HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 29
CIVIL MISC. WRIT PETITION NO.25312 OF 2013
Kuldeep Singh vs State of U.P. and others
Hon’ble Sunil Ambwani, J.
Hon’ble Bharat Bhushan, J.
1. We have heard learned counsel appearing for the petitioner. Learned Standing Counsel appears for the State respondents.
2. The petitioner has prayed for following reliefs:-
“I. A writ, order or direction in the nature of mandamus directing the respondents authority to seal the Mritunjai Ultrasound Centre Badli Katra, Mirzapur as it is running by Dr. Pragya Kasera, who is unqualified and unauthorized person in the law.
II. A writ, order or direction in the nature of mandamus directing the respondent No. 6, C.M.O. Allahabad to conclude the inquiry after giving the opportunity of hearing to the petitioner in the matter referred before him for the opinion of medical board within reasonable time.
III. A writ, order or direction in the nature of mandamus directing the respondents authority to take the action against the respondents doctors in accordance with law and cancelled the certificate of registration No.P.C. & P.N.D.T./2011/mzp-23 dated 01.07.2011 allotted to the Mritunjai Ultrasound Centre, Badli Katra, Mirzapur.
IV. Any other writ, order or direction which this Hon’ble Court may deem, fit and proper in view of the facts and circumstances of the case so that justice may be done.
V. And award cost of the petition.”
3. It is alleged that the petitioner’s wife late Sangeeta Singh aged 35 years was under treatment and supervision of Dr. Pragya Kasera, during her pregnancy from 3.3.2013. The first ultrasound test USG was carried out on her on 19.6.2012 with age of foetus at 16 weeks and one day. In the next routine check up she was advised USG test, which was carried out on 1.11.2012. In the report dated 3.11.2012 there were no gross anomalies found, still she was advised delivery by caesarian section. She was misled to undergo surgery on a wrong USG report without following standard protocol and due care and without carrying out necessary pre-operative tests. No anesthesiologist or medical specialist was associated in the operation. The operation was unnecessary and in which the doctors were grossly negligent in taking reasonable care and precautions. She developed serious condition on which Dr. Anurag Kasera the husband of Dr. Pragya Kasera referred her to Saraswati Heart Care at Allahabad in anticipation of Dialysis and ARF (Acute Renal Failure). He referred her as case of Placenta Increta with LSCS Previous 3rd LSCS with tubectomy, whereas the patient was admitted as Placenta Previa. She was refused admission by Dr. D.K. Agarwal at Allahabad. She was ultimately admitted in Parvati Hospital Private Limited on 4.11.2012 at 5.45 pm where she died on 5.11.2012 at 2.30 am. The death certificate mentioned that she died of hysterectomy whereas hospital note of Dr. Anurag Kasera and Dr. Pragya Kasera did not show any hysterectomy performed on her. She died of gross medical negligence of Dr. Pragya Kasera and Dr. Anurag Kasera.
4.The petitioner has prayed for a direction to seal the Mritunjai Ultrasound Centre, Badli Katra, Mirzapur run by Dr. Anurag Kasera and Dr. Pragya Kasera, as it is run by unqualified and unauthorised person; a direction to Chief Medication Officer, Allahabad to conclude the enquiry and further a direction to the respondents to take action against Dr. Anurag Kasera and Dr. Pragya Kasera-respondent nos. 4 and 5 in accordance with the law and to cancel their registration No. P.C.&P.N.D.T./2011/mzp-23 dated 01.7.2011.
