Shajil C.V. vs State of Kerala; K.K. Mohanan vs State of Kerala; Dr. Jisa Merin Joy vs State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 17TH DAY OF DECEMBER 2019 / 26TH AGRAHAYANA, 1941** **Bail Appl..No.8714 OF 2019** **CRIME NO.811/2019 OF S.Battery Police Station , Wayanad** ## **PETITIONER/ACCUSED:** **SHAJIL C.V. AGED 45 YEARS UPPER PRIMARY SCHOOL TEACHER (UPST) GOVERNMETN SARVAJANA HIGH SCHOOL, SULTHAN BATHERY673592(RESIDING AT SAWRIYAMTHADATHIL HOUSE, PULPALLY, WAYANAD-673579)** **BY ADVS. SRI.M.P.ASHOK KUMAR SRI.P.C.GOPINATH SMT.BINDU SREEDHAR SHRI.ASIF N** ## **RESPONDENT/STATE:** **STATE OF KERALA REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031** ## **R1 BY ADDL.DIRECTOR GENERAL OF PROSECUTION** ## **OTHER PRESENT:** **SRI.SURESH BABU THOMAS, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 17.12.2019, ALONG WITH Bail Appl..8719/2019, Bail Appl..8730/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 17TH DAY OF DECEMBER 2019 / 26TH AGRAHAYANA, 1941** **Bail Appl..No.8719 OF 2019** **CRIME NO.811/2019 OF S.Battery Police Station , Wayanad** ## **PETITIONER/S:** **K.K.MOHANAN AGED 55 YEARS VICE PRINCIPAL, GOVERNMENT SARVAJANA HUGH SCHOOL, SULTAN BATHERY - 673592) (RESIDING AT KOLERI HOUSE, KENICHIRA, WAYANAD - 673 596.** **BY ADVS. SRI.M.P.ASHOK KUMAR SRI.P.C.GOPINATH SMT.BINDU SREEDHAR SHRI.ASIF N** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** ## **R1 BY ADDL.DIRECTOR GENERAL OF PROSECUTION** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 17.12.2019, ALONG WITH Bail Appl..8714/2019, Bail Appl..8730/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 17TH DAY OF DECEMBER 2019 / 26TH AGRAHAYANA, 1941** **Bail Appl..No.8730 OF 2019** **CRIME NO.811/2019 OF S.Battery Police Station , Wayanad** ## **PETITIONER/S:** **DR. JISA MERIN JOY AGED 32 YEARS D/O.PROF, JOY ABRAHAM, NIRAPPATHU-JOJO BHAVAN, KOTTAKUNNU-MYSORE ROAD, SULTHAN BATHERY POST, WAYANAD-673592** **BY ADVS. SRI.M.R.SASITH SRI.M.R.SARIN SMT.NEELANJANA NAIR SRI.V.VINAR SMT.N.RENJU SHRI.RANJITH E N SMT.VIDYA G NAIR** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PIN-682031** **2 THE SUB INSPECTOR SULTHANBATHERY POLICE STATION, WAYANAD, PIN-673592** **R1-2 BY ADDL.DIRECTOR GENERAL OF PROSECUTION** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 17.12.2019, ALONG WITH Bail Appl..8714/2019, Bail Appl..8719/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **4** **ALEXANDER THOMAS, J. ----------------------------------------B.A. Nos. 8714, 8719 and 8730 of 2019 ----------------------------------------Dated this the 17[th] day of December, 2019** ## **O R D E R** The sole applicant concerned in B.A.No.8714/2019, B.A.No.8719/2019 and B.A.No.8730/2019 have been arrayed as accused Nos.1, 3 and 4 respectively among the 4 accused in the instant Crime No.811/2019 of Sulthan Bathery Police Station, Wayanad which has been registered for the offences punishable under Secs. 304A and 34 of the IPC and Sec. 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act for short). The abovesaid crime has been registered on the basis of the report No.1364/2019/SB/W dated 22.11.2019 submitted by the Dy. Superintendent of Police, District Special Branch, Wayanad to the District Police Chief, Wayanad in respect of the incidents which happened on 20.11.2019 afternoon, which led to the death of the minor girl student. 2. The accused Nos. 1 and 3 are happened to be the teacher and vice principal respectively of Government Sarvajana Upper Primary School, Sulthan Bathery and accused No.4 is the doctor, who had treated the victim in the Government Taluk Hospital, Sulthan Bathery. Initially, there were only 4 persons included in the accused array. It appears that Police after investigation, has now added another person as accused No.5 in the **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **5** accused array. Since, the above bail applications arise out of the same crime, the above cases are disposed of on the basis of a common order. ## **B.A. Nos. 8714 and 8719 of 2019** The brief of the prosecution case as projected is that the victim in this case is a girl student named Shahala Sherin aged 10 years, who was studying in standard VB in Government Sarvajana U.P. School, Sulthan Bathery and on 20.11.2019, in the afternoon, she was attending to the Malayalam class in the class room allotted to standard VA and she was attending the class in that class room by sitting in the last bench of the class room. While she was attending the class, at about 3.16 p.m., she had complained she was bitten by something and that she reported to have told a class mate that she has seen the tail of a snake, which had entered into the burrow/hole (æÉÞJí) which was situated beneath of the bench in the class room. The victim had also informed the same to some of her friends. At that time, one Smt.Bincy John was the teacher, who was handling the Malayalam classes for those students including the victim. On being apprised about the said incident, Smt.Bincy John, Malayalam teacher had informed the class teacher of the victim as well as the her husband (A1), who is a teacher in the higher class of the same school. The abovesaid Malayalam teacher, Smt. Bincy John has been subsequently arrayed as accused No.5. That, thereupon the victim was taken outside the class room to the veranda by A5, who is the victim's Malayalam teacher and she was **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **6** made to sit in a chair and A5 had cleaned the wound with water and made a tourniquet with a towel above the mark, which was taken as the bite mark. Meanwhile, Smt. Leena, another teacher and Smt. Marykutty Varghese, class teacher of standard VB (to which the victim is allotted) had also reached there. A5 then had contacted the petitioner herein (A1) and another teacher, Shanmugham and they had also reached the scene. 2. According to the prosecution, some of the students of the class as well as the teachers had stated that the victim has sustained snake bite and she needs urgent medication. The prosecution would further allege that the petitioner has examined the wound as well as the burrow and opined that it is not a case of snake bite and that could be due to other reasons like nail mark from the bench or a concrete scratch form the floor in the class room and hence, there is no need of any medical treatment to the victim and thereby discouraged his co-teachers from giving immediate medical care to the victim in a hospital. Later, the petitioner also asked the students who have crowded there to enter into the class room and attend the classes. Subsequently at about 3.36 p.m., Smt. Marykutty Varghese, the class teacher of standard VB had contacted the father of the victim, who is a practicing Advocate informing about the situation that the child has sustained a suspected snake bite and that she needed an immediate medical aid and father then told that he will be immediately arriving the school and he reached the school in an autorickshaw at about 3.45 p.m. The father had **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **7** then taken the victim to the Assumption Mission Hospital, Sulthan Bathery and since, the doctor there reported that there is no adequate stock of anti venom medicines and other back-up facilities, the child may be taken to another hospital. Thereupon, the victim's father has taken the child to the Government Taluk Hospital, Sulthan Bathery, where the accused No.4 herein has been working as doctor, who was then attached to the casualty wing of the hospital etc. Further details regarding the medical care given to the victim at the Taluk Hospital, Sulthan Bathery and the child being taken away to the other hospitals etc. will be dealt with in detail while dealing with the bail application No.8730/2019 filed by A4 herein. 3. The gravamen of the charges now posed by the prosecution as against A1, A2 and A3 are to the effect that A1 had taken up a negative stand and had dissuaded from giving immediate medical care to the child and that he had even gone to the extent that the same is not a snake bite and that the medical treatment may not be necessary etc. and that thereby, his stand has contradicted to wasting at least 15-20 minutes. If such a stand was not taken, the child would have been taken to the hospital much earlier. 4. The allegation against A3 (vice-principal) and A2 (principal) are mainly relating to supervisory lapse of duties in discharging their duties and functions as the principal and vice-principal respectively of the school. Presumably, thereby invite that if the principal and vice-principal had also **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **8** taken diligent steps, the child could have been immediately taken to the hospital and unnecessary wastage of time could have been avoided. 