(Via Video Conferencing)(Oral)1. The present application has been filed under Section 439 Cr.P.C. read with Section 482 Cr.P.C. on behalf of the petitioner seeking regular bail in FIR No. 550/2015, initially registered under Section 315 IPC at Police Station Nangloi, Delhi.2. Learned counsel for the petitioner submits that the petitioner is 70 years of age and in terms of the decision in Jacob Mathew v. State of Punjab and Another reported as (2005) 6 SCC 1, he ought not to have been arrested. She submits that the petitioner is otherwise qualified as a medical surgeon and performed the surgery at the request of the hospital concerned. Lastly, it was submitted that the FIR is of the year 2015 but the petitioner has been arrested on 18.11.2020.3. Learned APP for the State, on the other hand, has vehemently opposed the bail application. She submits that although, initially, the FIR was registered under Section 315 IPC but subsequently, Section 304 IPC was added as the patient had expired. It was also stated that the petitioner, admittedly, was neither on the panel of the hospital nor even a visiting surgeon. The petitioner, knowing fully well that he was not a qualified Obstetrician & Gynaecologist, still performed the surgery when there was no urgency as the pregnancy was only 19-20 weeks old, which led to the death of the patient. Lastly, it was submitted that the charge sheet is yet to be filed and there is a strong possibility that the petitioner may tamper with the evidence.4. A complaint was made to Delhi Medical Council, which, after Disciplinary proceedings found all the concerned Doctors guilty of negligence. In fact, it was found that co-accused, Dr. Hitender Vashisht, the In-charge/Director of R.P. Memorial Hospital was not even registered with the DMC as he is not the holder of qualification in Modern Scientific System of Medicine and should refrain from pre-fixing ‘Dr.’ to his name. Learned APP for the state has referred to the Status Report where an opinion was sought from Delhi Medical Council. The relevant observations of the disciplinary committee are reproduced below:-“1. It is observed that the patient Smt. Poonam Joshi, 31 years old female with history G2 P 1 A 0 with 20 weeks pregnancy with placenta previa Grade IV with bleeding P/V ++ was admitted in R.P. Memorial Hospital at 9.00 p.m. on 8t h July, 2015. She was diagnosed as a case of four months Amenorrhea with placenta previa with bleeding P/V and taken up for hysterotomy on 08t h July, 2015 at R.P. Memorial Hospital. The surgical procedure was done by Dr. S.C. Gupta and spinal anesthesia was administered by Dr. A.K. Bhutani. As per the O.T. notes of the said Hospital, placenta was badly adherent, it did not separate spontaneously, it was removed manually in piece meals; uterine cavity started bleeding, uterus was curetted out, even bleeding did not stop. Injection Oxytocin, Methergin, Prostidine, tablet Mesoprost 600 mg sublingual given. It is claimed that both internal iliac arteries were ligated. Further, two blood unit were transfused alongwith three units of hemacseal, even then bleeding stopped a while. The patient thereafter shifted to higher government hospital for further management. The patient was referred to Lady Hardinge Medical College and Hospital on 9t h July, 2015 at 12.30 a.m. Infact, a note dated 9 th July, 2018 signed by Dr. A.K. Bhutani on letter head of R.P. Memorial Hospital makes a mention that the patient was in hypovoloemic shock.As per the MLC No.52352/15 which mentioned the arrival of the patient at Lady Hardinge Medical College to be 02.55 a.m. (the O.P.D. Card of Lady Hardinge Medical College mentions the doctor’s notes of 1.40 a.m. 09-07-2015, it is recorded that there was Alleged history of Abortion?? Hysterotomy??; further, on examination, the patient was unconscious, PR-not palpable, B.P-not recordable, RR-20/min, pupil-fixed and dilated, CVS-S1 S 2 + , HR 72 bpm. She infact was in hypovolemic shcok and in critical condition. Resuscitation measures were initiated. The patient was intubated and put on ventilator. The patient was managed in I.C.U. Subsequently, she underwent exploratory laparotomy f/b total hysterectomy with B/L internal iliac ligation (as per the notes dated 09-07-2015), under high risk consent on 9t h July, 2015. Per operatively ?one litre of hemoperitoneum was present, uterus-16-18 weeks, atonic, congested, bladder dissected down, e/o thinned out uterine wall anteriorly which spontaneously opened showing-500 cc clots and placental bits adherent to anterior uterine wall? placenta increta. Intra-abdominal and subrectal drains were inserted. Intra-operatively 1 unit hemacseal, 3 unit PCV, 4 unit FFP, 1 unit platelet were transfused. She was thereafter shifted to ICU. Her general condition continued to remain poor and on 13t h July, 2015 at 4.30 a.m., she had cardiorespiratory arrest and inspite of resuscitative measures was declared dead.As per the subsequent opinion dated 24t h July, 2017, in respect of post-mortem report No.346 dated 9t h July, 2015; the cause of death was multiple organ failure consequent upon disseminated intravascular coagulation and hypovolemia (hemorrhage) which is possible in a known case of pregnancy who had complications during and after the termination of pregnancy (hysterotomy i.e. 1s t operation).2. It is observed that as per the records available in this case, the patient went walking to the hospital with pain abdomen. Nowhere in the records, it is mentioned profuse bleeding was present on admission. USG dated 2n d July, 2015 of Mahindru Hospital had already detected placenta praevia type IV. No attempt was made to find whether it is