Dr. Devineni Sudheer Babu vs State Of Ap
2023 Latest Caselaw 4193 AP

      THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

              CRIMINAL PETITION No.4509 of 2019

ORDER:

Accused Nos.1 and 2 in C.C.No.1133 of 2019 on the file

of learned V Additional Junior Civil Judge, Guntur filed this

Criminal Petition under Section 482 of Code of Criminal

Procedure (Cr.P.C.) seeking to quash the proceedings against

them. The offence alleged against the accused is under Section

304-A read with 34 of Indian Penal Code (I.P.C.).

2. Respondent No.1 is State. Respondent No.2 is the

de facto complainant.

3. Sri Kolla Venkateswarlu, the learned counsel for

petitioners and learned Assistant Public Prosecutor representing

the State/respondent No.1 submitted arguments. For

respondent No.2, though appearance was made through a

learned counsel, none has entered appearance to argue the

matter despite granting several adjournments.

4. On a written information lodged by respondent No.2 on

11.08.2017, Crime No.270 of 2017 under Section 174 Cr.P.C.

was registered by Arundalpet Police Station and F.I.R. was

issued. Sub-Inspector of Police after conducting investigation

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listing 24 witnesses filed the charge sheet before learned V

Additional Junior Civil Judge, Guntur where cognizance was

taken and the case was registered as C.C.No.1133 of 2019.

5. The case relates to death of a girl aged 21 years by name

P.Naveena. She was suffering from back pain. On 15.07.2017

and thereafter on 18.07.2017 she was treated at Prasanthi

Hospital. Accused No.1 is medical doctor there who treated her.

Accused No.2 is compounder who assisted accused No.1 at the

hospital for the treatment of the patient.

6. Despite treatment on those two dates, the patient did not

find the relief, therefore on 22.07.2017 she was admitted in

Sri Lakshmi Hospital where she was treated as an inpatient.

She was discharged from that hospital on 24.07.2017 advising

for further treatment at a multi specialty hospital. LW.8 -

Dr. N.Sridhar Chand attended the patient at Sri Lakshmi

Hospital.

7. Then the patient was admitted into Lalitha Super

Specialty Hospital. She underwent treatment in that hospital

and died on 27.07.2017.

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8. It is thereafter on 11.08.2017 F.I.R. was registered.

9. Charge sheet alleges that at Prasanthi Hospital the

patient was treated for back pain by accused No.1 where the

doctor prescribed certain medicines and directed A.2 to

administer an injection and accordingly on 15.07.2017 at about

6:00 P.M. he accordingly administered the injection. The

patient returned back to her hostel. As she did not find relief,

her parents once again took her to Prasanthi Hospital and

accused No.1 prescribed some other tablets. This time the

patient along with her parents went to her home. Thus, on both

the occasions she was not an inpatient in the hospital. She was

only an outpatient. It is further alleged that patient was

suffering from fever and that did not abate and therefore, they

took her to Sri Lakshmi Hospital and admitted her.

Dr. N.Sridhar Chand/LW.8 in his statement given to police

under Section 161 Cr.P.C. stated that the patient was admitted

on 22.07.2017 and there was incorrect blood pressure and he

found the patient was very weak and suffering from fever and

therefore they administered requisite fluids and by next day

evening blood pressure came to control. She was put on

ventilator and was administered antibiotics. They found falling

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of blood platelets and in that regard they did blood transfusion.

This doctor further stated that when the patient was first seen

by him on 22.07.2017 he found swelling and two or three red

dots on the left upper arm on the patient. He enquired with the

patient's father who is accompanying with her and the father of

the patient told him that at Prasanthi Hospital she was

administered with an injection and since then the upper arm

started swelling. Doctor further stated that patient's father told

him that on 18.07.2017 when they once again visited Prasanthi

Hospital she showed it to accused No.1 but he did not pay

attention to it.