5. Per contra, Sri.M.P.Ashok Kumar, learned counsel appearing for A1 and A3 would fervently urged that there is no negligence or laches on the part of these two accused persons, leave alone a case of gross rashness or gross negligence, which alone would invite criminal culpability envisaged in Sec.304 A of the IPC. Further, it is also urged that the conduct of the accused persons cannot be granted as showing any negligence to take care of the child and that therefore, the necessary ingredients of Sec. 75 of the JJ Act are also not attracted. The first submission made in that regard by the learned counsel appearing for A1 is that admittedly, the petitioner herein (A1) is not a class teacher of the victim , who was allotted standard VB and that the petitioner is a class teacher of a higher class. That even going by the prosecution case, the petitioner's wife (subsequently arrayed as accused No.5) happened to handle Malayalam class in the class room allotted to standard VA, where the victim and other students were then attending to Malayalam session. That when A5 came to know about the incident due to the commotion made by the students on hearing about the suspected snake bite etc., she had immediately informed the class teacher of the victim and she had also informed her husband (A1) about the incident. 6. The counsel for A1 would point out that the abovesaid conduct **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **9** of A5 in informing A1, who is her husband about the incident cannot be said to be an act of rashness or negligence inasmuch as at best, A5 as a lady teacher and out of her motherly concern for the victim and due to emotional distress caused by the commotion of the moment would have thought that she would get some emotional support by informing not only the class teacher, but also her husband, who is a teacher in a higher class in the same school. That criminal culpability or civil liability for negligence could be imputed only if the accused/defendant is having a duty to take care. That in the instant case, the primary duty to take care of the situation is the class teacher and that A5, who was taking the class at the relevant time had immediately informed the class teacher. Even if it is assumed for argument sake that some of the allegations raised by the prosecution are correct (which is not admitted by the accused persons) still it can be seen that the situation could have been handled by the supervisory teachers like principal, vice-principal etc. That merely because the petitioner has come to the scene of occurrence on hearing about the commotions and on getting know about it through his wife, cannot be the basis to contend that he had a legal duty and only, where one could be imputed with the legal duty, will a question of breach of duty and the question as to whether such breach of duty has resulted in a situation, which would satisfy the higher requirements of gross rashness or gross negligence, which are the minimal requirements of the criminal culpability as per Sec.304 A of the IPC. **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **10** 7. The counsel for A1 has made detailed submissions regarding the versions of A1 as to what has happened on that day as part of the incidents. It is also brought to the notice of this Court that the Kerala State Commission for Protection of Child Rights Act constituted under the provisions of the Commission for Protection of Child Rights Act, 2005 has also conducted an enquiry in the matter as the incident had attracted wide public attention. The counsel for A1 has produced a copy of the said report bearing Number CRMP No.8058/12/C2/2019/KeSCPCR dated 03.12.2019 issued by the Kerala State Commission for the Protection of Child Rights Act as Annexure-A2 appended to B.A.No.8714/2019. A reading of Annexure-A2 report dated 03.12.2019 issued by the Child Rights Commission would indicate that the said commission has examined various persons concerned with the incident as witnesses and have examined about 41 witnesses and about 28 documents have also been marked and it is also referred to in the report that available CCTV footages have also been examined etc. 8. After examining in detail, the involvement of various persons concerned, including A1, A2, A3 and A5, the Child Rights Commission has opined in para 8.2 of the said report that an overall examination of the facts aspects would clearly indicate that there was no deliberate laches or negligence on the part of the teachers concerned. Further, in para 8.9 of Annexure-A2 report, the said commission has also opined that though the **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **11** act of the teachers in waiting till the father of the victim had arrived at the school is not justifiable, taking an overall assessment of the situation, departmental action or criminal action against the said teachers for the said breach on their part in waiting till the father had arrived at the school need not be initiated etc. This Court is not concerned as to whether the said report of the commission is binding etc. but certainly, this Court would only hold that since the matters relating to the conduct of the teachers in the school is an aspect, which could be easily otherwise assessed by a body like the commission. This Court would only hold that primafacie, it is the relevant material that could be taken into consideration. It is all the more so as the said commission has extra judicial powers and is a statutory commission constituted as per the provisions of the Central Act and the said commission has also examined various aspects of the matter. However, certain other findings are made by the commission in the same report regarding the conduct of A4 (doctor), about which this Court will deal with it separately, for the purpose of the disposal of B.A.No.8730/2019 filed by A4 (doctor). 9. It is by now well settled that the criminal culpability or criminal negligence envisaged in Sec.304A of the IPC would stand on a much graver and higher pedestal than the contents of negligence as understood in civil law. It has been held consistently by the Apex Court and various High Courts in our country and there are also various authorised **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **12** pronouncement of judgments by English Courts as well. That the criminal culpability or criminal negligence would require an act done by the delinquent/accused which would amount to gross rashness or gross negligence. 10. Sri.M.P.Ashok Kumar, learned counsel appearing for A1 and A3 would urge that the petitioner would fully co-operate with the investigation agency in the conduct of the investigation process and that there is no question of the petitioners absconding from the due process of law and that this Court may grant anticipatory bail to the petitioners (A1 and A3) subject to any appropriate conditions, that may be fixed by this Court, in the interest of justice. 11. Per contra, Sri.Suresh Babu Thomas, learned Addl.Director General of Prosecution/Addl.State Prosecutor has made detailed submissions regarding the facts of this case on the basis of the materials like the enquiry report given by the Dy. Superintendent of Police which forms part of the FIR as well as the detailed statements filed by the investigating officer of the rank of Asst. Superintendent of Police, which have been filed in these instant cases and would contend that by the act of A1, at least 20-22 minutes of precious time has been wasted, but for that the child could have been taken to the hospital well before the father of the victim had arrived in the school and that the there are supervisory laches on the part of A2 and A3 etc. in their discharge of duties as principal and **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **13** vice-principal etc. and the offences alleged against the petitioners are serious and grave which led to the unfortunate death of a girl child who was of the tender age of 10 years. 12. This Court has heard both sides in detail and also perused the pleadings and materials on record including the statements filed by the investigating officer concerned as well as the other materials made available to the Court including the abovesaid report of the Child Rights Commission etc. 13. After hearing both sides in detail and after careful evaluation of the facts and circumstances of this case, and evaluating the facts of this case in the light of the various judicial precedents which have laid down the standards and ingredients of criminal negligence etc, this Court is constrained to take the view that the custodial interrogation of the petitioners may not be necessary or warranted for effectuating smooth and fair conduct of the investigation of this crime. 14. The learned Prosecutor has also pointed out that there could be a possibility of the petitioners using their present positions, whereby the witnesses were mostly students and teachers of the school may be influenced etc. 15. However, Sri.M.P.Ashok Kumar, learned counsel appearing for A1 and A3 would submit on the basis of instructions of the parties that the Educational Department has already passed orders suspending A1 and A3 **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **14** from service, presumably pending further action. 16. Taking note of the abovesaid serious apprehension raised by the Addl.Director General of Prosecutions, it is ordered as a safeguard that the Educational Department will be at liberty to ensure that even if the accused persons are reinstated into the service, they may be posted in schools other than the Government Sarvajana Upper Primary school, Sulthan Bathery to ensure that they will not get opportunity to influence any of the witnesses concerned, mostly the students and teachers of the same school. 