Dr. Viji K. v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` THURSDAY, THE 24[TH] DAY OF MARCH 2022 / 3RD CHAITHRA, 1944 ``` ``` CRL.MC NO. 346 OF 2022 ``` ``` AGAINST THE ORDER/JUDGMENT IN CC 592/2020 OF CHIEF JUDICIAL ``` ## **`MAGISTRATE ,MANJERI`** ## **`PETITIONER/S:`** ``` DR.VIJI.K., AGED 41 YEARS ``` ``` W/O.RANJISH, SHELTER HOUSE, KALLIDUMBU, EDAVANNA AMSOM, EDAVANNA (PO), MALAPPURAM DISTRICT, PIN-676 541. ``` ``` BY ADVS. K.T.SIDHIQ T.K.AJITH KUMAR ``` ## **`RESPONDENT/S:`** - **`1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682 031.`** - **`2 ANIL, AGED 55 YEARS`** ``` S/O.CHATHAN, NECHIMADAN HOUSE, MANALI, CHUNGATHARA AMSOM, CHUNGATHARA P.O., NILAMBUR TALUK, MALAPURAM DISTRICT, PIN-679 334. ``` - **`3 LAKSHMI KONON AGED 50 YEARS KOOTAMCHERI HOUSE, PUNNAPPALA P.O., THIRUVALI, MALAPPURAM DISTRICT, PIN-679 328.`** - **`4 THE STATION HOUSE OFFICER, EDAVANNA POLICE STATION, EDAVANNA P.O., MALAPPURAM DISTRICT, PIN-676 541.`** - **`5 THE ASSISTANT POLICE SUPERINTENDENT, PERINTHALMANNA, OFFICE OF THE ASSISTANT POLICE SUPERINTENDENT, PERINTHALMANNA P.O., MALAPPURAM DISTRICT, PIN-679 321.`** - **`6 THE STATE LEVEL APEX COMMITTEE,`** ``` CRL.MC NO. 346 OF 2022 ``` ``` 2 ``` ``` REPRESENTED BY ITS CHAIRMAN, THE DIRECTOR OF HEALTH SERVICES, PALAYAM AIRPORT ROAD, NEAR GENERAL HOSPITAL ROAD, THIRUVANANTHAPURAM, PIN- 695 035. ``` ## **`BY ADV AISWARYA RAMESAN`** ## **`OTHER PRESENT:`** ## **`ADV. SUDHEER GOPALAKRISHANAN – PP`** ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24.03.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 346 OF 2022 ``` ``` 3 ``` ## **O R D E R** This Crl. M.C. is filed by the sole accused in Crime No.205/2018 of Edvanna Police Station, which was registered against him for the offence punishable under Section 304(A) of the Indian Penal code. Annexure 1 First Information Report and Annexure 2 Final Report submitted by the Police. 2. The prosecution case against the petitioner is as follows: The petitioner/accused was working as a Consultant Gynecologist in Rajagiri Hospital at Edavanna in Malappuram. On 11.11.2018, one Ramya was admitted to the said hospital for delivery. As the petitioner found the patient weak, a Lower Segment Cesarean Section (LSCS) was done, and she continued treatment. On 16.11.2018, she complained of severe abdominal pain and respiratory distress, and later, at the request of relatives of the patient, she was referred to Medical College Hospital, Kozhikode. While undergoing treatment in Medical College ``` CRL.MC NO. 346 OF 2022 ``` ``` 4 ``` Hospital at Kozhikode, on 20.11.2018, she passed away. Based on the aforesaid incident, alleging negligence on the part of the petitioner herein, the 2[nd] respondent, the uncle of the deceased, submitted a complaint based on which Annexure I First Information Report was registered and later Annexure 2 Final Report was submitted. This Crl. M.C. is filed praying for quashing all further proceedings against the petitioner herein pursuant to Annexure 2 final report. 3. Heard Sri. T.K.Ajithkumar, learned counsel appearing for the petitioner, Sri. Sudheer Gopalakrishnan, the learned Public Prosecutor appearing for the State and Smt. Aiswarya Ramesan, learned counsel, appearing for the 2[nd] and 3[rd] respondents. 