Dr. Ajith, Dr. Girija and Dr. Mathewkunjummen v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.UBAID THURSDAY, THE 28TH DAY OF AUGUST 2014/6TH BHADRA, 1936 Crl.Rev.Pet.No. 296 of 2014 () ------------------------------AGAINST THE ORDER IN CRL.M.P NO.2387 OF 2013 IN SC NO.1675 OF 2011 OF ADDITIONAL SESSIONS COURT, KOLLAM REVISION PETITIONER(S): ----------------------------- 1. DR.AJITH, S/O. RADHAKRISHNAN, AYILAM VEEDU, CHERAVALLI MURI KAYAMKULAM. 2. DR. GIRIJA, D/O. LEELA, KALIYARMADAM VEEDU, PALACE WARD KRISHNAPURAM VILLAGE. 3. DR.MATHEWKUNJUMMEN, S/O. KUNJUMMEN, SASTHAMPADIKKAL, EVOOR SOUTH MURI PATHIYUR VILLAGE. BY ADVS.SRI.T.M.CHANDRAN SRI.S.SUJITH SRI.P.R.NEELAKANDAN NAMBOODIRI SRI.V.A.SASIDHARAN SRI.JOSEPH ALBIN NEDUNTHALLY RESPONDENT(S)/RESPONDENT: ------------------------------------ STATE OF KERALA REPRESENTED BY THE DETECTIVE INSPECTOR CB CID HHW - 1, KOLLAM IN OCHIRA POLICE STATION, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI 31. BY PUBLIC PROSECUTOR SRI.GITHESH.R. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28-08-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No. 296 of 2014 ## APPENDIX ## PETITIONERS ANNEXURES: ANNEXURE-I: TRUE COPY OF THE POSTMORTYEM CERTIFICATE DATED 18.1.2005 ANNEXURE-II: TRUE COPY OF THE REPORT DATED 16.6.2008 OF THE APEX BODY CONSTITUTED BY THE GOVERNMENT ANNEXURE-III: TRUE COPY OF THE CASE SHEET SHOWING THE TREATMENT GIVEN TO THE PATIENT SMT.LAKSHMI IN THE PARABRAHMA HOSPITAL ANNEXURE – IV: TRUE TYPED COPY OF ANNEXURE III ANNEXURE – V: TRUE COPY OF THE OUT-PATIENT RECORD AT V.S.M. HOSPITAL, THATTARAMBALAM /TRUE COPY/ P.S TO JUDGE ## **P.UBAID, J. ~~~~~~~~~~ Crl.R.P No.296 of 2014 ~~~~~~~~~~~ Dated this the 28[th] August, 2014** ## **O R D E R** The revision petitioners herein are the three accused in S.C No.1675 of 2011 of the Court of Session, Kollam. Crime in the case was registered on a complaint of extreme medical negligence causing the death of a Nurse. Investigation was delayed at the preliminary stage, and much later it was taken over by the CBCID. After thorough investigation, the CBCID submitted final report under Section 304 of Indian Penal Code (for short 'I.P.C') on the allegation that the death of Lakshmi occurred due to the acts of extreme carelessness and negligence committed by the accused, with full knowledge of consequence that such acts will cause death. Pending the proceedings, the revision petitioners filed application before the court below as Crl.M.P. No.2387 of 2013 seeking discharge under Section 227 of Cr.P.C. The case advanced by them is that in no circumstance there can be a prosecution under Section 304 I.P.C because the allegations will at the most **2** ## **Crl.R.P No.296 of 2014** reveal culpable medical negligence, under Section 304-A I.P.C. Though such a legal objection was raised, the plea was for a total discharge. 2. The learned trial Judge heard the learned counsel for the accused and the learned Public Prosecutor. Without discussing and coming to a definite finding on the legal and factual issues raised on both sides regarding charge under Section 304 I.P.C, the learned trial judge found that charge under Section 304 I.P.C will not lie against the accused. The learned Judge also found that the offence revealed by the records is only one punishable under Section 304 A of I.P.C. The basis for such a finding appears to be an impression, revealed by the first portion of paragraph 18 of the order which reads as follows: “However, as per the settled law, petitioners who are doctors cannot be proceeded for an offence under Section 304 of Indian Penal Code”. 3. It is not known where it is settled that in no circumstance doctors can be prosecuted under Section 304 of I.P.C , or that even a case of extreme medical negligence committed with the full knowledge of consequence that it will cause death, will not attract prosecution under Section **3** ## **Crl.R.P No.296 of 2014** 304 of I.P.C. Anyway, the learned trial Judge referred to so many decisions of the Hon'ble Supreme Court, and ultimately found that, at the most, what is involved is the offence punishable under Section 304 A of I.P.C. 4. In **Dr.Suresh Gupta v. Government of N.C.T of Delhi and another [AIR 2004 SC 4091]** , the Hon'ble Supreme Court held that what is required for a prosecution under Section 304-A I.P.C, in a case of medical negligence, is not some degree of negligence or carelessless in treatment. The prosecution will have to prove a case of high degree of negligence on the part of the doctor for sustaining a prosecution under Section 304-A I.P.C. 5. In **Malay Kumar Ganguly v. Sukumar Mukherjee and others** with **Dr.Kunal Saha v. Dr.Sukumar Mukherjee and Others [AIR 2010 SC** **1162],** the Hon'ble Supreme Court held that very high degree of negligence is required for fastening criminal liability on doctors, on the allegation of causing death by medical negligence. The Hon'ble Supreme Court also held some act which may constitute negligence, or even rashness under the law of tort may not amount to culpable medical **Crl.R.P No.296 of 2014** **4** negligence punishable under Section 304-A I.P.C. 6. The important decision cited in the impugned order is that of the Hon'ble Supre Court in **Mahadev Prasad Kaushik v. State of Uttar Pradesh and another** **[(2008) 14 SCC 479].