IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 29TH OCTOBER 2010 / 7TH KARTHIKA 1932 Crl.MC.No. 1259 of 2007() -------------------------------------- (CP.1/2001 OF JUDICIAL FIRST CLASS MAGISTRATE COURT I, ATTINGAL) .......... PETITIONER(S): ACCUSED: ----------------------------------------- 1. DR.SATHY M.PILLAI, SAMAD HOSPITAL, ATTINGAL. 2. DR.MADHAVAN PILLAI, JANAKI MANDIRAM PALACE ROAD, ATTINGAL. 3. DR. DEVIKA RANI, FORMERLY GYNEOCOLOGIST, SAMAD HOSPITAL, ATTINGAL, PRESENTLY WORKING AS GYNAECOLOGIST, COSMO POLITAN HOSPITAL, THIRUVANANTHAPURAM. 4. K. PUSHPAVALLY, NURSE, SAMAD HOSPITAL, ATTINGAL. BY SRI.S.GOPAKUMARAN NAIR, SENIOR ADVOCATE RESPONDENT(S): COMPLAINANT & STATE: ----------------------------------------------------------------- 1. SARMA, S/O. SANKARAN, THULASI BHAVAN, MELATTINGAL DESOM, KEEZHATTINGAL VILLAGE. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI. MILLU DANDAPANI - R1 BY PUBLIC PROSECUTOR SRI. P.A. SALIM - R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15/10/2010, THE COURT ON 29/10/2010 PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 1259 OF 2007 =========================== Dated this the 29th day of October,2010 ORDER Petitioners 1 and 2 are the wife and the husband. First petitioner is Gynaecologist. She is the proprietrix of Samad hospital, Attingal. Her husband employed in the Kerala Health Service Department, on availing leave, is assisting in running the hospital. He is also working as anaesthesiologist in that hospital. Third petitioner was originally Gynaecologist in that hospital. Now she is working in Cosmopolitan Hospital, Thiruvananthapuram. Fourth petitioner is the nurse attached to the hospital. Late Chandrakala, wife of the first respondent was under the treatment of petitioners in Samad hospital as an in patient from 25.4.1996. She Crl.M.C.1259/2007 2 was advised to undergo encirclage operation. She was taken to the operation theature for surgical intervention on the morning of 23.5.1996 at 6 A.M. She died at 5.30 p.m. on 24.5.1996. First respondent suspected that death occurred due to medical negligence. Crime 135/1996 of Attingal Police Station was registered under section 174 of Code of Criminal Procedure. Subsequently offence under section 120B, 304A, 465 and 468 read with section 34 of Indian Penal Code was incorporated and investigated, While the case was being investigated, first respondent approached this court by filing O.P.25561/1998 to issue a writ of mandamus to file the final report without delay. In the Writ Petition investigating officer submitted that as per Annexure III Government circular dated 20.9.1993, regarding investigation of complaints against doctors for acts of commission or omission in the the medical care of patients, case is to be referred to the Medical Board and it is the Crl.M.C.1259/2007 3 cause of delay in completing the investigation. By Annexure VI judgment, this court directed the investigating officer to expedite the matter and to take steps to get the opinion of the Medical Board and thereafter file the final report within three months. As the final report was not filed first respondent filed Annexure XV complaint before Judicial First Class Magistrate, Attingal. It was taken cognizance as C.P.1/2001 by the learned Magistrate. Meanwhile, on the directions of the Director General of Police, investigation was handed over to the Crime Branch. Investigating Officer obtained Annexure V report of the District Medical Board to the effect that cause of death shown in the postmortem report was shock following spinal anaesthesia and though statements of the doctors are that they have not resorted to spinal anaesthesia, and only local anaesthesia was given, the shock could have been occurred immediately after giving spinal anaesthesia and quantity of Crl.M.C.1259/2007 4 administration of Xylocain cannot be ascertained from the doctors. Annexure II final report was then submitted by the Deputy Superintendent of Police alleging that petitioners committed offences under section 120B, 304A, 465 and 468 read with section 34 of Indian Penal Code. It was taken cognizance by Judicial First Class Magistrate, Attingal. Petitioners challenged the final report and the cognizance taken before this court in Crl.M.C.1138/2001. By that time, first petitioner made a representation to the Government stating that Medical Board did not hear them. By Annexure VIII communication Principal Secretary of Health and Family Welfare Department informed first petitioner that necessary directions were issued to the Director of Health Services, to reconsider the matter after giving an opportunity of being heard to the first petitioner. By Annexure IX, first petitioner was informed that Apex Body is constituted and directed first petitioner to Crl.M.C.1259/2007 5 attend the Apex Body meeting. By Annexure XII order in Crl.M.C.1138/2001, this court found that Annexure II final report was submitted in violation of the mandatory directions in the Government circular and therefore directed further investigation