Disposed

Dr. P.K. Mohammed Bappu v. Saleema Parveen

Kerala HC28 Nov 2022Crl.MC/351/2017

Case brief

AI extract

What is this about?

This Court disposed of a criminal miscellaneous petition filed by doctors accused of medical negligence. While noting the FIR was registered without preliminary enquiry or expert opinion contrary to Jacob Mathew and Lalita Kumari principles, the Court directed the investigating officer to refer the case to an expert panel and proceed only after receiving the report.

What did the court decide?

Directive to investigating officer to refer the case to an expert panel and proceed with further investigation only after obtaining the expert report.

Dr. P.K. Mohammed Bappu Vs Saleema Parveen — Writ and Judicial Review | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH

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MONDAY, THE 28^TH DAY OF NOVEMBER 2022 / 7TH AGRAHAYANA, 1944

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CRL.MC NO. 351 OF 2017

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CRIME NO.784/2016 OF Kondotty Police Station, Malappuram PETITIONERS/ACCUSED:

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1 DR. P.K. MOHAMMED BAPPU

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MARM AYURVEDA HOSPITAL, BYPASS JUNCTION, KONDOTTY, MALAPPURAM DISTRICT, PIN-673638.

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2 BAZIL PATTARKADAVAN

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MARM AYURVEDA HOSPITAL, BYPASS JUNCTION, KONDOTTY, MALAPPURAM DISTRICT, PIN-673638.

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BY ADV.SRI.PRASAD CHANDRAN

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RESPONDENTS/DEFACTO COMPLAINANT & STATE:

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1 SALEEMA PARVEEN

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W/O.SHAHUL HAMEED, PARAKUNNATH HOUSE, PULIKKAL, KONDOTTY, MALAPPURAM DISTRICT, PIN-673638.

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2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.

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BY SRI. C.K. SURESH, SR. PP

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28.11.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

Crl.M.C.No.351/2017

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O R D E R

Dated this the 28^th day of November, 2022

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The petitioners are the accused in Crime No.784/2016 of Kondotty Police Station. The 1^st petitioner is the doctor and the 2^nd petitioner is the general manager of the hospital where the 1^st petitioner was working. The offence alleged is punishable under Section 338 of the IPC.

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The 1^st respondent is the defacto complainant. The crime was registered on the basis of a complaint filed by the 1^st respondent. The mother of the 1^st respondent was admitted at the MARM Ayurveda Hospital where the 1^st respondent was working on 30.8.2016. She was treated there as an in-patient for about three weeks by the 1^st petitioner. The allegation is that, the 1^st petitioner discharged the 1^st respondent without healing the fracture. It is further alleged that the 1^st respondent sustained fracture due to the medical negligence of the 1^st petitioner. It was in these circumstances, Annexure I complaint was filed by the 1^st respondent and consequently Annexure II FIR

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Crl.M.C.No.351/2017

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was registered by the Kondotty Police. The grievance of the petitioner is that, the FIR was registered without referring the case to an expert panel as held in the decision of the Apex Court in Jacob Mathew v. State of Punjab & Another (AIR 2005 SC 3180).

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I have heard Sri. Prasad Chandran, the learned

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counsel for the petitioners and Sri. C.K. Suresh, the learned Senior Public Prosecutor.

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The Apex Court in Jacob Mathew (supra) specifically held that the investigating officer should, before proceeding

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against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial an unbiased opinion applying Bolam's test to the facts collected in the investigation. Again, the Apex Court in Martin

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F. D'Souza v. Mohd. Ishfaq [2009 (3) SCC 1] held that whenever a complaint is received against a doctor or hospital by the Consumer Forum or by the Criminal Court, before issuing

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Crl.M.C.No.351/2017

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notice to the doctor or hospital against whom the complaint was made, the Consumer Forum or Criminal Court should first refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the concerned doctor/hospital. A Division Bench of this Court in Suvarna v. Dr. Reni Philip & Others (2014 (1) KHC 112) has held that when a medical negligence is alleged against a doctor, the investigating officer shall immediately refer the case to an expert opinion and duty is cast upon the investigating officer to consider the views expressed by the expert panel before continuing further investigation. It was further held that the investigating officer can seek additional expert opinion, if situation demands.

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The Government of Kerala has issued a circular dated 16.6.2008 in which it is stated that, after registration of any case against doctors in Government service, private medical practitioner or doctors in private hospitals for criminal

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Crl.M.C.No.351/2017

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negligence, the investigating officer shall immediately refer the case to an expert panel and in case the views of the members of the panel differ, they shall immediately refer the issue for the opinion of the apex body. It is further stated that the apex body can, depending on circumstances get expert opinion from specialists in the private sector also. The affected doctors are also free to approach the apex body with appeal. It is also stated that it shall be the duty of the investigating officer to consider the views expressed by the expert panel/apex body and to continue further investigation in the light of the decision jointly taken by the apex body and expert panel.

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The learned counsel also cited the decision of the Apex Court in Lalita Kumari v. Govt. of UP & Others (AIR 2014 SC 187) to contend that before registration of FIR, in the alleged offence of medical negligence, a preliminary enquiry had to be conducted.

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Here is a case where Annexure II FIR was registered based on Annexure I complaint. True, no preliminary enquiry was conducted. The FIR was registered on 9.11.2016. However,

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Crl.M.C.No.351/2017

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the petitioner rushed to this Court on 13.1.2017 and obtained an interim stay also. Thus the investigating officer did not get an opportunity to refer the case to an expert panel. At any rate, going by the dictum laid down by the Apex Court in Jacob Mathew 's case (supra) and the decision of this Court in Suvarna (supra), further investigation in the matter cannot be proceeded without getting an opinion of the expert panel/apex body as the case may be.

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Hence, this Crl.M.C is disposed of, with a direction to the investigating officer to refer the case to an expert panel and to proceed further only after getting a report from the expert panel.

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Sd/-

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DR. KAUSER EDAPPAGATH

JUDGE

Crl.M.C.No.351/2017

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APPENDIX OF CRL.MC 351/2017

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PETITIONER ANNEXURES

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ANNEXURE I	A TRUE COPY OF THE COMPLAINT DTD 9/11/2016, FILED BY THE IST RESPONDENT BEFORE THE SUB INSPECTOR OF POLICE, KONDOTTY POLICE STATION.
ANNEXURE II	A TRUE COPY OF THE FIR DTD 9/11/2016 IN CRIME NO 784/2016 OF THE KONDOTTY POLICE STATION, MALAPPURAM.
ANNEXURE III	A TRUE COPY OF THE RELEVANT PAGES OF THE MEDICAL RECORD OF FATHIMA BEEVI MAINTAINED AT THE HOSPITAL
ANNEXURE IV	A TRUE COPY OF THE TREATMENT CHART OF FATIMA BEEVI MEAINTAINED AT THE HOSPITAL
ANNEXURE V	A TRUE COPY OF THE COMPLAINT DTD 17/10/2016, FILED BY THE 2ND PETITIONER BEFORE THE SUPERINTENDENT OF POLICE, MALAPPURAM
ANNEXURE VI	A TRUE COPY OF THE COMPLAINT CASE NO.CC./426/2016 ALONG WITH NOTICE DTD 16/11/2016 RECEIVED BY THE PETITIONERS.

Dr. P.K. Mohammed Bappu v. Saleema Parveen

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Dr. P.K. Mohammed Bappu v. Saleema Parveen

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