SUVARNA RAJENDRAN v. STATE OF KERALA & ORS

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 12TH DAY OF JUNE 2019/ 22ND JYAISHTA, 1941** ## **WP(C).No.9849 of 2019** ## **PETITIONER/S:** **SUVARNA RAJENDRAN, AGED 47 YEARS W/O RAJENDRAN V.K., VISAKAM, EDAMALI MURI, PARAKKARA P.O., THATTAYIL, PATHANAMTHITTA (DIST.)** **BY ADVS. SRI.JACOB P.ALEX SHRI.MANU SANKAR P. SRI.JOSEPH P.ALEX** |**RESPONDENT/S**<br>**:**|**RESPONDENT/S**<br>**:**| |---|---| |**1**|**STATE OF KERALA**| ||**REPRESENTED BY ITS DEPARTMENT OF HOME,**| ||**GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM, PIN-695 001.**| |**2**|**STATELEVEL APEX BODY IN RESPECT OF**| ||**INVESTIGATION OF COMPLAINTS**| ||**AGAINST DOCTORS FOR ACTS OF COMMISSION OR**| ||**OMISSION IN MEDICAL CARE,**| ||**REPRESENTED BY ITS CONVENER,**| ||**DIRECTOR OF HEALTH SERVICES,**| ||**GOVERNMENT OF KERALA,**| ||**THIRUVANANTHAPURAM, PIN-695 001.**| |**3**|**PATHANAMTHITTA DISTRICT LEVEL EXPER PANEL**| ||**IN RESPECT OF INVESTIGATION OF COMPLAINTS**| ||**AGAINST DOCTORS FOR ACTS OF COMMISSION OR**| ||**OMISSION IN MEDICAL CARE,**| ||**REPRESENTED BY ITS CONVENER,**| ||**DISTRICT MEDICAL OFFICER,**| ||**OFFICE OF DISTRICT MEDICAL OFFICER,**| ||**PATHANAMTHITTA, PIN-689645.**| ::2:: **WP(C).No.9849 of 2019** - **4 DEPUTY SUPERINTENDENT OF POLICE ADOOR, PATHANAMTHITTA, PIN-691523.** - **5 CHRISTIAN MISSION HOSPITAL REPRESENTED BY ITS SUPERINTENDENT, PANDALAM P.O., PATHANAMTHITTA, PIN-689501.** - **6 DR.RENI PHILIP, S/O EASO PHILIP, C M COTTAGE, PANDALAM PO, PATHANAMTHITTA, PIN-689 501.** - **7 DR.SUMA JOHN, W/O. DR.JOHN VARGHESE, CHRISTIAN MISSION HOSPITAL, PANDALAM P.O., PATHANAMTHITTA, PIN-689 501.** **BY ADVS. SRI.A.VELAPPAN NAIR SRI.N.SATHEESH SRI.ASOK M.CHERIAN SRI.K.JANARDHANA SHENOY** ## **OTHER PRESENT:** **SRI.MANU, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ::3:: **WP(C).No.9849 of 2019** ## **ALEXANDER THOMAS, J** . ----------------------------W.P(C).No.9849 Of 2019 --------------------------------Dated this the 12[th] day of June, 2019. ## **J U D G M E N T** The case projected in this Writ Petition is as follows: The petitioner's minor daughter, Megha, aged 10 years had died due to the alleged gross negligence of respondents 5 to 7, while she was undergoing medical treatment. The petitioner would place reliance on Ext.P-5 report dated 18.1.2011 of the 3[rd] respondent-District Level Expert Panel to show that respondents 5 to 7 have not made a reasonable care in administering intravenous drugs and there was tampering of medical records and there was no evidence of injection mark suggestive of test over dose. Ext.P-1 is the FIR registered on 5.8.2010 in respect of Crime No.808/2010 of Pandalam Police Station. The Police after investigation has filed Ext.P-6 Final Report/Charge Sheet in the said Crime No.808/2010 of Pandalam Police Station, whereby contesting respondents 6 & 7 and 3 others have been arrayed as accused. Respondents 6 & 7 have been arrayed as accused Nos.1 & 7 respectively therein. That the matter in relation to Ext.P-5 was challenged before the 2[nd] respondent State Level Apex Body, who issued Ext.P-10 order. Ext.P-10 has been set aside as per Ext.P-12 judgment ::4:: **WP(C).No.9849 of 2019** dated 18.12.2017 rendered by the Single Judge of this Court in W.P.(C).No.3894/2017 as well as by Division Bench in Ext.P-13 judgment dated 11.6.2018 in W.A.No.573/2018 and thereby the 2[nd] respondent-State Level Apex Body has been directed to consider the entire issue afresh. The complaint of the petitioner is that now the 2[nd] respondent has issued the impugned Ext.P-14 proceedings which according to her is in contravention of the specific directions issued by this Court in Exts.P-12 and P-13 judgments. It is pointed out that it has been specifically directed in Ext.P-12 judgment that '…........ _The Apex Body is expected to offer its view on the medical aspects involved. It cannot have concluded legal analysis, as was done under a separate heading “legal analysis”_ '. That in Ext.P-13 judgment it was held that _“.........But, it is made clear that in recording such factual finding, the doctors of the Apex Body should not be influenced by the possibility or otherwise of successful prosecution of the doctors or the hospital….....”