Madras High Court

M/S.Sri Gokulam Hospital vs State Represented By on 3 July, 2023

                                                                   Criminal Original Petition No.374 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED : 03.07.2023

                                                         CORAM

                            THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH

                                       Criminal Original Petition No.374 of 2022
                                                         and
                                               Crl.M.P.No.118 of 2022

                     M/s.Sri Gokulam Hospital,
                     represented by its Managing Director,
                     Dr.K.Arthanari, M.S.,
                     3/60, Meyyanur Road,
                     Salem - 636 004.                                            ...Petitioner

                                                           Vs

                     1.State represented by
                       Inspector of Police,
                       Pallapatti Police Station,
                       Salem - 636 004.

                     2.Sankar on behalf of Mr.Rajaram                            ... Respondents



                     PRAYER : Criminal Original Petition filed under Section 482 of the Code
                     of Criminal Procedure, 1973, praying to call for the records in FIR in Crime
                     No.766 of 2021 dated 09.12.2021 on the file of first respondent and quash
                     the same as against the petitioner herein.




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https://www.mhc.tn.gov.in/judis
                                                                               Criminal Original Petition No.374 of 2022

                                         For Petitioner        : Mr.N.Zahid Ahmed
                                                                 for M/s.AAV Partners

                                        For Respondents : Mr.A.Damodaran
                                                             Additional Public Prosecutor [R1]
                                                             No appearance [R2]
                                                               *****
                                                            ORDER

This petition has been filed to quash the First Information Report in

Crime No.766 of 2021 pending investigation on the file of first respondent.

2. When the matter came up for hearing on 21.07.2022, this Court

passed the following order:

''This Criminal Original Petition is filed to quash the FIR in Crime No. 766/2021 registered for the offences under Section 304A of IPC on the ground of medical negligence.

2. Despite name being printed in the cause-list, there was no representation for the second respondent. It is the contention of the learned counsel for the petitioner that the patient 17 years old boy have been admitted in the petitioner hospital for heart ailment. There is serious complication in his heart. Prior to the admission in the petitioner hospital, he was admitted in three hospitals as a last resort, he was admitted in the petitioner hospital. However, despite their best treatment, he has not survived and died on 08.12.2021. Further, he submitted that even prior to the death of the patient, relatives and group of people namely Legal Rights Justice Protection Association started threatening and demanded 50 lakhs rupees and also created ruckus. Thereafter an FIR was filed. Further, he submitted that prior to filing of the FIR, an opinion is sought to obtained from the expert committee and the same was not obtained in this case and the FIR was filed.

3. Heard the learned counsel for the petitioner and the learned

https://www.mhc.tn.gov.in/judis Criminal Original Petition No.374 of 2022

Additional Public Prosecutor appearing for the respondent police and perused the materials on record.

4.Considering the facts and circumstances of this case, there shall be an order of interim stay on the impugned FIR.

5. Post on 11.08.2022.''

3. Heard Mr.N.Zahid Ahmed, learned counsel for petitioner and

Mr.A.Damodaran, learned Additional Public Prosecutor appearing for first

respondent. There is no representation on the side of the second respondent.

4. The issue involved in the present case is squarely covered by the

earlier order passed by this Court in Crl.O.P.[MD] No.9380 of 2017 dated

28.11.2019 [Lakshmi Nursing Home v. State] and the relevant portions are

extracted hereunder:

''6. The only issue that requires consideration in this petition is as to whether the respondent police can sustain the prosecution against the petitioner hospital without complying with the mandatory directions issued by the Hon'ble Supreme Court in Jacob Mathew Vs. State of Punjab.

7. The direction that has been issued by the Hon'ble Supreme Court is extracted hereunder:-

“..50.As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by the police on an FIR being lodged and cognizance taken. The investigating officer and the private complainant cannot always be supposed to have knowledge

https://www.mhc.tn.gov.in/judis Criminal Original Petition No.374 of 2022

of medical science so as to determine whether the act of the accused medical professional amounts to a rash or negligent act within the domain of criminal law under Section 304-A IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered to his reputation cannot be compensated by any standards.

51.We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasise the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefer recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.

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 test to the facts

https://www.mhc.tn.gov.in/judis Criminal Original Petition No.374 of 2022

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 investigation or for collecting evident 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...”

8. This Judgment has subsequently been reiterated by the Hon'ble Supreme Court in M.K.Vaidyanathan Vs. State, Rep. by The Inspector of Police and another reported in (2007) 2 CTC 497 and in Martin F. D' Souza Vs. Mohd. Ishfaq reported in (2009) 2 CTC 252.

9. It is clear from the above Judgments that the Investigating Officer before proceedings against the doctor or a hospital will have to necessarily follow the guidelines. The Investigating Officer before proceeding against the doctor or a hospital which is accused of rash or negligent act or omission, should obtain an independent and competent medical opinion preferably from doctors in Government service. The opinion of the doctor should also satisfy the Bolam test to the facts collected in the investigation. This safeguard was given by the Hon'ble Supreme Court in order to ensure that the doctors and hospital are not put to necessary criminal prosecution.

10. In the present case, the Investigation Officer has not followed this mandatory requirement. That apart, the complaint itself has been given after nearly two years from the date of incident. There is absolutely no explanation as to why the de-facto complainant waited for two years to give the complaint. One more important factor is that the deceased was discharged from the hospital and she was readmitted in Meenakshi Mission Medical Hospital and she took treatment for nearly four days and ultimately died on 20.12.2015. It is not known as to the treatment that was given by Meenakshi Mission Medical Hospital to the deceased. It seems that the prosecution was taken up due to the pressure exerted by the de-facto complainant and the police are proceeding further with the prosecution without even having the basic facts in their hands and even without taking an independent opinion as required in

https://www.mhc.tn.gov.in/judis Criminal Original Petition No.374 of 2022

Jacob Mathew Vs. State of Punjab case.

11. The continuation of the prosecution against the petitioner is an abuse of process of law and the same requires the interference of this Court in exercise of its jurisdiction under Section 482 of Cr.P.C."

5. Even in the present case, the mandatory requirement as provided in

Jacob Mathew's case has not been complied with. The reasoning that was

given in the above order will squarely apply to the facts of the present case

also. The continuation of prosecution against the petitioner is an abuse of

process of law and the same requires interference of this Court in exercise

of its jurisdiction under Section 482 of the Code of Criminal Procedure,

1973.

In the result, this Criminal Original Petition is allowed and the

proceedings in Crime No.766 of 2021 on the file of first respondent, is

hereby quashed. Consequently, connected miscellaneous petition is closed.

03.07.2023 Index : Yes/No Speaking order:Yes/No Neutral citation:Yes/No gm

https://www.mhc.tn.gov.in/judis Criminal Original Petition No.374 of 2022