Kerala High Court
Thomas K. Joseph vs State Of Kerala on 1 November, 2024
1
Crl.Rev.Pet. No.194 of 2014
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 1ST DAY OF NOVEMBER 2024/10TH KARTHIKA, 1946
CRL.REV.PET NO. 194 OF 2014
AGAINST THE ORDER DATED 26.03.2013 IN C.M.P. NO.1059 OF 2011 IN
C.C. NO.412 OF 2009 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, KANNUR
REVISION PETITIONER/2ND ACCUSED:
THOMAS K. JOSEPH, AGED 29
S/O. JOSEPH, 28/09, KADIYAM KUNNEL HOUSE,
ERUVATTY, THIMIRI, AALAKKODE.
BY ADVS.
SRI.SUNIL NAIR PALAKKAT
SRI.K.N.ABHILASH
SRI.PROMY KAPRAKKATT
SRI.SUCHITRA VARMA
RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:
1 STATE OF KERALA
REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM, KOCHI-682 031.
2 STATION HOUSE OFFICER
KANNUR TOWN POLICE STATION,
KANNUR DISTRICT-670 001.
ADV.SRI. NAUSHAD.K.A. -PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
01.11.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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Crl.Rev.Pet. No.194 of 2014
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ORDER
Accused No.2 in C.C. No.412 of 2009 on the files of the
Judicial Magistrate of the First Class - I, Kannur is in revision. He
assails the order of the learned Magistrate in C.M.P. No.1059 of
2011 in that case. The petitioner along with accused Nos.1, 3 and
4 filed the said petition seeking to drop the proceedings in C.C.
No.412 of 2009, invoking the provisions of Section 258 of the Code
of Criminal Procedure, 1973. The learned Magistrate as per the
order dated 26.03.2013, dismissed that petition.
2. The petitioner contends that the impugned order is
against the facts and law. Accused No.3 filed Criminal Revision
Petition No.93 of 2014 and accused No.4 filed Criminal Revision
Petition No.1412 of 2013. Both challenging legality and propriety
of the order impugned herein. As per the order dated 29.08.2013,
this Court allowed Criminal Revision Petition No.1412 of 2013 and
on reversing the order of the learned Magistrate, proceedings
against the 4th accused was dropped, invoking the provisions of
Section 258 of the Code. However, as per the order dated
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25.03.2024, this Court dismissed Criminal Revision Petition No.93
of 2014.
3. Heard the learned counsel for the petitioner and the
learned Public Prosecutor.
4. The learned counsel for the petitioner would submit
that when the proceedings against the 4th accused was ordered to
be dropped by this Court as per the order in Crl. R.P. No.1412 of
2013, a copy of which is Annexure A9, the petitioner is also
entitled to get the same treatment on the principle of parity. True,
the Revision Petition filed by the 3rd accused was dismissed. In the
view of learned counsel, the said order was on consent from the
petitioner therein, and therefore the same cannot be reckoned
with for taking a decision in this revision petition. I agree with the
contention that the order in Crl. R.P. No.93 of 2014 is not a
decision on merit and can have no reckoning in this revision
petition. However, the question, whether the petitioner is entitled
to a discharge in parity to the order in Criminal Revision Petition
No. 1412 of 2013 requires consideration.
5. Annexure A1 is the copy of the final report, which
reads:
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2008 ഏപ്രിൽ മാസം 23 തീയതി രള്ളിയിൽ അംശം തളപ്പ് എന്ന
സ്ഥലത്തുള്ള ക ായിലി ആശുരപ്തി എന്ന സവ ാര്യ ആസ്രപ്തിയിൽ
ഏഴ ാം അംശം അടുതല ഈസ്റ്റ് എന്ന സ്ഥലത്തുള്ള ഷീബ w/o ഷാജി
No.26/08 എന്ന സ്പ്തീകയ പ്രസവത്തിനായി അഡ്മിറ്റ് കെയ്യു യും
23.4.08 തീയതി ര്ാപ്തി 9¾ മണിഴയാകട ഷീബ ഒര്ു ആൺ ുഞ്ഞികന
പ്രസവിക്കു യും, തുടർന്ന് ഷീബയ്ക്ക്കുണ്ടായ ര്ക്തപ്സാവകത്ത
തുടർന്ന് ടി ആസ്രപ്തിയിൽ വച്ച് Dr.ര്മാഴേവി ഓപ്പഴേഷൻ
നടത്തു യും, തുടർന്ന് ICU വിഴലക്ക് മാറ്റിയ 1-)o പ്രതിയായ
Dr.ര്മാഴേവിയും സ്റ്റാഫ് ഴനഴ്സുമാര്ായ 2,3 പ്രതി ളും നഴ്സിംഗ്
അസിസ്റ്റന്റ് ആയ 4-)o പ്രതിയും െി ിത്സയും രര്ിെര്ണവും
നടത്തു യും 1 മുതൽ 4 വകര് പ്രതി ളുകട െി ിത്സയിലും
രര്ിെര്ണത്തിലും ഉണ്ടായ രി വും ഉോസീനതയും ാര്ണം
23.4.08 തീയതി രുലർകച്ച 04.30 മണിക്ക് ഷീബ മര്ണകപ്പടാൻ
ഇടയായിര്ികക്കയാലും പ്രതി ൾ ഓഴര്ാര്ുത്തര്ാലും ഴമൽ
പ്രവർത്തി മൂലം കരാതു ഉഴേശ ാര്യസാധ്യം വന്നിര്ിക്കയാലും
പ്രതി ൾ ഈ.ശി.നി 304(A) r/w 34 വ ുപ്പു ൾ പ്ര ാര്ം
ശിക്ഷാർഹമായ ുറ്റം കെയ്ക്തിര്ിക്കുന്നു എന്ന ാര്യം.