5.The question, about the qualifications and eligibility of the persons entitled to be registered under Section 3 of the PC & PNDT Act, 1994 for carrying out ultrasound test, was considered by this Court in Dr. Anil Kumar Mishra v. State of U.P. & Ors., Civil Misc. Writ Petition No.57791 of 2008 and other connected petitions decided on 1.4.2011. The Court held in paragraphs 15 to 18 as follows:-
“15. Section 3 under Chapter II of the PC & PNDT Act, 1994 provides for regulation of Genetic Counselling Centres, Genetic Laboratories and Genetic clinics. Sub-section (1) of Section 3 provides that no Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, unless registered under this Act shall conduct or associate with or hold in conducting activities relating to prenatal diagnostic techniques. Sub-section (2) prohibits the employment whether on honorary basis or on payment of any person in such centres and clinics, who do not possess the qualifications as may be prescribed; and sub-section (3), prohibits the medical geneticist, gynaecologist paediatrician, registered medical practitioner or any other person to conduct or cause to be conducted or aid in conducting by himself or through any other person, any pre-natal diagnostic techniques at place other than a place registered under the Act.
16. Rule 3 of the PNDT Rules, 1996 prescribes the qualifications of the employees, the requirement of equipment etc. for a Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging Centre. The qualifications prescribed in sub-rule (1) provides that qualification both of the person and the employee under (i) to be a gynecologist or a paediatrician having six months experience or four weeks training in genetic counseling; or (ii) a medical geneticists, having adequate space and educational charts/ models/ equipments for carrying out genetic counselling in a centre, which may be registered as genetic centre. The relevant sub-rule (2) provides that any person having adequate space and being or employing (i) a Medical Geneticist and (ii) a laboratory technician, having a B.Sc. degree in Biological Sciences or a degree or diploma in medical laboratory course with atleast one year experience in conducting appropriate prenatal diagnostic techniques, tests or procedures, may set up a genetic laboratory.
17. The petitioners are not gynecologist or paediatrician and they do not have any qualification in genetic counselling; they are not medical geneticist having any qualification as medical geneticist. They would thus, at best, fall under Rule 3 (3).
18. A Sonologist, imaging specialist, or Radiologist or Registered Medical Practitioner who has Post Graduate degree or diploma or six months training for one year’s experience in sonography or imaging scanning can only perform the ultrasound tests, in genetic clinic, ultrasound clinic and imaging centre, registered under Rule 3 (2). The registered medical practitioner is defined under Section 2 (m) of the PC & PNDT Act, 1994. The definition provides that such a registered medical practitioner means medical practitioner, who possesses any recognised medical qualifications as defined in clause (h) of Section 2 of the Indian Medical Council Act, 1956, and whose name has been entered in State Medical Register.
6. It is submitted that the petitioner has lodged a first information report registering Case Crime No.494 of 2012, under Sections 304/307/338/392/419/420/504 IPC and 15 (3) of Medical Council of India Act at Police Station George Town, Allahabad on 14.12.2012. The police has referred the matter to the Chief Medical Officer for an expert opinion before proceeding against the doctors against whom allegations have been made in view of judgment of Supreme Court in Martin F. D’Souza v. Mohd. Ishfaq (2009) CPJ 32 (SC) in which the Supreme Court observed in paragraph-117 that whenever a complaint is received against a doctor or hospital by the Consumer Fora (whether District, State or National) or by the Criminal Court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or Criminal Court 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 should notice be then issued to the concerned doctor/hospital. The Supreme Court observed that it is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. The Supreme Court further added that police should not 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.
7. Learned counsel appearing for the petitioner states that in the present case the police is not proceeding in the matter on account of observations made in Martin F. D’Souza v. Mohd. Ishfaq (supra). He submits that a later Division Bench of the Supreme Court in its decision dated 8.3.2010 in V. Kishan Rao v. Nikhil Super Speciality Hospital & another 2010 (5) SSC 513 found that the precautions to be expressly followed in accordance with the Martin F. D’Souza v. Mohd. Ishfaq (supra) are Per incuriam, and have been given in ignorance to the larger Bench decision in Dr. J.J. Merchant and others v. Shrinath Chaturvedi (2002) 6 SCC 635. The Supreme Court held in paragraphs 50 to 56 of judgment in V. Kishan Rao’s case as follows:-
“50. With great respect to the Bench which decided D’souza (supra) this Court is of the opinion that the directions in D’souza (supra) are contrary to (a) the law laid down in paragraph 37 of Indian Medical Association (supra), (b) and paragraph 19 in Dr. J.J. Merchant (supra), (c) those directions in paragraph 106 of D’souza (supra) equate medical negligence in criminal trial and negligence fastening civil liability whereas the earlier larger Bench in Mathew (supra) elaborately differentiated between the two concepts, (d) Those directions in D’souza (supra) are contrary to the said Act which is the governing statute, (d) those directions are also contrary to the avowed purpose of the Act, which is to provide a speedy and efficacious remedy to the consumer. If those general directions are followed then in many cases the remedy under the said Act will become illusory, (f) those directions run contrary to principle of `Res ipsa loquitur’ which has matured into a rule of law in some cases of medical negligence where negligence is evident and obvious.
