Dr. Meera Rajendranath v. State of Kerala, represented by Public Prosecutor, High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **FRIDAY, THE 22ND DAY OF NOVEMBER, 2019/1ST AGRAHAYANA, 1941** ## **Crl.Rev.Pet.No.1277 OF 2007** **AGAINST THE ORDER IN SC 430/2003 DATED 15-12-2006 OF ADDITIONAL SUB COURT, THALASSERY** ## **REVISION PETITIONER/ACCUSED:** **DR.MEERA RAJENDRANATH RAJIV HOSPITAL, URUVACHAL, KANNUR DISTRICT.** **BY ADVS. SRI.GRASHIOUS KURIAKOSE (SR.) SRI.GEORGE MATHEWS** ## **RESPONDENT/COMPLAINANT:** **STATE-S.H.O, MATTANNUR POLICE STATION, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** ## **BY PUBLIC PROSECUTOR SRI.RAMESH CHAND** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON** **22.11.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.R.P.No.1277 of 2007** ## **:-2-:** ## **O R D E R** ## **[Dated this the 22nd day of November, 2019]** The revision petitioner Dr.Meera Rajendranath is the accused in S.C.No.430 of 2003 on the file of the Additional Sessions Court, Thalassery Division for the offence punishable under Section 314 of I.P.C. 2. The revision petitioner has come up before this Court, being aggrieved by the order dated 15.12.2006 in S.C.No.430 of 2003 passed by the Additional Assistant Sessions Judge,Thalassery whereby the learned Sessions Judge framed charge under Section 314 of IPC disallowing the plea of discharge. 3. The case relates to miscarriage of pregnancy of one Seetha with her consent and later, she died due to excessive bleeding on 27.10.1995. It is the case of the revision petitioner that deceased Seetha was unmarried and her pregnancy was terminated with her consent at the request of her family members. 4. Criminal Law was set in motion pursuant to the First Information Statement given by the brother of the ## **Crl.R.P.No.1277 of 2007** ## **:-3-:** deceased Seetha by virtue of Annexure-A First Information Statement incorporating the offence punishable under Section 314 of IPC. Consequent to Annexure-A FIS, the Police registered Annexure-B FIR. After questioning the witnesses and conducting investigation, final report was filed before the Court of Sessions,Thalassery. 5. The learned Sessions Judge took cognizance of the offence punishable under Section 314 of I.P.C. and numbered the case as S.C.No.430 of 2003 of that court. Later the case was made over to the Additional Assistant Sessions Judge, Thalassery for trial and disposal. When the case came up for preliminary hearing, the learned counsel appearing for the accused pleaded for discharge before the court below relying on the decision reported in **Jacob Mathew** v. **State of Punjab and another** [(2005)6 SCC 1]. However, the court below passed an order disallowing the plea of discharge without discussing the legal aspects involved. The court below further framed charge under Section 314 of IPC. 6. In Jacob Mathew's case (supra), the Supreme ## **Crl.R.P.No.1277 of 2007** ## **:-4-:** Court held that 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 impartial and unbiased opinion applying Bolam's test to the facts collected in the investigation. 7. In this connection, the learned Senior Counsel Sri.Grashious Kuriakose cited a Circular Memorandum No.73231/SS.B4/92/Home dated 20.9.1993 issued by the Government of Kerala prescribing guildelines in regard to the investigation of complaints by Police against Doctors in private hospitals. The Government Order referred to above specifically provides two instructions. Firstly, after registration of any case against a Private Medical Practitioner or a doctor in a private hospital for criminal negligence, the investigating Deputy Superintendent of Police will immediately refer the case to a panel consisting of the Superintendent of Police, Commissioner of Police, District Medical ## **Crl.R.P.No.1277 of 2007** ## **:-5-:** Officer or Principal, Medical College as the case may be and he will continue further investigation in the light of the decision jointly taken by the panel. Secondly, in case the views of the Superintendent of Police differ from those of the District Medical Officer/Principal, Medical College, they will immediately refer the issue for the opinion of an Apex Body consisting of the Director of Health Services (M&PH), the Director of Medical Education, Additional Director of Health Services (Vigilance), the Director General of Prosecution and the Director General of Police. The Director of Health Services, who will be the Convenor of the Apex Panel can, depending on the circumstances, get expert opinion from specialists in the private sector also. The affected private doctors are also free to approach the Apex Body with appeals. 