6. The learned counsel for the petitioner would submit
that the petitioner was not found fault within the report of the
apex body on complaints against the doctors in government
service, private medical practitioner or doctors in private hospitals.
Negligence was attributed on the part of the 1st accused alone.
Hence, the petitioner is entitled to be discharged. It is submitted
that a trial in the matter would not yield any positive result but
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would only be a futile exercise and therefore, this is a fit case
where Section 258 of the Code is liable to be invoked.
7. The learned Public Prosecutor, on the other hand,
would submit that there are definite allegations against the
petitioner as well as accused No.3 and therefore, Section 258 of
the Code cannot be invoked in their case. It is pointed out that
accused Nos.2 and 3 were the nursing officers in charge. Going by
Annexure A7 report presence of RMO, at least, was essential at
the time of delivery. When accused Nos.2 and 3 attended the
delivery even in the absence of the RMO, it is not possible to say
that accused Nos.2 and 3 did not have any role in the negligent
act. Accordingly, it is submitted that the learned Magistrate rightly
had dismissed C.M.P. No.1059 of 2011.
8. The Apex Court in Jyoti Devi v. Suket Hospital
[2024 KLT Online 1388] recalled the parameters required to be
proved to sustain a charge for death due to negligence punishable
under Section 304 A of the Indian Penal Code, 1860. It was held:
12.2. The law of negligence
12.2.1. Three factors required to prove medical negligence,
as recently observed by this Court in M.A Biviji v. Sunita &
Ors., 2024 (2) SCC 242, following the landmark
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pronouncement in Jacob Matthew v. State of Punjab, 2005
(6) SCC 1, are: - "36. As can be culled out from above, the
three essential ingredients in determining an act of medical
negligence are: (1.) a duty of care extended to the
complainant, (2.) breach of that duty of care, and (3.)
resulting damage, injury or harm caused to the complainant
attributable to the said breach of duty. However, a medical
practitioner will be held liable for negligence only in
circumstances when their conduct falls below the standards
of a reasonably competent practitioner."
9. The leaned counsel for the petitioner also drew my
attention to the observation of this Court in the order in Crl.M.C.
No.5401 of 2018 (Celinamol Mathew v. State of Kerala and another
order dated 21.10.2024). This court issued directions to the
Government to formulate the guidelines so as to extent equal
treatment to nurses in the Government and the private hospitals
also as afforded to the doctors in the matters of prosecution for
the offence under Section 304A of the IPC. Paragraph No.11 is
extracted below:
"11. In tune with the above directions, the government of
Kerala issued Circular No.73304/ssb3/2007/Home dated
16.06.2008 instructing procedure to be followed by the
investigating officers of complaints registered against
doctors. I am of the considered opinion that the nurses in
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the Government service and in private hospitals should also
get protection like the doctors, if a prosecution is initiated
under Section 304A IPC alleging medical negligence. The
Government should issue necessary orders/circular in tune
with Jacob Mathew's case (supra) to see that the nurse in
the Government service and in private hospitals are
protected from malicious and frivolous prosecutions. A
private complaint shall not be entertained by courts against
a nurse in the Government service or in private hospitals
alleging medical negligence, unless the complainant has
produced prima facie evidence before the Court in the form
of a credible opinion given by another competent authority
to support the charge of rashness or negligence on the part
of the nurse concerned. The Investigating Officer should,
before proceeding against a nurse in the Government
service or in private hospitals based on complaints of rash
or negligent act or omission while they discharge their duty,
obtain an independent and competent medical opinion
preferably from medical experts qualified in that branch of
nursing with a doctor who can normally be expected to give
an impartial and unbiased opinion. In tune with the
directions in Jacob Mathew's case (supra), this Court
declare that a nurse in the Government service or in private
hospitals accused of alleged rashness or negligence while
discharging duty, may not be arrested in a routine manner
(simply because a charge has been levelled), unless his/her
arrest is inevitable for furthering the investigation or for
collecting evidence or the investigation officer feels satisfied
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that the nurse proceeded against would not make herself
available to face the prosecution unless arrested. The State
Government should issue a circular in tune with the above
directions of this Court adopting the principle laid down by
the Apex Court in Jacob Mathew's case (supra) as far as
the nurses in the Government service and in the private
hospitals are concerned, within three months from the date
of receipt of a copy of this order, similar to Circular
No.73304/ssb3/2007/Home dated 16.06.2008 issued for
the doctors."
