HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL PETITION No.4642 OF 2008 DATE: 21-10-2011 BETWEEN: Dr. K. Kishan. - - - Petitioner/A-2. AND The State of A.P., Rep. by Public Prosecutor, High Court of A.P., Hyderabad and another. - - - Respondents/ De-facto Complainant. This Court made the following : HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL PETITION No.4642 OF 2008 DATED. 21-10-2011 ORDER: This Criminal Petition is ﬁled by the Petitioner/Accused No.1 (For short, ‘A-1’) under Section 482 of Cr.P.C. seeking to quash proceedings in C.C. No.457 of 2007, pending on the ﬁle the Court of Judicial Magistrate of First Class, Bodhan, Nizamabad District registered for oﬀence punishable under Section 304-A I.P.C. 2. Whereas the Petitioner is the Accused and doctor by profession, the Respondent No.2 is the De-facto complainant (constable) in the Calender Case. For the sake of convenience, I refer the parties as arrayed in the S.T.C. 3. The case of the prosecution in brief is as follows : One Kumari Akhila (Hereinafter referred to as ‘the deceased’), daughter of Smt. Patel Rekha was taken to the hospital of A-1, which was being run by him in the name and style of ‘Krishna Children’s & Neonatal Nursing Home’ at Bodhan, on 15-09- 2006 at 03-00 p.m. and informed A-1 that suddenly the deceased got vomitings but A-1 without giving proper treatment and negligently told her mother that it was a common case of stomach pain and provided general treatment and asked the mother of the deceased to take her home, following which, thereby the deceased was taken back to their house. But, later as the deceased again suﬀered from severe stomach pain, immediately, the mother of the deceased brought back the deceased to the same hospital of A-1 and informed about the condition of the deceased, but A-1 negligently turned up only after two hours and declared the deceased dead. Thus, A-1 without taking the opinion of any expert surgeon about the vomitings and stomach pain of the deceased and also without advising for necessary scanning just gave general treatment and acted negligently in giving treatment to the deceased, which consequently resulted in the death of the deceased, A-2 an employee in the hospital also acted negligently and responsible for the death of the deceased. Hence, A-1 and A-2 are liable to be punished for the alleged offence. 4. It is the contention of learned counsel for the Accused that on 15-09-2006 at 03-00 p.m. the deceased was brought to his hospital with a complaint of stomach pain and vomitings and immediately the accused advised them to admit her as inpatient in the hospital to undergo certain investigations, but they refused and on the other hand insisted him for issuing some tablets to subside the pain and accordingly as per their advise the accused prescribed “Zintac” and “Damperon” for relieving the stomach pain and vomitings of the deceased and immediately the persons who brought the deceased to the hospital went away assuring that they would take the deceased to some other Doctor and there is no record to the eﬀect that the incident occurred only because of the negligence of the Accused punishable under Section 304-A IPC and in any case, as laid down by the Supreme Court in many cases there should be medical opinion with regards to the cause of death and the question of negligence of A-1 and A-2 in relation to her death issued by a competent Medical Oﬃcer but such opinion is not available and hence there is no basis to prosecute the accused prima-facie and accordingly the entire proceedings against the accused are liable to be quashed. In support of his contentions he has relied upon the following decisions : 1. Dr. Suresh Gupta Vs. Government of NCT of Delhi and another[1]. 2. Jacob Mathew Vs. State of Punjab and another[2]. 3. Dr. M. Reghava Rao and another Vs. Oruganti Buchireddy and another[3]. 4. Dr. P. Kanakadurgamma Vs. State by Inspector of Police, I Town Police station, Hindupur and another[4]. 5. Katcherla Venkata Sunil Vs. Dr. Vanguru Seshumamba and others[5] 5. On the other hand, it is the contention of the learned Additional Public prosecutor and also the learned counsel for the de-facto complainant that only because of the negligence of A-1 and A-2 the deceased died at about 12 during mid night and consequently on a report given by the de-facto complainant the case was registered in Crime No.395 of 2006 on the ﬁle of Bodhan police station, Nizamabad district and further during the course of investigation of the case the police referred the case to a Medical Oﬃcer, who certiﬁed after examining relevant record that it was a case of negligence on the part of A-1 and A-2 which complies with necessary requirement for prosecuting them in this case and unless relevant evidence is recorded it is not possible to say as to whether they are guilty of the charges or not and consequently the petition is not tenable. 