_ . The petitioner would contend that in utter violation of the binding directions issued in Exts.P-12 & P-13 judgments, the State Level Apex Body has passed Ext.P-14 proceedings and has again concluded that “ _there is not any criminal negligence on the part of this doctors and the staff of Christian Mission Hospital, Pandalam_ .” The petitioner would urge that the operative portion of Ext.P-14 which is styled as “ _analysis_ ” is a verbatim copy of operative portion of the impugned Ext.P-10, on the contrary to ::5:: ## **WP(C).No.9849 of 2019** the direction in Exts.P-12 & P-13 direction herein, wherein the 2[nd] respondent has been directed to re-look the entire issue. Further the petitioner would very prudently urge that the basic issue as to whether the cause of death of Megha, is due to “ _Anaphylaxis/Anaphylactic shock consequent to reaction of drugs (Antibiotic injection Bigtum 600) administered at 02:20 p.m. on 2.8.2010 without any test dose_ ” is not at all examined in the impugned Ext.P-14 proceedings rendered by the 2[nd] respondent-State level Apex Body. 2. Heard Sri.Jacob P.Alex, learned counsel for the petitioner and Sri.Manu, learned Prosecutor appearing for the respondents 1 to 4 and Sri.A. Velappan Nair, learned counsel appearing for respondents 5 to 7. 3. The petitioner has further urged that the impugned Ext.P-14 proceedings is contrary to the stipulation in Ext.P-4 Government Circular dated 16.6.2008. Paras 3 & 4 of Ext.P-4 given on page 33 of the paper book reads as follows: _“3. The Expert Panel/Apex body shall submit its views on the incident within a specified period of 30 days. It shall be the duty of the investigating officer to consider the views expressed by the Expert panel/Apex body and he will continue further investigation in the light of the view taken by the Expert panel/Apex body. In case the investigating officer is not satisfied with the views expressed by the Expert panel/Apex body or requires additional clarification, it would be open to him to seek additional expert opinion._ _4. The Expert panel/Apex Body should not in any way interfere with or impede the smooth investigation of any case by the Police.”_ ::6:: **WP(C).No.9849 of 2019** That the duty of the Expert Panel/Apex Body is to submit its views on the incident within a specified period of 30 days and it shall be the duty of the Investigating Officer to consider the views expressed by the Expert Panel/Apex Body and he will continue further investigation in the light of the view taken by the Expert Panel/Apex Body and in case the Investigating Officer is not satisfied with the views expressed by the Expert Panel/apex body or requires additional clarification, it would be open to him to seek additional expert opinion and that the Expert Panel/Apex Body should not in any way interfere with or impede the smooth investigation of any case by the Police. It is further urged that in various decisions of the Apex Court in cases as in _**Jacob Mathew v. State of Punjab**_ , reported in (2005) 6 SCC 1, para 52, it has been held that the Investigating Officer has to obtain a independent and comprehensive medical report from the from a Doctor in Government service qualified in that branch of medical investigation. Further it is urged that the impugned Ext.P-14 proceedings has interfered and impeded with the investigation in the case. It is also urged that the impugned Ext.P-14 has refused to consider several vital rerelvant aspects involved in the case. Further that, the 2[nd] respondent-State Level Apex Body before rendering Ext.P-14 proceedings has not afforded reasonable opportunity of being heard to the petitioner, who is the deceased victim's mother or to any of the victim's family members. ::7:: ## **WP(C).No.9849 of 2019** That despite the directions in Ext.P-12 not even a copy of the decision of the Apex Body has been communicated to the petitioner. Further Ext.P10 is also silent on the treatment given, drugs administered to the child, vis-a-vis cause of the death. The petitioner has also urged various other technical aspects regarding treatment, etc., which has led to the death. 