17. However, Sri.Suresh Babu Thomas, learned Addl.Director General of Prosecutions/Addl.State Prosecutor would also point out that so far A1 and A3 have not appeared before the investigating officer for interrogation purposes. Needless to say that the accused persons are liable to immediately co-operate with the investigating officer (I.O) for interrogation purposes and such other steps which are part of the investigation. Accordingly, the following directions and orders are passed : _(1) The petitioner will have to immediately appear before the I.O. concerned for interrogation process. Since it is quite possible that the I.O. may prefer separate interrogation of accused persons, on separate occasions, it is ordered in the interest of justice that the I.O. may issue notice to A1 and A3 intimating them about the day and time on which they should appear before him for interrogation process and on receipt of the said notice, A1 and A3 would immediately comply with the said directions of the I.O. and will personally appear before him on the designated day at the designated time for interrogation process._ _(2) On appearance for interrogation purposes, the accused persons concerned should fully co-operate with the I.O. in the interrogation_ **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **15** _process._ _(3) After interrogation process is over, incase if the I.O. arrests the petitioners (A1 and A3) in relation to the instant crime, then A1 and A3 shall be released on their executing separate bonds for Rs.50,000/(Rupees Fifty Thousand only) and on separately furnishing two solvent sureties for the like sum both to the satisfaction of the investigating officer concerned._ 18. However, the grant of bail will be subject to following conditions : _(1) A1 and A3 will fully co-operate with the investigating officer in the investigation process and will appear before him for any further interrogation as and when required by the said officer._ _(2) A1 and A3 shall not commit any offence, while they are on bail. (3) A1 and A3 shall not tamper with any evidence nor intimidate or influence the witnesses etc._ _(4) If there is any violation of the abovesaid conditions by the petitioner then the jurisdictional court concerned will stand hereby empowered, to consider the plea for cancellation of bail at the appropriate time._ 19. Needless to say that the Educational Department of the State Government will be at liberty to take steps to ensure that even if A1 and A3 are reinstated in service, they may be posted in schools other than Government Sarvajana Upper Primary School, Sulthan Bathery, but preferably to nearby schools, so that the family life of these teachers concerned are not in any manner seriously and detrimentally affected. 20. It is made clear that the abovesaid observations and findings made by this Court are only for the limited purpose of anticipatory bail plea under Sec.438 of the Cr.P.C. and any such issues that may be raised in other appropriate proceedings including the trial will have to be decided untrammeled and uninfluenced in any manner by the observations and findings made by this Court hereinabove. **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **16** With these observations and directions, the above two bail applications filed by A1 and A3 will stand finally disposed of. ## **B.A. No. 8730 of 2019** The applicant in this bail application is the accused No.4, who is the doctor concerned, who was on duty in the casualty wing of the Government Taluk Hospital, Sulthan Bathery, when the girl child victim was brought for treatment from the school by her father. According to the prosecution, the father of the child had initially taken the child from the school to the Assumption Hospital, Sulthan Bathery and from there, the doctors had asked him to take the child to another hospital as the Assumption Hospital was not having the requisite medicines and back-up facilities. Further case of the prosecution is that thereupon, the father of the child had brought the victim to the Government Taluk Hospital, Sulthan Bathery by about 4.09 p.m. The accused No.4 who is a doctor attached to the casualty of the hospital had admitted the child as an inpatient, bearing registration number IP No.54822/2019 in that hospital. 2. The allegation of the prosecution is that though the child was admitted there by A4, no proper care or attention was given to the victim till about 4.36 p.m. That around, 4.26 p.m., A4 had got done the blood test and the result was awaited. In the meantime, the victim started vomiting and on seeing this, A4 had told the father of the child to take her **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **17** immediately to the Government Medical College Hospital, Kozhikode and that this was so done by A4 without even providing any medicines or administering any doze of anti snake venom though sufficient anti snake venom (ASV) was available in the stock of the Government Taluk Hospital, Sulthan Bathery. It so happened that on the way from the Government Taluk Hospital, Sulthan Bathery to the Government Medical College Hospital, Kozhikode, the child was showing some complications and then she was immediately taken to the Government Taluk Hospital, Vythiri and since, it appears that adequate facilities were not there, she was immediately taken to the nearby Good Shepherd Hospital, Vythiri. It appears that the doctors of the said Hospital had taken immediate steps to administer anti snake venom to the child and at about 6.15 p.m., the child met her end. 3. The allegation against the petitioner (A4) is that though child had reached the hospital of A4 by about 4.09 p.m., she had not taken immediate care and attention and even blood test was got done only at about 4.26 p.m. By 4.36 p.m., when the child was showing acute symptoms of vomiting, A4 had requested the father of the child to take her to the Government Medical College Hospital, Kozhikode, which is having better facilities and that the petitioner had shown serious breach of duty in not even administering anti snake venom to the child at every point of time. Further that, even the blood test results were obtained, only after the child **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **18** left the Taluk Hospital, Sulthan Bathery etc. 4. Per contra, accordingly, Sri. Suresh Babu Thomas, learned Addl.Director of Prosecutions/Addl. State Prosecutor appearing on behalf of the respondent –State would vehemently urge that the breach of duty by A4 is indeed serious and grave and if she had taken timely steps to administer the anti snake venom immediately, there is a high probability that the child could have been saved or at least the child could have been taken to the Government Medical College Hospital, Kozhikode after being administered anti snake venom by A4 in the Taluk Hospital, Sulthan Bathery. 5. Per contra, Sri.M.R.Sasith Panicker, learned counsel appearing for A4 would give detailed submissions in support of his party’s case that there has been no breach of duty on her part; leave alone any elements of gross rashness or gross negligence, which alone would constitute the necessary ingredients of criminal culpability as per Sec.304 A of the IPC. In that regard, the learned counsel for A4 would point out that the Government Taluk Hospital, Sulthan Bathery, where A4 is working, is not a well equipped hospital. It was urged that the child was brought to the hospital by about 4.09 p.m. on 20.11.2019 and she was already in a very bad condition. Further, it is pointed out that the teachers of the school concerned had already delayed the admission of the child to the hospital and that the petitioner has done everything possible as a doctor and that **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **19** the said hospital is having about 23 doctors and on the day in question, she was the only doctor in the casualty wing and there was only male nurse to assist her and she had to manage the entire casualty wing. Further that, the petitioner had passed MBBS and post graduation in the medical speciality concerned with flying colours and she has 1½ years of experience in the Government medical service. 6. Further that, Annexure-A2 is the clinical sheet in respect of the treatment given to the child and that the prosecution would also admit the genuineness of Annexure-A2 case sheet. Further that, the persons who brought the child to the hospital had told the doctor that it is a case of unknown bite that was suffered by the child in her foot area at about 3.30 p.m. on that day, which has been clearly noted by her on the top portion of Annexure-A2 clinical sheet. Further that, when A4 had first seen the child along with the injury in the leg and there was a scar which appeared to be like a straight line. On being questioned, the child was also not sure whether indeed it was a case of snake bite. Hence, the petitioner recorded it as an unknown snake bite and that the protocol requires that the test is to be conducted by the doctor concerned, which has to be done within 20 minutes of snake bite and the petitioner had done the said blood test, which was a 20-minute whole blood clotting test. The petitioner conducted the test to determine whether the blood was clotted or not. She also noted the bleeding time, clotting time and the clotting time was essential while **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **20** administering anti venom. These test results appeared to be normal, it is urged. 