6. The point for consideration is whether suﬃcient grounds are there in order to quash the proceedings as prayed for? 7. In Dr. Suresh Gupta Vs. Government of NCT of Delhi and another (1 supra), a patient died and it was alleged that the cause of death was due to non-introduction of endotracheal tube of proper size to prevent aspiration of blood from a wound in a respiratory passage and examining the overall circumstances of the case it was observed by the apex Court : “Where a patient dies due to negligent medical treatment of a doctor, if the degree of negligence is so gross and the act of the doctor was so reckless as to endanger the life of the patient, the doctor would be made criminally liable, in addition to any civil liability in tort. But such act of the doctors even if attributed to be true, can be described as a negligent act as there was lack of due care and precaution but the carelessness or want of due attention and skill cannot be described to be so reckless or grossly negligent as to attract the criminal liability.” It was further observed therein : “20. For ﬁxing criminal liability on a doctor or surgeon, the standard of negligence required to be proved should be so high as can be described as “gross negligence” or “recklessness”. It is not merely lack of necessary care, attention and skill……………………………… 21. Thus, when a patient agrees to go for medical treatment or surgical operation, every careless act of the medical man cannot be termed as “Criminal”. It can be termed “Criminal” only when the medical man exhibits a gross lack of competence or inaction and wanton indiﬀerence to his patient’s safety which is found to have arisen from gross ignorance or gross negligence. Where a patient’s death results merely from error of judgement or an accidental, no criminal liability should be attached to it. Mere inadvertence or some degree of want of adequate care and caution might create civil liability but would not suﬃce to hold him criminally liable. 22. This approach of the Courts in the matter of ﬁxing criminal liability on the doctors, in the course of medical treatment given by them to their patients, is necessary so that the hazards of medical men in medical profession being exposed to civil liability, may not unreasonably extend to criminal liability and expose them to the risk of landing themselves in prison for alleged criminal negligence. 23. For every mishap or death during medical treatment, the medical man cannot be proceeded against for punishment. Criminal prosecutions of doctors without adequate medical opinion pointing to their guilt would be doing great disservice to the community at large because if the courts were to impose criminal liability on hospitals and doctors for everything that goes wrong, the doctors’ would be more worried about their own safety than giving all best treatment to their patients. This would lead to shaking the mutual conﬁdence between the doctor and the patient. Every mishap or misfortune in the hospital or clinic of a doctor is not a gross act of negligence to try him for an oﬀence of culpable negligence.” 8. In Jacob Mathew Vs. State of Punjab and another (2 supra), a patient died because of non availability of oxygen cylinder and it was held to be a case which would attract tortuous liability and not criminal liability making observations as made in the decision cited 1st supra. 9. In Dr. M. Reghava Rao and another Vs. Oroganti Buchireddy and another (3 supra), a patient died on account of some reaction of some injection given and an allegation was made against the concerned doctors that on account of negligent treatment, the patient died without mentioning as to what negligent treatment was given to him and also without mentioning any cause of omission and commission in that behalf and the Supreme Court held that it was a case of civil action but not Criminal action. 10. I n Dr. P. Kanakadurgamma Vs. State by Inspector of Police, I Town Police Station, Hindupur and another (4 supra), similar observations were made under similar circumstances. 11. I n Katcherla Venkata Sunil Vs. Dr. Vanguru Seshumamba and others (5 supra), a patient who was a student of Postgraduate Diploma in Gynecology and Obstetrics consulted a nursing home of A-1 therein for surgery of her perennial abscess and having been aware of her disease and the gravity of it, she waited till the arrival of her brother and thereafter got herself admitted in the nursing home run by A-1 and after the operation she died and it was alleged against A-1 and other concerned failed to bestow any attention and thereby she developed high fever, became speechless and some ﬂuid came out of her mouth and died, by reason of which, A-1 and the others were liable for punishment under Section 304-A read with Section 34 I.P.C. and examining the over all circumstances it was observed that when the deceased delayed the process of joining the nursing home having knowledge about her disease and also the gravity of it and thus she did not choose to undergo the operation immediately, it could not be said that neither A-1 nor the others were responsible for her death caused by virtue of developing post operative complications while pointing out that as per the record A-1 had taken all necessary precautions by providing necessary treatment to the deceased. 