Telangana High Court

Vijaya Iyer, Uppal And Anr vs Shiv Kumar, Secbad And Anr on 17 October, 2023

Bench: E.V. Venugopal

            THE HON'BLE SRI JUSTICE E.V.VENUGOPAL

              CRIMINAL PETITION No.12227 of 2014
ORDER:

1 This criminal petition, under Section 482 Cr.P.C, is filed seeking to

quash the proceedings against the petitioners herein / accused Nos.1

and 2 in C.C.No.661 of 2014 on the file of the Court of the III

Metropolitan Magistrate, Cyberabad at L.B.Nagar, Ranga Reddy District,

registered for the offence punishable under Section 304-A of IPC.

2 The facts of the case are that on 16.01.2014 at 2.30 pm the first

respondent joined his wife Smt. Bhargavi in Balaji Nursing Home for

delivery and that his wife gave birth to a male child. But due to the

negligence of the doctors the male child died. On questioning, the

doctors replied that due to insufficient breathing his son died. Hence the

first lodged a complaint with the Uppal P.S. The police conducted inquiry

and examined the witnesses and sent the corpse of the infant child to

post-mortem examination to Gandhi hospital, where the doctors opined

that the cause of death of the boy was 'head injury'. It was inferred that

at the time of conducting operation on the wife of the first respondent

since the petitioners did not take proper care and caution due to which

the newly born boy fell down and sustained head injury and died. Hence

the complaint, which was registered as a case in Cr.No.45 of 2014 under

Section 304-A of IPC and after completion of investigation, the police

filed charge sheet against the petitioners for the alleged offence.

3 The case was taken on file under Section 304-A of IPC against

both the petitioners in C.C.No.661 of 2014 by the learned III

Metropolitan Magistrate, Cyberabad at L.B.Nagar, Ranga Reddy District.

The petitioners filed the present criminal petition seeking quashment of

the proceedings.

4 Sri M.S.Srinivasa Iyengar, the learned senior counsel for the

petitioners submitted that there is no evidence to show that the newly

born child fell down and sustained injury. He further submitted that the

wife of the first respondent was admitted in the hospital with complaints

of decreased foetal movement from last night and she was given all

medical treatment and due to the condition of the baby it was decided to

operate LSS Pts and consent was taken and the baby was taken out at

7.00 pm in deeply asphyxiated and could not be revived in spite of all

efforts and was declared dead at 8.00 pm on the same day i.e.

16.01.2014. The police seized the case sheet for investigation but they

did not return it. In fact, the mother continued to receive treatment in

the hospital till 22.01.2014 on which date she was discharged. It is his

further contention that the panchanama report dated 17.01.2014 shows

that there are no injuries on the body which totally demolishes the

complaint. Even the post-mortem examination report also does not

disclose any external injuries.

5 On the other hand, Sri Vijarath Ali, the learned Assistant Public

Prosecutor, submitted that this is not a fit case to quash the proceedings.

6 The entire edifice on which the crime has been registered is that

the petitioners are guilty of medical negligence. However, on perusal of

the charge sheet it is quite surprising to note that though the police

submitted a charge sheet, the same is not supported by any expert's

opinion, which would undoubtedly be helpful to bring out the truth in the

case of the prosecution and whether the petitioners are guilty or not

while doing operation on the wife of the first respondent.

7 In Jacob Mathew Vs. State of Punjab 1 has extensively dealt

with the aspect of criminal negligence by medical professionals and has

laid down clear guidelines in such prosecutions. The Hon'ble Supreme

Court has unequivocally laid down the law which the investigating officer

should do before proceeding against a doctor accused of rash or

negligent act of 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 given

1 (2005) 6 SCC 1

an impartial and unbiased opinion applying the Bolam test to the fact

collected in the investigation.

8 In Kusum Sharma and Ors. Vs. Batra Hospital and Medical

Research Centre 2 the Hon'ble Supreme Court held as follows:

94. On scrutiny of the leading cases of medical negligence both in our country and other countries specially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:

I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.

III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.

IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.

VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.

2 (2010) 3 SCC 480

VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.

VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.

IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.

X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.

XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.

95. In our considered view, the aforementioned principles must be kept in view while deciding the cases of medical negligence. We should not be understood to have held that doctors can never be prosecuted for medical negligence. As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind.

96. When we apply well settled principles enumerated in the preceding paragraphs in dealing with cases of medical negligence, the conclusion becomes irresistible that the appellants have failed to make out any case of medical negligence against the respondents.

9 As seen from the record, the investigation and filing of the charge

sheet against the petitioners is contrary to the guidelines of the Hon'ble

Supreme Court.

10 In that view of the matter, I am of the considered opinion that

since the investigation is lacking the material issues involved in the case

rendering the chance of conviction of the petitioners, if proceeded

further, appears to be bleak, the continuation of the proceedings against

the petitioners is abuse of process of law.

11 Accordingly, this criminal petition is allowed, quashing the

proceedings in against the petitioners herein / accused Nos.1 and 2 in

C.C.No.661 of 2014 on the file of the Court of the III Metropolitan

Magistrate, Cyberabad at L.B.Nagar, Ranga Reddy District.