Allowed

Dr.Sathy M.Pillai & 3 Ors. v. Sarma and Another

Kerala HC29 Oct 2010Crl.MC/1259/2007

Case brief

AI extract

What is this about?

The High Court of Kerala exercised its inherent powers under Section 482 CrPC to quash a criminal complaint against doctors. It relied on the final opinion of a High-level Apex Body of experts which concluded that the patient's death was not due to negligence in anaesthesia administration, finding the continuation of proceedings an abuse of process.

What did the court decide?

The Criminal Miscellaneous Case No. 1259 of 2007 was allowed, and the proceedings in C.P.1/2001 before the Judicial First Class Magistrate, Attingal were quashed.

Dr.Sathy M.Pillai & 3 Ors. Vs Sarma and Another — Quashing and FIR | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 29TH OCTOBER 2010 / 7TH KARTHIKA 1932

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Crl.MC.No. 1259 of 2007()

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-------------------------------------(CP.1/2001 OF JUDICIAL FIRST CLASS MAGISTRATE COURT I, ATTINGAL)

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PETITIONER(S): ACCUSED:

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-----------------------------------------

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1. DR.SATHY M.PILLAI, SAMAD HOSPITAL, ATTINGAL.

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2. DR.MADHAVAN PILLAI, JANAKI MANDIRAM PALACE ROAD, ATTINGAL.

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3. DR. DEVIKA RANI, FORMERLY GYNEOCOLOGIST, SAMAD HOSPITAL, ATTINGAL, PRESENTLY WORKING AS GYNAECOLOGIST, COSMO POLITAN HOSPITAL, THIRUVANANTHAPURAM.

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4. K. PUSHPAVALLY, NURSE, SAMAD HOSPITAL, ATTINGAL.

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BY SRI.S.GOPAKUMARAN NAIR, SENIOR ADVOCATE

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RESPONDENT(S): COMPLAINANT & STATE:

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-----------------------------------------------------------------

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1. SARMA, S/O. SANKARAN, THULASI BHAVAN, MELATTINGAL DESOM, KEEZHATTINGAL VILLAGE.

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2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY ADV. SRI. MILLU DANDAPANI - R1 BY PUBLIC PROSECUTOR SRI. P.A. SALIM - R2

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15/10/2010, THE COURT ON 29/10/2010 PASSED THE FOLLOWING:

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Kss

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M.SASIDHARAN NAMBIAR,J.

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=========================== CRL.M.C.No. 1259 OF 2007

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===========================

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Dated this the 29th day of October,2010

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ORDER

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Petitioners 1 and 2 are the wife and the

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husband. First petitioner is Gynaecologist. She is the proprietrix of Samad hospital, Attingal. Her husband employed in the Kerala Health Service Department, on availing leave, is assisting in running the hospital. He is also working as anaesthesiologist in that hospital. Third petitioner was originally Gynaecologist in that hospital. Now she is working in Cosmopolitan Hospital,

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Thiruvananthapuram. Fourth petitioner is the

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nurse attached to the hospital. Late

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Chandrakala, wife of the first respondent was under the treatment of petitioners in Samad

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hospital as an in patient from 25.4.1996. She

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was advised to undergo encirclage operation. She was taken to the operation theature for surgical intervention on the morning of 23.5.1996 at 6 A.M. She died at 5.30 p.m. on 24.5.1996. First respondent suspected that death occurred due to medical negligence. Crime 135/1996 of Attingal Police Station was registered under section 174 of Code of Criminal Procedure. Subsequently offence under section 120B, 304A, 465 and 468 read with section 34 of Indian Penal Code was incorporated and investigated, While the case was being investigated, first respondent approached this court by filing O.P.25561/1998 to issue a writ of mandamus to file the final report without delay. In the Writ Petition investigating officer submitted that as per Annexure III Government circular dated 20.9.1993, regarding investigation of complaints against doctors for acts of commission or omission in the the medical care of patients, case is to be referred to the Medical Board and it is the

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cause of delay in completing the investigation. By Annexure VI judgment, this court directed the investigating officer to expedite the matter and to take steps to get the opinion of the Medical Board and thereafter file the final report within three months. As the final report was not filed first respondent filed Annexure XV complaint before Judicial First Class Magistrate, Attingal. It was taken cognizance as C.P.1/2001 by the learned Magistrate. Meanwhile, on the directions of the Director General of Police, investigation was handed over to the Crime Branch. Investigating Officer obtained Annexure V report of the District Medical Board to the effect that cause of death shown in the postmortem report was shock following spinal anaesthesia and though statements of the doctors are that they have not resorted to spinal anaesthesia, and only local anaesthesia was given, the shock could have been occurred immediately after giving spinal anaesthesia and quantity of

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administration of Xylocain cannot be ascertained from the doctors. Annexure II final report was then submitted by the Deputy Superintendent of Police alleging that petitioners committed offences under section 120B, 304A, 465 and 468 read with section 34 of Indian Penal Code. It was taken cognizance by Judicial First Class Magistrate, Attingal. Petitioners challenged the final report and the cognizance taken before this court in Crl.M.C.1138/2001. By that time, first petitioner made a representation to the Government stating that Medical Board did not hear them. By Annexure VIII communication Principal Secretary of Health and Family Welfare Department informed first petitioner that necessary directions were issued to the Director of Health Services, to reconsider the matter after giving an opportunity of being heard to the first petitioner. By Annexure IX, first petitioner was informed that Apex Body is constituted and directed first petitioner to