8. Going by Annexure A F.I.S., it is clear that the accused is a registered medical practitioner and is competent to practise in Modern medicine. It is further clear from Annexure A that the Doctor had conducted medical termination of pregnancy with the consent of the parents. Annexure D certificate in ## **Crl.R.P.No.1277 of 2007** ## **:-6-:** Form-I signed by two Doctors was prepared before conducting the termination of pregnancy. Annexure E consent was obtained in Form No.C from the deceased before conducting the medical termination of pregnancy. It is further disclosed from the records that during investigation, the Investigating Officer had questioned Dr.Samantha Bhadran Nair, Professor and Head of Department of Obstetrics and Gynaecology, Institute of Maternal and Child Health, Medical College, Kozhikode and recorded his statement by Annexure F. Annexure F inter alia reveals that pregnancy was 19 weeks and 4 days only. There is no case for the prosecution that the accused was not qualified to practice in modern medicine and had conducted medical termination of pregnancy without requisite qualification for the same. 9. On going through the records of the case, it appears that Medical Termination of Pregnancy was done in accordance with Section 3 of the Medical Termination of Pregnancy Act, 1971. 10. In the light of **Jacob Mathew** 's case(supra), negligence cannot be attributed to a Doctor so long as he is performing his duties to the **Crl.R.P.No.1277 of 2007** ## **:-7-:** best of his ability with due care and caution. To substantiate medical negligence, the element of _mens rea_ must be shown to exist. Since the accused had preformed her duties after complying with all the statutory formalities, this Court is of the view that the test for determining medical negligence as laid down in **Jacob Mathew** 's case(supra) is squarely applicable to the facts of this case. More so, the prosecution has no case that the accused was not possessed of the requisite skill, which she professed to have possessed, as a Doctor of modern medicine or did she exercise with reasonable competence in the given case, the skill which she did possess. 11. Admittedly, the guidelines fixed by the Apex Court in **Jacob Mathew** 's case(supra) have not been observed in this case. Hence, the impugned order is liable to be set aside. The impugned order is set aside and the case is remanded to the trial court to consider the entire aspects afresh, in view of the guidelines issued by the Apex Court in **Jacob Mathew** 's case (supra) and only thereafter, to form an opinion whether any charge is made out in the case or not. The ## **Crl.R.P.No.1277 of 2007** ## **:-8-:** learned Senior counsel for the revision petitioner submitted that the revision petitioner is now aged 76 years and she is bedridden. Her presence may not be insisted until a decision is taken on the plea of discharge. Taking into consideration of the submission made by the learned Senior Counsel, the court below is directed to consider the plea of discharge afresh in the light of the decision in **Jacob Mathew** 's case without insisting the presence of the accused before the court below on the date of hearing. This Court makes it clear that the trial court shall not be influenced by any of the observations made by this Court in this order and the court below is free to take independent decision in accordance with law, on the basis of the materials on record, after hearing both sides. This Criminal Revision Petition is allowed to the aforesaid extent. Sd/- ## **N.ANIL KUMAR** **JUDGE** MBS/ **Crl.R.P.No.1277 of 2007** ## **:-9-:** ## **APPENDIX** ## **REVISION PETITONER'S EXHIBITS:** Annexure A: True copy of the First Information Statement dated 27.10.1995 recorded by S.I.of Police, Mattannur. Annexure B:- True copy of the First Information Report dated 27.10.1995 in Crime No.271/1995 of Mattannur Police Station. Annexure C:- True copy of the Ultra Sound Report dated 24.10.1995 relating to Seetha. Annexure D:-True copy of the Certificate in Form-I dated 24.10.2005. Annexure E:- True copy of the Certificate in Form-C dated 24.10.2005. Annexure F:-True copy of the Statement of Dr.Samantha Bhadran Nair, Head of the Department of Obstetrics and Gyneacology Medical College, Kozhikode. Annexure G:-True copy of the order dated 15.12.2006 in S.C.No.430/2003 of the Additional Assistant Sessions Court, Thalassery. Annexure H:- True copy of the charge dated 20.12.2006 in S.C.No.430/2003 of the Additional Assistant Sessions Court, Thalassery. -true copy- P.S.TO JUDGE