CRL.MC No. 394 of 2018, High Court of Kerala at Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH TUESDAY, THE 18[TH] DAY OF OCTOBER 2022 / 26TH ASWINA, 1944** **CRL.MC NO. 394 OF 2018** **CRIME NO.325/2011 OF AMBALAPPUZHA POLICE STATION, ALAPPUZHA CC 531/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS,** ## **AMBALAPUZHA** ## **PETITIONERS/ACCUSED NO.1 & 2:** - **1 DR.S.SETHUNATH, ASSISTANT PROFESSOR, PAEDIATRIC SURGERY, SAT HOSPITAL, THIRUVANANTHAPURAM.** - **2 DR. SAM VARKEY, ASSISTANT PROFESSOR, PAEDIATRIC SURGERY, MEDICAL COLLEGE HOSPITAL, VANDANAM, ALAPPUZHA.** **BY ADVS. DR.S.GOPAKUMARAN NAIR (SR.) SRI.K.ARJUN VENUGOPAL SMT.V.A.HARITHA SRI.JEEVAN RAJEEV SRI.P.A.MOHAMMED SHAH SMT.MARY RESHMA GEORGE SMT.P.M.MAZNA MANSOOR SRI.R.NANDAGOPAL SRI.SOORAJ T.ELENJICKAL** ## **RESPONDENTS/COMPLAINANTS:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURTOF KERALA, ERNAKULAM, KOCHI.31** - **2 RANGARAJAN, S/O RAMANKUTTY, MADATHILPPARAMBU, VALIAKULAM WARD, ALAPPUZHA-688002** **BY SRI.G.SUDHEER, P.P.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18.10.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **CRL.MC NO. 394 OF 2018** 2 ## **O R D E R** This Crl.M.C. has been preferred to quash all further proceedings in C.C.No.531 of 2017 on the files of the Judicial First Class Magistrate Court, Ambalappuzha (for short 'the court below'). 2. The petitioners are the accused Nos.1 and 2. The second respondent is the defacto complainant. The offence alleged against the petitioner is punishable under Section 304A of IPC. 3. The petitioners are Doctors by profession. They were working as Professor and HOD in Paediatric Surgery and as Assistant Professor in Paediatric Surgery respectively at the Government T.D.Medical College Hospital, Vandanam. 4. The niece of the 2[nd] respondent, aged 11 years, was admitted on 01/04/2011 at the pediatric surgery ward at the T.D. Government Medical College, Alappuzha with abdominal pain and fever. She was examined by the petitioners. Ultra sound of abdomen was done. Clinical **CRL.MC NO. 394 OF 2018** 3 examination and ultra sound of abdomen were suggestive of acute appendicitis with possibility of perforation. She was taken for an emergency surgery on 01.04.2011 itself. The surgery was conducted. Following the surgery, she was shifted to post operative ICU. She was administered medicines. However, she had intermittent fever on subsequent days. She was put on higher antibiotic injection namely Ceftazidime on 06/04/2011. Test dose for injection Ceftazidime was given at 10 p.m. and full dose was given at 10.30 p.m. Following full dose, the patient became restless and went into shock. The patient was intubated, shifted to the adjoining surgical ICU and then put on ventilator. Ultimately, the patient expired on 07/04/2011 at 12.45 a.m. 5. The 2[nd] respondent lodged first information statement before the Ambalappuzha police station on 07/04/2011 alleging medical negligence on the part of the petitioners. Annexure-A1 is the FIS. Based on Annexure-A1, a crime was registered on the same day **CRL.MC NO. 394 OF 2018** 4 itself. Annexure-A2 is the FIR. An Expert Committee was constituted as per the order of the Director of Medical Education to enquire into the death of the patient. The Expert Committee submitted an enquiry report attributing no negligence on the part of the petitioners. Relying on the said report as well as the postmortem findings, the investigating officer in Annexure-A2 crime filed a refer report on 10/05/2012. Annexure-A4 is the refer report. Aggrieved by Annexure-A4, the 2[nd] respondent preferred a protest complaint at the court below. The court below after conducting enquiry u/s 202 of Cr.P.C, took the complaint on file as C.C.No.531 of 2017 u/s 304A of IPC and process was issued to the petitioners. It is thereafter, the petitioners have approached this Court to quash the entire proceedings in C.C.No.531/2017 invoking S.482 of Cr.P.C. 6. I have heard Sri.Sooraj T. Elenjickal, the learned counsel appearing for the petitioners and Sri.G.Sudheer, the learned Public Prosecutor. Even though **CRL.MC NO. 394 OF 2018** 5 notice has been issued to the 2[nd] respondent, there is no appearance. 