ABA 182/25 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD ANTICIPATORY BAIL APPLICATION NO. 182 OF 2025 WITH CRIMINAL APPLICATION NO. 437 OF 2025 Arjun Apparao Pawar, Age 40 yrs., Occu. Doctor, R/o. E 31/32, Millenium Park Road, Chikhalthana Industrial Area, Chh. Sambhajinagar. ….Applicant Vs. The State of Maharashtra Through jPolice Inspector, Pundlik Nagar Police Station, Vide C.R. No. I-498/2024 ….Respondent Mr. Himanshu S. Gavit and Mr. Y.D. Ugale, Advocates for applicants. Mr. A.B. Girase, PP a/w. Ms. Neha B. Kamble, APP for respondent/State. Mr. S.S. Thombre and Mr. S.R. Andhale, Advocate for assisting APP. CORAM : ARUN R. PEDNEKER, J. DATE : 13.03.2025 ORDER : 1. Criminal Application No. 437/2025 is filed for assisting the APP. The said application is allowed and Mr. S.S. Thombre and Mr. S.R. Andhale, learned advocates are allowed to assist APP. 2. Heard Mr. H.S. Gavit and Mr. Y.D. Ugale, learned counsel for the applicant, Mr. A.B. Girase, learned Public Prosecutor a/w. Ms. Neha B. Kamble, learned APP for the respondent-State and Mr. S.S. Thombre with Mr. S.R. Andhale, learned advocates assisting APP. 3. The applicant is apprehending arrest in connection with Crime No. 498/2024 dated 27.11.2024 registered with Pundlik Nagar Police Station, Chh. Sambhajinagar for the offences punishable under sections 201, 304-A, 406 r/w. 34 of I.P.C. 4. The facts in brief of the case are summarized below :- 2025:BHC-AUG:7354 ABA 182/25 2 On 27.11.2024 the F.I.R. came to be registered wherein the informant/father of the deceased child of 5 years and 6 months stating therein that his son was operated in Vedant Bal Ruganalaya by the applicant/doctor for “genetal psora”. It is stated that informant was given understanding that it is a very small surgery for “phimosis with penile torsion”. Surgery was scheduled on 26.4.2024 and the child/patient was admitted in hospital on 25.4.2024. In the FIR, it is stated that on 26.4.2024 at 7.00 a.m. the child/patient was taken into operation theater. It is stated that the small surgery which was scheduled continued for longer time and after the surgery the family members of the informant were informed by the applicant/doctor that the child was given spinal anethesia. It is also informed that during the course of surgery the child moved his hand, therefore, again an injunction was given so that child would sleep. The child was then moved to PICU at about 8.40 a.m. 5. The informant stated that the child was not moving and remained unconscious till 29.4.2024. However, the doctors provided no clear information about the condition of the child. It is stated that on 29.4.2024 Dr. Nitin Adhane informed informant that child was given CPR in operation theater (O.T.) and that he was put on ventilator. On 6.5.2024 at about 3.30 p.m. the child was declared dead. 6. It is stated that on 1.6.2024 the informant filed a complaint regarding medical negligence of the doctors to the Pundlik Nagar Police Station. The medical opinion of the cause of death given by medical officer was “multi- organ failure due to septicemia following hypoxic brain in an operated case for recurrent balanopsthitis penile torsion”. Accordingly, the aforesaid crime was registered on 27.11.2024. ABA 182/25 3 7. It is contended by the applicant that there is delay of 205 days in lodging the F.I.R. and the F.I.R. is lodged after taking due consultation and deliberation with the help of legal advisors and medico legal advisors. The applicant has stated that the applicant has cooperated with the investigation after receipt of notice under section 35 (3) of