7. Further that, the child’s respiratory system was also examined and the child was asked whether her vision is blurred and she said in the negative and she was asked to walk and she showed difficulty in opening her eyes. By conducting these tests, the petitioner has successfully completed the initial tests and treatments up to mark and at that point of time, the petitioner had confirmed it as a snake bite. The petitioner suspected it as a case of neuropathic snake bite and advised the parent of the child that anti snake venom may have to be administered to the child. The petitioner was the only doctor in the casualty, had asked the available staff of the hospital to verify about the stock of the anti venom and it was apprised to her that there are only 6 vials of anti snake venom, whereas at least 10 vials of anti snake venom is required for proper administration of anti snake venom. Further, the doctors have to be very careful as in cases where ASV is administered by any patient, without any signs and symptoms of envenoming, ASV will expose such patients to the risk of ASV reactions unnecessarily. Hence, medical protocol would demand that ASV could be administered only in a hospital/clinic, which is well equipped and having a well maintained ventilator in the hospital to support the patient in case of any emergent situation. That there were only two ventilators for adult patients and none of them was then functioning at that point of time. **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **21** There was no pediatric ventilator to support the sick child in the hospital. In the light of these aspects, the petitioner came to the professional judgment that it may not be advisable to administer ASV to the child in that hospital, as it was reported to the petitioner that ASV stock was only 6 vials and not the 10 vials that is required and secondly, the pediatric ventilator was not functioning, which is a mandatory back-up and otherwise, without such back-up, if the medicine is administered, the doctor may be accused of professional negligence. 8. Further, the petitioner would point out that these aspects were apprised to the persons, who have brought the child and the father of the child apparently was not willing for undergoing ASV administration at that hospital, due to the abovesaid limitations. The petitioner then advised that the patient may be immediately taken to the Government Medical College Hospital, Kozhikode which is having much better infrastructure and facilities. As the petitioner was the only doctor available in the casualty service, she was not in a position to travel along with the persons who had taken the child and that if there was a substitute doctor, the petitioner was even willing to travel along with the patient to the other hospital concerned. Further that, since many of the doctors were absent on that day, the petitioner did not have any facility for immediate consultation with other more experienced doctors. That it is in these situations, and that the action taken by the petitioner to assess the situation by conducting the **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **22** tests, including blood test cannot be termed as an act of professional medical negligence on the part of a doctor and without proper confirmation of the factum regarding snake bite, if any doctor had straight away administered ASV to the child, and if there had been reaction etc., then certainly, such a doctor would also be accused of professional negligence and the petitioner was facing a crisis situation and she has managed the situation to the best of her professional judgment and her assessment and medical care given to the child cannot be said to be falling in the standards of an average reasonable medical practitioner, who might have give to the child otherwise. Hence, it is urged that the facts in this case does not even bring out the grave elements of negligence of a professional medical personnel as understood in civil law, leave alone the graver and more culpable criminal negligence for which gross rashness and gross negligence are the sine quo non. 9. Further that, the petitioner has already been suspended from service and there is no question of petitioner influencing any of the witnesses in the hospital etc. or tampering with any other documents and that this Court may grant anticipatory bail to the petitioner, subject to any appropriate conditions. 10. The learned Prosecutor has strongly opposed the plea for anticipatory bail and has pointed out that in view of the abovesaid aspects mentioned hereinabove, more particularly in the preliminary enquiry **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **23** report of the Dy. Superintendent of Police, which is attached to the FIR as well as the statements filed by the investigating officer concerned etc, the offences disclosed against the petitioner are quite serious and grave. 11. In this context, it may be pertinent to refer to some of the judicial precedents, which govern the legal requirements of criminal negligence as contemplated in Sec.304 A of the IPC. Sec.304 A of the IPC reads as follows: _304A. Causing death by negligence.—Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.]_ 12. It may also be pertinent to refer to Secs. 80, 88, 92 and 93 of the IPC which provide as follows : _**“Sec.80 of the IPC.** Accident in doing a lawful act.—Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution. Illustration A is at work with a hatchet; the head flies off and kills a man who is standing by. Here, if there was no want of proper caution on the part of A, his act is excusable and not an offence._ _**Sec.88 of the IPC** . Act not intended to cause death, done by consent in good faith for person’s benefit.—Nothing which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm. Illustration A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under a painful complaint, but not intending to cause Z’s death and intending in good faith, Z’s benefit performs that operation on Z, with Z’s consent. A has committed no offence._ _**Sec. 92 of the IPC.** Act done in good faith for benefit of a person without consent.—Nothing is an offence by reason of any harm which it may cause to a person for whose benefit it is done in good faith, even without that person’s consent, if the circumstances are such that it is impossible for that person to signify consent, or if that person is incapable of giving consent, and has no guardian or other person in lawful charge of him from whom it is possible to obtain consent in time for the thing to be done with benefit: Provisos—Provided—_ _(first)- That this exception shall not extend to the intentional causing of death, or the attempting to cause death;_ _(Secondly)—That this exception shall not extend to the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt, or the curing of any grievous disease or infirmity;_ _(Thirdly)— That this exception shall not extend to the voluntary causing of hurt, or to the attempting to cause hurt, for any purpose other than the preventing of death or hurt;_ ( _Fourthly) - That this exception shall not extend to the abetment of any offence, to the committing of which offence it would not extend._ **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **24** _(a) Z is thrown from his horse, and is insensible. A, a surgeon, finds that Z requires to be trepanned. A, not intending Z’s death, but in good faith, for Z’s benefit, performs the trepan before Z recovers his power of judging for himself. A has committed no offence._ _(b) Z is carried off by a tiger. A fires at the tiger knowing it to be likely that the shot may kill Z, but not intending to kill Z, and in good faith intending Z’s benefit. A’s ball gives Z a mortal wound. A has committed no offence._ ## (c) _A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation be immediately performed. There is no time to apply to the child’s guardian. A performs the operation in spite of the entreaties of the child, intending, in good faith, the child’s benefit. A has committed no offence._ _(d) A is in a house which is on fire, with Z, a child. People below hold out a blanket. A drops the child from the house-top, knowing it to be likely that the fall may kill the child, but not intending to kill the child, and intending, in good faith, the child’s benefit. Here, even if the child is killed by the fall, A has committed no offence. Explanation.—Mere pecuniary benefit is not benefit within the meaning of sections 88, 89 and 92._ _**Sec.93 of the IPC.** Communication made in good faith.—No communication made in good faith is an offence by reason of any harm to the person to whom it is made, if it is made for the benefit of that person. Illustration A, a surgeon, in good faith, communicates to a patient his opinion that he cannot live. The patient dies in consequence of the shock. A has committed no offence, though he knew it to be likely that the communication might cause the patient’s death.”_ 13. A two Judge bench of the Apex Court in the celebrated case in _**Dr.Suresh Gupta v. Government of National NCT of Delhi and**_ _**anr.** [2004 (6) SCC 422]_ has dealt with the various aspects and dimensions of criminal culpability in respect of the offence of criminal negligence as envisaged in Sec. 304 A of the IPC and more particularly, the context of cases involving negligence of professional medical personnel. In Para 12 of **Suresh Gupta’s** case (supra), the Apex Court has held categorically that the legal position is almost firmly established that where a patient dies due to the negligent medical treatment of the doctor, the doctor can be made liable in civil law for paying compensation and damages in tort and at the same time, only the degree of negligence is so gross and his act is so reckless as to endanger the life of the patient, he could be made culpable for criminal negligence as envisaged in Sec. 304 A of the IPC. Paras. 