10. Charge sheet further alleges that as the condition of

Kum. Naveena became critical, on the advice of the doctor at

Sri Lakshmi Hospital, they shifted the patient to Lalitha Super

Specialty Hospital where treatment was given to her and while

undergoing treatment she died on 27.07.2017. The material on

record further shows that on her death the dead body was

cremated. After lapse of several days the father of the deceased

girl lodged the information on 11.08.2017 and crime was

registered. In pursuance of the allegations contained in the

F.I.R. the investigative police took steps for exhumation of the

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body and in the presence of the Mandal Executive Magistrate

the body was exhumed and it was subjected to an inquest and

post-mortem. There is on record post-mortem report dated

21.08.2017 which indicates preservation of viscera. The viscera

was subjected to scientific tests at Forensic Science Laboratory,

Hyderabad. Report dated 31.08.2017 of the Forensic Science

Laboratory indicate that they could not find any poisonous

substance. Thereafter the doctors who conducted post-mortem

rendered their final opinion on 21.08.2017 recording that the

death was due to shock as a result of multi-organ failure due to

Septicaemia. Charge sheet alleges that from the oral statements

recorded from the witnesses and from the opinion expressed by

the witnesses who attended the inquest he found that death of

Kum. Naveena was out of rash or negligent treatment of these

accused and therefore charge sheet was filed as against A.1 and

A.2.

11. Questioning the prosecution initiated against them, the

accused contend and their learned counsel argued that the

material produced before this Court even if taken to be correct

do not prima facie indicate rashness or negligence on part of

either of the accused. That even according to the material

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produced by the investigating police, the deceased patient was

treated at two different hospitals as inpatient much subsequent

to the treatment that was obtained from the accused and no

investigation was done as to these intervening circumstances

and without any material the accused have been charge sheeted

frivolously. That initiation of prosecution is against the

principles enunciated by the Hon'ble Supreme Court of India in

Jacob Mathew v. State of Punjab 1. Learned counsel submits

that the investigating police applied to the Superintendent of

Government General Hospital, Guntur and in pursuance of the

orders of the Superintendent, a committee was constituted and

the said committee verified the entire police records with

reference to the treatments that were given to the deceased

patient and had given an opinion that there was no material

indicating negligence on part of accused. Despite obtaining

such report the present false case is initiated only to harass the

accused. That the registration and continuance of such

prosecution is against the ratio in the above referred Jacob

Mathew's case (supra 1).

(2005) 6 SCC 1

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12. As against this, the learned Assistant Public Prosecutor

representing the State submits that since the available material

on record indicated prima facie negligence on part of the

accused, charge sheet was validly laid and the truth or

otherwise of the matter should be left to the trial Court and this

Court may not interfere while exercising jurisdiction under

Section 482 Cr.P.C.

13. The point that falls for consideration is:

"Whether institution and continuance of criminal proceedings against the doctor and his assistant is against law and abuse of process of Court and the material on record failed to indicate any offence thereby requiring interference of this Court?"

POINT:

14. Criminal punishment carry substantial moral overtones.

Some of life's misfortunes or accidents for which nobody is

morally responsible. Others are wrongs for which responsibility

is defuse. Yet others are instances of culpable conduct and

constitute grounds for compensation and at times, for

punishment. Distinguishing these various categories require

Dr. VRKS, J Crl.P.No.4509 of 2019

careful, morally sensitive and scientifically informed analysis. A

doctor cannot be held criminally responsible for patient's death

unless his negligent or incompetence showed such disregard for

life and safety of his patient as to amount to gross negligence or

recklessness. Mere lack of proper care, precaution and

attention or inadvertence might create civil liability but not

criminal liability. The prosecution must show such high degree

of negligence or rashness as to indicate a mental state which

can be described as totally apathetic towards the patient. It is

only such gross negligence which is punishable when it comes

to initiation of any prosecution against doctors (vide Dr. Suresh

Gupta v. Government of N.C.T. of Delhi 2).