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attend the Apex Body meeting. By Annexure XII order in Crl.M.C.1138/2001, this court found that Annexure II final report was submitted in violation of the mandatory directions in the Government circular and therefore directed

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further investigation under section 173(8) of Code of Criminal Procedure and file a final report and directed the Magistrate to stay the proceedings in C.P.1/2001 pending further investigation as provided under section 210 of Code of Criminal Procedure. This court directed the Apex Body to submit the report after giving notice to the first petitioner, providing that second petitioner is also entitled to appear before the Apex Body. The Apex Body consisting of the Director General of Prosecution, Director of Health Services, Director of Medical Education, Superintendent of Police ( Crimes), Additional Director of Health Services, and Head of the Department of Forensic Medicine, held a meeting on 25.4.2006 and found under

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Annexure XIII proceedings that encirclage was done on 23.5.1996 considering the history of premature rupture of membrane in the first pregnancy. Though spinal anaesthesia was attempted, no cerebro spinal fluid was obtained. Hence local anaesthesia was

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given using xylocane 100 mg. Procedure was completed under good analgesia and relaxation and vital signs like blood pressure, heart rate, pulse rate, respiratory rate etc. were stable through out the procedure and usual clinical monitoring standard was employed and the terminal complications that developed later leading to the death of the patient were managed according to the standard protocols and death cannot be attributed directly to the surgical or the anaesthetic procedure and hence there does not seen to be any negligence on the part of the treating doctors. Annexure XIV final report was submitted

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thereafter, as provided under sub section (8) of Section 173 of Code of Criminal Procedure, to the

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effect that in the opinion of the High Level Apex Body, death of Chandrakala was not due to any negligence by the petitioners and therefore further action is to be dropped. Notice was served on the first respondent about the submission of Annexure XIV refer report. First respondent in Annexure XV complaint has alleged that post-mortem certificate shows that the cause of death was shock due to administration of spinal anaesthesia and none of the petitioners were qualified to administer spinal anaesthesia and second petitioner, who is not having diploma in anaesthesia or post-graduate degree in anaesthesia, with the knowledge that by such administration, death would be caused to Chandrakala, administered spinal anaesthesia and first petitioner who should have got the patient administered spinal anaesthesia by a competent anaesthetist, with the knowledge that if spinal anaesthesia is administered by an unqualified person, it would

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cause the death of the patient, got anaesthesia administered by the second petitioner and all the petitioners thereby committed extreme culpable negligence of a very high degree and thereby caused death of Chandrakala and committed offences under sections 120B, 304A, 465, and 468 read with section 34 of Indian Penal Code.

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This petition is filed under section 482 of Code of Criminal Procedure to quash Annexure XV complaint contending that entire case in Annexure XV complaint is built on the sole basis that death of Chandrakala was due to the shock in administering spinal anaesthesia and it was caused by the rash and negligent act of the second petitioner in administering spinal anaesthesia so as to endanger her life. It is contended that the complaint itself discloses that subsequent to the operation, first respondent had talked to his

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wife at about 6.30 p.m and that version was asserted earlier in his statement recorded under

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section 161 of Code of Criminal Procedure also and if first respondent had talked to his wife at 6.30 p.m much after the surgery, death could not have been due to shock following administration of anaesthesia. It is contended that if there was any shock due to spinal anaesthesia as alleged, it should have occurred on the operation table itself, immediately after giving spinal anaesthesia, from which she could not have survived and regained consciousness and if so first respondent could not have talked to her at 6.30 p.m. Petitioners contended that Annexure X statement of Dr. Mahadevan, Director and Professor of Anaesthesia

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and Vice Principal of Medical College,

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Thiruvananthapuram cited by the prosecution in Annexure II final report as CW33, establish that the case sheet relating to the treatment given to deceased Chandrakala reveal that death was not due to spinal shock. Annexure III circular issued by the Government provide that after registration

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of any case against a private medical practitioner or a doctor in a private hospital, for criminal negligence as in this case, investigating Deputy Superintendent of Police shall immediately refer the case to a panel consisting of Superintendent of Police, Commissioner of Police, District Medical Officer or Principal, Medical College and shall continue further investigation in the light of the decision jointly taken by the panel and in case views of the Superintendent of Police differ from those of the District Medical Officer or Principal of Medical College, they will immediately refer the issue for the opinion of an Apex Body consisting of Director of Health Services (Vigilance), Director General of Prosecution and the Director General of Police and the Apex Body can depending on the circumstances, get expert opinion from specialists in the private sector also. The affected private doctors are also free to approach the Apex Body with appeals. It is further contended that in

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W.A.994/1991 this court confirmed the findings of

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the single Judge that 'in order to fix a professional man with criminal negligence for what he has done in the discharge of his profession, there must be proof of culpable negligence and in order to arrive at the question of culpable negligence the impugned circulars containing directions and guidelines are really necessary and that it cannot amount to interference with the statutory powers of investigation under the Code of Criminal Procedure. The investigating officer has not originally complied with the directions to get the opinion of the Apex Body. By Annexure XII order this court directed to conduct further investigation after getting opinion of the Apex Body. In such circumstances Annexure XIII opinion