** In the said case, the Hon'ble Supreme Court has not held that prosecution cannot be brought against doctors under Section 304 I.P.C, on the allegation of medical negligence causing death. The Hon'ble Supreme Court held on the facts of that case, that summons could not have been issued against the doctor, for the offence under Section 304 I.P.C. On the facts of the said case, the Hon'ble Supreme Court found that the offence revealed is one punishable under Section 304-A I.P.C and summons ought to have to be issued under Section 304-A I.P.C. 7. When discharge in such a situation is sought, the trial Judge will have to peruse the entire materials produced by the prosecution as provided under Section 227 of Cr.P.C. On a consideration of all the materials, the trial Judge will have to consider the options under Section 228 of Cr.P.C. One option is to frame a proper charge, if the court finds **Crl.R.P No.296 of 2014** **5** that the case involves any offence triable by Court of Session. The other option is to frame proper charge for the offences revealed by the prosecution, even if it does not reveal any sessions offence, and transfer the case for trial as provided under Section 228 (1) (a) of Cr.P.C. Whatever be the option made by the Court, a proper and legal consideration of the whole material judiciously is necessary under Section 227 of Cr.P.C. This position is made clear by the Hon'ble Supreme Court in **R.S.Mishra v. State of Orissa [AIR 2011 SC 1103].** 8. In this case, I find that such a judicious consideration and examination of the prosecution records was not made by the trial court. Without exercising the option under Section 228 (1) (a) of Cr.P.C and without making any definite order on charge, the court directed that the petitioners (accused) can be proceeded for offence punishable under Section 304 A of I.P.C and that the case is to be sent to the Judicial Magistrate of the First Class, Karunagappally. However, the final result is rejection of the request for discharge. Aggrieved by the said order of dismissal, dated 25.10.2013, the accused have come up in **Crl.R.P No.296 of 2014** **6** revision. 9. Pending the proceedings here, the mother of the deceased filed an application as Crl.M.A No.3677 of 2014 to get herself impleaded as additional respondent. The said application was also heard along with revision. 10. On a perusal of the impugned order, I find that the application for discharge requires reconsideration in accordance with law, and in compliance of the provisions contained in Sections 227 and 228 of Cr.P.C. If at all the court finds that the case does not involve any sessions offence, or that what is involved is only the offence punishable under Section 304 A of I.P.C, the trial court will have to proceed under Section 228 (1) (a) of Cr.P.C. What is contemplated under Section 228 (1) (a) of Cr.P.C is not an order as passed by the trial court in this case. There must definitely be a proper, legal and judicious order on a consideration of the whole materials furnished by the prosecution. The impugned order shows that the learned trial Judge entertains an impression that a prosecution under Section 304 I.P.C is not possible in any circumstance against doctors. Of course, the Hon'ble Supreme Court has **Crl.R.P No.296 of 2014** **7** cautioned many times that even a prosecution under Section 304-A I.P.C can be sustained only if definite materials showing high degree of negligence are there with the prosecution. The materials must unerringly prove that death was the proximate result of extreme rashness and negligence on the part of the doctor, and that the doctor committed such acts with the full knowledge of consequence that such acts will cause death to sustain a prosecution for culpable homicide. Only in such definite circumstances, there can be prosecution under Part-II of Section 304 I.P.C. Anyway, the court will have to consider the whole matters and choose one of the options. If there is some material to show that the alleged death occurred due to the extreme culpable negligence on the part of the doctor, committed with the full knowledge of consequence that such extreme negligence or carelessness in the given factual situation will cause death, prosecution can proceed only under Part-II of Section 304 I.P.C. In no case, can such prosecution be sustained under the first part of Section 304 I.P.C dealing with culpable homicide not amounting to murder. What is dealt with under the second part of Section ## **Crl.R.P No.296 of 2014** **8** 304 I.P.C is causing death by some act done or committed with the full knowledge of consequence, that in the given factual situation, the said act will cause death. If the court does not find any material for such a prima facie satisfaction that this is a case coming under second part of Section 304 I.P.C, but if materials are there to sustain prosecution under Section 304-A I.P.C, the trial court can proceed accordingly, however, fully in terms of Sections 227 and 228 of Cr.P.C, as indicated above. In the result, this revision petition is disposed of as follows: (a) The impugned order passed by the court below in Crl.M.P. No.2387 of 2013 will stand set aside, and the application for discharge will stand restored to files. (b) The learned trial Judge will reconsider the application for discharge, hear both sides in detail, examine the whole prosecution records as meant under Section 227 of Cr.P.C and take decision afresh for one of the options available under Section 228 of Cr.P.C and pass appropriate judicious order. **Crl.R.P No.296 of 2014** **9** (c) Crl.M.A No.3677 of 2014 brought by the mother of the deceased will stand closed for the time being. In case, she makes an application for being heard in the court below, it shall be considered by the trial court, and if felt necessary, or if found that she has legal right to be heard, or that she requires to be heard in the interest of justice, appropriate orders can be passed by the trial court. (d) The trial court is hereby directed to take decision on the application for discharge, without any delay. Efforts shall be made for disposal within four months. **Sd/P.UBAID JUDGE** ma /True copy/ P.S to Judge