Madras High Court

Dr.Dhanapal vs The State Rep. By on 30 June, 2023

                                                                        Crl OP Nos. 20508 & 21851 / 2021

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED: 30.06.2023

                                                        CORAM :

                                  THE HONOURABLE MR. JUSTICE SUNDER MOHAN

                                   Criminal Original Petition Nos. 20508 & 21851 of 2021
                                                              and
                                           Crl.M.P. Nos. 11865 & 11148 of 2021

                     Dr.Dhanapal,
                     Urologist,
                     M.K.Nursing Home,
                     No.25, RS Mudali Street,
                     Old Washermenpet,
                     Chennai – 600 021.                 ... Petitioner in Crl.O.P. No. 20508 of
                     2021

                     Dr.Mohan,
                     Partner / Proprietor,
                     M.K.Nursing Home,
                     No.25, RS Mudali Street,
                     Old Washermenpet,
                     Chennai – 600 021.                 ... Petitioner in Crl.O.P. No. 21851 of
                     2021


                                                          Versus

                     1.The State rep. by,
                       The Inspector of Police,
                       H-3, Tondiarpet Police Station,
                       Washermenpet.

                     2.Mr.Devaraj                         ... Respondent in both the petitions

https://www.mhc.tn.gov.in/judis

Crl OP Nos. 20508 & 21851 / 2021

COMMON PRAYER : Criminal Original Petition filed under Section 482 of the Criminal Procedure Code seeking to call for the records in the FIR in Crime No.33 of 2020 dated 28.01.2020 and the subsequent alteration report dated 02.02.2021 on the file of the first respondent police and quash the same as against the petitioner herein.

For Petitioners : Mr. Abdul Saleem, Senior Counsel for M/s.AAV Partners.

For Respondents : Mr. A. Damodaran, Additional Public Prosecutor for R1.

Mr. A. Thirumaran for Mr. G. Mohanakrishan for R2.

COMMON ORDER

These petitions are to quash the First Information Report in Crime

No.33 of 2020 for the alleged offence under Section 304A of the Indian

Penal Code.

2.The case was initially registered for the offence under Section

174 of the Indian Penal Code and thereafter altered to Section 304A of

the Indian Penal Code on the basis of the opinion given by the Assistant

Professor, Department of Forensic Medicine, Stanley Medical College,

Chennai.

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Crl OP Nos. 20508 & 21851 / 2021

3. The allegations in the First Information Report are that the

second respondent's relative was admitted in the hospital run by the

petitioner in Crl.O.P. No. 21518 of 2021 for abdominal pain. He was

diagnosed with a stone in the kidney and was advised surgery; that the

first accused who was an Anesthesiologist had not administered the

correct medicine and the medicine was injected at the wrong place in the

spine which caused the death of the deceased. Hence, the impugned First

Information Report has been filed against the anesthesiologist who has

been arrayed as A1 and the doctor who was supposed to conduct the

surgery as A2 and the proprietor of the Hospital by name 'M.K. Nursing

Home' was arrayed as A3.

4.Mr. Abdul Saleem, learned Senior Counsel for the petitioners

submitted that the impugned First Information Report against the

petitioners is liable to be quashed. The Urologist who is the petitioner in

Crl.O.P. No. 20508 of 2021 had nothing to do with the anesthesia

administered by the first accused. Admittedly, no surgery was conducted

and the deceased had collapsed immediately after the anesthesia was

administered. As regards the petitioner in Crl.O.P. No.21518 of 2021, https://www.mhc.tn.gov.in/judis

Crl OP Nos. 20508 & 21851 / 2021

who is the proprietor of the M.K.Nursing Home, the learned Senior

Counsel submitted that there cannot be any vicarious liability under

Section 304A of the Indian Penal Code. Even assuming that the first

accused had committed gross negligence and is liable for the offence

under Section 304 A of the Indian Penal Code, the petitioners would not

be liable for the aforesaid offence. The learned Senior Counsel relied on

the following Judgments;

(i)Judgment of the Honourable Supreme Court in Anjana

Agnihotri & Anr.Vs. The State of Haryana & Anr., in Criminal Appeal

No.770 of 2009 dated 06.02.2020.

(ii)Judgment of this Court in Lakshmi Nursing Home Vs. The

State in Crl.O.P.(MD)No.9380 of 2017 dated 28.11.2019.

(iii)Judgment of this Court in Dr.Dharmendra Vs. The State in

Crl.O.P.No26170 of 2019 dated 22.08.2022.

(iv)Judgment of the Honourable Supreme Court in Jacob Mathew

Vs.State of Punjab reported in (2005) 6 Supreme Court Cases 1.

5.Mr. A. Thirumaran, learned counsel for the second respondent

pointed out the opinion given by the Government doctor to show that the

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Crl OP Nos. 20508 & 21851 / 2021

right medicine was not administered by A1 in the right spot and

therefore, the deceased died. The question as to whether the petitioners

were also guilty of negligence has to be investigated and cannot be

decided in this petition.