under section 173(8) of Code of Criminal Procedure and file a final report and directed the Magistrate to stay the proceedings in C.P.1/2001 pending further investigation as provided under section 210 of Code of Criminal Procedure. This court directed the Apex Body to submit the report after giving notice to the first petitioner, providing that second petitioner is also entitled to appear before the Apex Body. The Apex Body consisting of the Director General of Prosecution, Director of Health Services, Director of Medical Education, Superintendent of Police ( Crimes), Additional Director of Health Services, and Head of the Department of Forensic Medicine, held a meeting on 25.4.2006 and found under Crl.M.C.1259/2007 6 Annexure XIII proceedings that encirclage was done on 23.5.1996 considering the history of premature rupture of membrane in the first pregnancy. Though spinal anaesthesia was attempted, no cerebro spinal fluid was obtained. Hence local anaesthesia was given using xylocane 100 mg. Procedure was completed under good analgesia and relaxation and vital signs like blood pressure, heart rate, pulse rate, respiratory rate etc. were stable through out the procedure and usual clinical monitoring standard was employed and the terminal complications that developed later leading to the death of the patient were managed according to the standard protocols and death cannot be attributed directly to the surgical or the anaesthetic procedure and hence there does not seen to be any negligence on the part of the treating doctors. Annexure XIV final report was submitted thereafter, as provided under sub section (8) of Section 173 of Code of Criminal Procedure, to the Crl.M.C.1259/2007 7 effect that in the opinion of the High Level Apex Body, death of Chandrakala was not due to any negligence by the petitioners and therefore further action is to be dropped. Notice was served on the first respondent about the submission of Annexure XIV refer report. First respondent in Annexure XV complaint has alleged that post- -mortem certificate shows that the cause of death was shock due to administration of spinal anaesthesia and none of the petitioners were qualified to administer spinal anaesthesia and second petitioner, who is not having diploma in anaesthesia or post-graduate degree in anaesthesia, with the knowledge that by such administration, death would be caused to Chandrakala, administered spinal anaesthesia and first petitioner who should have got the patient administered spinal anaesthesia by a competent anaesthetist, with the knowledge that if spinal anaesthesia is administered by an unqualified person, it would Crl.M.C.1259/2007 8 cause the death of the patient, got anaesthesia administered by the second petitioner and all the petitioners thereby committed extreme culpable negligence of a very high degree and thereby caused death of Chandrakala and committed offences under sections 120B, 304A, 465, and 468 read with section 34 of Indian Penal Code. 2. This petition is filed under section 482 of Code of Criminal Procedure to quash Annexure XV complaint contending that entire case in Annexure XV complaint is built on the sole basis that death of Chandrakala was due to the shock in administering spinal anaesthesia and it was caused by the rash and negligent act of the second petitioner in administering spinal anaesthesia so as to endanger her life. It is contended that the complaint itself discloses that subsequent to the operation, first respondent had talked to his wife at about 6.30 p.m and that version was asserted earlier in his statement recorded under Crl.M.C.1259/2007 9 section 161 of Code of Criminal Procedure also and if first respondent had talked to his wife at 6.30 p.m much after the surgery, death could not have been due to shock following administration of anaesthesia. It is contended that if there was any shock due to spinal anaesthesia as alleged, it should have occurred on the operation table itself, immediately after giving spinal anaesthesia, from which she could not have survived and regained consciousness and if so first respondent could not have talked to her at 6.30 p.m. Petitioners contended that Annexure X statement of Dr. Mahadevan, Director and Professor of Anaesthesia and Vice Principal of Medical College, Thiruvananthapuram cited by the prosecution in Annexure II final report as CW33, establish that the case sheet relating to the treatment given to deceased Chandrakala reveal that death was not due to spinal shock. Annexure III circular issued by the Government provide that after registration Crl.M.C.1259/2007 10 of any case against a private medical practitioner or a doctor in a private hospital, for criminal negligence as in this case, investigating Deputy Superintendent of Police shall immediately refer the case to a panel consisting of Superintendent of Police, Commissioner of Police, District Medical Officer or Principal, Medical College and shall continue further investigation in the light of the decision jointly taken by the panel and in case