Madras High Court
Dr. Mohan vs The State on 11 August, 2021
CRL.O.P.No.25858 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.08.2021
CORAM:
THE HON'BLE MRS.JUSTICE V. BHAVANI SUBBAROYAN
CRL.O.P.No.25858 of 2016
and
Crl.M.P.Nos. 12766 & 12767 of 2016
Dr. Mohan ... Petitioner
Versus
1. The State,
rep. by the Inspector of Police,
B1-Thiruvallur Town Police Station,
Thiruvallur.
2 Mr. A.Gopalakrishnan ... Respondents
PRAYER: Criminal Original Petition filed under Section 482 of the
Code of Criminal Procedure, to call for the records of PRC No.20 of
2015 pending on the file of the Judicial Magistrate-1, Thiruvallur and
quash the same as against the petitioner herein.
For Petitioner : Ms. R.Bhavadharani,
for AAV Partners
Page No.1 of 16
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CRL.O.P.No.25858 of 2016
For Respondents : Mr.E. Raj Thilak,
Gov. Advocate (Crl.Side)
for R1
: Mr.S.Mahaveer Shivaji,
for Mr. V.Thiyagu,
for R2
ORDER
This petition has been filed to quash the PRC No.20 of 2015 on the
file of the Judicial Magistrate, No.I, Thiruvallur.
2. The case of the prosecution is that on 21.02.2013 at about 4.45
p.m., one Mrs.Sudha, along with her husband with the complaints of
headache, vomiting, giddiness and fever came to the petitioner's clinic,
namely, Grace Medical Center. The petitioner and a nurse, namely
Velankanni, administered injections to the said Sudha without taking any
test. Thereafter, since the said Sudha became semi-conscious, she was
referred to the Government Head Quarters Hospital, Thiruvallur, which is
just 5 minutes away from the clinic, where, she was declared dead and
the Doctor also told that she would have died half an hour back. Hence, a
complaint has been lodged before the first respondent police and a case
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in Crime No.88 of 2013 has been registered under Section 304(i) IPC and
the same has been taken on file as PRC.No.20 of 2015 by the Judicial
Magistrate-I, Thiruvallur.
3. The learned counsel for the petitioner would submit that the
allegation of the defacto complainant that the nurse had administered
injection as per the instruction of the petitioner, without examining the
patient, due to which, there was allergetic reaction, which resulted death
to the patient, are totally false. The petitioner was very much available in
the hospital at the time when the deceased came to hospital. With a
malafide intention, a false case has been foisted as against this petitioner.
She would further submit that a case has been registered against the
petitioner under Section 304(i) of IPC. Section 304(i) IPC is punishable
for culpable homicide, which is not amounting to murder. She would
further submit that it is not the case of the defacto complainant or the
prosecution that the petitioner caused death to the deceased with an
intention to cause such act. As a medical practitioner, the petitioner has
no intention to cause death to the patient. Hence, the charge under
Section 304(i) of IPC does not attract in the present case as against the
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CRL.O.P.No.25858 of 2016
petitioner. The consequence that ensued in this case was not definitely
expected and anticipated by anyone much less the petitioner. In the
absence of any ingredients of part I of Section 304 of IPC, the petitioner
has been wrongly charged for culpable homicide in the instant case.
Neither the petitioner nor the witnesses have stated that the petitioner
with an intention or knowledge to cause death or bodily injury to the
deceased, had acted upon. Adverse drug reaction causes 10-20% of
patients allergic reactions are unpredictable, and adverse effects that are
linked immunological mechanisms. Hypersensitive drug reactions also
suggest involvement of genetic factors, which are not in the hands of the
physicians. Hence, on that ground the complaint deserves to be quashed.
The chemical analysis report categorically states that the deceased
appeared to have died due to acute hypersensitive drug reaction. To
support his contention, she has also relied upon a judgment of the
Hon'ble Supreme Court of India in the case of Jacob Mathew /vs/ State
of Punjab reported in 2005 (6) SCC , in which, it has been categorically
stated that the investigating officer should , before proceeding against the
doctor, accused of rash or negligent act or mission, obtain an independent
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CRL.O.P.No.25858 of 2016
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
test to the facts collected in the investigation. But, in the present case, the
above procedure was not followed by the Investigating Authority and no
expert opinion was obtained, before filing report. Hence, he prayed to
quash the same.
