Dr. Manjunath Shetty v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **MONDAY, THE 27TH DAY OF JULY 2020 / 5TH SRAVANA, 1942** **Crl.Rev.Pet.No.554 OF 2014** **AGAINST THE ORDER/JUDGMENT IN CRMC 4555/2010 DATED 10-08-2011 OF HIGH COURT OF KERALA** **AGAINST THE ORDER/JUDGMENT IN CC 664/2009 OF CHIEF JUDICIAL MAGISTRATE ,KASARAGOD** ## **PETITIONER/2nd ACCUSED:** **DR. MANJUNATHA SHETTY, AGED 50 YEARS, S/O. KUNHIRAMA MAIPADY, RESIDING AT CHANDRAMOULI HOUSE, IMA HALL ROAD, BEERANTHBAIL, KASARAGOD.** **BY ADV. SHRI. JAWAHAR JOSE** ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT:** - **1 THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2 SREEJA. K. B, W/O. LATE VIJAYAN, KIZHAKKEVALAPPU, KARIPODI, BEKAL P.O., PALLIKARA-II VILLAGE, KASARAGOD DISTRICT, PIN 671 313.** **SRI. K. B UDAYAKKUMAR, PP R1 - R2 - SRI. A. ARUNKUMAR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27.07.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.Rev.Pet.No.554 OF 2014** **2** ## **ORDER** **Dated this the 27th day of July 2020** The petitioner is the 2[nd] accused in CC No. 664/2009 on the file of the Chief Judicial Magistrate Court, Kasaragod, being prosecuted for offence punishable under Section 304A read with Section 34 of IPC. He challenges the legality of impugned order on CMP No.4170/2011 dated 30.12.2013 passed by the learned Magistrate refusing to drop the proceeding against him in the case. 2. He is a Senior Surgeon and also the Manging Director of United Hospital, Kasaragod. The prosecution allegation is that on 04.01.2008, he admitted one Vijayan, husband of the 2[nd] respondent (de facto complainant) for treatment in connection with Hernia. The 1[st] accused, who is a qualified anesthesiologist administered spinal anesthesia to the patient on 04.01.2008 and following the anesthetic complication, he was removed to AJ Hospital, Mangalore on 05.01.2009. Later he was taken to KMC Hospital, Manipal on 14.01.2008 for better treatment but he died on the same day **Crl.Rev.Pet.No.554 OF 2014** **3** itself while undergoing treatment in the hospital. The prosecution allegation against the petitioner is that he admitted the patient for surgery despite the patient not being in fit state of health as he was suffering from cold and cough. It is also alleged that he permitted the first accused to administer anesthesia even after noticing that he too was not in good physical condition as he was taking rest after under going a surgery on his right shoulder. The cause of death, according to the prosecution allegation, is anesthetic complication. 3. The impugned order is sought to be interfered with on the ground that the continuance of CC No.664 of 2009 is an abuse of the process of Court even taking the facts set out in Annexure A3 final report as being true. It is contended that they are quite insufficient to make out an offence punishable under Section 304A read with Section 34 of the IPC. It is also contended that when the patient was admitted for surgery, he was in fit state of health. Another contention is that the 1[st] accused is a qualified anesthetist and he too was in fit state of health so as to be able to administer spinal anesthesia. It is finally contended that the act of petitioner permitting the 1[st] accused to administer anesthesia did not amount to a grossly **Crl.Rev.Pet.No.554 OF 2014** ## **4** rash or negligent act. In this respect, he relied on Annexure K report dated 20.04.2009 issued by the Apex Body Committee constituted as per the relevant Government circular and also two decisions of Hon'ble Supreme Court reported in _**Jacob Mathew V. State of Punjab and Another**_ [2005 (6) SCC 1] and _**Jayashree Ujwal Ingole v. State of Maharashtra and Another**_ [2017 (14) Supreme Court Cases 571]. 4. I heard the learned counsel for the petitioner and the learned counsel for the 2[nd] respondent and the learned Public Prosecutor. 5. Looking at the fitness chart for surgery and anesthesia submitted before me by the learned counsel for the petitioner, I find that the physical condition of the patient was cleared by the hospital authorities on 04.01.2008 itself. So far as the petitioner is concerned, the sole allegation against him is that he permitted first accused, anesthetist to administer spinal anesthesia. There is no case for prosecution that the petitioner conducted any surgery nor compelled the 1[st] accused to administer anesthesia. As per Annexure K report of the Apex Body Committee, the cause of death was complication developed by introduction of sensorcaine into the blood vessels **Crl.Rev.Pet.No.554 OF 2014** **5** accidentally. It is also observed in the report that the 1[st] accused who had surgery on his right shoulder was not in a position to freely move his right hand and the petitioner being conscious of this condition, should only have sought the service of another anesthesiologist. 