Dr. Soorya Kumari v. State of Kerala and Bini Pratheep

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 30[TH] DAY OF OCTOBER 2023 / 8TH KARTHIKA, 1945 CRL.MC NO. 4629 OF 2023** **CRIME NO.195/2004 OF Guruvayoor Police Station, Thrissur AGAINST THE ORDER/JUDGMENT CC 2747/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,CHAVAKKAD** ## **PETITIONER – ACCUSED NO.1:** DR. SOORYA KUMARI, AGED 66 YEARS, W/O.DR.RAMACHANDRAN, SURADH VEEDU, HOSPITAL ROAD, P.O. CHAVAKKAD, THRISSUR - 680 506 BY ADVS. BONNY BENNY BALU TOM GOVIND G. NAIR BEJOY JOSEPH P.J. M.RAMESH CHANDER (SR.) ## **RESPONDENTS/COMPLAINANT & STATE:** 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 BINI PRATHEEP, W/O.PRATHEEP P.P., PANDIYATH HOUSE, PERAMANGALAM, THRISSUR - 680 001 BY ADV. SRI.HRITHWIK C.S., PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30.10.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No.4629 of 2023 2 ## **P.V.KUNHIKRISHNAN, J.** **------------------------------** **Crl.M.C.No.4629 of 2023 ---------------------------------------------Dated this the 30[th] day of October, 2023** ## **ORDER** This Criminal Miscellaneous Case is filed under Section 482 of the Code of Criminal Procedure, 1973 (“the Code” for the sake of brevity). 2. Petitioner is the first accused in C.C.No.2747/2014 on the file of the Judicial First Class Magistrate Court, Chavakkad. This is a private complaint filed against the petitioner and others by the 2[nd] respondent alleging offences punishable under Section 304A IPC. 3. The case of the complainant is that, during the Crl.M.C.No.4629 of 2023 3 time when the 2[nd] respondent was pregnant she consulted the petitioner for medical advice. Through out the pregnancy period she was under the medical advice of the petitioner, is the submission. After examination of the 2[nd] respondent, it is submitted that the petitioner assured that the foetus is having normal growth and the 2[nd] respondent will have a normal delivery. On 28.05.2004, when labour pain was started to the 2[nd] respondent, she was admitted to the hospital under the advice of the petitioner. But thereafter, proper care and attention was not given to the 2[nd] respondent, either by the petitioner or other doctors or the staff members of the hospital is the grievance of the 2[nd] respondent. It is also submitted that the 2[nd] respondent suffered severe pain and agony both physically and mentally. The 2[nd] respondent delivered a baby on 30.05.2004 at 3 A.M. Crl.M.C.No.4629 of 2023 4 The baby was still born and the 2[nd] respondent was informed by the petitioner that the still birth was because of enlargement of cord thrice around the neck. It is also alleged that the still birth was because of the negligence on the part of the petitioner. Had the petitioner and other doctors attached to the hospital taken proper care, the casuality could have been avoided, is the submission. It is also alleged that the accused committed the offence under Section 304 Part II r/w Section 34 & 109 of the Indian Penal Code. The learned Magistrate taken cognizance u/s 304A IPC. Annexure A1 is the complaint. The case of the petitioner is that, even if the entire allegation in Annexure A1 is accepted, no offence is made out. 4. Heard the learned Senior counsel Sri.M.Ramesh Chander as instructed by Sri.Bonny Benny appearing for the petitioner and the learned Crl.M.C.No.4629 of 2023 5 Public Prosecutor. Even though notice was send to the 2nd respondent, there is no appearance. 5. The short point raised by the petitioner is that the police registered Crime No.195/2004 for the same incident and the same was referred as 'mistake of fact' based on the expert committee report of the Head of the department, Forensic Medicine, Medical College, Thrissur, the District Government Pleader and the Medical Officer of Health. Annexure A2 is the finding of the expert panel. Annexure A3 is the final report. Moreover, it is also submitted that a suit was filed claiming damages in which the petitioner was exonerated by the Civil court as evident by Annexure A4 judgment. Hence it is submitted that the offence is not made out against the petitioner. 6. This Court considered the contentions of the petitioner and perused Annexure A1 complaint. This Crl.M.C.No.4629 of 2023 6 Court also perused Annexure A2 finding of the expert panel. It will be better to extract Annexure A2: “ FINDINGS OF EXPERT PANEL MEETING HELD ON 09.05.2007 Crime No. - 195/2004 u/s.304 (A) 34 IPC Guruvayur Police Station File No. - D1(a)-28576/05/R Dated 16-07-2005/SP/TSR Complainant - Sri.Prabhakaran As per records available, Bini, 22 years undervent FTND with Opi on 30-05-2004 at 3 am at Thahani Hospital, Guruvayur. Baby female, has card thrice roud the nech tiphily. The baby was deeply arphyxerted and neonatal resuscitafeli attempts failed. The concerned Gynaecologist has attended the call. When Foctal distress was detected and there is no evidence to suggest any gross negligence in management. Sd/- Dr.T.V.Padmam, DGO, Civil Surgeon, Gynaecologist, District Hospital, Thrissur On the basis of the comments by the Specialist, this case need not be proceeded, since there is no negligence as alleged. The expert committee is convinced that there is no negligence as alleged. 