20 and 21 thereof, the Apex Court has held that for fixing **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **25** criminal liability on a doctor or surgeon, the standard of negligence required to be proved should be so high as can be described as "gross negligence" or “gross recklessness" is not merely lack of necessary care, attention and skill. The decision of the House of Lords in the celebrated case of _**R. v. Adomako (1994 (3) All ER 79** ,_ it has been held that a doctor cannot be held criminally responsible for patient's death unless his negligence or incompetence showed such disregard for life and safety of his patient so as to amount to a crime against the State. Hence, it was observed by the Apex Court in para 21 thereof, that when a patient agrees to go for medical treatment or surgical operation, every careless act of the medical man cannot be termed as 'criminal'. It can be termed 'criminal', only when the medical man exhibits a gross lack of competence or inaction and wanton indifference to his patient's safety and which is found to have arisen from gross ignorance or gross negligence. When a patient's death results merely from error of judgment or an accident, no criminal liability should be attached to it. Mere inadvertence or some degree of want of adequate care and caution might create civil liability but would not suffice to hold him criminally liable. 14. Further, it has been held in paras. 25 and 26 in **Dr.Suresh Gupta’s** case (supra) that between civil and criminal liability of a doctor causing death of his patient the court has a difficult task of weighing the degree of carelessness and negligence alleged on the part of the doctor and **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **26** for criminal conviction of a doctor for alleged criminal offence, the standard should be proof of recklessness and deliberate wrong doing i.e. a higher degree of morally blameworthy conduct. 15. In para 26 thereof, it has been reiterated that to convict a doctor, prosecution has to necessarily come out with a case of high degree of negligence on the part of the doctor and mere lack of proper care, precaution and attention or inadvertence might create civil liability but not a criminal one. Therefore, the courts have, therefore, always insisted in the case of alleged criminal offence against doctor causing death of his patient during treatment, that the act complained against the doctor must necessarily show negligence or rashness of such a higher degree as to indicate a mental state which can be described as totally apathetic towards the patient and such gross negligence alone is punishable etc. It may be pertinent to refer to the relevant portions of paras. 12, 20, 21, 25 and 26 of **Dr.Suresh Gupta’s** case (supra) which reads as follows : (See SCC ## report) _12. It is on these medical papers produced by the prosecution, we have to decide whether the High Court was right in holding that criminal liability prima facie has arisen against the surgeon and he must face the trial. The legal position is almost firmly established that where a patient dies due to the negligent medical treatment of the doctor, the doctor can be made liable in civil law for paying compensation and damages in tort and at the same time, if the degree of negligence is so gross and his act was reckless as to endanger the life of the patient, he would also be made criminally liable for offence under section 304A of IPC._ _20. For fixing criminal liability on a doctor or surgeon, the standard of negligence required to be proved should be so high as can be described as "gross negligence" or recklessness". It is not merely lack of necessary care, attention and skill. The decision of the House of Lords in R. Vs. Adomako (Supra) relied upon on behalf of the doctor elucidates the said legal position and contains following observations :-_ _"Thus a doctor cannot be held criminally responsible for patient's death unless his negligence or incompetence showed such disregard for life and safety of his patient as to amount to a crime against the State."_ **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **27** _21. Thus, when a patient agrees to go for medical treatment or surgical operation, every careless act of the medical man cannot be termed as 'criminal'. It can be termed 'criminal' only when the medical man exhibits a gross lack of competence or inaction and wanton indifference to his patient's safety and which is found to have arisen from gross ignorance or gross negligence. Where a patient's death results merely from error of judgment or an accident, no criminal liability should be attached to it. Mere inadvertence or some degree of want of adequate care and caution might create civil liability but would not suffice to hold him criminally liable._ _25. Between civil and criminal liability of a doctor causing death of his patient the court has a difficult task of weighing the degree of carelessness and negligence alleged on the part of the doctor. For conviction of a doctor for alleged criminal offence, the standard should be proof of recklessness and deliberate wrong doing i.e. a higher degree of morally blameworthy conduct._ _26. To convict, therefore, a doctor, the prosecution has to come out with a case of high degree of negligence on the part of the doctor. Mere lack of proper care, precaution and attention or inadvertence might create civil liability but not a criminal one. The courts have, therefore, always insisted in the case of alleged criminal offence against doctor causing death of his patient during treatment, that the act complained against the doctor must show negligence or rashness of such a higher degree as to indicate a mental state which can be described as totally apathetic towards the patient. Such gross negligence alone is punishable._ 16. The correctness of the legal position laid down by the two Judges Bench decision in **Dr.Suresh Gupta’s** case (supra) was doubted by another two Judges Bench of the Apex Court while dealing with the case in Dr.Jacob Mathew v. State of Punjab and anr. (Crl.Appeal Nos. 14445/2004) and the case was thus referred to a larger bench of three Judges Bench for consideration. The three Judges Bench of the Apex Court has rendered the judgment in the celebrated case in _**Dr. Jacob Mathew v. State of Punjab and anr.** [2005 (6) SCC 1]._ In para 14 of **Dr. Jacob Mathew ‘s** case (supra), the Apex Court has held to hold the existence of criminal rashness or criminal negligence it shall have to be found out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The element of criminality is introduced by the accused having run the risk **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **28** of doing such an act with recklessness and indifference to the consequences. Lord Atkin in his speech in _**Andrews v. Director of Public Prosecutions** , [1937 (2) All ER 552]_ , wherein it was held that the simple lack of care has been constituted civil liability is not enough and for the purpose of criminal law, there are degrees of negligence; and a very high degree of negligence is required to be proved before the felony is established. Hence, it was held by the Apex Court in para 15 of the said judgment that the criminal negligence is to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. It will be pertinent to refer to paras. 14,15, 25 and 38 of the decision of the Apex Court in _**Jacob Mathew’s** case_ (supra) which reads as follows : (See SCC Report) _14. The moral culpability of recklessness is not located in a desire to cause harm. It resides in the proximity of the reckless state of mind to the state of mind present when there is an intention to cause harm. There is, in other words, a disregard for the possible consequences. The consequences entailed in the risk may not be wanted, and indeed the actor may hope that they do not occur, but this hope nevertheless fails to inhibit the taking of the risk. Certain types of violation, called optimizing violations, may be motivated by thrill-seeking. These are clearly reckless._ _15. In order to hold the existence of criminal rashness or criminal negligence it shall have to be found out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The element of criminality is introduced by the accused having run the risk of doing such an act with recklessness and indifference to the consequences. Lord Atkin in his speech in Andrews v. Director of Public Prosecutions, [1937] A.C. 576, stated, "Simple lack of care such as will constitute civil liability is not enough; for purposes of the criminal law there are degrees of negligence; and a very high degree of negligence is required to be proved before the felony is established." Thus, a clear distinction exists between "simple lack of care" incurring civil liability and "very high degree of negligence" which is required in criminal cases. Lord Porter said in his speech in the same case ___ "A higher degree of negligence has always been demanded in order to establish a criminal offence than is