B.N.S.S. 2023. It is stated by the applicant that medical report clearly indicates that there is no negligence in treatment given by the applicant to the patient. The applicant contends that section 406 of I.P.C. is only non bailable section, however, in the F.I.R. no ingredients of section 406 of I.P.C. are made out. It is stated that custodial interrogation of the applicant is not necessary as the applicant is well respected surgeon, who has performed more than six thousand surgeries on child patients as pediatric surgeon. The applicant, therefore prays for granting him anticipatory bail. 8. Per contra, Mr. A.B. Girase, learned Public Prosecutor with learned APP Ms. Neha B. Kamble and Mr. S.S. Thombre, learned counsel assisting APP submits that in the report it is clearly mentioned that there is medical negligence by the medical officers. It is submitted that after negligent conduct of the doctor leading to the mishap, the applicant/doctor and his team has consciously manipulated the record so as to destroy the evidence establishing the crime. It is therefore prayed that the applicant is not entitled for any relief and his application for anticipatory bail may be rejected. 9. Considered the rival submissions and perused the record. 10. The medical opinion dated 11.7.2024 about cause of death of the child given by the Government Medical College and Hospital, Chhatrapati Sambhajinagar is as under :- ABA 182/25 4 “Multi-organ failure due to septicemia following hypoxic brain damage in an operated case for recurrent balanoposthitis with penile torsion.” 11. On 13.8.2024 the opinion on allegations of medical negligence in the treatment of the child patient was given by the Committee of the doctors of Government Medical College and Hospital, Chhatrapati Sambhajinagar, which is as under :- “Opinion of the committee - As per per the provided treatment records and the CCTV footage of the patient, he developed brain hypoxia. It could have occurred either in OT or PICU or both, which seems reasonably treated as per existing various standard medical guidelines. The patient was succumbed due to septicemia with multiorgan failure as per the P.M. report. There is no signature and name, other details of any guardian or immediate relative of the patient on the ‘Poor prognosis consent’ dated 02/05/24 of 8 AM on the provided treatment record of the patient. Considering all the provided treatment records, other documents and the CCTV footage of the patient, it is observed that the standard medical treatment protocol have been reasonably followed in the operation theatre and in PICU. Accordingly, it can be opined that there was no visible medical negligence in the treatment of the patient.” 12. As the ‘Committee of doctors’ in it’s report dated 13.8.2024 had not answered the questions posed by the Investigating Officer, as such Writ Petition No. 1679/2024 was filed by the parent of the deceased and on the basis of directions given by the Division Bench of this Court vide order dated 14.11.2024 another expert committee was constituted and all the questions posed by the Investigating Officer were answered. The committee by it’s report dated 25.10.2024 has given opinion on the following relevant and important questions, which are as under :- ABA 182/25 5 “iz”u 1½ czsu gk;iksDlh;k gk dk >kyk o rks gks.;kl dkj.khHkwr dkj.ks dks.krs \ mRrj 1½ miyC/k dkxni=s o lh-lh-Vh-Ogh- QqVstph l[kksy ppkZ o vH;kl dsyk vlrk czsu gk;ikWDlh;k gks.;kph dkj.ks v½ Bradycardia vkf.k Hypotension o c½ Cardiac Arrest v”kh vkgsr- ;k v½ o c½ gks.;kps dkj.k % 1½ vkWijs”ku osGh fnyk xsysyk Likbuy