Crl.MC.No.4820 of 2017

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **TUESDAY, THE 03RD DAY OF NOVEMBER 2020 / 12TH KARTHIKA, 1942** ## **Crl.MC.No.4820 OF 2017** **CRIME NO.871/2015 OF Karunaagapally Police Station , Kollam** ## **PETITIONERS/ACCUSED 1 AND 2:** |**1**|**DR.JOLLY S.J**| |---|---| ||**S/O.JANARDHANAN, AGED 49 YEARS,**| ||**CONSULTANT PULMONOLOGIST,**| ||**GENERAL HOSPITAL, PATHANAMTHITTA,**| ||**RESIDING AT SREELAKAM,**| ||**PALLIMON JUNCTION,PADA NORTH,**| ||**KARUNGAPPALLY, KOLLAM DISTRICT.**| |**2**|**DR.SHINY S**| ||**W/O.DR.JOLLY S.J, AGED 44 YEARS,**| ||**CONSULTANT GYNECOLOGIST,**| ||**TALUK HEAD QUARTERS HOSPITAL,**| ||**KARUNAGAPPALLY,**| ||**KOLLAM,RESIDING AT SREELAKAM,**| ||**PALLIMON JUNCTION,PADA NORTH,**| ||**KARUNAGAPPALLY, KOLLAM DISTRICT**| **BY ADV. SRI.B.MOHANLAL** ## **RESPONDENTS/COMPLAINANT:** |**1**|**STATE**| |---|---| ||**REPRESENTED BY THE STATION HOUSE OFFICER.**| ||**KARUNAGAPPALY POLICE STATION,**| ||**KOLLAM DISTRICT,**| ||**THROUGH THE PUBLIC PROSECUTOR**| ||**HIGH COURT OF KERALA, ERNAKULAM**| |**2**|**THE ASSISTANT COMMISSIONER OF POLICE**| ||**KARUNAGAPPALLY,KARUNAGAPPALLY P.O,**| ||**KOLLAM**| |**3**|**SRI ANEESH KUMAR K**| ||**MAROORTHEKKEDATH KIZHAKKETHIL,**| ||**ADINADU NORTH P.O, KULASEKHARAPURAM,**| ||**KARUNAGAPPALLY,KOLLAM**| **Crl.MC.No.4820 OF 2017** **2** **BY ADV.** **R1, R3 BY ADV. SRI.M.KIRANLAL R1 BY ADV. SRI.G.KIRAN R1 BY ADV. SRI.S.R.SARATH SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.4820 OF 2017** **3** ## **ALEXANDER THOMAS, J. -----------------------------------Crl.M.C. No.4820 of 2017 -----------------------------------Dated this the 3[rd] day of November, 2020** ## **ORDER** The prayer in the aforecaptioned Criminal Miscellaneous Case is as follows: _“.....to quash Annexure -A1 and A2 FIR and Report in Crime No:871/2015 of Karunagappally Police Station in Kollam District pending before the Special Court for Trial of Offences under Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act Cases, Kottarakkara registered by the Respondents as against the petitioners.”_ 2. Heard Sri.B. Mohan Lal, learned counsel appearing for the petitioners/accused (A1 and A2), Sri.Saigi Jacob Palatty, learned Public Prosecutor appearing for R1 and R2 and Sri.M.Kiranlal, learned counsel appearing for contesting respondent No.3 (de facto complainant). 3. The petitioners are Doctors who are stated to have treated the deceased victim in this case and they have now been arrayed as the sole accused in Annexure A1 FIR in Crime No.871 of 2015 of Karunagappally Police Station for offence punishable under Section 304 A of the IPC. The deceased victim in this case is stated to be the wife of the 3[rd] respondent. It is by now well settled by various rulings of the Apex Court as well as this Court that to prosecute a Doctor for **Crl.MC.No.4820 OF 2017** **4** the offence as per Section 304 A of the IPC on account of the alleged criminal negligence in discharging the professional duties of a medical Doctor, the degree of negligence would stand on a higher pedestal and that going by the very nature of the medical profession, such medical professionals are entitled for certain protective measures and that the prosecution steps in that regard may be pressed into service only after an expert panel of Doctors gives an opinion that the Doctor is prima facie guilty of criminal negligence in the discharge of his or her professional duties as a Medical Doctor, which led to the death of the victim, who has been treated by the accused Doctor. The Division Bench of this Court in the judgment in _**Suvarna v. Doctor Reni Philip and Others**_ [2014 (1) KHC 112 = 2014 (1) KLT 799=ILR 2014 (2) Kerala 905] has considered various gamuts of the issues in that regard and has held that criminal investigation on complaints against Doctors in Government and private sectors for for their acts of commission or omission has to be conducted with due care and caution and various directions have been issued regarding the methodology to be adopted in such cases and that investigation shall be conducted only by a Police officer not below the rank Deputy Superintendent of Police and that such investigating officer will have to immediately refer the case to an expert panel of Doctors and duty is **Crl.MC.No.4820 OF 2017** **5** cast on the investigating