1) The Head of Department, Crl.M.C.No.4629 of 2023 7 Forensic Medicine, Sd/Medical College, Thrissur (Dr.K.Prasannan) 2) The District Government Pleader & Public Prosecutor, Thrissur. Sd/(Sri.P.K. Pushpangadan) 3) The District Medical Office of Health, Thrissur (Dr. Shaheer T.B.)” Sd/- District Medical officer of Health Thrissur 7. Moreover, a suit was filed by the 2[nd] respondent in which the petitioner is the 1[st] defendant. The suit was decreed partly. But the same was dismissed as far as the 1[st] defendant, who is the petitioner herein, is concerned. It will be better to extract paragraph 43 of the Annexure A4 judgment of the Civil Court by which the petitioner was exonerated by the civil court. _43) There is no evidence to show that the 4[th] defendant had informed the first defendant about the complication except after 2.30 a.m_ Crl.M.C.No.4629 of 2023 8 _on 30.05.2004. Though PWs 1 to 3 say that the 4[th] defendant had told them that she had given a call to the doctor after 10.45 p.m on 29.05.2004, these witnesses have no direct knowledge about such call. It is the 4[th] defendant who who has come and say that she has given such a call to the first defendant and inspite of that call, first defendant neglected to attend. Even in the plaint, there is no such case for the plaintiff. Unless there is evidence of giving emergency call to the first defendant, no negligence can be attributed to her, for not attending the plaintiff during the night hours. It is not possible to expect that the first defendant should always sit beside the plaintiff till the delivery is over. It is impractical as well as unreasonable. As a human being the first defendant also require leisure time and rest. Having examined the plaintiff at 9 pm on 29.05.2004 she has left the hospital to her home. By this attitude one cannot say that she was negligent in attending the plaintiff. Of course had there been any evidence to show that the first defendant failed to attend the call in time, negligence contributed. That is not the case here. Therefore I do not find any negligence on the part of the first defendant and therefore negligence attributed to her_ Crl.M.C.No.4629 of 2023 9 _cannot be accepted. In fact no specific act of negligence is attributed to her personally.”_ 8. This Court in _**Philips Thomas vs. State of Kerala and others (2023 (1) KLJ 666)**_ observed that the degree of negligence should be much higher for an act to amount to criminal negligence. Negligence not of such a high degree may provide a ground for action in civil law but cannot form the basis of criminal prosecution. It will be better to extract the relevant portion of the above judgment: _“11. The jurisprudential concept of negligence differs in civil law and criminal law. Ordinary negligence is such failure to use care as would render a person civilly but not criminally liable. Criminal negligence is a greater failure and a greater falling below the standard of care and renders a man guilty criminally. The degree of negligence should be much higher for an act to amount to criminal negligence. Negligence not of such a high degree may provide a ground for action in civil law but cannot form the basis of criminal_ Crl.M.C.No.4629 of 2023 10 _prosecution. The factor of grossness or degree does assume significance while drawing a distinction between negligence actionable in tort and negligence punishable as a crime.”_ In this case, the civil court already exonerated the petitioner. If there is no civil liability, there can not be any criminal liability in the light of the dictum laid down in _**Philips Thomas**_ ' case ( _supra_ ). A perusal of Annexure A2 would show that the expert panel also exonerated the petitioner. In such circumstances, I am of the considered opinion that the prosecution against the petitioner based on Annexure A1 need not be continued. Therefore, this Crl.MC is allowed. All further proceedings against the petitioner alone in Annexure A1 complaint are quashed. _Sd/-_ DM/bng **P.V.KUNHIKRISHNAN JUDGE** Crl.M.C.No.4629 of 2023 11 ## **APPENDIX OF CRL.MC 4629/2023** PETITIONER ANNEXURES |ANNEXURE A1|PHOTOSTAT COPY OF THE COMPLAINT| |---|---| ||DATED 01.10.2007 FILED BEFORE THE| ||JUDICIAL FIRST CLASS MAGISTRATE| ||COURT, CHAVAKKAD| |ANNEXURE A2|PHOTOSTAT COPY OF THE FINDINGS OF| ||THE EXPERT PANEL DATED 16.07.2005| |ANNEXURE A3|PHOTOSTAT COPY OF THE FINAL REPORT| ||DATED 31.08.2007| |ANNEXURE A4|PHOTOSTAT COPY OF THE JUDGMENT IN OS| ||894/2007 OF THE 1ST ADDITIONAL SUB| ||JUDGE, THRISSUR DATED 07.02.2014| |ANNEXURE A5|PHOTOSTAT COPY OF THE JUDGMENT IN| ||CRL.MC 1733/2015 DATED 11.06.2015| |ANNEXURE A6|PHOTOSTAT COPY OF THE ORDER IN| ||CRL.MP 4062/2021 IN CC 2747/2014 OF| ||THE JUDICIAL FIRST CLASS MAGISTRATE,| ||CHAVAKKAD DATED 29.04.2023| RESPONDENTS EXHIBITS :NIL //TRUE COPY// PA TO JUDGE