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of the Apex Body was furnished and based on Annexure XIII, Annexure XIV refer report was submitted. It is contended that after the charge was dropped accepting the refer report the

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complaint cannot be entertained. It was contended that when the refer report was accepted, on the same set of facts, the cognizance taken on the complaint is bad. It is also contended that Annexure X statement of Dr. Mahadevan, the expert establish that death of Chandrakala was not due to

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shock caused by the administration of spinal anaesthesia and Annexure XIII report of the Apex Body also establish that fact. It is also contended that Supreme Court in Jacob Mathew v. State of Punjab (2005(6) SCC 1) directed the Union of India and the State Government to formulate

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Statutory rules or instructions incorporating certain guidelines for getting the report of the expert body before completing the investigation and Annexure III circular was issued by the State of Kerala much earlier, which provides for investigation in accordance with the opinion of the Medical Board and therefore when the Apex Body found that death of Chandrakala was not due to any

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negligence in treating her, the complaint is liable to be dismissed.

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Learned senior counsel appearing for the petitioners pointed out that decision of the Apex Court in Jacob Mathew’s case (supra) was subsequently followed in Martin D'souza v. Mohd.Ishfaq (2009(3) SCC 1), Kusum Sharma v. Batra Hospital & Medical Research Centre ( 2010 (1) KLT SN 83), and V.Kishan Rao v. Nikhil Super Speciality Hospital and another (2010(5) SCC 513). It was argued that when the Apex Body

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found that death was not due to

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administration of spinal anaesthesia and there was no negligence in the medical care given to

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the deceased continuation of prosecution

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based on the complaint is illegal and

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therefore it is to be quashed. Relying on the decision of the Apex Court in Poonam Chand

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Jain and another v. Fazru (2010(2) SCC 631) it

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was argued that on the acceptance of the refer

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report submitted under section 173(8) of Code of Criminal Procedure, cognizance taken on a complaint alleging identical facts will not lie and therefore on that ground alone the complaint is liable to be quashed.

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Relying on the decision of the Apex Court in Harishchandra Prasad Mani v. State of Jharkhand

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(2007(15) SCC 494), Malay Kumar Ganguly v. Dr.Sukumar Mukherjee and others (2009)(9) SCC 221) it was argued that when there is no material in support of the allegation that death was due to the negligence in administration of spinal anaesthesia or even to show that death was caused due to shock by administration of spinal anaesthesia, the cognizance taken and the private complaint are liable to be quashed.

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Learned senior counsel argued that wife

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of the first respondent was admitted in the hospital of the petitioners and claiming to be expert doctors they treated her and as is clear from the complaint after the deceased was taken to the operation theatre for surgery, there was complete secrecy and though first respondent and the mother of the deceased were waiting outside, no information was furnished to them and at about 6 p.m. with permission first respondent and her

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mother had seen Chandrakala and at that time Chandrakala was experiencing severe pain due to the surgery. When the mother of the deceased met the third petitioner and informed the facts, she

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promised to do the needful. The mother was informed that Chandrakala would be taken to the

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post operative ward at 8 a.m. on the next morning. Though as required by the fourth petitioner, coffee was arranged for the patient and it was informed by the fourth petitioner that patient had consumed the coffee, first respondent was informed by 9

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p.m. that Chandrakala had vomited. As sought for by the fourth petitioner, necessary clothes were given. Permission of the mother to see Chandrakala was refused by the petitioners. At about 12 in the midnight, they heard cry from the post operative ward. Suspecting that it is that of Chandrakala, first respondent and mother of Chandrakala enquired with the staff and they explained that it was somebody else. Later when the mother of Chandrakala persistently questioned the staff, it was admitted that the cry was that of Chandrakala. Much later, mother was permitted to see her. The mother found Chandrakala lying naked on the floor. It was then disclosed that Chandrakala had mental illness. Getting suspicious first respondent and the relatives procured Dr.Ajayakumar, their relative who reached the hospital by 1 a.m. But permission was refused to the said doctor to see the patient promising that all necessary attention has been given. As it was disclosed that

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Chandrakala had developed mental illness her brother arranged Dr.Surajamani, a Psychiatrist, who reached the hospital by 5 a.m. The doctor was prevented from seeing the patient on the ground that patient is sleeping. Though at 6 a.m. the doctor could see the patient, as she was the sleeping, doctor could not examine her. At 8 a.m. on 24.5.1996 as required by the staff, bread and coffee were arranged for the patient. It was informed that the patient had consumed them, though in fact it was not correct. The condition of Chandrakala became worst by passage of time. Still better treatment was not provided. As a result by 11 a.m. on 24.5.1996, death of Chandrakala was informed to the first respondent. It is alleged that it is clear that death was caused only due to the culpable negligence in the treatment given to Chandrakala.