sufficient to create civil liability. (Charlesworth & Percy, ibid, Para 1.13) The fore-quoted statement of law in Andrews has been noted with approval by this Court in Syad Akbar v. State of Karnataka (1980) 1 SCC 30. The Supreme Court has dealt with and pointed out with reasons the distinction between negligence in civil law and in criminal law. Their Lordships have opined that there is a marked difference as to the effect of evidence, viz. the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the_ **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **29** _Court, as a reasonable man, beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment._ _25. The classical statement of law in Bolam's case has been widely accepted as decisive of the standard of care required both of professional men generally and medical practitioners in particular. It has been invariably cited with approval before Courts in India and applied to as touchstone to test the pleas of medical negligence. In tort, it is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that a defendant charged with negligence acted in accord with the general and approved practice is enough to clear him of the charge. Two things are pertinent to be noted. Firstly, the standard of care, when assessing the practice as adopted, is judged in the light of knowledge available at the time (of the incident), and not at the date of trial. Secondly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time on which it is suggested as should have been used._ _38. A review of Indian decisions on criminal negligence We are inclined to, and we must - as duty bound, take note of some of the relevant decisions of the Privy Council and of this Court. We would like to preface this discussion with the law laid down by the Privy Council in John Oni Akerele v. The King AIR 1943 PC 72. A duly qualified medical practitioner gave to his patient the injection of Sobita which consisted of sodium bismuth tartrate as given in the British Pharmacopoea. However, what was administered was an overdose of Sobita. The patient died. The doctor was accused of manslaughter, reckless and negligent act. He was convicted. The matter reached in appeal before the House of Lords. Their Lordships quashed the conviction. On a review of judicial opinion and an illuminating discussion on the points which are also relevant before us, what their Lordships have held can be summed up as under:-_ _(i) That a doctor is not criminally responsible for a patient's death unless his negligence or incompetence went beyond a mere matter of compensation between subjects and showed such disregard for life and safety of others as to amount to a crime against the State.;_ _(ii) That the degree of negligence required is that it should be gross, and that neither a jury nor a court can transform negligence of a lesser degree into gross negligence merely by giving it that appellation. There is a difference in kind between the negligence which gives a right to compensation and the negligence which is a crime._ _(iii) It is impossible to define culpable or criminal negligence, and it is not possible to make the distinction between actionable negligence and criminal negligence intelligible, except by means of illustrations drawn from actual judicial opinion. .. The most favourable view of the conduct of an accused medical man has to be taken, for it would be most fatal to the efficiency of the medical profession if no one could administer medicine without a halter round his neck."Their Lordships refused to accept the view that criminal negligence was proved merely because a number of persons were made gravely ill after receiving an injection of Sobita from the appellant coupled with a finding that a high degree of care was not exercised. Their Lordships also refused to agree with the thought that merely because too strong a mixture was dispensed once and a number of persons were made gravely ill, a criminal degree of negligence was proved._ 17. The Apex Court in para 52 of the judgment in _**Dr.Jacob**_ _**Mathew’s** case (supra)_ has _interalia_ held that statutory rules for executing instructions incorporating certain guidelines has to be framed **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **30** and issued by the Government of India and of the State Governments in consultation with Medical Council of India. So long as that is not done, the Apex Court has laid down certain guidelines for the future prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient, wherein it has been held by the Apex Court that a private criminal complaint may not be entertained by the criminal court unless, the complainant has produced _prima facie_ evidence before the court in the form of credible profession opinion given by another competent doctor to support the charge of gross rashness or gross negligence on the part of the accused doctor. Further 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 an impartial and unbiased opinion applying the Bolam's test [1957 (2) All ER 118] to the facts collected in the investigation and the doctor accused of rashness or negligence may not be arrested in a routine manner simply because a charge has been levelled against him and unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor has proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld. Para. 52 of the judgment of _**Jacob Mathew's** case (supra)_ **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **31** ## reads as follows : _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 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._ 18. A two Judges Bench of the Apex Court in the judgments in **Kusum Sharma & Ors. vs Batra Hospital & Med.Research** [2010 (3) SCC 480], _**Martin F.D'souza v. Mohd. Ishfaq** [2009 (3) SCC 1]_ has also dealt with various aspects of negligence of doctors both pertaining to civil liability as well as criminal negligence and has also referred to and relied on the law laid down by the three Judges Bench in the celebrated case of _**Dr.Jacob Mathew's** case (supra)_ . In para.47, the Apex Court in _**Martin F.D'souza's** case (supra)_ has _inter alia_ held as follows : _In para 52 of Jacob Mathew's case the Supreme Court realizing that doctors have to be protected from frivolous complaints of medical negligence, has laid down certain rules in this connection :_ _(i) A private complaint should 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. (ii) 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 opinion applying the Bolam test._ _(iii) A doctor accused of negligence should not be arrested in a routine manner simply because a charge has been leveled against him. Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied_ **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **32** _that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest should be withheld._ _(ii) Precautions which Doctor/Hospitals/Nursing Homes should take :_ _(a) Current practices, infrastructure, paramedical and other staff, hygiene and sterility should be observed strictly. Thus, in Sarwat Ali Khan vs. Prof. R. Gogi and others Original Petition No.181 of 1997, decided on 18.7.2007 by the National Consumer Commission, the facts were that out of 52 cataract operations performed between 26th and 28th September, 1995 in an eye hospital 14 persons lost their vision in the operated eye. An enquiry revealed that in the Operation Theatre two autoclaves were not working properly. This equipment is absolutely necessary to carry out sterilization of instruments, cotton, pads, linen, etc., and the damage occurred because of its absence in working condition. The doctors were held liable._ _(b) No prescription should ordinarily be given without actual examination. The tendency to give prescription over the telephone, except in an acute emergency, should be avoided._ _(c) A doctor should not merely go by the version of the patient regarding his symptoms, but should also make his own analysis including tests and investigations where necessary._ _(d) A doctor should not experiment unless necessary and even then he should ordinarily get a written consent from the patient._ _(e) An expert should be consulted in case of any doubt. Thus, in Smt. Indrani Bhattacharjee, Original Petition No.233 of 1996 decided by the National Consumer Commission on 9.8.2007, the patient was diagnosed as having `Mild Lateral Wall Eschemia'. The doctor prescribed medicine for gastro-entiritis, but he expired. It was held that the doctor was negligent as he should have advised consulting a Cardiologist in writing._ _(f) Full record of the diagnosis, treatment, etc. should be maintained._ 19. In para.106 of **Martin F.D'souza's** case (supra), the Apex Court has also _interalia_ observed that the police officials may not arrest or harass doctors unless the facts clearly come within the parameters laid down in **Dr.Jacob Mathew's** case (supra), otherwise the policemen themselves may have to face legal action. Of course, the observations made in para.106 of the two Judges Bench's decision will have to be understood in the light of the legal position laid down by the three Judges Bench in **Dr.Jacob Mathew's** case (supra), more particularly para. 52 thereof. 