Allowed

Dr. G. Prashanthkumar Shetty v. the State of Karnataka

Karnataka HC8 Apr 2021WP/560/2021

Case brief

AI extract

What is this about?

Petitioner Dr. challenged an order quashing his discharge in a medical negligence FIR. The High Court, relying on Supreme Court precedents, held that prosecution cannot proceed without an expert opinion. The writ petition was allowed, and the revisional order was quashed, restoring the Magistrate's discharge application.

What did the court decide?

The order dated 29.06.2020 in Criminal Revision Petition No.10002/2016 is quashed, confirming the Magistrate's order dated 22.09.2015.

Dr. G. Prashanthkumar Shetty Vs the State of Karnataka — Medical Negligence | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF APRIL, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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WRIT PETITION NO.560/2021(GM-RES)

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BETWEEN:

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DR. G. PRASHANTHKUMAR SHETTY S/O BHASKAR SHETTY AGED ABOUT 50 YEARS MEDICAL OFFICER RAMAKRISHNA CLINIC NEAR CANARA BANK B.H.ROAD, C.N.HALLY TUMAKURU DISTRICT-572226

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… PETITIONER

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(BY SRI CHANDRANATH ARIGA K., ADVOCATE)

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AND:

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1 . THE STATE OF KARNATAKA

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BY CHIKKANAYAKANAHALLY P.S., REPRESENTED BY THE STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU-560 001

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2 . BAVANAMMA W/O LATE VIRUPAKSHAIAH AGED ABOUT 54 YEARS

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3 . SHIVARAJU S/O LATE VIRUPAKSHAIAH AGED ABOUT 34 YEARS

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BOTH ARE RESIDING AT GODEKERE VILLAGE SHETTIKERE HOBLI, C.N.HALLI TALUK TUMAKURU DISTRICT-572226.

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(BY SMT. NAMITHA MAHESH B.G., HCGP FOR R1; R2 AND R3 - SERVED)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF CR.P.C. PRAYING TO QUASH THE ORDER DATED 29.06.2020 IN CRL.REVISION PETITION No.10002/2016 ON THE FILE OF THE V ADDL. DISTRICT AND SESSIONS JUDGE, TIPTUR, ANNEXURE-J.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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This writ petition is filed under Article 226 of the Constitution of India read with Section 482 of Cr.P.C, praying this Court to quash the order dated 29.06.2020 in Criminal Revision Petition No.10002/2016 on the file of V Additional District & Sessions Judge, Tiptur and grant such other relief as deemed fit under the facts and circumstances of the case.

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The factual matrix of the case is that the relative of the deceased - G.S. Renuka Prasad had lodged a complaint before the police in terms of Annexure ‘A’ making the allegation

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of medical negligence against the present petitioner that the deceased Virupakshaiah in connection with fever, he went to the clinic of the petitioner herein. The petitioner herein has given the injection and thereafter the deceased went to the other hospital on 10.07.2006. On the very same day, he passed away. Hence, the medical negligence attributed against the petitioner herein. The police based on the complaint on 10.07.2006, registered an FIR in terms of Annexure ‘B’ and investigated the matter and filed the charge sheet before the Trial Court. Thereafter, the petitioner herein has filed an application before the Trial Court for its discharge and the same is allowed vide order dated 22.09.2015. Being aggrieved by the order of discharge, the revision petition was filed before the Revisional Court in Criminal Revision Petition No.10002/2016 and the Revisional Court reversed the order of the learned Magistrate. Hence, the present writ petition is filed before this Court.

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Learned counsel for the petitioner would vehemently contend that in order to come to a conclusion of medical negligence on the part of the petitioner, no material has been

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placed before the Court except a bald allegation had been made in the complaint. Learned counsel would vehemently contend that there is no report that the deceased died on account of the medical negligence and also no report is obtained from the competent authority. Without any report, the criminal prosecution is instituted against the petitioner herein.

