difficult to explain. It was very difficult to endure this period and the Court has full sympathy with the complainant but rigors of law cannot be diluted so as to bring in criminal prosecution for murder. Balancing act is expected from the Court. Medical profession and doctors have also to be saved from unnecessary litigation allowing them to discharge their duties fearlessly sans a lurking fear of court/litigation and the ordeal it follows. The doctor may be incompetent or negligent but not guilty of culpable homicide. There is thus distinction between Section 304 and Section 304A. Section 304A carves out cases where death is caused by doing a rash or negligent act which does not amount to culpable homicide not amounting to murder within the meaning of Section 299 or culpable homicide amounting to murder under Section 300, IPC. In other words, Section 304A excludes all the ingredients of Section 299 as also of Section 300. Where intention or knowledge is the ‘motivating force’ of the act complained of, Section 304A will have to make room for the graver and more serious charge of culpable homicide not amounting to murder or amounting to murder as the facts disclose. The section has application to those cases where there is neither intention to cause death nor knowledge that the act in all probability will cause death.
Held: In this case at hand, the Hon’ble Apex Court was pleased to dismiss the S.L.P. as charge sheet has been filed. After dismissal of appeal, cognizance has been taken by learned Magistrate vide order dated 11-3-2016 which order has been challenged in this Court. Submission of complainant that petition is not maintainable, does not appeal as cause of action has arisen on account of impugned order passed by the C.J.M., taking cognizance on 11-3-2016. Allegations of concealment or manipulation or influencing investigation or change of investigation officer, are not being examined as charge sheet has been filed. In view of the above, this Court is of the view that C.J.M. while taking cognizance has not considered the material nor given any specific reason for taking cognizance under Section 304 I.P.C. In fact, his order is laconic and non-speaking. Application was filed before the C.J.M. and therefore, while considering the application, he ought to have applied his mind to material on record. In view of the discussion made above, from the record of prosecution this Court is prima facie of the view that there was no justification to take cognizance under Section 304 I.P.C. However, considering the facts and circumstances of the case, it cannot be said that offence under Section 304A I.P.C. is not made out. Even otherwise the C.J.M. is not bound by the opinion of the I.O. He has to apply his mind to the papers submitted by the I.O. and then take a decision of taking cognizance. He is not supposed to put his seal on the conclusion drawn by the I.O. Consequently, this petition succeeds in part. Chargesheet is not quashed. Order taking cognizance dated 11-3-2016, under Section 304/420 I.P.C. is quashed. Case for taking cognizance under Section 304A/420 I.P.C. is definitely made out. The C.J.M. is directed to pass fresh order in the light of observations made above within a week from the date a certified copy of this order is filed before him. The Petitioner is directed to appear before the learned Magistrate within two weeks from today. If he surrenders within two weeks from today and applies for bail, his prayer for bail will be considered by the C.J.M. in accordance with law, expeditiously, in view of the law laid down by the Hon’ble Apex Court in the case reported in 2009 (3) ADJ 322 (SC)–Lal Kamlendra Pratap Singh v. State of U.P. It is open for the C.J.M. to resort to all the processes against petitioner which are admissible in law, if he does not surrender within fifteen days. It is clarified that observations made in the judgment will not influence the trial which will be decided on the basis of evidence adduced before the trial court. It is always open to the Magistrate to alter the charge if he finds that a graver offence is made out.