Madras High Court
Velankanni vs The State Rep By on 17 December, 2021
Crl. O.P. No.3314 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated 17.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
Crl. O.P. No.3314 of 2017 and
Crl.M.P.Nos.2411 and 2412 of 2017 & 14263 of 2018
Velankanni . . . Petitioner
Versus
1.The State Rep by
The Inspector of Police
B1 Tiruvallur Town Police Station
Tiruvallur.
2.K.Gopalakrishnan . . . Respondents
PRAYER : Criminal Original Petition filed under Section 482 Cr.P.C.,
to call for the records in P.R.C. No.20 of 2015, on the file of the
Judicial Magistrate-I, Tiruvallur and quash the same.
For Petitioner : Mr.C.M.Mohanasundaram
For Respondents : Mr.S.Vinoth Kumar
Govt. Advocate (Crl. Side) for R1
No appearance for R2
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Crl. O.P. No.3314 of 2017
ORDER
This Criminal Original Petition has been filed under Section 482
Cr.P.C., to quash the final report in P.R.C. No.20 of 2015, filed against
the petitioner/A-2 for the offence under Section 304(1) IPC, on the file
of the Judicial Magistrate-I, Tiruvallur.
2. The case of the prosecution in nutshell is as follows:
On 02.02.2013, the de facto complainant, one Sudha has
admitted in Grace Hospital, Thiruvallur due to fever and severe
headache. In the said hospital, the petitioner was working as Staff
Nurse. On the advice given by the Doctor, the petitioner administered
an injection without testing the same. As a result of which, the
patient's pulse gone down and subsequently, she was referred to
Thiruvallur Government Hospital. However, on the way to the
Government Hospital, she succumbed to injuries. Therefore, a case
has been registered against the Doctor, who is arrayed as A-1 and the
present petitioner, who is arrayed as A-2 for an offence under Section
304(1) IPC. The entire prosecution proceeded as if the accused has
committed culpable homicide not amounting to murder.
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3. The learned counsel appearing for the petitioner submitted
that in the prosecution case itself, it is alleged that only on the
instruction given by the Doctor, the petitioner herein has administered
the injection and drops and therefore, at no stretch of imagination, it
could be termed as an offence. At the most, any death is occurred due
to negligence, that too, gross negligence, an offence under Section
304 (A) IPC would have normally be filed, whereas, in this case, the
prosecution has filed the final report under Section 304 IPC, which is
against the fundamental principle of law.
4. It is his further contention that even the entire prosecution
taken as true, the only allegation against the present petitioner is with
regard to administering the drops and injunction as per the advice of
the Doctor, who was arrayed as A-1. It is also submitted that no
expert opinion was obtained by the prosecution agency prior to
prosecuting the Doctor and the present petitioner, as per the direction
of the Apex Court in various occasions. It is therefore submitted that
the continuation of the prosecution is nothing but an abuse of process
of law.
5. The learned Government Advocate (Crl. Side) appearing for
the State submitted that though the investigation officer has not
obtained any expert opinion or report from the team of Doctors, the
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postmortem report indicates that the deceased died due to
hypersensitivity due to drug reaction.
6. Heard the learned counsel on both sides and perused the
entire materials available on record.
7. Normally, when the materials indicate any prima facie
allegations against the accused, the Court would not interfere with the
final report. It is relevant to note that the prosecution has slapped a
charge under Section 304 IPC - the culpable Homicide against the
petitioner herein. To attract the offence of culpable homicide, the
death should have been caused with an intention of causing death, or
with the intention of causing such bodily injury as is likely to cause
death, or with the knowledge that he is likely by such act to cause a
death. Therefore, only on these three ingredients enumerated under
Section 299 IPC, the charge under Section 304 could be slapped.
8. It is not the case of the prosecution that the accused herein
with an intention of causing death has administered the medicine. In
fact, the de facto complainant's daughter deceased Sudha has been
admitted in the hospital with fever and severe headache. Only on the
instruction of the Doctor, the present petitioner has administered
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injection and drops, except that accused has not done anything.