4. This Court has specifically queried to the respondents as to whether the petitioner was afforded a reasonable opportunity of being heard by the 2[nd] respondent-State Level Apex Body before the impugned Ext.P-14 proceedings has been rendered. Now, it is brought to the notice of this Court that reasonable opportunity was not afforded to the petitioner before Ext.P-14 proceedings has been rendered. Prima facie, the impugned Ext.P-14 proceedings does not appear to be in consonance with the observations and orders made by this Court in Exts.P-12 & P-13 judgments. Since the petitioner has not been heard, it appears that most of the contentions now urged by the petitioner have not been properly considered y the 2[nd] respondent. Therefore, this Court feels that the matter requires serious reconsideration at the hands of the 2[nd] respondent and the matter requires a remit. Accordingly, in order to effectuate a proper remit, it is ordered that the impugned Ext.P-14 proceedings dated 10.8.2018 rendered by the 2[nd] respondent-State Level Apex Body will stand quashed and the matter will stand remitted to the 2[nd] respondent for consideration afresh. The petitioner will submit her ::8:: ## **WP(C).No.9849 of 2019** written submissions in the matter along with a certified copy of this judgment to the 2[nd] respondent within 3 weeks from the date of receipt of a certified copy of this judgment. Thereafter the 2[nd] respondent will issue notice of hearing to the petitioner as well as to respondents 5 to 7. The 2[nd] respondent will thereafter will afford an opportunity of being heard to the petitioner as well as respondents 5 to 7 either in person or through their authorised representatives and then should consider the entire issues afresh and also advert to the various contentions urged by both sides and should take a decision afresh in accordance with law and in the light of the observations and orders made by this Court in Exts.P-12 & P-13 judgment without much delay, preferably within a period of 2 months from the date of production of a certified copy of this judgment. With these observations and directions, the above Writ Petition (Civil) will stand disposed of. **Sd/ALEXANDER THOMAS, Judge.** bkn/- ::9:: **WP(C).No.9849 of 2019** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE FIR DATED 5.8.2010 IN CRIME NO.808 OF 2010 OF PANDALAM POLICE STATION.** - **EXHIBIT P1 A TRUE COPY OF THE FIS IN DATED 5.8.2010 IN CRIME NO.808 OF 2010 OF PANDALAM POLICE STATION.** - **EXHIBIT P2 TRUE COPY OF THE RELEVANT PAGES OF OP RECORD (CASUALITY NOTE) MAINTAINED BY THE 5TH RESPONDENT.** - **EXHIBIT P3 TRUYE COPY OF THE POST-MORTEM CERTIFICATE BARING NO.PM.1042/10 DATED 6.8.2010.** **EXHIBIT P3 A TRUE COPY OF THE CERTIFICATE OF CHEMICAL ANALYSIS BEARING NO.4075 DATED 29.10.2010.** - **EXHIBIT P3 B TRUE COPY OF THE PATHOLOGICAL REPORT BEARING NO.PM/35/10 DATED 30.12.2010.** - **EXHIBIT P4 TRUE COPY OF THE CIRCULAR MEMORANDUM BEARING NO.73304/SSB3/2007/HOME DATED 16.6.2008** - **EXHIBIT P4 A TRUE COPY OF THE CIRCULAR MEMORANDUM BEARING 73304/SSB3/2007/HOME DATED 8.8.2008.** **EXHIBIT P5 TRUE COPY OF THE REPORT OF THE 3RD RESPONDENT DATED 18.1.2011.** **EXHIBIT P6 TRUE COPY OF THE FINAL REPORT DATED 29.3.2011 IN CRIME NO.808 OF 2010 OF PANDALAM POLICE STATION ALONG WITH CONNECTED REPORTS, MAHASSAR AND STATEMENT OF WITNESSES SUBMITTED BY THE 4TH RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, ADOOR.** ::10:: **WP(C).No.9849 of 2019** - **EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 29.2.2012 IN WPC NO.5017 OF 2012.** **EXHIBIT P8 TRUE COY OF THE JUDGMENT DATED 10.4.2012 IN WPC NO.6921 OF 2012.** **EXHIBIT P9 TRUE COPY OF THE LETTER BEARING NO.759/IDP/16 ASD DATED 13.10.2016.** **EXHIBIT P10 TRUE COPY OF THE REPORT OF STATE LEVEL APEX BODY BEARING FILE NO.EC555087/2011/DHS.** - **EXHIBIT P11 TRUE COPY OF THE INTERIM ORDER DATED 6.2.2017 IN WPC 3894 OF 2017.** **EXHIBIT P12 TRUE COPY OF THE JUDGMENT DATED 18.12.2017 IN WPC 3894 OF 2017.** **EXHIBIT P13 TRUE COPY OF THE JUDGMENT DATED 11.6.2018 IN WA 573 OF 2018.** **EXHIBIT P14 TRUE COPY OF THE REPORT OF STATE LEVEL APEX BODY BEARING FILE NO.EC555087/2011/DHS (10.8.2018).** **EXHIBIT P15 TRUE COPY OF THE COVERING LETTER DATED 23.3.2019 ISSUED TO PETITIONER'S COUNSEL FROM THE DIRECTORATE OF HEALTH SERVICES, THIRUVANANTHAPURAM.** **EXHIBIT P16** **TRUE COPY OF THE NOTICE UNDER SECTION 157(2) AND 17391)(B), CRPC ISSUED TO THE PETITIONER**