views of the Superintendent of Police differ from those of the District Medical Officer or Principal of Medical College, they will immediately refer the issue for the opinion of an Apex Body consisting of Director of Health Services (Vigilance), Director General of Prosecution and the Director General of Police and the Apex Body can depending on the circumstances, get expert opinion from specialists in the private sector also. The affected private doctors are also free to approach the Apex Body with appeals. It is further contended that in Crl.M.C.1259/2007 11 W.A.994/1991 this court confirmed the findings of the single Judge that 'in order to fix a professional man with criminal negligence for what he has done in the discharge of his profession, there must be proof of culpable negligence and in order to arrive at the question of culpable negligence the impugned circulars containing directions and guidelines are really necessary and that it cannot amount to interference with the statutory powers of investigation under the Code of Criminal Procedure. The investigating officer has not originally complied with the directions to get the opinion of the Apex Body. By Annexure XII order this court directed to conduct further investigation after getting opinion of the Apex Body. In such circumstances Annexure XIII opinion of the Apex Body was furnished and based on Annexure XIII, Annexure XIV refer report was submitted. It is contended that after the charge was dropped accepting the refer report the Crl.M.C.1259/2007 12 complaint cannot be entertained. It was contended that when the refer report was accepted, on the same set of facts, the cognizance taken on the complaint is bad. It is also contended that Annexure X statement of Dr. Mahadevan, the expert establish that death of Chandrakala was not due to shock caused by the administration of spinal anaesthesia and Annexure XIII report of the Apex Body also establish that fact. It is also contended that Supreme Court in Jacob Mathew v. State of Punjab (2005(6) SCC 1) directed the Union of India and the State Government to formulate Statutory rules or instructions incorporating certain guidelines for getting the report of the expert body before completing the investigation and Annexure III circular was issued by the State of Kerala much earlier, which provides for investigation in accordance with the opinion of the Medical Board and therefore when the Apex Body found that death of Chandrakala was not due to any Crl.M.C.1259/2007 13 negligence in treating her, the complaint is liable to be dismissed. 3. Learned senior counsel appearing for the petitioners pointed out that decision of the Apex Court in Jacob Mathew’s case (supra) was subsequently followed in Martin D'souza v. Mohd.Ishfaq (2009(3) SCC 1), Kusum Sharma v. Batra Hospital & Medical Research Centre ( 2010 (1) KLT SN 83), and V.Kishan Rao v. Nikhil Super Speciality Hospital and another (2010(5) SCC 513). It was argued that when the Apex Body found that death was not due to administration of spinal anaesthesia and there was no negligence in the medical care given to the deceased continuation of prosecution based on the complaint is illegal and therefore it is to be quashed. Relying on the decision of the Apex Court in Poonam Chand Crl.M.C.1259/2007 14 Jain and another v. Fazru (2010(2) SCC 631) it was argued that on the acceptance of the refer report submitted under section 173(8) of Code of Criminal Procedure, cognizance taken on a complaint alleging identical facts will not lie and therefore on that ground alone the complaint is liable to be quashed. 4. Relying on the decision of the Apex Court in Harishchandra Prasad Mani v. State of Jharkhand (2007(15) SCC 494), Malay Kumar Ganguly v. Dr.Sukumar Mukherjee and others (2009)(9) SCC 221) it was argued that when there is no material in support of the allegation that death was due to the negligence in administration of spinal anaesthesia or even to show that death was caused due to shock by administration of spinal anaesthesia, the cognizance taken and the private complaint are liable to be quashed. 5. Learned senior counsel argued that wife Crl.M.C.1259/2007 15 of the first respondent was admitted in the hospital of the petitioners and claiming to be expert doctors they treated her and as is clear from the complaint after the deceased was taken to the operation theatre for surgery, there was complete secrecy and though first respondent and the mother of the deceased were waiting outside, no information was furnished to them and at about 6 p.m. with permission first respondent and her mother had seen Chandrakala and at that time Chandrakala was experiencing severe pain due to the surgery. When the mother of the deceased met the third petitioner and informed the facts, she promised to do the needful. The mother was informed that Chandrakala would be taken to the post operative ward at 8 a.m. on the next morning. Though as required by the fourth petitioner, coffee was arranged for the patient and it was informed by the fourth