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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD MONDAY, THE 20TH DAY OF JANUARY 2014/30TH POUSHA, 1935 Crl.MC.No. 1818 of 2012 () --------------------------CC 500/2008 of JUDICIAL FIRST CLASS MAGISTRATE-I, KANNUR CRIME NO.213/2007 OF KANNUR TOWN POLICESTATION PETITIONER(S)/1ST ACCUSED: ------------------------------------------- DR.S.C.BANTWAL S/O.DR.C.K.BANTWAL, CONSULTANT NEURO SURGEON OPP.SREEPURAM SCHOOL, PALLIKUNNU, KANNUR DISTRICT. BY ADVS.SRI.M.RAMESH CHANDER (SENIOR ADVOCATE) SRI.ANEESH JOSEPH SMT.P.M.SHIJI RESPONDENT(S)/COMPLAINANT : ------------------------------------------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682031. BY GOVERNMENT PLEADER SRI REJI JOSEPH THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20-01-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC. NO.1818/2012 APPENDIX PETITIONER(S) EXHIBITS ANNEXURE A1: TRUE COPY OF THE CHARGE SHEET. ANNEXURE A2: TRUE COPY OF THE JUDGMENT IN CRMC 1738/2009 DATED 14-9-2009. ANNEXURE A3: TRUE COPY OF THE APPLICATION FILED BY THE INVESTIGATING OFFICER BEFORE THE LEARNED MAGISTRATE. ANNEXURE A4: PHOTOSTAT COPY OF THE DECISION OF THE APEX BODY. ANNEXURE A5: PHOTOSTAT: COPY OF THE 161 STATEMENT. ANNEXURE A6: TRUE COPY OF THE FINAL REPORT. RESPONDENTS' EXHIBITS : NIL //TRUE COPY// ## **A.HARIPRASAD, J.** ## **-------------------------------------Crl.M.C. No.1818 of 2012** **-------------------------------------Dated this the 20[th] day of January, 2014.** ## **ORDER** Petition filed under Section 482 of the Criminal Procedure Code (for short, “Cr.P.C.”). 2. Petitioner is the 1[st] accused in C.C.No.500 of 2008 pending before the Judicial First Class Magistrate Court-I, Kannur. He is called up to answer a charge under Section 304A of the Indian Penal Code (for short, “IPC”) with the following allegations as evidenced from Annexure-A6: On 08.05.2007, the petitioner was working as visiting consultant Neuro Surgeon in Koyili Hospital, Kannur. On that day, the defacto complainant's son Vinil was admitted to the hospital on account of severe injuries sustained due to a fall from a height. It is the prosecution case that the petitioner examined and admitted him. Accused 2 and 3 are the nurses, who attended on the patient. 4[th] accused is the Director of the hospital. Allegation in Annexure-A6 final report is that due to medical negligence, the patient died and all the accused are criminally liable. 3. Heard the learned Senior Counsel, Sri. Ramesh Chander for the petitioner and the learned Public Prosecutor. 4. Learned Senior Counsel contended that Police initially filed a charge sheet without taking recourse to the directions of the Supreme Court in **Martin F. D'Souza v. Mohd. Ishfaq ((2009) 3 SCC 1)** . Hence the 2 Crl.MC No.1818/2012 petitioner approached this Court with Crl.M.C.No.1738 of 2009. In that matter, learned Single Judge of this Court passed Annexure-A2 order and thereafter, the investigating officer conducted a further investigation. Subsequently, the investigating officer filed Annexure-A3 application before the court below and later filed a supplementary final report. That is Annexure-A6. 5. Learned Senior Counsel relied on the following observations in Annexure-A4, which is the decision of the Apex Body taken in the above crime after considering the report of the expert panel. It reads as follows: _“After going through the Expert Panel Report, case sheet, Post Mortem Certificate, opinion of the doctor who conducted the postmortem as well as the version of the Doctors and Nurses who attended the injured while in Intensive Care Unit at Koyili Hospital, the Apex Body found that the CT Scan done at 1 PM showed SAH (Sub Arachnoid Haemorrhage), fractured skull and Brain Oedema only and no EDH (Extra Dural Haemorrhage) was detected. Patient was promptly treated with Anti Convulsants, and anti oedema measure, as warranted. Patient developed seizures at 1 PM and anti Convulsants repeated and patient became unconscious which probably could have been a post-ictal state. Repeat scan was not warranted as CT was done immediately before seizures. There is_ 3 Crl.MC No.1818/2012 _no record of neurological deterioration in the nurse's chart as per Glasgo coma scale monitoring, so the Neuro Surgeon had no clue when the patient deteriorated to warrant repeat CT. Repeat CT scan is usually performed only 24 hours after the first CT, if the 1[st] CT Scan failed to show any growing leison haematoma with midline shift. Repeat CT may be performed within 24 hours as and when the patient's Glasgo Coma Scale deteriorates by 2 points or in case of Brady-Cardia, Hypertension or Pupilary Asymmetry only._ _The post-mortem findings shows only a 2 cm thick clot pressing down the tempero parietal region and a thin film of SAH (Sub arachnoid Haemorrhage) bilaterally. There was also contusion of the frontal lobs bilaterally. There is no mention of brain stem compression or brain herniation which usually the cause of death in EDH (Extra Dural Haemorrhage). So it is difficult to state that the cause of death was due to EDH alone; and the patient would have survived by evacuating it. Moreover the patient had multiple fractures of spine and hoemothorax; showing the injury was severe and of high velocity type which usually causes diffused axonal injury to the brain._ _However, there is gross discrepancy in the statement between the delinquent doctors and nurses who attended the patient._ 4 Crl.MC No.1818/2012 _We also find that