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Learned counsel for the petitioner in support of his arguments, he relied upon the order passed by this Court in the case of Dr. Prabhakar v. Sri K. Sigbathulla in Criminal Petition No.2678/2017 disposed of on 31.05.2019, wherein, this Court referring to the judgment of the Apex Court in the case of Martin F D’Souza v. Mohd. Ishfaz reported in AIR 2009 SC

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2049 , inasmuch as cognizance of a complaint against the medical practitioner could not have been taken without obtaining an opinion from an expert. It is also observed that the offence under Section 284 of IPC is punishable with an imprisonment for a period of six months. This Court also observed in paragraph No.6 that cognizance ought not to have been taken without an opinion of an Expert Doctor/Committee of Doctors, the same

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should be obtained and thereafter, notice should be issued. Hence, there cannot be any criminal prosecution.

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This Court had issued notice against the respondent

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Nos.2 and 3. Though served, they did not choose to appear before the Court or engage any counsel.

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Learned High Court Government Pleader for respondent No.1/State would submit that the learned Revisional Court reversed the finding by giving the reasons in paragraph Nos.14 to 16. Hence, there cannot be any quashing of proceedings.

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Having heard the arguments of the respective

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counsel, the medical negligence is attributable to this petitioner only on the ground that he gave an injection when the deceased went to his clinic on 09.07.2006 and he passed away on 10.07.2006 on the very next day. In order to substantiate the medical negligence, no medical evidence is placed and no opinion is obtained either from an expert or from the committee constituted with regard to the medical negligence is concerned.

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This Court in the order passed in Dr. Prabhakar ’s case (supra), held that in view of the judgment of the Apex Court in the case of Martin F D’Souza v. Mohd. Ishfaz reported in AIR 2009 SC 2049 , inasmuch as cognizance of a complaint against the medical practitioner could not have been taken without obtaining an opinion from an Expert.

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The judgment of the Apex Court in the case of Jacob

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Mathew v. State of Punjab and another reported in AIR 2005 SC 3180, which has been considered by this Court while dealing with the matter in connection with the medical negligence on the part of the petitioner in the case of Manipal

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Hospital and another v. Mr. Binayak Bhattacharjee in Criminal Petition No.6186/2020 disposed of on 02.03.2021, discussed elaborately, in the absence of the report from the expert or from the experts committee, there cannot be any criminal prosecution against the Doctor. The learned Magistrate while considering the application under Section 258 of Cr.P.C., in detail discussed in paragraph Nos.7 to 20 and came to a conclusion that in the absence of material on record, there

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cannot be any criminal prosecution. However, the Revisional

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Court has reversed the finding of the Trial Court only on the ground of referring to the statement of CW.13, which has been made before the learned Magistrate under Section 164 Cr.P.C., and comes to the conclusion that it requires a trial. The very approach of the Revisional Court is erroneous and failed to take note of the principles laid down in the judgment of Jacob Mathew ’s case (supra), and also the principles laid down in the judgment of Martin F D’Souza ’s case (supra) and the order of this Court passed in Manipal Hospital ’s case (supra), comes to a wrong conclusion that the same requires a trial. The very approach of the Revisional Court is erroneous and it requires an interference of this Court.

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In view of the discussions made above, I pass the

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following:

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ORDER

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(i) The petition is allowed.

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(ii) The order dated 29.06.2020 in Criminal Revision Petition No.10002/2016 on the file of

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V Additional District & Sessions Judge, Tiptur, is hereby quashed.

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(iii) Consequently, the order passed by the learned Magistrate dated 22.09.2015 in C.C.No.44/2008 on an application filed under Section 258 of Cr.P.C, is hereby confirmed.

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Sd/JUDGE

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cp*

Dr. G. Prashanthkumar Shetty v. the State of Karnataka

Case brief

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Dr. G. Prashanthkumar Shetty v. the State of Karnataka

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