Dr. M. Padmanabha Shenoy, Shyni M., Dr. M.K. Muneer v State of Kerala and Suresh Bhatt

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN THURSDAY, THE 28TH DAY OF JUNE 2012/7TH ASHADHA 1934 Crl.MC.No. 3784 of 2006 ( ) --------------------------CC.208/2006 of J.M.F.C.-I, KANNUR PETITIONER(S)/ACCUSED 1 TO 3: ---------------------------- 1. DR.M.PADMANABHA SHENOY, S/O.DR.MUKUNDARAJ SHENOY, AGED 37 YEARS, FORT ROAD KANNUR. 2. SHYNI.M., D/O.P.M.RAMESHAN, AGED 25 YEARS, MULLANKANDY HOUSE, PO.THANA KANNUR. 3. DR.M.K.MUNEER, S/O.C.H.MUHAMMED KOYA, PARTNER, CITY HOSPITAL, JOHN MILL ROAD TALAP, KANNUR. BY ADVS.SRI.P.VIJAYA BHANU (SR.) SRI.V.RAMKUMAR NAMBIAR COMPLAINANT/COMPLAINANT: --------------------------- 1. STATE OF KERALA, REPRESENTED BY - PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SURESH BHATT, S/O.SREENIVAS BHATT, AGED 46 YEARS, NEAR SREE VENKITARAMANA TEMPLE THAYYIL, KANNUR-3. BY G.P.SMT.HYMA.S. BY ADV. SRI.M.K.SUMOD BY ADV. SRI.KAUSER EDAPPAGATH THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 28-06-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **'CR'** ## **P.S.GOPINATHAN, J.** ## **----------------------------Crl.M.C.NO. 3784 OF 2006 ------------------------------------Dated this the 28[th] day of June, 2012** ## **O R D E R ~~~~~~~** Petitioners are accused 1 to 3 in C.C.No.208/2006 on the file of the Judicial Magistrate of the First Class-I, Kannur. The 2[nd] respondent herein filed Annexure A6 complaint against the petitioners and three others alleging offence under Section 304 read with 34 IPC. 1[st] petitioner is the 1[st] accused. Petitioners 2 and 3 were arrayed as accused 4 and 5. In the complaint, accused 2 and 3 are two other doctors. After taking the sworn statement of the 2[nd] respondent and other witnesses, the learned Magistrate discharged the accused 2 and 3 in the complaint. Cognizance was taken against the petitioners for offence under Section 304A read with 34 IPC and process was issued. Assailing the order taking cognizance and seeking an order to quash Annexure A6 complaint in exercise of the powers under Section 482 of the Code of Criminal Procedure this petition is filed. Crl.M.C.No.3784/2006 2 2. The brief facts of the case is that the daughter of the 2[nd] respondent, Vidya, aged 13 years, was brought to the hospital, run by the third petitioner, wherein the first petitioner is a Pediatrician and the 2[nd] respondent is a nurse, at 11.55 A.M, on 8/4/2003, with history of high fever. The girl was admitted in the hospital and while undergoing treatment, the girl expired at 8.55 P.M. At 8.45 P.M., Adrenalin injection was given. According to the 2[nd] respondent, the medicine for the injection and the syringe along with other medicines were purchased from the hospital. Copy of the bill is one of the documents referred to as Annexure-A5. The 2[nd] respondent noticed in the bill that the expiry of the medicine and the syringe supplied was over as early as 01/03 and 10/02 respectively. It is alleged that the death of the child was due to the criminal negligence of the petitioners by giving the injection of medicine with a syringe, expiry of both was over. 3. From the arguments advanced and as per the documents produced, it is revealed that attributing the negligence against the first petitioner, the 2[nd] respondent Crl.M.C.No.3784/2006 3 preferred a complaint before the Deputy Superintendent of Police. But no action was initiated. On 27/8/2004, a First Information Statement was lodged before the Sub Inspector of Police, Kannur Town Police Station, on the basis of which, a case as Crime No.535/2004 was registered alleging offence under Section 304 IPC against the first petitioner. Annexure-A2 is the First Information Report. The Deputy Superintendent of Police, Kannur, took over the investigation. During the investigation, a report of the Drug Inspector was obtained. The Drug Inspector conducted a detailed enquiry and submitted Annexure-A1 report, wherein it is reported that enquiry revealed that the alleged batch of drug Adrenalin injection, the expiry of which was over , was not in stock in the pharmacy on the date of incident and the entry in the sale bill as if it was an expired drug might be a computer mistake. The expiry period of the syringe supplied to the patient was also not over and a mistake occurred in the bill due to oversight in entering the particular entry in the computer as in the case of drug. Basing upon the report of the Drug Inspector, Annexure-A5 final report was submitted by the Deputy Superintendent of Police, Kannur stating that the expiry Crl.M.C.No.3784/2006 4 of the medicine administered was not over and that it is a case of mistake of facts and that the death of the child was not due to any medical negligence. Protesting against the refer report filed, the 2[nd] respondent preferred the complaint before the trial court as stated earlier. 4. I have heard Sri.Vijayabhanu, the learned senior counsel appearing for the petitioner, Sri.K.R.Avinash the learned counsel appearing for the 2[nd] respondent and the learned Government Pleader. Perused the records including the refer report and the complaint. 