there is gross negligence in record keeping and monitoring of the patient as per case records available. There is no confirmatory evidence to ensure that whether any doctor has attended the patient in the Neuro Surgery Department while he deteriorated. Dr.Bandthwal states that at 5.30 PM the patient had talked to his father while in nurse's records the GCS was only E3 V4 M5 which shows that the patient was disoriented and not fully conscious._ _In the statement of Smt.V.P.Anupriya, Staff Nurse, it was stated that at 7.45 PM Dr.Bandthwal has attended the patient while in the statement of Dr.Bandthwal, he has deposed that he was in operation theatre from 6.30 PM to 10.30 PM. This discrepancy in the statements also leads to the lapse in proper monitoring of the patient._ _In these circumstances, the Apex Body is of unanimous opinion that the hospital authorities, doctors who attended the patient except casualty Medical Officer in charge, and nursing staff are liable of negligence of proper monitoring and documentation of patient's condition after admission.”_ 6. It is the allegation of the defacto complainant that the 1[st] accused told him that no surgery was needed to be done on the injured and he could be cured by administering drugs. It is contended that even if 5 Crl.MC No.1818/2012 the Extra Dural Haemorrhage (EDH) was evacuated, it was difficult to state that the patient would have survived, as he had multiple fractures of spine and hoemothorax. Annexure-A4 would show that the patient was having brain stem injury also. Learned Senior Counsel for the petitioner contended that this report will clearly show that there is no medical negligence on the part of the petitioner. 7. Learned Public Prosecutor contended that the statement given by the defacto complainant coupled with the averments in the charge sheet clearly spell out medical negligence attributed to the petitioner and other accused. 8. Learned Senior Counsel relied on the decision of the Supreme Court in **Jacob Mathew v. State of Punjab (2005 (3) KLT 965)** . The relevant portions read as follows: _“We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting_ 6 Crl.MC No.1818/2012 _uncalled for or unjust compensation. Such malicious proceedings have to be guarded against._ _Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint 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. 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 an impartial and unbiased opinion applying Bolam's test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the_ 7 Crl.MC No.1818/2012 _investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.”_ That decision was followed in **A.V.Narayanan Rao v. Ratnamala and another ((2013) 10 SCC 741)** . Reliance is placed on the decision in **Martin F. D'Souza** 's case (supra) also to argue the following proposition: _“A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. There is a tendency to confuse a reasonable person with an error free person. An error of judgment may or may not be negligent. It depends on the nature of the error. Also, now what is reasonable and what is unreasonable is a matter on which even experts may disagree. Also, they may disagree on what is a high level of care and what is a low level of care. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. For instance, he would be liable if he leaves a surgical gauze inside the patient after an operation or operates on the wrong part of the body, and he would be also criminally liable if he operates on_ 8 Crl.MC No.1818/2012 _someone for removing an organ for illegitimate trade.”_ 9. Learned Single Judge of this Court in **Sosamma Kurien v. State of Kerala (2008 (4) KLT 472** ) held that negligence which is neither gross nor of higher degree can provide a ground for action in civil law, but, it cannot form basis for a criminal prosecution. 10. Learned Public Prosecutor submitted that the ingredients in Annexure A6 final report and Annexure A5 statement of the defacto complainant are sufficient to implicate the petitioner in the criminal action as well as to mulct with a civil liability. Learned Senior Counsel for the petitioner submitted that already the defacto complainant filed a suit against the petitioner and other accused and they have entered appearance therein and contesting the matter. 11. Considering the allegations in the final report, coupled with those in the defacto complainant's statement, I am of the view that it does not spell out ingredients required to attract an offence under Section 304A IPC. The observations in Annexure-A4 decision of the Apex Body in this matter clearly indicate the haphazard way of keeping the records in the hospital relating to patients in critical condition. That liability cannot be passed on to the Doctor, who allegedly treated the patient. Therefore, I am of the view that the adverse observations in Annexure-A4 cannot be used to find that the petitioner is guilty of medical negligence. I find that the 9 Crl.MC No.1818/2012 proceeding is an abuse of the process of the court and the petitioner is entitled to get the reliefs in a petition under Section 482 Cr.P.C. In the result, the petition is allowed. Final report in Crime No.213 of 2007 of Kannur Town Police Station pending in C.C.No.500 of 2008 on the file of Judicial First Class Magistrate Court-I, Kannur, in so far as it relates to the petitioner is concerned, is hereby quashed. All pending interlocutory applications will stand dismissed. ## **A. HARIPRASAD, JUDGE.** **cks**