Dr. K.A. Hashmin v. State of Kerala and Sharvin

``` CRL.MC NO. 8761 OF 2017 ``` ``` 1 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH THURSDAY, THE 7[TH] DAY OF JULY 2022 / 16TH ASHADHA, 1944 ``` ``` CRL.MC NO. 8761 OF 2017 ``` ``` CRIME NO.184/2017 OF Edakkara Police Station, Malappuram IN CC 544/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS, ``` ## **`NILAMBUR`** ## **`PETITIONER/S:`** ``` DR. K.A. HASHMIN, AGED 28 YEARS, S/O.ABDUL KARIM, RESIDING AT KAVUNGAZHA HOUSE, VADAPURAM, MAMBAD, MALAPPURAM-676542. BY ADVS. SRI.SHYAM PADMAN SRI.C.M.ANDREWS SMT.BOBY M.SEKHAR SRI.P.T.MOHANKUMAR SMT.NEETHU RAVIKUMAR SMT.REVATHY P. MANOHARAN ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682018. 2SHARVIN, AGED 24 YEARS, W/O NISHAD BABU, RESIDING AT MANJAKANDI HOUSE, MOOTHEDAM.P.O, NILAMBUR TALUK, MALAPPURAM-679331. BY ADVS. R1 BY SMT.T.V.NEEMA-SR.PUBLIC PROSECUTOR R2 BY SMT.ANJU CLETUS SRI.JITHIN LUKOSE SRI.P.SAMSUDIN THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07.07.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 8761 OF 2017 ``` ``` 2 ``` ## O R D E R This Crl.M.C has been filed to quash all further proceedings in C.C.No.544/2017 on the file of the Judicial First Class Magistrate Court, Nilambur. 2. The petitioner is a dentist by profession. A crime was registered against him by the Edakkara Police as Crime No.189/2017, alleging the offence punishable under Section 338 of IPC. The petitioner is running a dental clinic at Edakkara under the name and style Aysha Multispeciality Dental Clinic. The said dental clinic was set up by him in the year 2014. The 2[nd] respondent is the de facto complainant. Admittedly, she was a patient of the petitioner. The petitioner treated her on 11.7.2017 at 12.50 pm. She came with complaint of pain on her left upper back tooth region. According to the prosecution, the petitioner wrongfully extracted a healthy tooth instead of the decayed one of the 2[nd] respondent. It is alleged that the said act of the petitioner is a gross negligence falling under Section 338 of IPC. After ``` CRL.MC NO. 8761 OF 2017 ``` ``` 3 ``` investigation, the final report was filed. In the final report, apart from Section 338 of IPC, Section 232 of Kerala Panchayath Raj Act was also incorporated. It is alleged that the petitioner conducted the dental clinic without obtaining D & O licence. 3. The petitioner seeks to quash the final report mainly on the ground that it is submitted in violation of the directions issued by the Apex Court in Jacob Mathew v. State of Punjab (2005(3) KLT 965) and of this Court in Suvarna v. Dr.Renil Philip and others (2014(1) KHC 112). 4. I have heard Sri.Shyam Padman, the learned counsel for the petitioner, Sri.P.Samsudin, the learned counsel for the 2[nd] respondent and Smt.T.V.Neema, the learned Senior Public Prosecutor. 5. The Apex Court in Jacob Mathew ’s case (supra) specifically held in para 53 of the judgment that a private complaint alleging medical negligence may not be entertained unless the complainant has produced prima facie evidence before ``` CRL.MC NO. 8761 OF 2017 ``` ``` 4 ``` 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 in a police case, the investigating officer should before proceeding against the doctor accused of rash or negligence 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 and unbiased opinion applying Bolam test to the facts collected in the investigation. 6. A Division Bench of this Court in Suvarna ’s case (supra) 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 ``` CRL.MC NO. 8761 OF 2017 ``` ``` 5 ``` demands. 7. The State of Kerala has issued several circulars starting from 17.1.2004 onwards in which it is specifically stated that the report of an expert has to be obtained before proceeding against the doctors accused of rash or negligent act or omission. 8. Annexure A3 would show that the case was referred to an expert by the investigating officer. Annexure A3 does not indicate any negligence on the part of the petitioner. It is specifically stated in the report that the upper left second molar does not need extraction. No further report was called for by the investigating agency. Thus, in short, no expert report, attributing medical negligence against the petitioner, has been obtained by the investigating agency before filing the final report. That apart, the learned counsel for the petitioner made available to me a copy of the judgment of the Consumer Forum and also a copy of the deposition of the expert examined in the consumer case filed by the 2[nd] respondent against the petitioner claiming ``` CRL.MC NO. 8761 OF 2017 ``` ``` 6 ``` compensation. The copy of the deposition of the expert has been produced as Annexure A6 and the copy of the order of the Consumer Forum has been produced as Annexure A7. In Annexure A6, the expert has opined that he could not find any negligence on the part of the petitioner. The Consumer Court dismissed the complaint holding that there is no negligence on the part of the petitioner. In these circumstances, I am of the view that the criminal prosecution against the petitioner under Section 338 of IPC will not lie. 9. What remains is the charge under Section 232 of Kerala Panchayat Raj Act. It is true that Annexure A4 would show that the petitioner has obtained D & O licence subsequently. However, at the relevant period, the petitioner did not have any licence. The learned counsel appearing for the petitioner submitted that he is prepared to compound the offence under Section 232 of Kerala Panchayat Raj Act and will pay fine. 10. In view of the above findings, the final report filed ``` CRL.MC NO. 8761 OF 2017 ``` ``` 7 ``` under Section 338 of IPC against the petitioner in C.C.No.544/2017 on the file of the Judicial First Class Magistrate Court, Nilambur stands hereby quashed. The petitioner shall appear before the court below through his counsel within two weeks from today and pleading guilty of the offence under Section 232 of the Kerala Panchayath Raj Act. The court below shall impose fine on the petitioner for the offence punishable under Section 232 of the Kerala Panchayath Raj Act. The Crl.M.C is disposed of as above. Sd/- ## DR. KAUSER EDAPPAGATH JUDGE ab ``` CRL.MC NO. 8761 OF 2017 ``` ``` 8 ``` ## **`APPENDIX OF CRL.MC 8761/2017`** `PETITIONER ANNEXURES ANNEXURE A1 TRUE COPY OF THE FIR DATED 23.07.2017 LODGED BY THE PETITIONER ANNEXURE A2 TRUE COPY OF THE FIR DATED 25.07.2017 LODGED BY THE 2ND RESPONDENT ANNEXURE A3 TRUE COPY OF THE EXPERT REPORT DATED 02.08.2017 OF DR.VARNA.R. ANNEXURE A4 TRUE COPY OF THE D & O LICENCE GRANTED BY THE EDAKKARA GRAMA PANCHAYAT ON 23.11.2017. ANNEXURE A5 CERTIFIED COPY OF THE CASE DIARY IN CC 544/2017 PENDING BEFORE THE JFCM,NILAMBUR.` ANNEXURE A6: COPY OF THE EVIDENCE BY EXPERT WITNESS ANNEXURE A7: COPY OF THE ORDER DATED 1.6.2022 IN C.C.NO.3132017 RESPONDENTS ANNEXURES: NIL