petitioner that patient had consumed the coffee, first respondent was informed by 9 Crl.M.C.1259/2007 16 p.m. that Chandrakala had vomited. As sought for by the fourth petitioner, necessary clothes were given. Permission of the mother to see Chandrakala was refused by the petitioners. At about 12 in the midnight, they heard cry from the post operative ward. Suspecting that it is that of Chandrakala, first respondent and mother of Chandrakala enquired with the staff and they explained that it was somebody else. Later when the mother of Chandrakala persistently questioned the staff, it was admitted that the cry was that of Chandrakala. Much later, mother was permitted to see her. The mother found Chandrakala lying naked on the floor. It was then disclosed that Chandrakala had mental illness. Getting suspicious first respondent and the relatives procured Dr.Ajayakumar, their relative who reached the hospital by 1 a.m. But permission was refused to the said doctor to see the patient promising that all necessary attention has been given. As it was disclosed that Crl.M.C.1259/2007 17 Chandrakala had developed mental illness her brother arranged Dr.Surajamani, a Psychiatrist, who reached the hospital by 5 a.m. The doctor was prevented from seeing the patient on the ground that patient is sleeping. Though at 6 a.m. the doctor could see the patient, as she was the sleeping, doctor could not examine her. At 8 a.m. on 24.5.1996 as required by the staff, bread and coffee were arranged for the patient. It was informed that the patient had consumed them, though in fact it was not correct. The condition of Chandrakala became worst by passage of time. Still better treatment was not provided. As a result by 11 a.m. on 24.5.1996, death of Chandrakala was informed to the first respondent. It is alleged that it is clear that death was caused only due to the culpable negligence in the treatment given to Chandrakala. 6. Learned senior counsel pointed out that the Apex Body had given the opinion behind the back of Crl.M.C.1259/2007 18 the first respondent without affording any opportunity to the first respondent to be heard and therefore it is not binding on the first respondent. Learned senior counsel vehemently argued that it is for the court to decide on the materials whether the opinion of the forensic doctor that death was due to shock during administration of spinal anaesthesia or the opinion of the Apex Body is to be accepted and in any case the question cannot be decided in a petition under section 482 of Code of Criminal Procedure and that too without affording an opportunity to the first respondent to establish that the opinion of the Apex Body is not correct and death was caused due to the culpable negligence of the petitioners. Learned senior counsel relying on the decision of the Apex Court in Mahavir Prashad Gupta and another v. State of National Capital Territory of Delhi and Others (2000(8) SCC 115) argued that the power to quash the criminal Crl.M.C.1259/2007 19 complaint is to be exercised only sparingly and with circumspection and that too in the rarest of rare cases, where the complaint does not disclose any offence and if the complaint discloses an offence, High Court shall not embark upon an inquiry as to the genuineness of the allegations made in the complaint or whether those allegations are likely to be established by evidence or not and hence the complaint cannot be quashed. Learned senior counsel relying on the decision in Mahadev Prasad Kaushik v. State of Uttar Pradesh and another (2008)14 SCC 479) argued that when the complaint disloses that death was due to shock and it was due to the culpable negligence in administering spinal anaesthesia and the postmortem certificate supports the contentions, based on the opinion of the Apex Body, furnished without affording an opportunity to the first respondent to be heard, the complaint cannot be quashed. It is Crl.M.C.1259/2007 20 argued that doors of justice may not be shut before the unfortunate husband when death of his wife was caused by the culpable negligence of the petitioners. It was argued that before deciding the question first respondent is entitled to get an opportunity to prove the cause of death and the negligence. 7. The findings in the postmortem certificate is that death was caused due to shock after giving spinal anaesthesia. Annexure II final report under sub section(2) of Section 173 was submitted after investigation, based on the findings in the postmortem certificate. It was alleged that petitioners committed offences under sections 120B, 304A, 465, 468 and 34 of Indian Penal Code . Annexure II final report was submitted after obtaining Annexure V report of the District Medical Board in compliance with Annexure III circular without obtaining the report of the Apex Body. As provided under Annexure III circular, Crl.M.C.1259/2007 21 investigating officer had sought the opinion of the Apex Body. It is on the allegation that proper care was not taken and there was culpable negligence by the petitioners, final