10. The parameters emphasised by the Apex Court in Jyoti
Devi (supra) and the directions issued by this Court in Celinamol
Mathew (supra) are either regarding the standard of proof for
establishing a charge for the offence under Section 304A of the
IPC and also the precautionary nature of investigation in cases
where the allegations are of medical negligence. Those principles
have no applications while considering a petition for discharge
under Section 258 of the Code.
11. As held in Neela Lohitha Dasan Nadar v. State of
Kerala [2003(1) KLT 844] a court may invoke Section 258 of
the Code in a case where the allegations against the accused, even
accepting them as true, do not constitute offence or on being
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satisfied that there exist serious defects in the prosecution case
which go to the root of the matter, thereby rendering further
proceedings rather impossible or futile.
12. When Section 258 of the Code can have application
only in such peculiar situations, the court before invoking the
provisions of Section 258 of the Code should be satisfied that there
will be a travesty of justice if the accused is asked to stand trial.
No such finding is possible in a case where the materials produced
by the prosecution prima facie make out a case for trial. A perusal
of the final report and the materials on record in this case, it is
quite evident that there are specific allegations against the
petitioner. He was the staff nurse in charge of the deceased during
the delivery and he did not ensure the presence of at least the
RMO at that time. In the circumstances, it cannot be said that this
is a case where there is no prima facie evidence to implicate the
petitioner with the crime, unlike in the case of accused No.4.
13. Hence, the view taken by the learned Magistrate that
the petitioner is not entitled to get a discharge under Section 258
of the Code cannot be said to be incorrect. This petition is liable
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only to be dismissed.
14. As stated, the petitioner is a nursing staff having
complex nature of work and responsibilities. I am of the view that
if he raises a plea for exemption under Section 205 of the Code,
the learned Magistrate shall take a lenient view in the matter by
following the principle laid down by the Apex Court in M/s Bhaskar
Industries Ltd. Vs. Bhivani Denim and Apparels Limited [(2001)
7 SCC 401] and Sharif Ahmed v. State of Uttar Pradesh [AIR
2024 SC 2420].
With the aforementioned observations the revision petition
is dismissed.
Sd/-
P.G. AJITHKUMAR, JUDGE
SMF
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APPENDIX OF CRL.REV.PET. NO.194 OF 2014
PETITIONER EXHIBITS
ANNEXURE A1 THE TRUE COPY OF THE CHARGE DATED NIL IN
C.C.412/09 OF THE JFCM-1, KANNUR.
ANNEXURE A2 THE TRUE TYPED COPY OF THE POSTMORTEM REPORT
DATED 25/4/2008 ISSUED BY THE SURGEN OF THE
PARIYARAM MEDICAL COLLEGE.
ANNEXURE A3 THE TRUE TYPED COPY OF THE HISTOPATHOLOGY
REPORT DATED 6.8.2008 ISSUED BY DR.JEENA OF
PARIYRAM MEDICAL COLLEE HOSPITAL.
ANNEXURE A4 THE TRUE COPY OF THE CIRCULAR DATED 16.6.08
NO.73304/SSB3/2007/HOME ISSUED BY THE
GOVERNMENT
ANNEXURE A5 THE TRUE TYPED COPY OF THE REPORT DATED NIL
BY THE EXPERT COMMITTEE.
ANNEXURE A6 THE TRUE COPY OF THE APPEAL DATED NIL FILED
BY THE PETITIONER BEFORE THE APEX BODY BY THE
1ST ACCUSED.
ANNEXURE A7 THE TRUE COPY OF THE REPORT OF THE APEX BODY
DATED 14/8/12 NO-EC3[EC7]-109671/09/DHS OF
THE 2ND RESPONDENT.
ANNEXURE A8 THE TRUE COPY OF THE APPLICATION NO-CMP-
1059/11 IN C.C.-412/2009 OF THE JFCM-1
KANNUR.
ANNEXURE A9 THE TRUE COPY OF THE JUDGMENT DATED 29/8/13
IN CRL.R.P.1412/2013.
