CRL.MC Nos. 2266 of 2014 and 2304 of 2014: Dr. Mary Abraham v. State of Kerala; Dr. Rasna Kishor v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **TUESDAY, THE 12[TH] DAY OF OCTOBER 2021 / 20TH ASWINA, 1943** **CRL.MC NO. 2266 OF 2014** **AGAINST THE ORDER/JUDGMENT IN CMP 5849/2005 OF JUDL.M.F.C.-** **I,ERNAKULAM, ERNAKULAM** **CC 383/2010 OF JUDL.M.F.C.-I,ERNAKULAM, ERNAKULAM PETITIONER/S:** **DR. MARY ABRAHAM RESIDING AT NO.37/542, MUTTATHIL LANE, KADAVANTHARA, KOCHI-682 017.** **BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.S.ANANTHAKRISHNAN SRI.V.JOHN SEBASTIAN RALPH SHRI. RALPH RETI JOHN KUM. KEERTHANA SUDEV SHRI.VISHNU CHANDRAN SMT.SHIFNA MUHAMMED SHUKKUR SHRI.APPU BABU** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** - **2 M.R.JOSEPH MULLAPPARAMBIL HOUSE, HOUSE NO.11/1329, CENTRAL ODATHA, VELI, FORT KOCHI-682 001.** ## **BY ADV SRI.P.K.ABOOBACKEREDAPPALLY** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 12.10.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **CRL.MC NO. 2266 OF 2014** 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **TUESDAY, THE 12[TH] DAY OF OCTOBER 2021 / 20TH ASWINA, 1943** **CRL.MC NO. 2304 OF 2014** **AGAINST THE ORDER/JUDGMENT IN CC 383/2010 OF JUDL.M.F.C.-** **I,ERNAKULAM, ERNAKULAM** ## **PETITIONER/S:** **DR.RASNA KISHOR** **W/O.DR.M.A.KISHOR, KALIVILAKAM HOUSE, VAZHICHAL DESOM, OTTASEKHARAMANGALAM VILLAGE, THIRUVANANTHAPURAM DISTRICT.** **BY ADV SRI.ANIL K.MOHAMMED** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **2 M.R.JOSEPH S/O.ROCKY, MULLAPARAMBIL HOUSE, HOUSE NO.11/1329, CENTRAL ODATHA, VELI, FORT KOCHI, ERNAKULAM DISTRICT. 682 001.** **BY ADV SRI.P.K.ABOOBACKEREDAPPALLY** ## **OTHER PRESENT:** **SR.PP - SRI. RENJITH T.R.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION** **ON 12.10.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **CRL.MC NO. 2266 OF 2014** 3 ## **ORDER** Petitioners are accused Nos. 1 and 2 respectively in C.C.No. 383 of 2010 on the file of the Judicial First Class Magistrate Court I, Ernakulam, where they face allegations under 304A r/w Section 34 of the Indian Penal Code. Both of them are medical officers attached to the Cochin Port Trust hospital, Ernakulam. 2. Crime No.103 of 2005 of Harbour Police Station was registered pursuant to sad demise of Helan Joseph at the age of 43 years, who is the wife of the 2[nd] respondent, M.R. Joseph, who is Tally Supervisor, employed in the Port Trust. His wife was taken to the hospital on 15.07.2004, with complaints of misplaced multi load copper-T with anaemia and hypertension. On 22.07.2004, she was admitted in hospital for removing the copper-T but the copper-T could not be located in the abdominal cavity and on investigation it was found that her uterus was studded with multiple fibroids. Thereafter, on 23.07.2004, she was subjected to key hole surgery under general anaesthesia but the copper-T could not be located. On 24.07.2004, since the **CRL.MC NO. 2266 OF 2014** 4 patient developed hypotension and as abdominal distension was increasing, on 25.07.2004, she was subjected to total abdominal hysterectomy under general anaesthesia. She continued in the hospital but since her condition became worse, was shifted to the Lakeshore hospital on 28.07.2004. After 11 days, on 06.08.2004 she died while undergoing treatment in Lakeshore hospital. After a period of about one year, on 26.07.2005 the 2[nd] respondent instituted a complaint before the court alleging medical negligence as the cause of death of Helan Joseph. The complaint was forwarded to the police for registering a crime under Section 156(3) Cr.P.C. Thus Crime No.103/2005 was registered in Harbour Police Station. Even though Dr.Joly Thomas, an anaesthetists was also shown as the 3[rd] accused, on completion of investigation, charge sheet was laid against the petitioners as accused 1 and 2, alleging offence punishable under Section 304A r/w Section 34 IPC. The petitioners have moved this Court challenging the correctness of the opinion formed by the Investigating Officer for quashing the proceedings under Section 482 of the Cr.P.C. 3. I have heard the learned counsel for the petitioners **CRL.MC NO. 2266 OF 2014** 5 and also the learned Senior Public Prosecutor besides Sri.Aboobacker, learned counsel representing the 2[nd] respondent. 