A patient, Mrs Neelam Somnath Bendre, was taking antenatal care from a gynaecologist, Dr Vikas Ghadge, in Borgaon village in Satara district. She visited him on 15th of January 2023, when he advised her to undergo planned caesarean section delivery as her baby was in breech presentation . She visited again on 27th of January when the same advice was repeated by the gynaecologist and it was written on her prescription that counselling for elective LSCS was done. The patient waited at home till 31st January.
On 1st February 2023, she started having labour pains at 2:00 AM, however she did not go to the hospital till 9:30 AM. When she reached the hospital at 9:30 AM, a nurse in the hospital saw her and asked the operation theatre technician to see. He found that the woman was delivering the baby with breech presentation.
He immediately called the gynaecologist who was at his home at Satara City. He started from his home to his hospital which was about 15 kilometres away. In the meantime he was instructing the OT assistant to prepare her for LSCS and help her so that there should not be any mishap in the hospital. The OT assistant took the patient in the operation theatre, started normal saline as is done in routine LSCS.
The doctor reached his hospital in about 15-20 mins by which time the baby was partially delivered. As such the doctor informed the relatives, took their consent and tried to deliver the baby vaginally. Unfortunately, as is known in case of breech delivery, the head got arrested and the baby could not be delivered. By that time anaesthesiologist and paediatrician had reached the hospital and emergency LSCS was performed. Baby was extracted using vacuum, but unfortunately succumbed due to the hypoxia during labour.
Foetal mortality is 16 per 1000 in cities and 28 per 1000 in rural India if the presentation is breech, intrauterine asphyxia being the most common cause. Therefore the advice given by the doctor was perfect, but not followed by the patient.
The patient filed an FIR 132/2023 against the doctor and the doctor was arrested. After spending 4 days in Magistrate Custody Remand, he was released on bail. On 10th April, the patient filed writ petition 1300/2023 in the High Court of Judicature at Bombay against the Maharashtra State Government saying that the investigation in the crime is not as per her satisfaction.
On 17th April, without asking the petitioner to be made party to the case, the High Court asked why 302 was not applied instead of 304, 304(A), and 318 by the Satara Police. The Government pleader sought time to revert and the matter was kept for hearing on 2nd May. On 2nd May the government pleader said that they are applying 302 and changing the investigating officer. The matter was disposed of by the High Court, without taking into consideration the contributory negligence of the patient.
Opportunity to be heard is the basic principles of “Natural Justice”, and the doctor was not given such opportunity by the High Court as he was not party to the petition. There is a procedure of joinder by which the court can ask the petitioner to add a “necessary party”. How this basic procedure of law was overlooked by the Division Bench of the High Court is the perplexing question.
If one goes into the facts of the case, it can be seen that the expert committee framed by the civil surgeon was not as per the government resolution applicable in the present case. The doctor was doing his duty in good faith for saving the life of the baby AND the mother. Hence general exceptions in the Indian Penal Code 1860 sections 81, 87,88,89 should have been considered before 302 by the Hon’ble Court. It is surprising that notes on the case paper were not seen by the Hon’ble Court in which the doctor has given written advice for elective LSCS. Instead section 299 explanation3 which is about abortion of the foetus was considered to be applicable by the High Court, which was considered to be bais of 302.
Dr. Ravindra Kute, President, IMA Maharashtra State had requested Medico Legal Society of INDIA to look into the matter and give legal opinion. MLSI had given legal opinion that forget 302, even 304, 304(A) and 318 were not applicable in this case and the doctor should intervene in the matter . However the doctor was confused because various advocates gave him different advice. So he did not intervene in spite of IMA Satara, Satara OBGY society and MLSI givign him supporting affidavits. Finally when the order of 2nd May was given, His Supreme Court advocate moved the SLP which came up for hearing yesterday. In the meantime since Dr Ghadge was not taking any decision, IMA Satara also moved an SLP which will be clubbed with Dr Ghadge SLP. MLSI will happily support Dr Ghadge and IMA Satara as and when required. I am attaching compilation of orders of High Court and supporting affidavit given by MLSI to Dr Ghadge.
Hon’ble High Court added sections which were not in the writ petition filed by the petitioner . While doing that,
- Was it not the responsibility of the High Court to ask the accused about his defence in the said writ petition to which he was not party?
- Does the High Court not know how many years the case against the doctor would take to be decided by the Lower Court?
- Would the lower court not be under pressure to find a doctor guilty under 302?
- Would another bench of the High Court be able to decide a petition for quashing FIR fairly, when the coordinate bench has added 302?
It may be within the power of the High Court to change the sections, as lower courts also add or delete the IPC sections in the FIR. However, when the High Court knew that any order in the petition would adversely affect the accused in the FIR, not making him party to the petition is a serious injustice on part of Hon’ble Bombay High Court. How can the petition be decided without hearing all necessary parties?
Dr Rajeev Joshi