6. Under Section 304A of the IPC, a person who is liable to be prosecuted for the said offence, must be proved to have committed a rash or negligent act not amounting to culpable homicide. In other words, unless the petitioner is shown to have conducted himself in any rash or negligent manner, no penal liability could be fastened under Section 304A of the IPC. As I already stated, the sole act alleged against the petitioner is that he availed the service of an anesthesiologist of his hospital when he was not in fit state of body to administer anesthesia. This by itself is a disputed fact to be settled during the course of trial. 7. Even assuming that the petitioner had taken the service of a doctor who was not in fit state of health also, I fail to understand as to how his conduct could tantamount to a rash or negligent act. The prosecution has no case that the 1[st] accused was compelled to perform anesthesia against his wish **Crl.Rev.Pet.No.554 OF 2014** **6** and will. Nor the prosecution has a case that the 1[st] accused is not a qualified anesthetist. At any rate the 1[st] accused being a qualified doctor, it was upto him to have exercised his skill and discharged duties of a medical professional in a manner as required in the circumstances of the case before him. 8. The legal philosophy underlying Section 304A is that the death caused should be the direct result of the alleged rash or negligent act of the offender. So far as petitioner is concerned, except having availed the service of the 1[st] accused, he has not done anything more. Therefore itself, the alleged cause of death cannot be said to be the direct result of his own conduct. This by itself is sufficient to absolve him of his purported penal liability under Section 304A of the IPC. 9. Assuming the extreme position that the petitioner was rather rash or negligent also, the materials on recored are still not sufficient to establish that he conducted himself in any grossly rash or negligent manner. Despite of the fact that Section 304A does not use the expression grossly negligent, it is well nigh settled by legal precedents that so far as the medical professionals are concerned, no penal liability under Section 304A IPC could be fastened on them except when **Crl.Rev.Pet.No.554 OF 2014** **7** they are shown to have been grossly rash or negligent in their conduct. The decisions of the Hon'ble Apex Court already referred above substantiate this position of law. 10. For all these reasons together, I am of the view that the continuance of criminal proceeding against the petitioner in CC No.664/2009 is nothing but abuse of the process of court. The impugned order as well as Annexure C final report are therefore liable to be quashed. In the result, this Crl. R.P is allowed, setting aside the impugned order dated 30.12.2013. The proceedings against the petitioner in CC No.664/2009 on the files of Chief Judicial Magistrate Court, Kasaragod are hereby ordered to be dropped. ## **Sd/-** **T.V.ANILKUMAR JUDGE** SPR **Crl.Rev.Pet.No.554 OF 2014** **8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A CERTIFIED COPY OF COMPLAINT SUBMITTED BY THE 2ND RESPONDENT BEFORE THE DISTRICT POLICE CHIEF, KASARAGOD.** - **ANNEXURE B CERTIFIED COPY OF FIR. ANNEXURE C CERTIFIED COPY OF FINAL REPORT. ANNEXURE D CERTIFIED COPY OF MEMO OF EVIDENCE FILED ALONG WITH ANNEXURE-C FINAL REPORT.** - **ANNEXURE E CERTIFIED COPY OF STATEMENT RECORDED BY THE POLICE UNDER-SECTION 161 OF THE CRIMINAL PROCEDURE CODE WHICH WAS PRODUCED ALONG WITH ANNEXURE-C FINAL REPORT.** - **ANNEXURE F CERTIFIED COPY OF ORDER DATED 21.07.2011 IN CRL.M.C. NO.4555/2010 OF THIS HON'BLE COURT.** - **ANNEXURE G CERTIFIED COPY OF ORDER DATED 10.08.2011 IN CRL.M.A.NO.4995/2011 IN CRL.M.C. NO.4555/2010 OF THIS HON'BLE COURT.** - **ANNEXURE H CERTIFIED COPY OF ORDER DATED 25.08.2011 IN CRL.M.A.NO.5376/2011 IN CRL.M.C. NO.4555/2010 OF THIS HON'BLE COURT.** - **ANNEXURE I APPLICATION FILED BY THE PETITIONER BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, KASARAGOD, AS C.M.P. NO.4170/2011 IN CC NO.664/2009.** - **ANNEXURE J CERTIFIED COPY OF ORDER DATED 30.12.2013 IN C.M.P. NO.4170/2011 IN CC NO.664/2009 ON THE FILES OF CHIEF JUDICIAL MAGISTRATE COURT, KASARAGOD.** - **ANNEXURE K TRUE COPY OF REPORT OF THE APEX BODY.** **Crl.Rev.Pet.No.554 OF 2014** **9** **ANNEXURE L TRUE COPY OF THE RELEVANT PAGES OF THE OPERATION REGISTER MAINTAINED AT MALIK DINAR CHARITABLE HOSPITAL, KASARAGOD.** **RESPONDENT'S/S EXHIBITS: NIL.**