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Learned senior counsel pointed out that the

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Apex Body had given the opinion behind the back of

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the first respondent without affording any opportunity to the first respondent to be heard and therefore it is not binding on the first respondent. Learned senior counsel vehemently argued that it is for the court to decide on the materials whether the opinion of the forensic doctor that death was due to shock during administration of spinal anaesthesia or the opinion of the Apex Body is to be accepted and in any case the question cannot be decided in a petition under section 482 of Code of Criminal Procedure and that too without affording an opportunity to the first respondent to establish that the opinion of the Apex Body is not correct and death was caused due to the culpable negligence of the petitioners. Learned senior counsel relying on the decision of the Apex Court in Mahavir Prashad Gupta and another v. State of National Capital Territory of Delhi and Others (2000(8) SCC 115) argued that the power to quash the criminal

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complaint is to be exercised only sparingly and with circumspection and that too in the rarest of rare cases, where the complaint does not disclose any offence and if the complaint discloses an offence, High Court shall not embark upon an

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inquiry as to the genuineness of the allegations made in the complaint or whether those allegations are likely to be established by evidence or not and hence the complaint cannot be quashed. Learned senior counsel relying on the decision in Mahadev

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Prasad Kaushik v. State of Uttar Pradesh and another (2008)14 SCC 479) argued that when the complaint disloses that death was due to shock and it was due to the culpable negligence in

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administering spinal anaesthesia and the postmortem certificate supports the contentions, based on the

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opinion of the Apex Body, furnished without affording an opportunity to the first respondent to be heard, the complaint cannot be quashed. It is

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argued that doors of justice may not be shut before the unfortunate husband when death of his wife was caused by the culpable negligence of the petitioners. It was argued that before deciding the question first respondent is entitled to get an opportunity to prove the cause of death and the negligence.

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The findings in the postmortem certificate is that death was caused due to shock after giving spinal anaesthesia. Annexure II final report under sub section(2) of Section 173 was submitted after investigation, based on the findings in the postmortem certificate. It was alleged that petitioners committed offences under sections 120B, 304A, 465, 468 and 34 of Indian Penal Code . Annexure II final report was submitted after obtaining Annexure V report of the District Medical Board in compliance with Annexure III circular without obtaining the report of the Apex Body. As provided under Annexure III circular,

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investigating officer had sought the opinion of the Apex Body. It is on the allegation that proper care was not taken and there was culpable negligence by the petitioners, final report was submitted. Annexure II final report was challenged

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before this court in Crl.M.C.1138/01 by the

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petitioners. This court found that Apex Body is bound to afford sufficient opportunity to the first

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petitioner as provided under Annexure III circular. This court also took note of the fact that by Annexure VIII, first petitioner was informed by the Government that Director of Health Services was directed to reconsider the matter after giving first petitioner an opportunity of being heard and by Annexure IX communication dated 23.1.2001, first petitioner was informed that she

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has to appear before the Apex Body on 14.2.2001. Therefore it was found that without obtaining the report from the Apex Body, a final report could not have been submitted. As Annexure II final report

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was submitted, this court directed further investigation under section 173(8) of Code of

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Criminal Procedure with a direction to submit the final report after obtaining opinion of the Apex Body and to stay the proceedings in C.P.1/2001 under section 210 of Code of Criminal Procedure.

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Annexure XIII report of the Apex Body was thereafter submitted. Annexure XIII establish that

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on the examination of the materials, it was found that though spinal anaesthesia was attempted, as no

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cerebro spinal fluid was obtained, spinal anaesthesia was not administered and local

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anaesthesia was given using Xylocane 100 mg.(2%) and the procedure was completed under good analgesia and relaxation and vital signs like

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blood pressure, heart rate, pulse rate, respiratory rate etc were stable throughout the procedure. They concluded that death cannot be attributed

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directly to the surgical or the anaesthetic procedure and as the terminal complications

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developed later leading to the death of the patient, who was managed according to the standard protocols, there was no negligence on the part of the treating doctors. True, Annexure XIII opinion was given without hearing the first respondent and affording an opportunity to the first respondent to present his case or dispute the opinion of the experts. The question is whether for that reason the opinion of the Apex Body is vitiated.

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Annexure III circular show that as per circular dated 30.10.1989, Government issued instructions in regard to investigation of

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complaint against doctors in Government service for the acts of commission or omission in medical care of patients in Government Hospital and

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dispensaries. They are not applicable to medical practitioners in private hospitals. Hence the guidelines provided in Annexure III was issued . The relevant portion of circular reads:-

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“After registration of

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any case against a Private medical Practitioner or a doctor in a private hospital for criminal negligence, the investigating Deputy Superintendent of Police will immediately refer the case to a panel consisting of the Superintendent of Police, Commissioner of Police, District Medical Officer or Principal, Medical College as the case may be. He will continue further investigation in the light of the decision jointly taken by the panel. ii) In case the views of the Superintendent of

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Police differ from those of
the District Medical
Office/Principal, Medical
College they will
immediately refer the issue
for the opinion of an Apex
Body consisting of Director
of Health Services (M &
PH), the Director of
Medical Education,
Additional Director of
Health Services
(vigilance), the Director
General of Prosecution and
the Director General of
Police. The Director of
Health Service who will be
the convenor of the Apex
Panel can, depending on the
circumstances, get expert

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opinion from specialists in the private sector also. The affected private doctors are also free to approach the Apex Body with

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appeals.”