report was submitted. Annexure II final report was challenged before this court in Crl.M.C.1138/01 by the petitioners. This court found that Apex Body is bound to afford sufficient opportunity to the first petitioner as provided under Annexure III circular. This court also took note of the fact that by Annexure VIII, first petitioner was informed by the Government that Director of Health Services was directed to reconsider the matter after giving first petitioner an opportunity of being heard and by Annexure IX communication dated 23.1.2001, first petitioner was informed that she has to appear before the Apex Body on 14.2.2001. Therefore it was found that without obtaining the report from the Apex Body, a final report could not have been submitted. As Annexure II final report Crl.M.C.1259/2007 22 was submitted, this court directed further investigation under section 173(8) of Code of Criminal Procedure with a direction to submit the final report after obtaining opinion of the Apex Body and to stay the proceedings in C.P.1/2001 under section 210 of Code of Criminal Procedure. Annexure XIII report of the Apex Body was thereafter submitted. Annexure XIII establish that on the examination of the materials, it was found that though spinal anaesthesia was attempted, as no cerebro spinal fluid was obtained, spinal anaesthesia was not administered and local anaesthesia was given using Xylocane 100 mg.(2%) and the procedure was completed under good analgesia and relaxation and vital signs like blood pressure, heart rate, pulse rate, respiratory rate etc were stable throughout the procedure. They concluded that death cannot be attributed directly to the surgical or the anaesthetic procedure and as the terminal complications Crl.M.C.1259/2007 23 developed later leading to the death of the patient, who was managed according to the standard protocols, there was no negligence on the part of the treating doctors. True, Annexure XIII opinion was given without hearing the first respondent and affording an opportunity to the first respondent to present his case or dispute the opinion of the experts. The question is whether for that reason the opinion of the Apex Body is vitiated. 8. Annexure III circular show that as per circular dated 30.10.1989, Government issued instructions in regard to investigation of complaint against doctors in Government service for the acts of commission or omission in medical care of patients in Government Hospital and dispensaries. They are not applicable to medical practitioners in private hospitals. Hence the guidelines provided in Annexure III was issued . The relevant portion of circular reads:- “After registration of Crl.M.C.1259/2007 24 any case against a Private medical Practitioner or a doctor in a private hospital for criminal negligence, the investigating Deputy Superintendent of Police will immediately refer the case to a panel consisting of the Superintendent of Police, Commissioner of Police, District Medical Officer or Principal, Medical College as the case may be. He will continue further investigation in the light of the decision jointly taken by the panel. ii) In case the views of the Superintendent of Crl.M.C.1259/2007 25 Police differ from those of the District Medical Office/Principal, Medical College they will immediately refer the issue for the opinion of an Apex Body consisting of Director of Health Services (M & PH), the Director of Medical Education, Additional Director of Health Services (vigilance), the Director General of Prosecution and the Director General of Police. The Director of Health Service who will be the convenor of the Apex Panel can, depending on the circumstances, get expert Crl.M.C.1259/2007 26 opinion from specialists in the private sector also. The affected private doctors are also free to approach the Apex Body with appeals.” A reading of the said instructions/guidelines make it clear that from 20.9.1993, if investigation of a case against a private medical practitioner or a doctor in a private hospital for the criminal negligence is involved,, after registration of the case, investigating officer is bound to refer the case to a panel consisting of Superintendent of Police, Commissioner of Police, District Medical Officer or Principal of the Medical College and further investigation must be ”in the light of the decision jointly taken by the panel”. It further provides that in case views of the Superintendent of Police differ from that of the District Medical Officer or Principal of the Medical College, they Crl.M.C.1259/2007 27 shall immediately refer the case for the opinion of an Apex Body, consisting of Director of Health Services, Director of Medical Education, Additional Director of Health Services (vigilance,) Director General of Prosecution and Director General of Police further providing that the Apex panel is free to get expert opinion from specialists in the private sector also depending on the circumstances of the case. The circular further provides that the affected private doctors are also free to