4. The learned Government Advocate (crl. side) appearing for the
respondent police would submit that the doctor was not available at the
time of the admission of the deceased into the hospital. The petitioner
was working in the Government Hospital and he was on duty when the
deceased was admitted in the hospital. Hence, he gave instruction to one
Velankanni, who was working as a nurse in his hospital and administered
injection to the victim, which was not known to the victim's relatives.
After administering the injections only, the deceased became
unconscious and her pulse rate went down and hence, she was shifted to
the Government Hospital, where she was declared dead. The medical
officer, who has conducted postmortem on the body of the victim, stated
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that the deceased appeared to have died due to acute hypersensitive drug
reaction.
5. He would further submit that the said Sudha was affected by
fever and headache, she went with her husband Rajeevan to the Grace
Clinic on 21.02.2013 at 5.00 p.m., and already she had taken medicine
for 4 days. At that time, Doctor was not available in the hospital and one
nurse, Velankanni was available, who administered injections to the
deceased Sudha and it was enquired by the victim's relatives. The said
Velankanni contacted the doctor over phone and he advised her to give
two injections. Thereafter, at 5.30 p.m., the petitioner came there and
without examining the patient, he told with the nurse to provide IV fluid
to the victim. Thereafter, at 7.30 p.m., suddenly the victim had become
unconscious. Then only, the doctor informed that the patient is in a very
serious condition and advised them to take her to the Government
Hospital, Thiruvallur, where, the Doctor examined the victim and
informed that before 30 minutes, she died. Hence, through complaint
dated 22.02.2013 requested them for post mortem and the case was
registered under Section 304(i) IPC. Since without doing checkup, the
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CRL.O.P.No.25858 of 2016
petitioner advised the nurse to administer injection, the deceased died
due to acute hypersensitive drug reaction.
6. I have considered submissions made on either side and perused
the materials available on records carefully.
7. It is relevant to rely upon the judgment of the Hon'ble Supreme
Court of India passed in Crl.A.No.579 of 2019 dated 02.04.2019 in the
case of Devendra Prasad Singh Vs. State of Bihar & Anr., as follows:-
" 12. So far as the second ground is
concerned, we are of the view that the High
Court while hearing the application under
Section 482 of the Cr.P.C. had no jurisdiction
to appreciate the statement of the witnesses
and record a finding that there were
inconsistencies in their statements and,
therefore, there was no prima facie case
made out against respondent No.2. In our
view, this could be done only in the trial
while deciding the issues on the merits
or/and by the Appellate Court while deciding
the appeal arising out of the final order
passed by the Trial Court but not in Section
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482 Cr.P.C. proceedings.
13.In view of the foregoing discussion,
we allow the appeal, set aside the impugned
order and restore the aforementioned
complaint case to its original file for being
proceeded with on merits in accordance with
law.”
8. Recently, the Hon'ble Supreme Court of India dealing in respect
of the very same issue in Crl.A.No.1572 of 2019 dated 17.10.2019 in the
case of Central Bureau of Invstigation Vs. Arvind Khanna, wherein, it
has been held as follows :
“19. After perusing the impugned order
and on hearing the submissions made by the
learned senior counsels on both sides, we are of
the view that the impugned order passed by the
High Court is not sustainable. In a petition
filed under Section 482 of Cr.P.C., the High
Court has recorded findings on several disputed
facts and allowed the petition. Defence of the
accused is to be tested after appreciating the
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evidence during trial. The very fact that the
High Court, in this case, went into the most
minute details, on the allegations made by the
appellant-C.B.I., and the defence put-forth by
the respondent, led us to a conclusion that the
High Court has exceeded its power, while
exercising its inherent jurisdiction under
Section 482 Cr.P.C.
20.In our view, the assessment made by
the High Court at this stage, when the matter
has been taken cognizance by the Competent
Court, is completely incorrect and uncalled
for.”
9. Further the Hon'ble Supreme Court of India also held in the
order dated 02.12.2019 in Crl.A.No.1817 of 2019 in the case of
M.Jayanthi Vs. K.R.Meenakshi & anr, as follows:
"9. It is too late in the day to seek
reference to any authority for the proposition
that while invoking the power under Section
482 Cr.P.C for quashing a complaint or a
charge, the Court should not embark upon an
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CRL.O.P.No.25858 of 2016
enquiry into the validity of the evidence
available. All that the Court should see is as to
whether there are allegations in the complaint
which form the basis for the ingredients that
constitute certain offences complained of. The
Court may also be entitled to see (i) whether
the preconditions requisite for taking
cognizance have been complied with or not;
and (ii) whether the allegations contained in
the complaint, even if accepted in entirety,
would not constitute the offence alleged.