6.Mr. A. Damodaran, learned Additional Public Prosecutor

submitted that the respondent had complied with the guidelines laid

down by the Honourable Supreme Court in the Jacob Mathew's case

(cited supra). The respondent police had initially registered a case under

Section 174 of the Indian Penal Code and thereafter, after obtaining

opinion from the Assistant Professor, Department of Forensic Medicine,

Stanley Medical College, Chennai, they had altered the case to Section

304 A of the Indian Penal Code. Further, the learned Additional Public

Prosecutor submitted that only an investigation would reveal as to

whether the petitioners are also guilty of the offence under Section 304 A

of the Indian Penal Code and submitted that the investigation cannot be

scuttled at this stage.

7.This Court on perusal of the allegations made in the alteration https://www.mhc.tn.gov.in/judis

Crl OP Nos. 20508 & 21851 / 2021

report finds that the investigation had revealed that the deceased died due

to the negligent act of A1. The relevant observations read as follows;

“,Jtiu bra;ag;gl;l g[yd;tprhuizapy; ,Ue;J. vk;/nf/kUj;Jtid gFjpneu kaf;f kUe;J kUj;Jtuhd jpU/RFkhu; vd;gtuhy; ftdkpdw; pak[ ;. mrl;ilahft[k; Kiwaw;w kw;Wk; myl;rpa jd;ika[ld; rpup";r; K:yk; nrfUf;F jz;Ltlg;gFjpapy; kUe;jpid brYj;jpajpy; jz;L tlj;jpy; Vw;gl;l uj;jf;frpt[ kw;Wk; K:is tPf;fj;jpdhy;. EiuaPuy; bray; ,He;J ,jd; fhuzkhfj;jhd; nrfUf;F kuzk; Vw;gl;Ls;sJ vd bjupa tUtjhy;. ,wg;gf[ ;F kaf;f kUe;J kUj;Jtu; jpU/RFkhu; neuo fhuzkhf ,Ue;Js;shu;/ nkYk;. ,we;J nghd nrfUf;F. rpWePuff; fy;ypid mWit rpfpr;ir K:yk; mfw;w Vw;ghL bra;jpUe;j kUj;Jtu; jpU/jdghy; kw;Wk; vk;/nf/eu;rp'; cupikahsu;. jpU/lhf;lu; nkhfd; Mfpnahu;fspd; bkj;jdj;jd;ika[k;. myl;rpa jd;ik kw;Wk; ftdf;Fiwt[ fhuzkhfntjhd; nrfupd; ,wg;g[ Vw;gl fhuzkhf ,Ue;Js;shu;fs; vd g[yd;tprhuizapy; bjupatUtjhYk;. nkYk; ePjpkd;w cj;jut[goa[k; ,t;tHf;fpd; rl;lg;gpupthd 174 CrPC- apy;

,Ue;J @ u/s 304 (A) IPC-f;F gpuptk[ hw;wk; bra;J ; f MFk;/” rku;g;gpf;fg;gLk; gpupt[ khw;w mwpfi As to whether the act committed by A1 would amount to negligence or

gross negligence is a subject matter of investigation by the first

respondent police.

https://www.mhc.tn.gov.in/judis

Crl OP Nos. 20508 & 21851 / 2021

8.However, this Court is of the view that the petitioners cannot be

made vicariously liable even assuming that the first accused had

committed the offence under Section 304 A of the Indian Penal Code.

The petitioners are the Proprietor of the hospital and the Urologist who

had admittedly not conducted any surgery. Even for registering the First

Information Report as against the hospital, there must be some prima

facie material to show that the proprietor of the hospital was also guilty

of gross negligence. In the instant case, the only available material with

the respondent police is that A1 has committed negligence and not the

hospital. Further, this Court in the Judgment of Lakshmi Nursing

Home's case (cited supra) held as follows;

“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

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Crl OP Nos. 20508 & 21851 / 2021

order to ensure that the doctors and hospital are not put to necessary criminal prosecution.” It is seen that no opinion has been obtained by the independent medical

officer as regards the involvement of the petitioners herein;

9.Therefore, this Court is of the view that the impugned First

Information Report as against the petitioners alone is liable to be

quashed. It is also made clear that the above observations of this Court is

only with regard to the offence under Section 304 A of the Indian Penal

Code and would not absolve the petitioners of their civil liability for tort

of negligence in the event of the victim establishing the same before the

competent Court.

10.Accordingly, these Criminal Original Petitions are allowed and

the impugned proceedings in Cr. No. 33 of 2020 is quashed as against the

petitioners. However, it is open to the respondent to investigate the

involvement of A1 in the offence and file a final report within a period of

four weeks from the date of receipt of a copy of this order.

Consequently, the connected miscellaneous petitions are closed.

https://www.mhc.tn.gov.in/judis

Crl OP Nos. 20508 & 21851 / 2021

30.06.2023 ay Index: Yes/No Speaking Order / Non-Speaking Order Neutral Citation: Yes / No

1.The Inspector of Police, H-3, Tondiarpet Police Station, Washermenpet.

2.The Additional Public Prosecutor, High Court of Madras, Chennai.

https://www.mhc.tn.gov.in/judis