adherent, in view of the fact that the patient also complained of pain. Intra-operatively placenta was found adherent. In such situation, one has to do hysterectomy rather than trying to remove placenta in piece melas. Piece meal removal of placenta results in torrential bleeding and if blood is not replaced well in time, the patient can have irreversible haemorrhagic shock, as it happened in the present case. The general surgeon (Dr. S.C. Gupta) is not well versed with obstetrical emergency procedures, hence, this patient should have been referred to a hospital set-up where gynaecologist was available alongwith the infrastructure to manage such a patient in the beginning only.3) It is noted that apparently R.P Memorial Hospital was approved by the Directorate of Health Services, Govt. of NCT of Delhi vide Regn. No.0018 dated 7t h April, 2011 for the purposes of MTP Act, 1971 and further, two FORM I signed by Dr. S.C. Gupta and Dr. Sunita Vashist, also establishes the fact that termination of pregnancy was being carried out on the patient Smt. Poonam, ostensibly to save her life, as opined by Dr. S.C. Gupta and Dr. Sunita Vashist. Neither Dr. S.C Gupta nor Dr. Sunita Vashist have post-graduate qualification in obst. & gynae. and thus, were not competent or qualified to consider or conduct the termination of pregnancy at 20 weeks.In the medical records of the said Hospital, essential vitals like blood-pressure, pulse rate, respiratory rate, urine output or any other clinical condition is not mentioned, which could have formed the basis for the opinion that the patient’s life was in danger and MTP was required to be carried out at pregnancy of 19 weeks-20 weeks (the Mahindru Hospital USG dated 02-07-15 confirms the pregnancy at 19 weeks 1 days with complete Placenta Praevia-Grade-IV) and the said MTP procedure was conducted on 8t h July, 2015.4) It is further observed that the record keeping in the case was abysmal to say the least, no anaesthesia chart, PAC record, have been maintained, neither the vitals of the patient have been recorded. Further, there is no mention of any specific surgical procedure/operations mentioned in the consent form. There is no separate consent or consent form for anaesthesia for undergoing procedure/operation. No signature of the doctor on the consent form is mentioned nor time of consent is mentioned.5) It is observed that Dr. S.C. Gupta who is a post-graduate in the field of surgery, transgressed into field of gynaecology by doing a procedure, for which, he is not trained and beyond his knowledge, skill and competence.”5. During the course of arguments, learned counsel for the petitioner made a bald assertion that no Doctor ought to be arrested in a case of medical negligence however, it is seen that in the present case, the Investigating Officer has taken an independent opinion from Delhi Medical Council, which conducted the Disciplinary proceedings. After considering the representations from the petitioner and others concerned and the medical reports, the Disciplinary Committee, comprising of four Doctors, found the petitioner guilty along with other co-accused persons. In fact, the Disciplinary Committee recommended that the name of the petitioner be removed from the State Medical Register of the Delhi Medical Council for a period of 180 days. The order passed by the Disciplinary committee was later, also confirmed by Delhi Medical Council and the petitioner’s name has been removed for 180 days.6. The parameters for consideration of a bail application have been formulated by the Supreme Court in catena of decisions. In Kalyan Chandra Sarkar v. Rajesh Ranjan & Anr. reported as (2004) 7 SCC 528, it was held as follows:“11. The law in regard to grant or refusal of bail is very well settled. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind.It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are,(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;(b) Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;(c) Prima facie satisfaction of the Court in support of the charge.”7. Later, in State of U.P. v. Amarmani Tripathi reported as (2005) 8 SCC 21, it was held as follows:“18. It is well settled that the matters to be considered in an application for bail are (i ) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (i i) nature and gravity of the charge; (i ii) severity of the punishment in the event of conviction;
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(i v) danger of the accused absconding or fleeing, if released on bail; (v ) c haracter, behaviour, means, position and standing of the accused; (v i) likelihood of the offence being repeated; (v ii) r easonable apprehension of the witnesses being tampered with; and (v iii) d anger, of course, of justice being thwarted by grant of bail [see P rahlad Singh Bhati v. N CT, Delhi [(2001) 4 SCC 280 : 2001 SCC (Cri) 674] and G urcharan Singh v. S tate (Delhi Admn.) [(1978) 1 SCC 118 : 1978 SCC (Cri) 41 : AIR 1978 SC 179] ]…”8. The petitioner has not denied the accusation that he had performed the alleged surgery on the deceased. Thus, keeping in mind the above referred recommendations of the Disciplinary Committee, which stand confirmed by DMC, this Court is of the prima facie view that there is a reasonable ground to believe that the petitioner has committed the offence. Further, it has been stated that the investigation is still pending and the charge sheet is yet to be filed. Accordingly, at this stage, I do not find any ground to admit the petitioner on bail. The present application is dismissed.9. Nothing stated hereinabove shall be considered as an expression on the merits of the case.