20. The Government of Kerala has already framed necessary guidelines and parameters in the matter of investigation of crimes and **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **33** prosecution of the doctors for accused of the offences of criminal negligence as per Sec.304 A of the IPC etc. and the current guidelines are contained in Government of Kerala circular memorandum No.73304/SSB3/2007/Home dated 16.06.2008, a copy of which has been produced as Annexure-5 in B.A.No.8730/2019. 21. The Division Bench of this Court in _**Suvarna v. Dr.Reni Philip and Others** [2014 (1) KHC 112 (DB)]_ has also relied on the various aspects of criminal negligence alleged against the medical personnel and has also dealt with the norms contained in the abovesaid Government circular dated 16.06.2008. Paras.22, 23 and 27 of the said judgment of the Division Bench in **Suvarna's** case (supra) reads as follows : _“22. The Honourable Supreme Court in Jacob Mathew's case directed that 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 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, it was further directed. Reiterating the directions so issued, the Apex Court in Martin F. D'Souza v. Mohd. Ishfaq, 2009 (2) KHC 239 : AIR 2009 SC 2049 : 2009 (1) KLD 628 : 2009 (3) SCC 1 : 2009 (2) SCALE 629 : 2009 (2) KLT SN 62 further warned the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew's case, otherwise the policemen will themselves have to face legal action._ _23. We have already noted the fact that the Honourable Supreme Court issued the guidelines on 05/08/2005. The necessity of conducting investigation of complaints against doctors in Government service by a Senior Police Officer was felt as early as in 1984 and, accordingly, the Government of Kerala had issued Circular Memorandum dated 20/08/1984 directing that the investigation into the complaints against doctors in Government service for their acts of commission or omission in the course of medical care of a patient in Government hospitals and dispensaries shall be conducted only by an officer not below the rank of a Deputy Superintendent of Police. It was also felt necessary to bring such complaints against doctors received by the Investigating Officer to the notice of the Director General of Police and the necessity of consulting the Principal of any Medical College in the State or the Professor of relevant speciality by the Investigating Officer in pursuing his investigation and, accordingly, issued directions in that respect in the said Circular dated 20/08/1984. Subsequently, the Government had issued further instructions and guidelines in the matter of investigation against doctors both in Government and private sectors. As we have already noted, the provisions for filing appeal by the affected doctors to the Apex Body from the decision of the Expert Panel had also been made by issuing Circulars dated 20/09/1993 and 22/09/1993. It is quite evident that the intention behind the Circulars so issued by the Government was to protect the doctors from being subjected to criminal prosecution without sufficient cause. The doctors' profession is a noble one. It is a healing_ **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **34** _profession. Their services to the society are invaluable. Indiscriminate and baseless prosecution of doctors can only be termed as harassment affecting the reputation of the individual doctor and the morale of the community of doctors. This will have its own adverse repercussions in the society._ _27. In the case on hand, on the strength of the directions contained in the impugned judgment, the respondents 1 and 2 have preferred appeal before the Apex Body challenging the findings in Ext. P6 Report of the Expert Panel as provided in the Circular. It shall be the duty of the Investigating Officer to consider the views expressed by the Apex Body and to continue further investigation in the light of the views taken by the Apex Body. The Investigating Officer has already filed Final Report before the Court under S.173(2) of CrPC accepting the opinions expressed by the Expert Panel. If the Apex Body reverses the findings of Expert Panel, naturally, as provided in the Circular, that benefit should enure to the accused including the respondents 1 and 2. In that case, the investigating Deputy Superintendent of Police is bound to continue further investigation in the light of the view thus taken by the Apex Body and to file further report before the Court as provided under S.173(8) of CrPC. Since the Circular provides for an appeal and such an appeal has been filed by the respondents 1 and 2, necessarily, the Investigating Officer in this case is bound to consider the views of the Apex Body and continue further investigation on that basis. If the views of the Apex Body turn out to be against the respondents 1 and 2 confirming the opinions of the Expert Panel, then the prosecution against them can be continued. If the Apex Body reverses the conclusions of the Expert Panel and finds no culpable negligence on the part of the accused, the Investigating Officer has to act as directed in the Circular.”_ 22. A reading of para.22 of **Suvarna's case** (supra), the Division Bench has also referred to the abovesaid observations made by the two Judges Bench of the Apex Court in para.106 of **Martin D'souza's** case (supra), wherein it was noted that the police officials may not arrest or harass doctors, unless the facts clearly come within the parameters laid down in **Jacob Mathew's** case (supra) or otherwise the policemen themselves may have to face legal action etc. The binding effect of the expert opinion given by the expert panel of doctors and the appellate expert panel constituted as per the abovesaid Government circular dated 16.06.2008 has also been subsequently laid down by the Division Bench in **Suvarna's case** (supra), more particularly in paras. 23 to 27 thereof. 23. Suffice to say, the law is now too well settled that the criminal culpability or criminal negligence of a medical doctor would stand on a **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **35** higher footage compared to negligence in civil law and such criminal culpability should clearly manifest the necessary and minimal ingredients of gross rashness or gross negligence on the part of the doctor, who has treated the patient concerned. Further, in view of the abovesaid directives and guidelines made by the Apex Court in **Dr.Jacob Mathew's** case (supra), more particularly in para.52 thereof, even a private criminal complaint may not be entertained in this complainant has produced any prima facie case in the form of a credible opinion given by another competent doctor to support the act of rashness or negligence. Further, the investigating officer concerned in criminal proceedings shoud before proceeding against a doctor accused of rash or negligent act or omission, obtain 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 the Bolam's test to the facts collected in the investigation and the further that the doctor accused of rashness or negligence may not be arrested in a routine manner, simply because a charge has been levelled against him. Further that, unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor has proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld etc. **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **36** 24. To a pointed query as to whether the investigating officer has obtained such an expert opinion of an expert panel of doctors as envisaged in the abovesaid directives and guidelines of the Apex Court in _**Dr.Jacob Mathew's**_ case (supra) as well as prescribed in the abovesaid Annexure-4 Government circular dated 16.06.2008 etc. 25. The learned Additional Director General of Prosecutions would fairly submit that as of now, such an expert opinion from an expert panel as conceded in the abovesaid Government circular has not been obtained and that steps have been taken to ensure the constitution of such an expert panel as envisaged in the said Government circular etc. Incidentally, it may also have to be observed that the abovesaid Child Rights Commission has also made certain observation about the conduct of A4 herein (doctor) as can be seen from the reading of more particularly, para No.9.6 of Annexure-A2 produced in B.A.No.8714/2019. In para No.9.6, the Commission has gone to the extent of observing that there is indeed a gross dereliction of duty and blameworthy conduct on the part of A4 herein and it is on account of this, that the instant Crime No.811/2019 of Sulthan Bathery Police Station has been registered against A4 herein for offences punishable under Sec.304A of the IPC and Sec.75 of the JJ Act etc. Further, it is also observed therein that further proceedings including departmental proceedings may also be taken against A4 herein. Though, on the one hand, the Commission would observe in para No.9.4 of the report **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **37** that there has been dereliction of duty and blameworthy conduct on the part of A4 herein which has led to the initiation of crime No. 811/2019 of Sulthan Bathery Police Station and on the other hand, towards the last portion of para No. 9.6, the Commission would observe that the abovesaid observations of the Commission should not in any manner affect the criminal investigation. It is already now conceded before this Court by the prosecution agency that as of now, even the expert panel as mandated in the Apex Court rulings as in **Dr.Jacob Mathew's** case (supra) and the Government circular dated 16.06.2008 has not so far been