7. The Apex Court in _**Jacob Mathew v. State of Punjab**_ [2005 (3) KLT 965] held that so long as the 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. In paragraph 53 of the said judgment, it is specifically stated that a private complaint alleging medical negligence may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. It was further held that the Investigating Officer should before proceeding against the Doctor accused of rash or negligent act or **CRL.MC NO. 394 OF 2018** 6 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 be an impartial and unbiased opinion applying Bolam test to the facts collected in the investigation. 8. Again the Apex Court in _**Martin 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 Fora or by the Criminal Court, then before issuing notice to the Doctor or the 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, if the Doctor or Committee reports that there is prima facie case of medical negligence, notice should be issued to the concerned Doctor/Hospital. The Full Bench of this Court in _**Suvarna v. Dr. Renil**_ **CRL.MC NO. 394 OF 2018** 7 _**Philip and others**_ [2014 (1) KHC 112] has held that when medical negligence is alleged against the Doctors, the Investigating Officer has to immediately refer the case to an expert opinion and duty is cast on the Investigating Officer to consider the views expressed by the Expert Panel before continuing the further investigation. It was further held that, the Investigating Officer can seek additional expert opinion, if situation demands. 9. Annexure-A3 would show that the case was referred to the Expert Committee of Doctors consisting of three Doctors and they conducted enquiry and filed a report. In the said report, it is stated that the patient was given the accepted standard treatment by the Doctors. As per the said report, there is absolutely no negligence on the part of the petitioners in administering injection or giving treatment to the patient. In the postmortem report also, the cause of death has been shown as 'Peritonitis'. As against Annexure-A3 report, no further **CRL.MC NO. 394 OF 2018** 8 report has been obtained to suggest that there is any negligence on the part of the petitioners. Still, the court below took cognizance of the offence. It is in violation of the guidelines settled by the Apex Court in _**Jacob Mathew**_ 's case (supra). 10. In view of the specific finding in Annexure-A3 enquiry report, I am of the view that criminal proceedings against the petitioners will not lie. Hence, all further proceedings in C.C.No.531 of 2017 on the files of the Judicial First Class Magistrate Court, Ambalappuzha, are hereby quashed. The Crl.M.C. is allowed. Sd/- **DR.KAUSER EDAPPAGATH, JUDGE** AS **CRL.MC NO. 394 OF 2018** 9 ## **APPENDIX OF CRL.MC 394/2018** ## **PETITIONERS' ANNEXURES:** **ANNEXURE A1 TRUE COPY OF THE FIRST INFORMATION STATEMENT.** **ANNEXURE A2 TRUE COPY OF F.I.R NO.325/2011 REGISTERED BY THE AMBALAPUZHA POLICE ON 07.04.2011 ANNEXURE A3 TRUE COPY OF THE ENQUIRY REPORT. ANNEXURE A4 TRUE COPY OF THE "MISTATE OF FACT" FILED BEFORE THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, AMBALAPUZHA.` ANNEUXRE A5 TRUE COPY OF THE PROTEST COMPLAINT FILED BY 2ND RESPONDENT DATED NIL BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, AMBALAPUZHA.**