The High Court quashed a private complaint and consequential criminal proceedings alleging gross medical negligence for lack of a prior competent medical board opinion required by Government circulars under legal precedent.
Quashed Annexure A private complaint and consequential proceedings in C.C.No.457/2008. Allowed the Crl.M.C. Appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
FRIDAY, THE 10TH DAY OF JULY 2020 / 19TH ASHADHA, 1942
Crl.MC.No.4651 OF 2014
CC 457/2008 OF JUDICIAL MAGISTRATE OF FIRST CLASS, PARAPPANANGADI
PETITIONERS/ACCUSED 1 & 2 :
1 DR.K.MADHUSOODANAN FORMERLY WORKING AS DOCTOR AT CHELARI HOSPITAL, CHELARI P O, VELIMUKKU, MALAPPURAM DISTRICT, KERALA
BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.ALAN PAPALI SRI.M.REVIKRISHNAN SRI.VIPIN NARAYAN
RESPONDENTS/COMPLAINANT & STATE :
1 MANSOOR P. PANDIKASALA HOUSE, KODAMPUZHA, VIA-PETTA, FEROKE, CALICUT-673631
2 STATE OF KERALA REP BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM-682031
BY ADV.SRI. BINEESH.E.C. (P.P.)
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10.07.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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Dated this the 10th day of July, 2020
O R D E R
Accused Nos.1 and 2 are the petitioners who
seek quashment of Annexure A private complaint instituted by the 1st respondent before the JFCM Court-I, Parappanangadi, for the commission of offences punishable under Sections 304(A) and 201 read with Section 34 IPC.
Chelari Hospital at Malappuram. The 1st respondent
is the husband of the deceased Shahida, who was
admitted in the hospital on 17.10.2000 in
connection with pregnancy and delivery. After delivery of a male child on 18.10.2000, she was
shifted to Medical College Hospital, Calicut,
following profuse bleeding allegedly due to the delayed transfusion of blood. She was reported dead
on 21.10.2000 at the Medical College Hospital. The
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allegation against the petitioners is that the
death was on account of gross medical negligence of the petitioners.
petitioners and the learned Public Prosecutor. The 1st respondent is not represented today before me.
the petitioners is that the learned Magistrate issued process to the petitioners without considering the availability of necessary materials establishing prima facie gross medical negligence.
It was pointed out that in order to form sufficient ground for proceeding against the accused in Annexure A complaint, the learned Magistrate ought to have ensured the availability of opinion of a Medical Board constituted as per the relevant circulars issued by the State Government. In order to ascertain whether any expert medical opinion was
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consulted in the matter by the learned Magistrate before issuing process to the petitioners, I called for a report and it is reported by the learned Magistrate that no report of the Medical Board was available before issue of process to the accused. In this context, the learned counsel for the petitioners submits that entertainment of private
complaints against the doctors on the charge of
medical negligence ha s been tabooed by the
Honourable Supreme Court holding that without the courts en suring availability of opinion of a competent Medical Body as to the medical
negligence, the erring doctors should not be prosecuted at all. In this respect, a decision of the Honourable Supreme Court in Jacob Mathew v.
State of Punjab [2005(3) KLT 965(SC)] was cited. It is transparently clear from this decision that a private complaint ought not to be entertained
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unless the complainant has produced prima facie evidence before the court in the form of credible opinion given by another competent doctor supporting charge of rashness or negligence on the part of the erring doctor. It was also submitted, relying on a decision of this Court reported in Suvarna v. Reni Philip (2014(1) KLT 799) , that the Government of Kerala following the spirit of the aforesaid Supreme Court's decision, issued several circulars delineating the guidelines to be followed by the Investigating off icers who are seized of complaints against the doctors for commission of offence punishable under Sections 304(A) IPC.
5. The sum and substance of the contention of the learned counsel for the petitioners is that Annexure A complaint requires to be quashed for the simple reason that before issue of process, the learned Magistrate failed to consult competent
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medical opinion of the Medical Board constituted as
per circulars issued by the Government of Kerala. The argument merits acceptance. Hence, I am of the view that Annexure A complaint and consequential proceedings in C.C.No.457/2008 are liable to be quashed.
In the result, this Crl.M.C. is allowed by quashing Annexure A complaint and consequential proceedings in C.C.No.457/2008. At the same time, it is made clear that if the complainant chooses to
file a private complaint on same facts, the learned Magistrate may consider such complaint in accordance with law.
All pending interlocutory applications are
closed.
Sd/-
T.V.ANILKUMAR JUDGE
ami/
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APPENDIX
PETITIONERS' EXHIBITS:
ANNEXURE A TRUE COPY OF THE PRIVATE COMPLAINT PREFERRED BY THE IST RESPONDENT BEFORE THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-I, PARAPPANANGADI DTD 16/10/2013
ANNEXURE B TRUE COPY OF THE ORDER PASSED BY THE DISTRICT CONSUMER REDRESSAL FORUM, MALAPPURAM IN OP NO 277 OF 2001 DTD 24/6/2009
3 issues framed by the court
Whether a private complaint alleging gross medical negligence can be upheld without a prior competent medical board opinion as per Government circulars.
Whether the Magistrate erred in issuing process without ensuring availability of a Medical Board opinion.
Whether the private complaint instituted by the respondent requires quashment.
Colour shows how this judgement treated each authority
Jacob MathewExplained¶43
Jacob Mathew v. State of Punjab [2005(3) KLT 965(SC)]
1 provisions across 1 enactments
DR.K.MADHUSOODANAN
DR.(MRS) K MARY JOHN
MANSOOR P. PANDIKASALA
STATE OF KERALA
T.V.ANILKUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