constituted in this case. Prima facie, this Court would only observe that it is indeed doubtful as to how the Commission has proceeded to enter into this difficult arena for adjudging the criminal culpability of a medical doctor without even having the expert opinion of the expert panel as envisaged in the Apex Court rulings and in the abovesaid Government circular dated 16.06.2008. Further, unnecessary confusion appears to be created by some of the observations in para No.9 of the abovesaid report of the Commission, wherein on the one hand, the observation is to the effect that the conduct of the petitioner would amount to dereliction of professional duties and these are blameworthy and therefore, action has been taken against the registration of the crime and on the other hand, at the same breath, the Commission would observe that the said observation of the Commission shall not in any manner affect the criminal proceedings. **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **38** 26. In view of the abovesaid confusions and in view of the admitted fact that the expert panel has not been even constituted, this Court would only venture to observe that it is for the investigating agency concerned to proceed in the matter, strictly in accordance with the law and in strict compliance with the requirements and directives issued by the Apex Court in cases as in **Dr.Jacob Mathew's** case (supra) and also in strict and meticulous compliance with the mandate of the abovesaid Government circular dated 16.06.2008. 27. Adjudging and evaluating the conduct of the teachers may not be a very difficult task for a body like the Commission, but when it comes to the zone of criminal culpability of the professional doctors, the primary material should indeed be the expert opinion of the expert panel as envisaged in the rulings of the Apex Court as in **Dr.Jacob Mathew's** case (supra) and as per the prescriptions contained in the abovesaid Government circular dated 16.06.2008 etc. This Court need not get into any further aspects of the matter in relation to the said report of the Commission to the extent it deals with the matters in relation to accused No.4 herein. 28. After anxiously considering the rival pleas made by Sri.M.R.Sasith Panicker, learned counsel appearing for A4 and Sri.Suresh Babu Thomas, learned Additional Director General of Prosecutions/Addl.State Prosecutor appearing for the respondent-State, **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **39** Prosecution agency, one of the matters to be assessed may be as to whether the abovesaid conduct of A4 would meet the requirements of gross rashness or gross negligence, which there is sine quo non of criminal negligence of a medical doctor as envisaged in the abovesaid rulings of the Apex Court and various High Courts and various English courts referred to therein. 29. The prosecution agency has made certain allegations against A4. A4 has given her version of the story in contradiction with the prosecution story, wherein it would project that she was the lone doctor in the casualty, with only a single male nurse to assist her at the time of this moment of crisis and according to her, she has done her best to arrive at her own professional judgment, which according to her could certainly meet the standards of an ordinary and reasonable medical practitioner, in whose shoe she may have to stand. 30. This Court need not necessarily get into the resolution of this issue for the simple reason that as of now, there is no expert opinion of any expert panel as envisaged in the abovesaid rulings of the Apex Court in cases as in **Dr.Jacob Mathew's** case (supra) and as mandated in the abovesaid Government circular dated 16.06.2008. 31. In the absence of such an expert opinion of the expert panel, the law laid down by the Apex Court is clear and categoric and as can be seen from the mere reading of para No.52 of **Dr. Jacob Mathew's** case **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **40** (supra), it is to the effect that the investigating officer before proceeding against the doctor accused of rash and negligent act or commission has to be necessarily obtain such an independent and competent medical opinion and the doctor accused of rashness or negligence may not be arrested in a routine manner simply because charges have been levelled against him or her and unless his or her arrest is absolutely necessary for furthering the investigation of collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face prosecution unless arrested, may have to be instant etc. 32. After hearing both sides, this Court is of the considered view that the prosecution also does not have any serious case or serious apprehension that the petitioner may abandon from the due process of law if she is given anticipatory bail or that she has got any crucial opportunity to tamper evidence or to influence the witnesses who are mainly in the hospital as admittedly she is now suspended from service. 33. After hearing both sides and after careful evaluation of the facts and circumstances of this case and after testing the facts of this case in the light of the parameters and guidelines laid down by the Apex Court in cases as in **Dr.Jacob Mathew’s** case (supra) as well as the Division Bench of this Court in **Suvarna’s** case etc., this Court is constrained to take the view that the petitioner has made out a strong probable case that her custodial interrogation may not be really warranted or necessary for effectuating **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **41** smooth and fair conduct of the investigation of this crime. However, the learned Prosecutor has pointed out that there is a strong possibility of the petitioner to influence the witnesses or to tamper with the evidence etc. Hence to take care of the said serious apprehension raised by the prosecution agency, it is ordered as a safeguard that even if the Health Department subsequently reinstated petitioner’s service, it may be ensured that she is posted in a hospital other than the Govt. Taluk Hospital, Sulthan Bathery where the alleged incidents have taken place, so that she does not get opportunity to tamper with documentary or other evidence or to influence any witnesses, most of whom are in the hospital. 34. However, the learned Prosecutor would point out that the petitioner has not so far appeared before the investigating officer for interrogation purposes and the petitioner has to necessarily co-operate with the investigating officer. The said submission made by the learned Addl.Director General of Prosecutions is indeed right and proper and hence the following directions and orders are passed. _1) The petitioner will immediately appear before the investigating officer concerned for interrogation purposes without any further delay. 2) Since the other accused persons are also concerned in this case and as the investigating officer may find it fit to interrogate different accused persons on different occasions, for the sake of convenience of the investigation agency, it is ordered that the investigating officer concerned may issue notice to the petitioner intimating her as to the date and time at which she should appear before him for interrogation purposes. 3) On getting such notice, the petitioner will have to faithfully comply_ **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **42** _with the said directions of the investigating officer and should appear before him for interrogation purposes. Upon which such appearance for interrogation purposes, the petitioner will fully co-operate with the investigating officer in the interrogation process._ _4) After the interrogation process is over, in case the investigating officer arrests the petitioner (A4) in connection with the abovesaid crime, then the petitioner herein (A4) shall be released on bail on her executing bond for Rs.50,000/- (Rupees Fifty Thousand only) and on furnishing two solvent sureties for the like sum both to the satisfaction of the investigating officer concerned._ However, the grant of bail will be subject to the following conditions : _(a) The petitioner shall not involve in any criminal offences of similar nature._ _(b) The petitioner shall fully co-operate with the investigation. (c) The petitioner shall report before the Investigating Officer as and when required in that connection._ _(d) The petitioner shall not influence witness or shall not tamper or attempt to tamper evidence in any manner, whatsoever._ _(e) If there is any violation of the abovesaid conditions by the petitioner then the jurisdictional court concerned stand hereby empowered, to consider the plea for cancellation of bail at the appropriate time._ 35. Needless to say that the abovesaid observations and findings made by this Court are only from the limited legal frame work for adjudging the factual matrix involved in the present anticipatory bail plea and any such issues that may be raised in other appropriate proceedings involved in this case, including trial will have to be decided by the **Bail Appl..Nos.8714, 8719 & 8730 OF 2019** **43** appropriate forum concerned independently and untrammeled and uninfluenced in any manner by any of the observations and findings made by this Court hereinabove. With these observations and directions, the above anticipatory bail application will stand finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** SKS