15. In a proceedings under Section 482 Cr.P.C., the charge

sheet and the material accompanying with it alone fall for

consideration and the material that is sought to be used by

defence would not normally fall for consideration. However, in

cases of attribution of offences against doctors in their

professional capacity where patients died and allegations of

rashness or negligence are made under Section 304-A I.P.C. if

(2004) 6 SCC 422

Dr. VRKS, J Crl.P.No.4509 of 2019

the doctors who are facing the prosecution are able to show

certain unimpeachable material, Courts while exercising

jurisdiction under Section 482 Cr.P.C. could consider them. It

is in this regard one has to notice what the Hon'ble Supreme

Court of India in Rajiv Thapar v. Madan Lal Kapoor3 held at

Para No.30 as below:

"30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 Cr.P.C:

30.1. Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality?

30.2. Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?

30.3. Step three: whether the material relied upon by the accused has not been refuted by the

(2013) 3 SCC 330

Dr. VRKS, J Crl.P.No.4509 of 2019

prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant?

30.4. Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?

30.5. If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused."

16. Speaking in the context of attributing negligence as cause

of death of a patient, the law is that the death should have been

the direct result of a rash or negligent act of accused and that

act must be the proximate and the efficient cause without the

intervention of another's negligence. Mere rashness or mere

negligence would not enable to prosecute doctor for an offence

under Section 304-A I.P.C. and attributed conduct must

amount to gross negligence. In the context of absence of

medical knowledge for many de facto complainants and

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investigating police their Lordships in Jocob Mathew's case

(supra 1) expressed the law in this regard with a view to prevent

unjust prosecutions. For benefit, Para No.52 in the said

judgment is extracted here:

"52. 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 the Bolam v. Friern Hospital Management Committee ((1957) 1 WLR 582) 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

Dr. VRKS, J Crl.P.No.4509 of 2019

investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld."

17. It is in the light of the above legal postulates, the case

alleged against the accused has to be evaluated.

18. Learned counsel for petitioners submits that the

prescriptions that were given by the accused were taken by the

police but they did not file them. The opinions they obtained

from the panel of medical doctors since exonerated any

complicity of these accused is not acted upon by the

investigating agency. It is in that context, copies of them are

filed along with the material papers in this criminal petition.

Correctness of these papers is not disputed by the learned

Assistant Public Prosecutor. Coming to the prescriptions given

by accused No.1 on the first occasion he prescribed Combiflam

and on the next occasion he prescribed Dolo 680, Cobavit

tablets and Erothral Antibiotic tablets. There is absolutely no

prescription of any injection. There is on record the letter

addressed by the investigating Sub-Inspector to the District

Medical and Health Officer, Guntur whereunder he submitted

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the necessary record and requested the opinion of the

Government Doctor as to whether the death was due to

negligence of accused No.1 or not. In response to that in

RC.No.SPL/DPMO/2017, dated 11.08.2017 the District Medical

and Health Officer requested the Superintendent, Government

General Hospital, Guntur to appoint a committee for verification

of records and to render opinion based on the material made

available to them. There is on record Rc.No.3846/G1/2017,

dated 07.09.2017 addressed by Superintendent, Government

General Hospital, Guntur to the District Medical and Health

Officer, Guntur intimating Physician, Surgeon Committee is

constituted. Report dated 06.09.2017 of the Physician, Surgeon

Committee, Government General Hospital, Guntur reads as

follows:

"From:

Physician, Surgeon Committee, Government General Hospital, Guntur.

To

The Superintendent, Government General Hospital, Guntur.

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Respected Sir,

Sub : Submission of Medical opinion on death of Putchakayala Naveena, D/o. Srinivasa Rao regarding.

Ref : Rc.No : 3846/G1/2017 dated : 22/8/2017 of the Superintendent GGH, Guntur.

We are hereby submitting the medical opinion regarding death of Putchakayala Naveena D/o. Srinivasa Rao who died on 27/7/2017 by verifying the submitted records. The possible cause of death after verifying the records in our opinion could be due to "LEFT DELTOID ABSCESS, SEPTIC SHOCK WITH MULTI ORGAN DYSFUNCTION SYNDROME (MODS)".