officer concerned to consider the views expressed by the expert panel before continuing further investigation and that the investigating officer can seek additional expert opinion if the situation demands. In the instant case now it is beyond any dispute that the allegations against the petitioners regarding the alleged criminal negligence in the discharge of the duties as Medical Doctors as Consultant Pulmonologist and Consultant Gynecologist respectively has been referred to such expert panel constituted in terms of the norms issued by the State Government in the Government Circular/Government Orders issued by them. Now it is appraised to this Court that the said district level expert panel has issued Annexure A4 Proceedings dated 01.08.2017 and in respect of the instant Crime No.871 of 2015 of Karunagappally Police Station relating to the death of the deceased victim, Renjini at the Medical College Hospital, Thiruvananthapuram, the expert panel has found that the patient was admitted to the Taluk Head Quarters Hospital, Karunagappally for delivery and it was a twin pregnancy and following the delivery, the patient developed Dyspnea and as condition worsened, the patient was transferred to the Medical College Hospital, Thiruvananthapuram n for better management and later the patient expired there o 24.03.2015. The expert panel after due consideration of various **Crl.MC.No.4820 OF 2017** **6** aspects has come to the considered conclusion that the records have been examined and after meticulous perusal of the medical reports in the matter by the panel and the expert panel has opined that there was indeed no negligence in providing adequate treatment to the patient either from the part of the Doctors or the hospital staff. But that the negligent act was noted on the hospital for not providing ventilator ambulance and the required staff to the transfer of the patient to MCH, Thiruvananthapuram. 4. It appears that the abovesaid findings of the expert panel have become final and conclusive. The investigating agency has no case that they have sought for a second opinion in the matter or that any appeal has been filed before the appellate/apex forum as against the considered findings by the district level expert panel, made out in Annexure A4 Proceedings. No such case has been set up before this Court. In view of the finality and conclusiveness of Annexure A4 proceedings of the district level expert panel, exonerating the Doctors, it is only to be held that the impugned criminal proceedings is liable for interdiction at hands of this Court, as it is not maintainable, in view of the well settled position in that regard. 5. Since the deceased victim belongs to Scheduled Caste Community, the Police have later transmitted copy of Annexure A1 **Crl.MC.No.4820 OF 2017** **7** FIR to the Sessions Court notified to deal with offences as per the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989 as one of the offences alleged as per Annexure A2 report stating that offence as per Section 3(2)(4) of the said SC/ST (POA) Act is also disclosed and hence the matter is to be dealt with by the said court. 6. Accordingly, it is ordered that impugned Annexure A1 FIR in Crime No.871 of 2015 of Karunagappally Police Station as against the petitioners/accused and all further proceedings emanating therefrom will stand quashed and set aside. 7. The petitioners will produce certified copies of this order before the investigating officer concerned as well as before the Special Sessions Court for the trial of SC/ST (POA) Act Cases, 1989 Kottarakkara for necessary information. With these observations and directions the above Criminal Miscellaneous Case will stand disposed of. ## **Sd/ALEXANDER THOMAS JUDGE** SCS **Crl.MC.No.4820 OF 2017** **8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 THE TRUE COPY OF THE FIR AND FIS IN CRIME NO 871/2015 OF KARUNAGAPPALLY POLICE STATION IN KOLLAM DISTRICT ANNEXURE A2 THE TRUE COPY OF THE REPORT DATED 17/06/2017 SUBMITTED BY THE 2ND RESPONDENT BEFORE THE SPECIAL COURT FOR TRIAL OF OFFENCE UNDER SCHEDULED CASTE AND SCHEDULED TRIBE (PREVENTION OF ATROCITIES) ACT CASES, KOTTARAKKARA ANNEXURE A3 THE TRUE COPY OF THE POSTMORTEM CERTIFICATE OF THE DECEASED SMT. RENJINI ISSUED FROM THE DIRECTORATE OF MEDICAL EDUCATION, THIRUVANANTHAPURAM.** //TRUE COPY// PA TO JUDGE