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A reading of the said instructions/guidelines make it clear that from 20.9.1993, if investigation of a case against a private medical practitioner or a doctor in a private hospital for the criminal negligence is involved,, after registration of the case, investigating officer is bound to refer the case to a panel consisting of Superintendent of Police, Commissioner of Police, District Medical Officer or Principal of the Medical College and further investigation must be ”in the light of the decision jointly taken by the panel”. It further provides that in case views of the Superintendent

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of Police differ from that of the District Medical Officer or Principal of the Medical College, they

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shall immediately refer the case for the opinion of an Apex Body, consisting of Director of Health Services, Director of Medical Education, Additional Director of Health Services (vigilance,) Director General of Prosecution and Director General of Police further providing that the Apex panel is free to get expert opinion from specialists in the private sector also depending on the circumstances of the case. The circular further provides that the affected private doctors are also free to approach the Apex Body with appeals. Circular does not provide that the complainant or the de facto complainant is to be heard, either by the District Medical Board or the Apex Body. Therefore for the reason that Annexure XIII opinion was given without notice to the first respondent or without affording opportunity to the first

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respondent to prove his case of negligence, it cannot be said that opinion of the Apex Body cannot be relied on or is not binding. On the

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other hand, the instructions provided in Annexure III is to the effect that the investigating officer shall continue further investigation in the light of the decision jointly taken by the panel and if necessary after obtaining the findings of the Apex Body. In such circumstances, it cannot be said that when the investigating officer conducted further investigation under section 173(8) of Code of Criminal Procedure as directed by this court under Annexure XII order and that too by directing the investigating officer to comply with Annexure III circular after getting the decision of the Apex Body, investigating officer is not bound by the decision of the Apex Body as to whether there was culpable negligence on the part of the doctors or not. Learned senior counsel appearing for the first respondent pointed out that Apex Court for the first time directed to get the opinion of the Medical Board only by the decision in Jacob Mathew's case (supra) on 5.8.2005 and before the

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decision was rendered, it was not incumbent for the investigating officer to obtain the decision of the Apex Body and therefore for the failure of the learned Magistrate to take into consideration the decision in Jacob Mathew’s case (supra) or the subsequent decisions, cognizance taken cannot be quashed. Even earlier to the decision of the Apex Court in Jacob Mathew’s case (supra) State of Kerala had issued Annexure III circular providing the instructions/guidelines regarding investigation of cases relating to the allegation of criminal negligence against the doctors in treating their patients. Therefore for the reason that the decision in Jacob Mathew’s case (supra) was rendered only in August, 2005, it cannot be

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contended that the investigating officer is not bound by the instructions and guidelines in Annexure III circular. Their Lordships in Jacob Mathew’s case (supra), after elaborate consideration of the principles of negligence, by

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medical professional in criminal law and review of the case laws, held that negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would do and criminal negligence in the conduct of medical profession necessarily calls for a treatment with a difference. It was held :-

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“ To infer rashness or negligence on

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the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical

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professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or

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extraordinary precautions which might have prevented the particular

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happening cannot be the standard for judging the alleged negligence. So

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also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.

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( 3 ) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The

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standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on

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indictment of negligence.

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( 4 ) The test for determining medical

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negligence as laid down in Bolam

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case WLR at p. 586 holds good in

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its applicability in India.

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( 5 ) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution. (6)The word “gross” has not been used in Section 304-A IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high

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degree as to be “gross”. The expression “rash or negligent act” as occurring in Section 304-A IPC has to be read as qualified by the word “grossly”.

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(7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.”

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Their Lordships noticed that cases of surgeons and physicians being subjected to criminal prosecution are on an increase and such prosecutions are filed

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by private complainants and sometimes by the police and the investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to a rash or negligent act within the domain of criminal law under section 304A IPC. The criminal process once initiated subjects the medical professional to serious embarassment and sometimes harassment and at the end he may be exonerated by acquittal or discharge but the loss which he has suffered cannot be compensated by any standards. Holding that it does not mean that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient, their Lordships held that such malicious proceedings have to be guarded against and therefore statutory rules or executive instructions incorporating certain guidelines need to be framed by the Government of India and the

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State Governments in consultation with the Medical Council of India. So long as it is not done, Their Lordships prescribed the following guidelines which should govern the prosecution of doctors for offences of which criminal rashness or criminal

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negligence is an ingredient as follows:-

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“A private complaint may not be

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entertained unless the complainant has produced prima

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facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness

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or negligence on the part of the

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accused doctor. The

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investigating officer should, before proceeding against the doctor accused of rash or

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negligent act or omission, obtain

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an independent and competent

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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

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and unbiased opinion applying the

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Bolam test to the facts collected

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in the investigation.”

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True, the said guideline is applicable only to complaints filed subsequent to 5.8.2005 and Annexure XV complaint was filed much earlier on 18.8.1999 and as such the said guideline is not

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applicable. But even before the decision in Jacob

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Mathews case was rendered, instructions in

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Annexure III circular provides that investigation should be based on the opinion of the expert body

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or the Apex Body. Annexure XIII decision of the

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Apex Body shows that there was no negligence. It

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was accepted by the investigating officer and

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Annexure XIV final refer report was submitted.