51. When a judgment is rendered by ignoring the provisions of the governing statute and earlier larger Bench decision on the point such decisions are rendered `Per incuriam’. This concept of `Per incuriam’ has been explained in many decisions of this Court. Justice Sabyasachi Mukharji (as his Lordship then was) speaking for the majority in the case of A.R. Antulay vs. R.S. Nayak and another reported in (1988) 2 SCC 602 explained the concept in paragraph 42 at page 652 of the report in following words:-
“Per incuriam” are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong.
52. Subsequently also in the Constitution Bench judgment of this Court in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh vs. Presiding Officer, Labour Court, Chandigarh and others reported in (1990) 3 SCC 682, similar views were expressed in paragraph 40 at page 705 of the report.
53. The two-Judge Bench in D’souza has taken note of the decisions in Indian Medical Association and Mathew, but even after taking note of those two decisions, D’souza (supra) gave those general directions in paragraph 106 which are contrary to the principles laid down in both those larger Bench decisions. The larger Bench decision in Dr. J.J. Merchant (supra) has not been noted in D’souza (supra). Apart from that, the directions in paragraph 106 in D’souza (supra) are contrary to the provisions of the governing statute. That is why this Court cannot accept those directions as constituting a binding precedent in cases of medical negligence before consumer Fora. Those directions are also inconsistent with the avowed purpose of the said Act.
54. This Court however makes it clear that before the consumer Fora if any of the parties wants to adduce expert evidence, the members of the Fora by applying their mind to the facts and circumstances of the case and the materials on record can allow the parties to adduce such evidence if it is appropriate to do so in the facts of the case. The discretion in this matter is left to the members of Fora especially when retired judges of Supreme Court and High Court are appointed to head National Commission and the State Commission respectively. Therefore, these questions are to be judged on the facts of each case and there cannot be a mechanical or strait jacket approach that each and every case must be referred to experts for evidence. When the Fora finds that expert evidence is required, the Fora must keep in mind that an expert witness in a given case normally discharges two functions. The first duty of the expert is to explain the technical issues as clearly as possible so that it can be understood by a common man. The other function is to assist the Fora in deciding whether the acts or omissions of the medical practitioners or the hospital constitute negligence. In doing so, the expert can throw considerable light on the current state of knowledge in medical science at the time when the patient was treated. In most of the cases the question whether a medical practitioner or the hospital is negligent or not is a mixed question of fact and law and the Fora is not bound in every case to accept the opinion of the expert witness. Although, in many cases the opinion of the expert witness may assist the Fora to decide the controversy one way or the other.
55. For the reasons discussed above, this Court holds that it is not bound by the general direction given in paragraph 106 in D’souza (supra). This Court further holds that in the facts and circumstances of the case expert evidence is not required and District Forum rightly did not ask the appellant to adduce expert evidence. Both State Commission and the National Commission fell into an error by opining to the contrary. This Court is constrained to set aside the orders passed by the State Commission and the National Commission and restores the order passed by the District Forum. The respondent no.1 is directed to pay the appellant the amount granted in his favour by the District Forum within ten weeks from date.
56. The appeal is thus allowed with costs assessed at Rs.10,000/- to be paid by the respondent No.1 to the appellant within ten weeks.”