..............
13. A look at the complaint filed by the
appellant would show that the appellant had
incorporated the ingredients necessary for
prosecuting the respondents for the offences
alleged. The question whether the appellant
will be able to prove the allegations in a
manner known to law would arise only at a
later stage...................."
The above judgments are squarely applicable to this case and as such, the
points raised by the petitioner cannot be considered by this Court under
Section 482 Cr.P.C.
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CRL.O.P.No.25858 of 2016
10. Considering the submissions, and from the perusal of the
records, it is seen that there is no mens rea for causing any injury to the
deceased is accepted. But, there was no evidence to show that the said
doctor was available when the deceased was admitted in the hospital. It
is the case of the prosecution that the petitioner was not available at the
time of admission of the victim and only over phone, he has instructed
the staff nurse to administer injections. The main issue is whether the
petitioner was available at the time of the admission of the victim or not
and also whether due to the allergy reaction of the injection, the deceased
died, which has to be decided at the time of trial. It is the duty of the
petitioner to putforth his evidence before the Court below to prove his
case. The Doctor, who conducted postmorterm of the Victim stated that
the deceased appears to have died due to acute hypersensitive drug
reaction. That being the case, whether victim died due to acute
hypersensitive drug reaction or not can be decided at the time of trial.
Moreover, the petitioner, being a Doctor has come before this Court on
quashing the said First Information Report under Section 304 (i) IPC by
filing petition under Section 482 Cr.P.C. It is for the petitioner to give
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CRL.O.P.No.25858 of 2016
evidence and prove his case at the time of trial and it cannot be decided
at this stage by way of filing petition under Section 482 Cr.P.C. The
petitioner can raise all the disputable grounds, which are raised by the
petitioner before this Court, very much before the trial Court and it is for
the trial Court to decide the case on merits.
11. In the case of Prabhat Kumar Singh /vs/ The State of Bihar
and others, etc., in Spl. Leave Petition (crl.) Nos.2395-2396 of 2021,
the Hon'ble Supreme Court has held that the High Court completely
glossed over the reasons which had weighted with the trial Court, as
noted in order dated 24.12.2016, but was impressed by the fact there was
no evidence regarding mens rea, to show malicious or bad intent. Further
the Hon'ble Supreme Court observed that this view taken by the High
Court is erroneous. For, when it is a case of medical negligence, it need
not be because of mens rea as intent. Sans mens rea in the above sense
also it would still constitute offence of medical negligence.
12. Be that as it may, whether there was medical negligence or not
has to be decided by the trial Court and while considering the said
dispute, the Hon'ble Supreme Court, in the afore mentioned case had
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remanded the matter back to the trial Court for further evidence and for
reconsidering the issue afresh, directed the trial Court to first examine the
witnesses in respect of the case to see whether the complaint has been
made out and to proceed further in accordance with law. This Court
being bound by the judgment of Hon'ble Supreme Court mentioned
supra is inclined to direct the trial Court to proceed with the matter on its
own merits without being influenced by any of the observation made by
this Court.
12. The counsel appearing for the petitioner also prayed that the
petitioner is a senior citizen, and sought for dispense with the petitioner's
personal appearance before the trial Court.
13. Considering the facts and circumstances of the case, this
Court is not inclined to quash the proceedings in P.R.C.No.30 of 2015 on
the file of the Judicial Magistrate No.I, Thiruvallur. The petitioner is at
liberty to raise all the grounds before the trial Court. Considering the age
of the petitioner, the personal appearance of the petitioner is dispensed
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with and he shall be represented by a counsel after filing appropriate
application. However, the petitioner shall be present before the Court at
the time of furnishing of copies, framing charges, questioning under
Section 313 Cr.P.C. and at the time of pronouncing the judgment.
14. Accordingly, this criminal original petition is dismissed.
Consequently, connected miscellaneous petitions are also closed.
11.08.2021
Index: Yes/No
Internet: Yes/No
mrp
To
1. The Judicial Magistrate-1,
Thiruvallur
2. the Inspector of Police,
B1-Thiruvallur Town Police Station,
Thiruvallur.
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CRL.O.P.No.25858 of 2016
3. The Public Prosecutor,
High Court, Madras.
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CRL.O.P.No.25858 of 2016
V. BHAVANI SUBBAROYAN, J.
mrp
CRL.O.P.No.25858 of 2016
11.08.2021
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