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Annexure III instructions and guidelines provide that when an F.I.R is registered alleging medical negligence, the investigating officer is bound to obtain opinion of the expert body and can continue the investigation only based on the opinion of the expert. Though the circular was issued earlier to the decision rendered in Jacob Mathew’s case (supra), it is definitely in consonance with the direction of the Honourable

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Supreme Court that the investigating officer or complainant may not have the necessary knowledge or skill to decide whether there was medical negligence or not. In the light of the guidelines in Annexure III investigation could only be based on the opinion of the expert body or the Apex Body. Though in the postmortem certificate finding

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was that the death was due to shock on administering spinal anaesthesia and that finding was accepted by the investigating officer and Annexure II final report was submitted earlier,

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the Apex Body as directed by this court in Annexure XII order, reconsidered the said question and found that cause of death cannot be due to shock caused by administration of spinal anaesthesia. As rightly pointed out by the learned senior counsel appearing for the petitioners, Annexure XI statement of Dr.Mahadeven recorded under section 161 of Code of Criminal Procedure which forms part of Annexure IX final report, being the statement of CW33, supports the view of the Apex Body that death is not caused due to shock, as a result of administration of spinal anaesthesia. Dr.Mahadeven was the Director and Professor of Anaesthesia and Vice Principal of Medical College, Thiruvananthapuram. Annexure X shows that he has been working as the Head of Anaesthesia since 1983 and he is the senior most anaesthetist in the State and there are general, spinal and local anaenthesia and spinal shock means sudden hypertension and collapse and breathing difficulty or breathing

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arrest occuring immediately after giving a spinal anaesthesia and it will occur on the table immediately and if not treated promptly the patient will die on the table. On studying the case sheet of the treatment given to Chandrakala, he is of the

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opinion that death is not due to spinal shock though he cannot pinpoint the cause of death. Annexure X statement also shows that as per the treatment records, spinal anaesthesia did not act and case was carried out under local anaesthesia and local anaesthesia was given to veginal orifice and as per the records blood pressure was normal for some time and it started raising when the patient became restless and excited and trangulisers are given to the patient is for controlling the excitement and to calm the patient and it will not cause the death of the patient and this was given to the patient in consultation with a Psychiatrist. Annexure XIII decision of the Apex Body also show that spinal anaesthesia was

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attempted but as no cerebro-spinal fluid was obtained, local anaesthesia was given and the procedure was completed and the patient developed excisement and restlessness seven and half hours after the said procedure. It was specifically found that terminal complications that developed later, leading to the death of the patient, cannot be attributed directly to the surgical or the anaesthetic procedure and hence it is not a case of negligence on the part of treating doctors.

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10.True, the absence of negligence on the part of the doctors treating Chandrakala was arrived at on the finding that it is not a case of death due to shock on administration of spinal anaesthesia and if death is not due to spinal anaesthesia, what was the cause of death was not found out by the Apex Body. If the case is under investigation, it could have been directed that it is for the investigating officer to first find out the exact cause of death and then seek the opinion of the

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expert body or the Apex Body whether the cause of death so found could be due to the culpable negligence on the part of the doctors. If such an investigation was not carried out, there could have a direction for a proper investigation. But that

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is not the case herein. The investigating officer based on Annexure XIII decision of the Apex Body concluded that death was not due to negligence on the part of the petitioners. In Annexure XV complaint first respondent proceeded on the basis that death was due to shock on administration of spinal anaesthesia. There is no averment in the complaint that death was due to any other cause. Instead the only case is that death was due to shock by administering spinal anaesthesia. If that be the case, the only question as far as the complaint is concerned is whether the death was caused by the shock on administering spinal anaesthesia and it is the result of negligence on the part of the petitioners in treating the

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deceased. If that be the case, if there is no material to prima facie show that death was caused due to the shock in administering spinal anaesthesia and that was caused by the negligence on the part of the petitioners in treating Chandrakala, cognizance of the offences could not be taken.

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Learned senior counsel appearing for the petitioners relying on the decision of the Apex Court in Poonam Chand Jain and another v. Fazru (2010) 2 SCC 631) argued that when the learned Magistrate has already accepted Annexure XIV final report, submitted under section 173(8) of Code of Criminal Procedure and dropped the proceedings, Annexure XV complaint on the same facts could not have been entertained and on that sole ground the cognizance taken is to be quashed. Annexure XV complaint was filed before the learned Magistrate, which was taken cognizance as C.P.1/2001 by the learned Magistrate, at a time when inspite of

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registration of Crime 116/CR/97 a final report was not submitted. Annexure II final report was submitted later which was taken cognizance by the learned Magistrate. It is at that stage petitioners filed Crl.M.C.1138/2001 and Crl.M.C.3682/2001 to quash the cognizance

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separately taken on Annexure II final report as well as Annexure XV private complaint. This court by Annxure XII order, directed the investigating officer to conduct further investigation finding that as provided under Annexure III Government circular, the question is pending before the Apex Body. This court directed the Apex Body to hear petitioners 1 and 2 and thereafter decide the matter. This court also directed to stay the further proceedings in C.P.1/2001 as provided under section 210 of Code of Criminal Procedure, in view of the direction to conduct further investigation . It is thereafter Annexure XIV final report under section 173(8) of Code of Criminal Procedure was