vu,LFksf”k;k vlq “kdrks- 2½ rlsp lh-lh-Vh-Ogh- QqVst e/;s vkWijs”ku njE;ku dkgh batsD”kUl fnysyh fnlr vkgsr ijarq R;kpk :X.kkP;k isije/;s mYys[k fnlwu ;sr ukgh- 1 o 2 ;k dkj.kka”kh laca/k vl.;kph “kD;rk ukdkjrk ;sr ukgh- iz”u 2½ ---------- iz”u 3½ lnjhy gkWLihVyps vkWijs”ku fFk,Vj gs “kklukus Bjowu fnysY;k fu;ekuqlkj@SOP izek.ks vkWijs”ku njE;ku MkWDVlZ o vflLVaV ;kauh vkWijs”ku fFk,Vj e/khy izksVksdkWy ikGysyk vkgs vxj dls \ mRrj % 3½ vkWijs”ku njE;ku dkgh MkWDVlZ o vflLVaV ;kauh vkWijs”ku fFk,Vj e/khy izksVksdkWy ikGysyk fnlwu ;srks ijarq dkgh MkWDVlZ o vflLVaV ;kauh rks ikGysyk fnlqu ;sr ukgh- iz”u % 4½ vkWijs”ku iwohZ HkqyrK ;kauh ckGkyk riklys gksrs dk rlsp ckGkyk Hkqy ns.ks ckcrph izkslsl o Mkslps izek.k bR;knh ckcrps izksVksdkWy fu;ekuqlkj ikGysys vkgsr vxj dls \ mRrj % 4½ vkWijs”ku iwohZ HkqyrK ;kauh ckGkph rikl.kh (Pre- anaesthetic Evaluation) dsY;kcn~nyP;k uksV~l isij e/;s fnlwu ;sr ukghr- dkxnki=kaps voyksdu dsys vlrk Lik;uy vusLFksf”k;k ns.;kiwohZ 3 batsD”kUl fnY;kps fyfgys vkgs] ijarw miyC/k ABA 182/25 6 lh-lh-Vh-Ogh- QwVste/;s rs fnY;kps fnlwu ;sr ukgh- rlsp Lik;uy vusLFksf”k;k uarj lh-lh-Vh-Ogh- QqVst e/;s vkWijs”ku njE;ku 3 batsD”ku fnY;kps fnlwu ;srs T;kcn~ny dkxni=kkar mYys[k fnlwu ;sr ukgh- dkxni=kaps voyksdu dsys vlrk R;kr fyfgysY;k ekfgrhuqlkj fnY;k xsysY;k Hkwy ckcrps Mkslsl ps izek.k fu;ekuqlkj ikGys vlY;kps fnlwu ;srs- iz”u 5½ ---------- iz”u 7½ vkWijs”ku pkyq vlrkuk HkqyrK ;kauh iqUgk ckGkP;k gkrkojhy V~;qce/;s nqljs batsD”ku fnY;kps lh-lh-Vh-Ogh- QqVst e/;s fnlqu ;srs] batsD”ku d”kkps gksrs o rs ns.ks xjtsps gksrs dk \ mRrj % 7½ lh-lh-Vh-Ogh- e/;s vkWijs”kuP;k e/;s HkqyrK ;kauh th batsD”ku fnysyh vkgsr] R;kph uksan isij e/;s fnlwu ;sr ukgh] R;keqGs ;koj vfHkizk; ns.ks “kD; ukgh- iz”u 8½ ---------- iz”u 11½ ran:Lr ckGkyk lsQ~Vhflfe;k gks.;kps dkj.k dk; \ mRrj % 11½ dks.krhgh “kL=fdz;k vFkok Invasive Interventions eqGs :X.kkyk lsQ~Vhflfe;k gks.;kpk /kksdk laHkorks-” 13. From the answers given by the Committee of Doctors in respect of above questions, prima facie it is apparent that the death of the child has possibly occurred on account of brain hypoxia due to bradycardia and hypotension and Cardiac arrest. CPR was given to the child in O.T. and brain hypoxia has occurred in O.T. as the brain did not receive sufficient oxygen supply for prolonged period. Thereafter, the child was kept on ventilator support in PICU from 26.4.2024 till 6.5.2024 as is reflected from the clinical notes. From the record, it appears that no clear indication of condition of the child was given to the parents or to the family members of the child. 14. It is to be noticed that in the instant case, prima facie mishap has ABA 182/25 7 happened in the O.T. on 26.4.2024. Medical/clinical notes of various doctors are placed before this Court from which it appears that the patient was on the ventilator every day, from the date of surgery till his demise i.e. from 26.4.2024 to 6.5.2024. As per the statement made by the applicant the death of child has occurred possibly due to complications arisen out of anesthesia or possibly due to co-morbid conditions or alternatively would be various reasons post operation. 15. Considering the material on record i.e. the report of the committee of the doctors this Court is of the view that the mishap has occurred on account of lapses on the part of anesthetist/surgeon. The CCTV footage does not match with the clinical notes and thus, it is clear that there has been some error in the O.T. which has resulted in mishap and that the operating doctors thereafter have tried to cover up the situation and has not given clear information to the relatives of the patient and has continued to keep the relatives of the child in dark about the prognosis and possible outcome and thereafter, the hospital has continued to charge for the treatment of the patent till his demise. 