Therefore, to attract the offence under Section 304 IPC, there is no
materials available on record. Even assuming that there was
negligence in administering the injection before prosecuting the
medical professionals, the prosecution ought to have obtained opinion
from the team of Doctors, which has not been done in this case.
Postmortem report indicates that the deceased died due to
hypersensitivity due to drug reaction. The drug reaction depends upon
the individual body. Therefore, without obtaining any opinion from the
team of Doctors or Experts in this field to show that either Doctor or
Staff Nurse act negligently or with an intention to cause death, the
charge slapped against the accused is not maintainable.
9. It is relevant to note that even for prosecuting the medical
professionals for negligence, the prosecution should establish higher
degree of negligence.
10. In Jacob Mathew Vs. State of Punjab reported in AIR
2005 Supreme Court 3180(1), the Apex Court, considering the
increase in prosecution, has given several directions and held that
hazard taken by the accused Doctor should of such a nature that the
injury which resulted was most likely imminent.
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11. The above judgment was subsequently followed by the Apex
Court in Martin F.D'Souza v. Mohammed Ishfaq in 2009 (3)
Supreme Court Cases 1, wherein also several directions were issued
by the Apex Court. The Apex Court has held that whenever a
complaint is received against the Doctor or Hospital by the Consumer
Fora or by the Criminal Court, before issuing notice to the Doctor or
hospital, against whom the complaint was made, the Consumer forum
or the criminal Court should first refer the matter to a competent
Doctor or Committee of Doctors specialized in the field relating to
which the medical negligence is attributed and only after the report of
the competent Doctor or committee, if there is a prima facie case of
medical negligence, notice be then issued to the Doctor or hospital
concerned. Such a direction was issued only to avoid harassment to
Doctors, who may not be ultimately found to be negligent. Further,
the police officers are warned not to arrest or harass the Doctors,
unless the facts clearly come within the parameters laid down in Jacob
Mathew's case, otherwise, the police will themselves will face legal
action.
12. Subsequently, in V.Krishan Rao vs. Nikhil Super
Speciality Hospital also reported in (2010) 5 Supreme Court
Cases 513, the Apex Court held that the directions given in Martin's
case with regard to the prosecution of the criminal cases is confirmed.
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13. It is not the case of the prosecution that the accused with
the intention of causing death, or with the intention of causing such
bodily injury as is likely to cause death, or with the knowledge that he
is likely by such act to cause a death, however, they mechanically filed
a final report under Section 304 IPC. In the absence of any materials
to conclude that the accused has committed a culpable homicide and
without any opinion from the experts, the prosecution has failed to
establish any case against the petitioner and even the facts of the
present case, the very materials collected by the prosecution itself
indicate that A-2 has administered injection and drops to the patient
only on the instructions given by the Doctor. Therefore, it cannot be
said that the present petitioner has acted with the intention of causing
death. As a staff nurse, she has acted as per the instruction of Doctor.
At any event without there being any evidence to establish, even the
gross negligence to bring the act of the accused within the purview of
Section 304 (A) IPC also, the prosecution cannot succeed to maintain
the final report. In such view of the matter, it is a fit case to exercise
power under Section 482 Cr.P.C., to quash the final report as against
the present petitioner.
14. Accordingly, this Criminal Original Petition is allowed and
the proceedings in the final report in P.R.C. No.20 of 2015, on the file
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of the Judicial Magistrate-I, Tiruvallur is quashed. Consequently, the
connected Criminal Miscellaneous Petitions are closed.
17.12.2021
Index : Yes / No
Speaking/non speaking order
psa/RR
To
1.The learned Judicial Magistrate-I,
Tiruvallur.
2.The Inspector of Police
B1 Tiruvallur Town Police Station
Tiruvallur.
3.The Public Prosecutor,
High Court, Madras.
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Crl. O.P. No.3314 of 2017
N. SATHISH KUMAR, J.
psa/RR
Crl. O.P. No.3314 of 2017
17.12.2021
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