4. The prayer for quashing the proceedings is sought on various grounds. It was contended by the learned counsel appearing for the petitioner that the final report was submitted at a time when the question regarding the negligence was being considered by the State Level Apex Committee constituted as per various ``` CRL.MC NO. 346 OF 2022 ``` ``` 5 ``` government orders issued in connection with the investigation against the medical practitioners. It is pointed out that, as against the finding of the Expert Committee, an appeal has been preferred by the petitioner before the State Level Apex Committee. Before waiting for the outcome of the aforesaid appeal, the final report was submitted and proceedings were initiated. Another contention of the learned counsel appearing for the petitioner is that the allegations raised in Annexure-2 final report do not indicate a gross recklessness on the part of the petitioner herein so as to attract the offence under Section 304(A) of the IPC. 5. Reliance was also placed on the judgment reported in **Jacob Mathew v. State of Panjab (2005 KHC 1045)** . 6. In addition to the above, the learned counsel also submitted that the dispute had been settled between the parties, and as part of the settlement, the uncle of the deceased, who is the 2[nd] respondent/de facto complainant and the mother, who is the 3[rd] respondent herein have ``` CRL.MC NO. 346 OF 2022 ``` ``` 6 ``` sworn Annexure A6 and A7 affidavits indicating the aforesaid settlement. In the aforesaid affidavits, it was pointed out that they have expressed their no objection in quashing the proceedings against the petitioner herein. 7. The learned counsel appearing for the 2[nd] and 3[rd] respondents acknowledges the settlement arrived at between the parties. The learned Public Prosecutor also, upon instructions, submitted that the Station House Officer had verified the veracity of the settlement, and the statement of the 2[nd] respondent has been obtained. I perused the copy of the said statement. From the aforesaid documents, it is evident that there is a genuine settlement between the parties, and the 2[nd] and 3[rd] respondents do not want to pursue the prosecution against the petitioner herein. 8. The question that arises here is whether this is a fit case in which the proceedings against the petitioner can be quashed merely based on settlement. It is true that the offences alleged against the petitioner cannot be treated as private in nature in the strict sense, considering the fact ``` CRL.MC NO. 346 OF 2022 ``` ``` 7 ``` that this is pertaining to a case of medical negligence. In order to find out whether it is necessary to quash the proceedings, the chances of a successful prosecution on the merits of the case are also to be taken note of. 9. While considering the question of the culpability of the case on merits, from the materials available, it is highly doubtful whether the allegations in the final report would attract the offence under Section 304 of the IPC. In **P.B.Desai v. the State of Maharastra (2013 (15) SCC 481),** the Hon’ble Supreme Court considered the question of culpable negligence on the part of medical professionals in the details and the following observations are made:- “ 46. The solution to the issue of punishing what is described loosely, and possibly inaccurately, as negligence is to make a clear distinction between negligence and recklessness and to reserve criminal punishment for the latter. If the conduct in question involves elements of recklessness, then it is punishable and should not be described as merely negligent. If, however, there is nothing to suggest that the actor was aware of the risk deliberately taken, then he is morally blameless and should face, at the most, a civil action for damages.” 