16. There are only two occasions when it is mentioned in the medical papers that condition of the patient was explained to the relatives. Clinical notes of Dr. Pradip Aghav indicates that on 27.4.2024 at 9 p.m. patient’s general and present condition is explained in detail to the relatives and probable outcome is also discussed in detail, danger signs and risks (probable) also discussed and explained to relatives and current and further treatment plan is also explained to relatives. Thereafter, on 1.5.2024 at 11.30 a.m. in the clinical notes of Dr. Akshay Wagh, it is mentioned as under :- ABA 182/25 8 “Central line consent vkEgkyk vkeP;k ckGkP;k rC;rhfo’k;h loZ ekfgrh fnyh vlwu iq<hy mipkjklkBh ckGkP;k ekusP;k vein e/kqu lwbZ Vkd.ks xjtsps vkgs- R;kps Qk;ns o uqdlku vkEgkyk letkowu lkafxrys vkgs- rjh vkEgh ijokuxh nsr vkgksr-” Thereafter at 8 a.m. on 2.5.2024 it is mentioned in the clinical notes as under :- “Poor prognosis consent eyk@ vkEgkyk vkeP;k ckGkP;k rC;srhfo’k;h MkWDVjkauh lfoLrj dYiuk fnysyh vkgs- l/;k ckGkph eTtklaLFkk (CNI) eq=fiaM (kidney) ;kaph dk;Ziz.kkyh vR;ar deh >kyh vkgs- rlsp ckGkpk jDrnkc gk vR;ar deh >kyk vlqu lq: vlysY;k mipkjkyk “kjhj izfrlkn nsr ukgh ;kph dYiuk eyk MkWDVjkauh fnyh- v”kk ojhy ckcheqGs ckGkph rC;sr gh vR;ar xaHkhj vlwu ckGkP;k ftokyk dqBY;kgh {k.kh /kksdk gksm “kdrks] ckG nxkm “kdrs ;kph tk.kho eyk vkgs- rjh eh iq<hy mipkjklkBh lger vkgs o ftokyk gks.kk&;k laHkkO; /kksD;kl voxr vkgs-” However, in the above noted ‘poor prognosis consent’ note dated 2.5.2025 there is no signature of relative of the child. The informant has stated that the doctors have clearly not stated anything about the child’s condition to him or his family members. However, it was always mentioned by the doctors that child is showing improvement and that the child will take some more time to recover from anesthesia. 17. In the instant case, it is to be noted that CCTV footage of O.T. is available. However, CCTV footage of the post operation of the child of intensive care unit (ICU) for the period from 26.4.2024 to 5.3.2024 is not available although for earlier and later period it is stated to be available. The clinical notes indicating intravenous injection (I.V.) being given to the ABA 182/25 9 child before the surgery are not seen in the CCTV footage whereas there is no clear record of injunctions/medicines given to the child post CPR in the O.T. although the doctors are seen giving medicines through I.V. injections in CCTV footage. 18. There is suppression of the procedure undertaken in the O.T. so also in PICU. So also the C.C.T.V. footage in the O.T. also does not correspond to the clinical notes. Prima facie, it appears that real reasons leading to the cause of death of the child is sought to be suppressed. As such, in this facts situation, it would be difficult for this Court to grant discretionary relief of anticipatory bail in favour of the applicant. In view of the above, the application is dismissed. 19. It is clarified that the observations made in this order are limited for the disposal of the present anticipatory bail application only and the trial Court shall not proceed further or shall not be influenced by the observations made hereinabove while deciding the regular bail application of the applicant, if filed. 20. The application stands disposed of. [ARUN R. PEDNEKER, J.] SSC/