The deceased father alleged that his daughter P.Naveena died because of injection administered in the alleged hospital and negligence in treating the deceased in early stages. As per the records available, initial treating doctor on 15/7/2017 did not mention about prescription of injection. Review by the same doctor on 18/7/2017 did not mention about prescription of injection or clinical findings suggestive of infection of left arm.

To develop infection at the site of injection following factors have to be taken into consideration.

1. Factors related to patient

a) Immune status of the patient

b) Comorbid conditions etc.

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2. Any septic conditions prevailing in the hospital

3. Competency of the person who has administered the injection.

With the available data we could not be able to give opinion regarding negligence of Dr. Sudheer Babu MD and his compounder in treating the deceased. With the available date, the possible cause of death could be "LEFT DELTOID ABSCESS, SEPTIC SHOCK WITH MULTI ORGAN DYSFUNCTION SYNDROME (MODS)."

19. What is extracted above would show that the material

made available to the expert body of doctors concluded that

they could not find any negligence on part of accused Nos.1 and

2. The investigating officer acting in terms of the judgment of

the Hon'ble Supreme Court of India in Jacob Mathew's case

(supra 1) applied to the Government Hospital for opinion of the

doctor in Government service. However, instead of acting in

terms of that opinion of experts and in fact in derogation to it he

chose to file a police report/charge sheet alleging negligence on

part of accused. It has to be emphasized that the record does

not indicate any other medical opinion or evidence to overrule

the opinion rendered by the committee of Government doctors.

Thus, without any further material charge sheet was laid. This

act on part of the State is not in consonance with the law laid

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down by the Hon'ble Supreme Court of India. Ignoring that

lapses for a while, this Court scrutinized the charge sheet and

the accompanying material and it finds that initiation of these

proceedings is sheer abuse of process of Court for the following

reasons:

The injection that was allegedly administered on the

patient on 15.07.2017 is a mere allegation without any material.

What injection was administered is not revealed by any part of

the material based on which prosecution was initiated. Between

18.07.2017 which was the last date of prescriptions of

medicines by the doctor/A.1 and the death of patient that

occurred on 27.07.2017, the patient was treated by multiple

doctors as inpatient in two other hospitals. The charge sheet

does not contain any facts whatsoever to suggest to any

discerning mind that these two supervening events of

treatments at two different hospitals had to be ignored so as to

persist on an unknown injection that was alleged to have been

administered by A.2 at the behest of A.1. The prescriptions of

A.1 do not contain any injection. That was certified by the

medical committee also. In such circumstances, on what minor

premise the State could attribute any negligence on part of

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these accused could not be understood. The gross negligence

as a concept expounded by their Lordships in the various

judgments that are referred in the earlier paragraphs is totally

missing in the present case. The allegation of prosecution about

negligence or rashness on part of accused is a mere allegation

without any factual basis, any medical basis and any scientific

basis. The qualifications and the competency of accused as a

doctor are not at all questioned. The ailments for which patient

approached him and the medicines prescribed as seen from the

prescriptions and their relevance to those ailments are not

questioned by the prosecution. What is questioned is based on

an allegation that the doctor allegedly gave an injection which

no one knows even after this investigation. Thus, the charge

sheet is awfully lacking in all aspects that are required for

prosecuting medical men. Continuance of such proceedings is

never in the interest of justice and is clearly abuse of process of

Court. Point is answered in favour of the petitioners.

20. In the result, this Criminal Petition is allowed. Criminal

proceedings as against the petitioners/accused Nos.1 and 2 in

C.C.No.1133 of 2019 on the file of learned V Additional Junior

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Civil Judge, Guntur registered for the offence under Section

304-A read with 34 I.P.C. stand quashed.

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 12.09.2023 Ivd

Dr. VRKS, J Crl.P.No.4509 of 2019

THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

CRIMINAL PETITION No.4509 of 2019

Date: 12.09.2023

Ivd