4. The learned counsel for the petitioner relied on the following authorities to support their arguments: 1. Jacob Mathew v. State of Punjab (AIR 2005 SC 3180); 2. Sosamma Kurien v. State of Kerala (2008 KHC 4896); 3. Kurban Hussein Mohamedalli Bangawalla v. State of Maharashtra (AIR 1965 SC 1616); 4. Jose v. State of Kerala (1993 KHC 349); 5. Suvarna v. Dr.Reni Philip and Others (ILR 2014(2) Ker. 905); 6. Suhara K. v. State of Kerala and others (2015(4) KHC 669); 7. Malay Kumar Ganguly v. Sukumar Mukherjee and others (AIR 2010 SC 1162) etc. 5. After hearing counsel on both sides, for numerous reasons, I am convinced that a prosecution under Section 304A of IPC cannot lie against the petitioners. Firstly, there must be proved negligence on the part of the medical officers which can be attributed as the cause of death. It is the settled proportion of **CRL.MC NO. 2266 OF 2014** 6 law that there must be direct nexus between the death of the person and the negligent act alleged against the accused persons. There must be proof that the rash or negligent act of the accused was that proximate cause of the death. The Apex Court has consistently approved the following legal position laid down by the Bombay High court in Emperor v. Omkar Rampratap, (1902) 4 Bom LR 679. “To impose criminal liability under Section 304A Indian Penal Code, it is necessary that death should have been the direct result of a rash and negligent act of the accused and that act must be the proximate and efficient cause without the intervention of another's negligence or must be the causa causans; it is not enough that it may have been the cause sine quanon” 6. Here no such negligence can be traced, even remotely, to the petitioners who are medical officers. Even though Smt.Helen had passed away on 06.08.2004, the complaint was preferred only on 26.07.2005 and the crime was registered still later, on 27.08.2005. During the course of investigation, an expert committee as stipulated in the Government Circular Memorandum dated 16.06.2008, which guides the subject, was to be constituted. But an expert **CRL.MC NO. 2266 OF 2014** 7 committee was constituted with Dr. K.T. Ramani, District Medical Officer of Health, Ernakulam, Dr.Rema, Forensic Professor, Medical College, Alappuzha and Adv.Alex M. Thombra, Additional Government Pleader. As per the Government Circular dated 16.06.2008, such complaints of medical negligence shall be referred to an expert panel consisting of the District Medical Officer of Health as Convener, District Government Pleader/Public Prosecutor, Senior Government doctor in the concerned speciality as nominated by the respective District Medical Officer and Forensic expert from the nearest Medical College. But here such a body was not constituted. Instead, a panel consisting of the above three officers alone was constituted. In the panel, not only that a subject expert is absent besides only Additional Government Pleader was nominated. Constitution of such a panel does not satisfy the requirement under the circular issued by the Government. 7. Even leaving that matter, even if Annexure A2 is accepted on its face value, is not capable of drawing any adverse inference against the petitioners. The expert panel had no **CRL.MC NO. 2266 OF 2014** 8 occasion to peruse the case sheet from the Lakeshore hospital where she died on 06.08.2004. That means, the panel could not form any opinion about the cause of death. It is only stated that when the patient's general condition was very bad at the time of exploratory laparotomy, total abdominal hysterectomy with bilateral salphingo oopherectomy could have been avoided. In the given circumstances, an investigating agency is expected to form an opinion on the alleged medical negligence on the basis of the report given by the expert panel. It is trite that the Investigating Officer should obtain an independent, impartial and competent opinion on the allegation of rashness or negligence from a panel of medical officers in Government service before deciding to proceed against the suspects. But here, neither there was a panel proper nor the panel of limited members had made any report indicting the petitioners. 8. On consideration of the factual situation, the prosecution could not make out a case of negligence on the part of the petitioners. There is no legal evidence to connect any act or omission on the part of the petitioners for the death of Smt.Helen. Thus Investigating Officer had decided to proceed **CRL.MC NO. 2266 OF 2014** 9 against the petitioners ignoring relevant aspects. In the circumstances, this Court is justified in invoking inherent jurisdiction under Section 482 of the Cr.P.C for preventing abuse of the process of Court and also to secure ends of justice. 9. That means, the investigating agency is not justified in forming an opinion alleging offence under Section 304A of IPC and the proceedings in C.C.No.383 of 2010 pending before the Judicial First Class Magistrate-I, Ernakulam are liable to be quashed. Both the Crl.M.Cs are allowed and both of the petitioners shall stand exonerated. Sd/- **K. HARIPAL, JUDGE** Dxy **CRL.MC NO. 2266 OF 2014** 10 ## **APPENDIX OF CRL.MC 2266/2014** PETITIONER ANNEXURE ANNEXURE I : CERTIFIED COPY OF MP NO.5849/05 FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ERNAKULAM AND THE FIR NO.103/05 OF HARBOUR POLICE STATION, FORT KOCHI. ANNEXURE II: CERTIFIED COPY OF THE FINAL REPORT IN CC NO.383/10 PENDING BEFORE TEH JUFICIAL FIRST CLASS MAGISTRATE COURT-I, ERNAKULAM. **CRL.MC NO. 2266 OF 2014** 11 ## **APPENDIX OF CRL.MC 2304/2014** PETITIONER ANNEXURE ANNEXURE A- TRUE PHOTOCOPY OF THE FINAL REPORT SUBMITTED BY THE POLICE IN CRIME NO.103 OF 2005 OF HARBOUR POLICE STATION. ANNEXURE B- TRUE PHOTOCOPY OF THE EXPERT OPINION.