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submitted before the learned Magistrate, based on Annexure XIII decision of the Apex Body. Learned Magistrate had stayed C.P.1/2001 as directed by this court under Annexure XII order. Later learned Magistrate has dropped the proceedings taken on the police charge sheeted case accepting Annexure XIV final report. As provided under section 210 of Code of Criminal Procedure, when the Magistrate took steps to proceed with C.P.1/2001, this petition to quash the proceedings, is filed. When cognizance was taken in C.P.1/2001 on Annexure XV complaint filed by the first respondent, there was no dismissal of an earlier complaint under section 203 of Code of Criminal Procedure. In fact no complaint previous to Annexure XV was filed by the first respondent. Therefore it cannot be said that Annexure XV complaint which was filed on 18.8.1999 could not have been taken cognizance for the reason that a complaint was earlier dismissed by the learned Magistrate and Annexure XV is a second

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complaint. The argument is that though cognizance was taken in 2001, the case was stayed by this court under Annexure XII order, as provided under section 210 of Code of Criminal Procedure and by acceptance of Annexure XIV final report absolving the petitioners, the cognizance taken in C.P.1/2001 is to be quashed. Annexure XIV report was filed only on 27.3.2007. The fact was intimated to the first respondent by notice dated on 27.3.2007. Therefore Annexure XV complaint cannot be quashed treating it as a second complaint as canvassed by the learned senior counsel.

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True, the Constitution Bench of the Apex Court in Pramatha Nath Talukdar v. Saroj Ranjan Sarkar(AIR 1962 SC 876) laid down the law that though an order of dismissal of complaint under section 203 of Code of Criminal Procedure is not a

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bar to the entertainment of a second complaint on

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the same facts, it can be entertained only in exceptional circumstances namely where the previous

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order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or the order which was passed earlier was manifestly absurd, unjust or foolish or where new facts which could not with reasonable diligence have been brought on record in the previous proceedings.

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The Honourable Supreme Court in Jatinder Singh and Others v. Ranjit Kaur (2001(2) SCC 570) held that there is no provision in the Code or in any other statute which debars a complainant from filing a second complaint on the same allegations as in the first complaint, but if the Magistrate conducts an inquiry under section 202 of Code of Criminal Procedure and dismisses the complaint on merits, except on exceptional circumstances a second complaint will not lie. But when there was no dismissal of a complaint on merits, there is no bar in filing a second complaint on the same facts.

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A three Judge bench thereafter in Mahesh Chand v.

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Crl.M.C.1259/2007

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B. Janardhan Reddy and another (2003( 1) SCC 734) held that a second complaint is not completely barred and there is no statutory bar in filing a second complaint on the same facts, when a previous complaint was dismissed without assigning any reason. It was further held that if the complaint has been dismissed on merits, the second complaint could only be entertained in exceptional circumstances as pointed out in Pramatha Nath Talukdar's case (supra).

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Before the first respondent lodged Annexure XV complaint, there was no dismissal of a previous complaint, much less a dismissal on merits. There was also no decision, substantially on the same question on a charge sheet submitted by the police after investigation, either when Annexure XV complaint was filed or when the cognizance was taken. Eventhough Annexure XIV report based on Annexure XIII decision of the Apex Body was accepted by the learned Magistrate and

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dropped the proceedings initiated on the F.I.R registered by the police, that decision was also not on merits and in any case it was only in 2007 . Hence it cannot be a ground to reject Annexure XV complaint filed seven years earlier to the submission of Annexure XIV final report or the

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order passed by the learned Magistrate dropping the case.

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Therefore Annexure XV complaint or the

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cognizance taken cannot be quashed on the ground that it is a second complaint filed after a decision was taken on the disputed facts by the learned Magistrate.

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Learned senior counsel appearing for first respondent relying on the decision of the Apex Court in Mahavir Prashad Gupta and another v. State of National Capital Territory of Delhi and Others (2000) 8 SCC 115) argued that jurisdiction under section 482 of Code of Criminal Procedure to quash the proceedings is to be exercised only in rarest

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of rare cases, like when the complaint itself does

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not disclose any offence and even if the allegations are accepted, no case is made out and not in a case like the present one where the wife of the first respondent died from the hospital in the hands of the petitioners, consequent to the culpable negligence shown by them and therefore no interference is warranted. Reliance was also placed on the decision of the Apex court in Mahadev

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Prasad Kaushik v. State of Uttar Pradesh and

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another (2008) 14 SCC 479). In that case their Lordships found that though the charge is only under section 304 of Indian Penal Code an offence under section 304A for culpable negligence would lie. Learned senior counsel appearing for the petitioners relying on the decision of the Apex Court in Harishchandra Prasad Mani and others v.

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State of Jharkhand and another (2007) 15 SCC 494) argued that Annexure XV complaint shows that the

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very case is built on the edifice that death of Chandrakala was due to shock on administering spinal anaesthesia and Annexure XIII decision of the Apex Court establish that death was not due to shock by administering spinal anaesthesia and there is no material in Annexure XV complaint to prima facie show that there was any culpable negligence and hence the cognizance taken can only be quashed.