8. We find that after the judgment in V. Kishan Rao v. Nikhil Super Speciality Hospital & another (supra) the Consumer Fora is not required to wait for an expert opinion of the doctors before proceeding to issue notice to the concerned doctor against whom medical negligence has been alleged. The discretion has been left to the members of the Consumer Fora, who are retired Judges of Supreme Court and the High Court at the National or State level and were expecting not to act in mechanical manner and to refer each and every case for expert’s opinion. When the Consumer Fora finds that the expert opinion is required, the Fora must keep in mind that an expert that an expert witness normally discharges two functions namely to explain the technical issues as understood by the common man and the other function is to decide whether the acts or omissions of the medical practitioners or the hospital constitute negligence. The expert can throw considerable light on the current state of knowledge in medical science at the time when the patient was treated. In most of the cases the question whether a medical practitioner or the hospital is negligent or not is a mixed question of fact and law and the Fora is not bound in every case to accept the opinion of the expert witness. Although in many cases the opinion of the expert witness may assist the Fora to decide the controversy one way or the other. In the case decided by the Supreme Court the expert evidence was not found to be required and the District Forum did not ask the appellant to adduce expert evidence.
9. So far as police investigation is concerned, we find that in V. Kishan Rao v. Nikhil Super Speciality Hospital & another (supra) the Supreme Court had followed three Judges Bench judgment in Jacob Mathew vs. State of Punjab and another 2005 (53) ACC 251 and in which in paragraph-50 it was observed as follows:-
“50. Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam’s test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.”
10. The legal position as it stands today is that so far as Consumer Fora (National, State, District) is concerned, the Consumer Fora is required to follow the observations made in paragraph-54 of the judgment in V. Kishan Rao v. Nikhil Super Speciality Hospital & another (supra). When the Fora finds that expert opinion is required, the Fora must keep in mind that an expert witness normally discharges the functions to explain the technical issues and to assist the Fora in deciding whether the acts or omissions of the medical practitioners or the hospital constitute negligence. The expert opinion, however, is not necessary for the Consumer Fora to decide the case one way or the other. So far as Consumer Fora is concerned it is not necessary to wait for or to rely upon expert opinion unless the Consumer Fora finds necessary by considering the facts and circumstances of the case.
11. We are of the opinion that so far as legal position regarding criminal complaint is concerned, if the facts are complicated, it is always prudent for the investigating officer before proceeding against the doctor accused of rash and negligent act or omission obtained an independent and competent medical opinion preferably from doctors in government service qualified in that branch and medical practitioner, who can normally be expected to give an impartial and un-adduced opinion applying Bolam’s test to the facts collected in the investigation.
12. The Bolam’s test is the test laid down in Bolam v. Friern Hospital Management Committee (1957) 2 All England Reports 118 and in which it was held as follows:-
“Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not, is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill… A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.: (Charlesworth and Percy, ibid, para 8.02)”
13. Recently Hon’ble the Supreme Court has in Voluntary Health Association of Punjab v. Union of India & Ors., Writ Petition (C) No.349 of 2006 by an order dated 4th March, 2013 issued directions as follows:-
“1. The Central Supervisory Board and the State and Union
Territories Supervisory Boards, constituted under Sections
7 and 16A of PN&PNDT Act, would meet at least once in six
months, so as to supervise and oversee how effective is
the implementation of the PN&PNDT Act.
2.The State Advisory Committees and District Advisory
Committees should gather information relating to the
breach of the provisions of the PN&PNDT Act and the Rules
and take steps to seize records, seal machines and
institute legal proceedings, if they notice violation of the
provisions of the PN&PNDT Act.
3. The Committees mentioned above should report the
details of the charges framed and the conviction of the
persons who have committed the offence, to the State
Medical Councils for proper action, including suspension of
the registration of the unit and cancellation of licence to
4.The authorities should ensure also that all Genetic
Counselling Centres, Genetic Laboratories and Genetic
Clinics, Infertility Clinics, Scan Centres etc. using pre-
conception and pre-natal diagnostic techniques and
procedures should maintain all records and all forms,
required to be maintained under the Act and the Rules and
the duplicate copies of the same be sent to the concerned
District Authorities, in accordance with Rule 9(8) of the
5.States and District Advisory Boards should ensure that all
manufacturers and sellers of ultra-sonography machines
do not sell any machine to any unregistered centre, as
provided under Rule 3-A and disclose, on a quarterly basis,
to the concerned State/Union Territory and Central
Government, a list of persons to whom the machines have
been sold, in accordance with Rule 3-A(2) of the Act.