5. The 1[st] argument that was advanced by the learned senior counsel for the petitioner is that this complaint was filed against the guidelines issued by the Apex Court in Jacob Mathew v. State of Punjab and another [AIR 2005 SC 3180]. At para 53 the Apex Court held as follows: “.............. we proposed to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not Crl.M.C.No.3784/2006 5 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. The investigating officer should, before proceeding against the doctor accused of rash or negligent 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's test to the facts collected in the investigation.” I find that the trial court has not followed the above guideline issued by the Apex Court because evidently there is no independent and competent medical opinion in support of medical negligence. For that reason itself, this petition would succeed. Adding to that, in my anxiety to see whether any offence alleged is made out against any of the accused, I have gone through Annexure-A6 complaint as well as the documents appended along with the refer report submitted by the investigating officer. Doctor's orders contained in Annexure-A5 (page 77 of the petition) would show that at 8.30 p.m. on Crl.M.C.No.3784/2006 6 8.4.2003 there was complaint of breathlessness. On examination, the patient was found gasping, RR (Respiratory Rate) - 8/m, HR (Heart Rate) - 8/m, Pulse - feeble and B.P. not recorded. Two injections were advised. At 8.45, the patient was again examined and noticed that there was no respiratory movement, pulse not palpable, B.P. not recordable and heart sound not heard. In other way, there was no sign of life. It is at that stage 'Adrenalin' injection and another injection was prescribed. Nurse's sheet containing Page 78 would show that 'Adrenalin' injection was given at 8.50 p.m. It is noted in the Doctor's order sheet that patient was clinically declared expired at 8.55 p.m. From the Doctor's orders, it is seen that at the time when 'Adrenalin' was prescribed there was no respiratory movement and the patient was almost at the collapsed stage. Therefore, it is rather difficult to come to a conclusion that the injection of 'Adrenalin' had caused the death, even if it is assumed that it was an expired medicine and injection was given with an expired syringe. It appears that Adrenalin was administrated only as an attempt to see whether the child could be saved. Probably, the attempt might have been failed. Crl.M.C.No.3784/2006 7 6. In the above circumstance and in the absence of any expert evidence to come to a conclusion that there was negligence on the side of the 1[st] respondent, in the light of the guidelines issued by the Apex Court, I find that the trial court thoroughly went wrong in taking cognizance. The learned counsel for the 2[nd] respondent though would contend that the trial court was justified in taking cognizance, I find no material from the statement of the witnesses recorded by the learned Magistrate to come to a conclusion that any negligence can be attributed against the petitioners. The report of the drug inspector that while preparing the bill for the medicine purchased the Computer Operator had committed an error cannot be ruled out. Adding to that, I find that it may not be safe to rely the bill entries to decide whether a medicine or syringe was expired. The crucial entry is the one on the packet. The 2[nd] respondent has no case that the writings on the packets were verified before launching the complaint. It is also pertinent to note that in paragraph 6 of the complaint it is stated that the 2[nd] respondent had consulted many experts who opined that the death was due to administration of expired medicine. But none Crl.M.C.No.3784/2006 8 of such expert was cited as a witness. Neither any expert opinion was produced. What is the effect of an expired medicine? Whether it is injurious to cause death? Or whether the medicine would get no expected result? If only reduction in the effect of medicine, to what extent there is reduction? All these questions stare against the prosecution. Above all, what exactly is the cause of death also remains unanswered. As mentioned earlier, even before prescribing medicine, the child had no signs of life. The learned Magistrate omitted to take note of all these aspects before taking congnizance. The 2[nd] respondent has no case of any other sort of negligence. From the documents on record it is evident that the petitioners were closely and vigilantly watching the progress of the child and timely treatments were given. If it is noticed that the injection drug and syringe were expired, the petitioners wouldn't have given the injection. Therefore, I find that the argument advanced by the learned counsel for the 2[nd] respondent is devoid of merits. Crl.M.C.No.3784/2006 9 7. I regret to notice that trial court had omitted to note the guidelines issued by the apex court in the decision cited supra. For that reason alone as stated above the trial court should not have taken cognizance. On facts also, as stated above, no medical negligence can be attributed against the petitioners to send them for trial. Therefore, this petition would succeed. 8. In the result, this petition is allowed. Annexure-A6 complaint and further proceedings thereon on the file of the Judicial Magistrate of the 1[st] Class-1, Kannur would stand quashed. The learned counsel for the 2[nd] respondent sought for reserving the right of the 2[nd] respondent to file a fresh complaint after taking appropriate expert opinion in this matter. It is a matter left open to the 2[nd] respondent and no permission of this Court is warranted. ## **(P.S.GOPINATHAN, JUDGE)** ## **dvs & ps/28/6**