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The Honourable Supreme Court in State of Haryana v. Bhajan Lal (1992 SCC (Cri) 426 ) laid

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down the principles to be followed while exercising the extra ordinary power under Article 226 of Constitution of India or the inherent power under section 482 of Code of Criminal Procedure to quash the proceedings either to prevent abuse of the process of the court or otherwise to secure the ends of justice, holding that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible

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guidelines or rigid formulae. The kinds of cases wherein such power should be exercised are shown as follows:-

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. “( 1 ) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

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( 2 ) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not

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disclose cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the

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purview of Section 155(2) of the Code.

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( 3 ) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

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( 4 ) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

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( 5 ) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of

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Crl.M.C.1259/2007

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which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

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( 6 ) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7)Where a criminal proceeding is

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manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking

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vengeance on the accused and with

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a view to spite him due to private and personal grudge.’”

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It was also cautioned that the power should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. If the allegations made in the complaint, even if they are accepted at their face value in their entirety do not prima facie constitute an offence or make out a case against the accused, the power under section 482 of Code of Criminal Procedure is to be exercised. Where the uncontroverted

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allegations made in the complaint and the evidence collected in support of the same, do not disclose the commission of any offence and make out a case against the accused, it is liable to be quashed. So also where the allegation in the complaint are so absurd inherently improbable and based on it, no prudent man can reach a just conclusion that there is sufficient ground for

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proceeding against the accused, the complaint could be quashed. It cannot be disputed that if there is no material indicating the guilt of the accused in the complaint or in the materials produced along with the complaint, it could be quashed. It is also true that it is not for this court to analyse the evidence and find whether the accused could be convicted based on that evidence. But if the allegations in the

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complaint and the materials produced along with the complaint and the materials available with the Magistrate do not establish a prima facie case, continuation of the proceedings is definitely an abuse of process of court and to secure the ends of justice this court has to quash the proceedings.

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The question therefore is whether based on Annexure XV complaint and the materials available, the proceedings pending before the learned Magistrate is to be continued or to

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secure the ends of justice, it is to be quashed.

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As stated earlier, Annexure XV

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complaint is filed on the basis that death of Chandrakala was due to culpable negligence in administering spinal anaesthesia. The allegation is that it is due to the shock in faulty administration of spinal anaesthesia, Chandrakala died. Though it was the findings in Annexure II final report, submitted by the police, taking note of Annexure III Government circular and the necessity to refer the question of the negligence attributed to the doctor in the treatment of the deceased which allegedly caused the death of the patient, the question was referred to the Apex Body as provided under Annexure III circular. This court directed a further investigation under Annexure XII order. It is thereafter Annexure XIII decision of the Apex Body was taken. The

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conclusion of the Apex Body, the team of experts in the field, establish that death of Chandrakala was not due to shock as a result of administering spinal anaesthesia. Annexure XI the statement of Dr.Mahadevan the Director and Professor of Anaesthesia, Trivandrum recorded under section 161 of Code of Criminal Procedure which form part of the record before the learned Magistrate corroborates the findings in Annexure XIII that death was not due to the administration of spinal anaesthesia. As found in Annexure XIII by the Apex Body Dr.Mahadevan also had given his opinion that death is not due to spinal shock. The doctor has also stated that in spinal shock, death is very rare and in the light of his experience for the last 29 years in the field, he is of the opinion that death is not due to spinal shock. The Apex Body on examination of the records had given the

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opinion that though spinal anaesthesia was attempted no cerebro spinal fluid was obtained and hence local anaesthesia was given using xylocane 100 mg. and the procedure was completed under good analgesia and relaxation and vital signs like blood pressure, heart rate, pulse rate, respiratory rate etc. were stable throughout the procedure. The very case of the first respondent is that he had seen deceased Chandrakala at 6 p.m. five hours after the encirclage, carried out by the petitioners. If the death is due to the shock consequent to administering spinal anaesthesia, first respondent could not have talked to Chandrakala as admitted by him. That itself indicate that death was not due to the shock in administering spinal anaesthesia as found under Annexure XIII decision of the Apex Body and opined by Dr. Mahadevan. No other material in Annexure XV complaint show

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that the death was due to faulty administration of spinal anaesthesia. Though learned senior counsel argued that first

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respondent did not get an opportunity to challenge the findings of the Apex Body or the opinion of Dr.Mahadevan and hence the

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proceedings may not be guillotined at the initial stage, the materials produced in support of the complaint do not prima facie establish the case of the first respondent and

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the records before the learned Magistrate instead disproves the allegations. Though it was contended that second petitioner is not a qualified anaesthetist and hence there was negligence, the statement of Dr.Mahadevan disproves that contention also. As cautioned

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by the Honourable Supreme Court in Jacob

¶284

Mathew's case, the criminal process once

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initiated subjects the medical professional to serious embarassment and sometimes harassment

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and at the end even if he is exonerated by an order of acquittal or discharge, “the loss which he has suffered to his reputation cannot

¶288

be compensated by any standards.” Hence continuation of the proceedings is not in the interest of justice. Therefore to secure justice, proceedings is to be quashed in exercise of the inherent power of this court under section 482 of Code of Criminal Procedure.

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Petition is allowed. C.P.1/2001 on the file of Judicial First Class Magistrate-I,

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Attingal is quashed.

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M.SASIDHARAN NAMBIAR JUDGE

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tpl/-

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M.SASIDHARAN NAMBIAR, J.

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W.P.(C).NO. /06