6.There will be a direction to all Genetic Counselling Centres,
Genetic Laboratories, Clinics etc. to maintain forms A, E, H
and other Statutory forms provided under the Rules and if
these forms are not properly maintained, appropriate
action should be taken by the authorities concerned.
7.Steps should also be taken by the State Government and
the authorities under the Act for mapping of all registered
and unregistered ultra-sonography clinics, in three months
8.Steps should be taken by the State Governments and the
Union Territories to educate the people of the necessity of
implementing the provisions of the Act by conducting
workshops as well as awareness camps at the State and
9.Special Cell be constituted by the State Governments and
the Union Territories to monitor the progress of various
cases pending in the Courts under the Act and take steps
for their early disposal.
10.The authorities concerned should take steps to seize
the machines which have been used illegally and contrary
to the provisions of the Act and the Rules thereunder and
the seized machines can also be confiscated under the
provisions of the Code of Criminal Procedure and be sold,
in accordance with law.
11.The various Courts in this country should take steps
to dispose of all pending cases under the Act, within a
period of six months. Communicate this order to the
Registrars of various High Courts, who will take
appropriate follow up action with due intimation to the
All the State Governments are directed to file a status
report within a period of three months from today.
(K. S. RADHAKRISHNAN)”
14. In present case we find that the police has referred the matter to the Chief Medical Officer, who has not yet given an opinion with regard to the negligence having due regard to the Bolam’s test, and that his opinion, if there was any medical negligence to proceed against the concerned doctor, is still awaited.
15. Prima facie we find that Dr. Anurag Kasera and Dr. Pragya Kasera are qualified and registered medical practitioners and thus they are eligible to be registered under the PC & PNDT Act and hold valid registration dated 1.7.2011. We may, however, point out that applying and getting registration under PC & PNDT Act is not sufficient to check the malpractice of sex determination tests and medical negligence. As directed by this Court and the Supreme Court regular inspections are required to be made of the Ultrasound Centres and Genetic Counselling Centre to find out whether these centres are carrying out their statutory responsibilities in the PC & PNDT Act and the Rules framed therein both with regard to carrying out test and maintenance of records. The record may reflect the irregularities, if any, committed by such centres.
16. Having regard to the facts and circumstances of the case and law as it stands today we dispose off the writ petition with directions to the Chief Medical Officer to conclude the enquiry after giving opportunity of hearing to the petitioner as well as Dr. Anurag Kasera and Dr. Pragya Kasera-respondent nos. 4 and 5 and give his opinion to the police within a period of four weeks. So far as compensation for medical negligence is concerned, the petitioner can file a complaint in the District Consumer Forum or the State Consumer Commission as the case may be according to the valuation of the claim, and in that case it will not be necessary for Consumer Fora to call for and to rely on the expert evidence unless it requires their opinion to decide with complaint.
17. We also direct the District Magistrate, who is the competent authority to carry out directions issued by Hon’ble Supreme Court in the entire district of Mirzapur more particularly and specifically the PC & PNDT clinic run by Dr. Anurag Kasera and Dr. Pragya Kasera. The District Magistrate as well as the Chief Medical Officer, Mirzapur will find out the nature of the tests carried out by these doctors on late Smt. Sangeeta Singh, the wife of the petitioner and if they find that there were any irregularities in maintenance of the records and in running clinic in general, they shall take immediate steps to enforce the provisions of the Act. The District Magistrate is required to submit reports in pursuance to the directions of the Supreme Court and thus he will regularly monitor the ultrasound clinics in his district and carry out inspections regularly on random basis. He will also ensure that there is no ultrasound clinic running in the district without registration.