12. So far as the incident which is said to have taken place in the case at the outset is concerned, there is clear material to the eﬀect that A-1 gave some treatment to the deceased for stomach pain and vomittings and sent her away, whereas it is alleged that he failed to take necessary measures for referring her to expert Doctor and thus, he was negligent in doing so. It might be that having believed the same to be true and correct, he did not think of referring her to any expert and sent her away after prescribing some medicines. There was no complete inaction on his part then. Therefore, it cannot be said that there was then gross lack of competence or inaction and wanton indiﬀerence to the safety of the deceased, which was found to have arisen from gross negligence, whereas mere inadvertence or some degree of want of adequate care and caution might create civil liability, which would not be suffice to hold him criminally liable. 13. However, the latter incident which is to the eﬀect that after going home the deceased developed complications and then she was taken back to the hospital of A-1 and the matter was informed to A-1 again, but A-1 failed to take necessary measures is concerned, it appears that there was negligence on his part in attending the deceased on time, but without adequate medical opinion it cannot be said that that the inaction on the part of A-1 only resulted in her death and he is guilty of gross negligence and as such he got criminal liability, which comes within the purview of Section 304-A IPC. As a Doctor it was his duty to attend on the deceased and provide necessary treatment to her when she was brought back to the hospital and he was given information that she developed complications, whereas unless there is a nexus between his deliberate inaction or gross negligence to take necessary measures having foreseen that it may result in serious consequence and the death of the deceased, certainly he is not liable to be prosecuted and punished under Section 304-A IPC. 14. The medical report, which the prosecution has relied upon to fasten the criminal liability on A-1 and A-2 reads as under : “From: Dr. G. Satyanarayana, M.S. (Md), Dist. Hospital, Nizamabad. To: The Circle Inspector of Police, Bodhan, Nizamabad. Sub: Enquiry report pertaining to negligent act or Dr. Kishan, children Specialist and ﬁnal opinion after the FSL report from Forensic Lab, Hyderabad – Reg. Ref: 1. Rc.No.Eg/1320/06, dated 14-11-2006. 2. DM & AO, NZB Rc.No.1600/E1/06, dated 19-10-2006. 3. Sub-Inspector of Police, Rc.No.395/11/06, dt.21-09-2006. 4. Letter of C.I. of Police, Bodhan No.161/J/07. I am herewith furnishing ﬁnal report after seeking the FSL analysis. The child Akhila aged about 16 years who died on 15- 09-2006 probably died because of “Acute Haemorrhagic Pancreatitis”. This is a Acute Medical Emergency, a person may die of the disease. FSL Report revealed nothing as per report. There is some negligence on the part of Doctor.” 15. This is the only basis to determine the complicity of A-1 and A-2 in the case prima-facie, but the certiﬁcate with regards to the negligence of the Doctor (A-1) or for any other reason is very vague. The Medical Oﬃcer who issued it should have given reasons clearly as to whether the death was due to any consequence of any inaction on the part of the doctor (A-1). He failed to substantiate how A-1 was negligent in the matter. The medical opinion referred by the Supreme Court would not be of this type, whereas it is to be a basis to come to a conclusion prima-facie that the death was a direct consequence of the said inaction and negligence of A-1. This reiterates the observation of the Supreme Court in the decision (1 supra) that for every mishap or death during medical treatment, the medical man cannot be proceeded against for punishment and criminal prosecutions of doctors without adequate medical opinions pointing further guilt would be doing great disservice to the community at large, because if the Courts were to impose criminal liability on hospitals and doctors for everything that goes wrong, the doctors would be more worried about their own safety than giving all best treatment to their patients and that would lead to shaking the mutual confidence between the doctor and the patient. But, what concerns very much is practically it is diﬃcult to obtain such medical opinions owing to several factors being a member of the Medical profession one doctor. 15. Taking into consideration the overall circumstances of the case, I feel that by conducting necessary prosecution against A-1, no useful purpose would be served and it amounts to only abuse of process of law, whereas the parties can take necessary recourse with regards to civil liability about which there is ample evidence as per law. In the result, the Criminal Petition is allowed and the proceedings in the Calender Case are quashed. __________________________ G. KRISHNA MOHAN REDDY, J Dated:21-10-2011. Dsh. THE HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY 267 CRIMINAL PETITION No.4642 OF 2008 October, 10, 2011 DSH [1] (2004) 6 SCC 422 [2] (2005) 6 SCC 1. [3] 2006 (1) ALD (Crl.) 840 (A.P.) [4] 2007 (2) ALT (Crl.) 81 (A.P.) [5] 2007 (3) ALT (Crl.) 372 (A.P.)