Dr. Sobhana w/o Vijayan v. The State of Kerala and Jinesh S/o Chandran

# **N THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH TUESDAY, THE 7[TH] DAY OF JUNE 2022 / 17TH JYAISHTA, 1944 CRL.MC NO. 1430 OF 2016** **CRIME NO. 271/2011 OF THRISSUR EAST POLICE STATION** ## **PETITIONER/ACCUSED:** DR.SOBHANA W/O.VIJAYAN, CHAZHUR HOUSE, KARTHIKA,KARIMANGALAM DESOM, KARIMANGALAM VILLAGE,THRISSUR DISTRICT. BY ADVS. DR.S.GOPAKUMARAN NAIR (SR.) SRI.P.A.MOHAMMED SHAH SMT.P.M.MAZNA MANSOOR SRI.S.PRASANTH SRI.SOORAJ T.ELENJICKAL ## **RESPONDENTS/COMPLAINT & STATE:** 1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. 682 031. 2 JINESH S/O.CHANDRAN, VALIYAVEETIL HOUSE, AMBALOOR VILLAGE, MANNAMPETTA DESAM, THRISSUR - 680302. BY ADV RIJO DOMY SRI SANGEETHA RAJ-PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07.06.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl. M.C. No. 1430 of 2016 **==> picture [22 x 8] intentionally omitted <==** ## **ORDER** This Crl.M.C. has been filed to quash all further proceedings in Crime No. 271 of 2011 of Thrissur East police station and Annexure-A6 Final Report there. 2. The petitioner was a Gynecologist working at the Government District Hospital, Thrissur. On 28.02.2011, one patient by name Jisha, aged 26 years was admitted to the Government District Hospital, Thrissur for delivery. The petitioner treated the patient. However, the patient died following delivery at 7.55 p.m. On 02.03.2011 an FIR was registered by the Thrissur West police as Crime No. 271 of 2011 under Section 174 of Cr.P.C. on the basis of the complaint lodged by the brother of the deceased. Annexure-A2 is the FIR. Annexure-A1 is the FIS. During the investigation, the petitioner was arrayed as the accused, and an offence punishable under Section 304A of IPC was incorporated. After investigation, final report was filed against the petitioner at the Judicial First Class Crl. M.C. No. 1430 of 2016 **==> picture [22 x 8] intentionally omitted <==** Magistrate’s Court-I, Thrissur. Annexure-A6 is the Final Report. The petitioner seeks to quash the Final Report 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 **Martin F. D'Souza v. Mohd. Ishfaq** [2009 (3) SCC 1] 3. I have heard Sri. Gopakumaran Nair, the learned Senior Counsel appearing for the petitioner and Sri.Sangeetha Raj, the learned Public Prosecutor. Even though notice has been issued to the victim/ 2[nd] respondent, there is no appearance. 4. The Apex Court in _**Jacob Mathew**_ (supra) held that so long as the doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice Crl. M.C. No. 1430 of 2016 **==> picture [22 x 8] intentionally omitted <==** or procedure which the accused followed. In paragraph 53 of the said judgment, it is specifically stated that a private complaint alleging medical negligence may not 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. It was further 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 be an impartial and unbiased opinion applying Bolam test to the facts collected in the investigation. 5. Again the Apex Court in **Martin F. D'Souza** (Supra) held that whenever a complaint is received against a Doctor or Crl. M.C. No. 1430 of 2016 ..5.. Hospital by the Consumer Fora or by the Criminal Court, then before issuing notice to the Doctor or the Hospital against whom the complaint was made, the Consumer Forum or Criminal Court should first refer the matter to a competent Doctor or Committee of Doctors, specialized in the field relating to which the medical negligence is attributed, and only after that, if the Doctor or Committee reports that there is prima facie case of medical negligence, notice should be issued to the concerned Doctor/Hospital. The Full Bench of this Court in **Suvarna v. Dr. Renil Philip and others** [2014 (1) KHC 112] 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 Crl. M.C. No. 1430 of 2016 **==> picture [22 x 8] intentionally omitted <==** situation demands. 6. The records would show that the case was referred to the District Level Expert Committee of Doctors consisting of nine Doctors, the District Government Pleader and Public Prosecutor. In the Expert Committee, out of these ten persons, three persons- two doctors, the District Government Pleader, and the Public Prosecutor recorded different opinion from others, and found negligence on the part of the petitioner for not being present at the time of delivery. Annexure-A3 is the opinion of the above said three members. Since there was a difference of opinion, the case was referred to the State Level Apex Committee by the District Medical Officer of Health, Thrissur. Before a decision is taken by the State Level Apex Committee, the Investigating Officer completed the investigation and filed the final report against the petitioner. The report of the State Level Apex Committee has been produced as Annexure-A7. The Crl. M.C. No. 1430 of 2016 **==> picture [22 x 8] intentionally omitted <==** Apex Committee concluded that there are no proven materials which are necessary for attributing medical negligence against any of the Doctors including the petitioner who attended the case. 7. In view of the specific finding of the Apex Body, I am of the view that the criminal prosecution against the petitioner will not lie. Hence, Annexure-A6 Final Report and all further proceedings stand hereby quashed. The Crl. M.C. is allowed. Sd/- **DR.KAUSER EDAPPAGATH, JUDGE** RMV/07/06/2022 Crl. M.C. No. 1430 of 2016 ..8.. ## **APPENDIX OF CRL.MC 1430/2016** PETITIONER ANNEXURES ANNEXURE-A1 TRUE COPY OF THE FIRST INFORMATION STATEMENT GIVEN BY THE BROTHER ANNEXURE-A2 TRUE COPY OF THE FIR REGISTERED BY THE THRISSUR WEST POLICE ANNEXURE-A3 TRUE COPY OF THE OPINION OF THE THREE MEMBERS ANNEXURE-A4 TRUE COPY OF THE COMMUNICATION IN THIS FROM THE D.M.O., THRISSUR ANNEXURE-A5 TRUE COPY OF THE NOTICE ANNEXURE-A6 TRUE COPY OF THE FINAL REPORT IN THE CASE.