10. From the observations made by the Hon’ble Supreme Court, it is evident that mere negligence on the ``` CRL.MC NO. 346 OF 2022 ``` ``` 8 ``` part of the medical professionals is not sufficient to implicate them for the offence under Section 304A of IPC. On the other hand, it must be shown that the alleged act of negligence amounts to recklessness, and only the act which involves a deliberate act subjecting another to the risk or harm, can be the reason for prosecution. In the light of the observations made by the Hon’ble Supreme Court in the above judgment, I find some force in the contentions put forward by the learned counsel appearing for the petitioner in this regard. Annexure A4 is the report of the Expert Committee constituted to examine medical negligence. In the said report, the reason for death is ## described as follows; “1. Following LSCS, the patient developed abdominal distension, suggestive of paralytic ileus, as per records. Later during the laparotomy in Medical College Kozhikode surgeon had detected 2 litres of frank pus in the peritoneal cavity with flakes over stomach and rent over the anterior wall of the caecum. 2. From this, it can be reasonably inferred that the symtoms of paralytic ileus noted on the 3[rd] day of LSCS, for all reasons was due to the bowel injury during LSCS. In the management of the patient in Rajagiry Hospital they have failed to detect bowel injury and to take remedial measures for the complications.” ``` CRL.MC NO. 346 OF 2022 ``` ``` 9 ``` 11. Thus, as per the finding therein, what is treated as negligence, is a failure in the detection of bowel injury and the delay occurred in referring the patient to Medical College Hospital. It is doubtful whether the same can be treated as a reckless act or an act of gross negligence, warranting a prosecution, even though the same may fall within the ambit of negligence for the purpose of civil wrong. In the expert committee’s findings also, there is no specific conclusion that the doctors who handled the patient at Rajagiri Hospital were culpably negligent. The petitioner is not specifically named as well in the said report. 12. Apart from the above, another crucial aspect is that even though the Expert Committee, which was constituted to take a decision on the negligence of the medical professional decided that there was negligence on the part of hospital against the petitioner and an appeal submitted by the petitioner was pending before the State Level Apex Committee. The aforesaid appeal was a remedy provided to him by various government orders in ``` CRL.MC NO. 346 OF 2022 ``` ``` 10 ``` this regard. Since the final report was submitted without taking note of the final outcome of the apex committee, a severe prejudice is caused to the petitioner herein. 13. When all the above aspects are taken into consideration, in the light of the settlement arrived at between the parties, I am of the view that this is a fit case in which the powers of this Court under Section 482 Cr.P.C can be invoked. Consequent to the settlement between the parties, the chances of a successful prosecution are very bleak. Therefore, allowing the prosecution to continue would be futile, resulting in unnecessary waste of precious time and effort. In such circumstances, this Crl.M.C. is allowed. Annexure-2 final report submitted in the Crime No. 205/2018 of Edavanna Police Station, and all further proceedings in CC No. 592/2020 on the file of Chief Judicial First Class Magistrate Court, Manjeri, Malappuram are hereby quashed. Sd/- **ZIYAD RAHMAN A.A. JUDGE** LU ``` CRL.MC NO. 346 OF 2022 ``` ``` 11 ``` ## **`APPENDIX OF CRL.MC 346/2022`** ## **`PETITIONER ANNEXURES`** - **`ANNEXURE 1 TUE COPY OF THE FIR AND COMPLAINT IN CRIME NO.205/2018 OF EDAVANNA POLICE STATION.`** - **`ANNEXURE 2 CERTIFIED COPY OF FINAL REPORT IN CRIME NO.205/2018 OF EDAVANNA POLICE STATION.`** - **`ANNEXURE 3 TRUE COPY OF THE CIRCULAR MEMORANDUM NO.73304/SSB3/2007/HOME DATED 16.06.2008.`** - **`ANNEXURE 4 TRUE COPY OF THE REPORT OF THE DISTRICT LEVEL EXPERT COMMITTEE WITH COVERING LETTER DATED 27.06.2019.`** - **`ANNEXURE 5 TRUE COPY OF THE APPEAL DATED 28.04.2021 SUBMITTED BEFORE THE 6TH RESPONDENT.`** - **`ANNEXURE 6 AFFIDAVIT EXECUTED BY THE 2ND RESPONDENT.`** - **`ANNEXURE 7 AFFIDAVIT EXECUTED BY THE 3RD RESPONDENT.`** ## **// True Copy // PA To Judge**