IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 22ND MAY 2009 / 1ST JYAISHTA 1931 Crl.MC.No. 1603 of 2009() ------------------------- CC.501/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KANNUR .................... PETITIONER(S): ------------------- DR.SUPRIYAKUMARY.M.C.,ANESTHETIST, DHANALAKSHMI HOSPITAL,KANNUR. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S): COMPLAINANT & STATE AND DEFACTO COMPLAINANT ---------------------------------------------------------- 1. THE SUB INSPECTOR OF POLICE, KANNUR TOWN POLICE STATION. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 3. K.P.DILIP,S/O.KUNHIRAMAN NAMBIAR, U.D.CLERK,DISTRICT MEDICAL OFFICE,KANNUR. BY PUBLIC PROSECUTOR SRI. AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.1603 OF 2009 =========================== Dated this the 22nd day of May,2009 ORDER Petitioner is a doctor specialised in Anesthesia attached to Dhanalakshmi Hospital, Kannur. On 28.5.2002 deceased Muralidharan was admitted in the hospital for piles operation. Surgery was conducted at 9.30 a.m 29.5.2002. Petitioner was the Anesthetist. Consequent to the surgery deceased Muralidharan developed severe pain. Subsequently he succumbed to the injuries from the hospital. Annexure II postmortem certificate shows that cause of death was reserved pending laboratory investigation. Later on getting the report the doctor certified that the death was due to coronary failure which was caused due to the lack of sedation to the patient consequent to th surgery. When Annexure I final report was Crl.M.C. 1603/2009 2 submitted to the court under section 173(8)of the Code of Criminal Procedure, petitioner filed Crl.M.C.1813/2005 to quash the final report. Under Annexure V order this court quashed the final report against all the accused, without prejudice to the rights of the Investigating Agency to move for further investigation before the Magistrate to conduct a further investigation as directed in the Government Circular No.73231/SS-B4/92/Home dated 20.9.1993. An expert panel was constituted consisting of the District Medical Officer, the Professor of Forensic Medicine, Medical College Hospital, Pariyaram and a Surgeon from the District Court Hospital and the District Government pleader. Annexure VI report was furnished by the panel giving the opinion that death of Muralidharan was due to gross negligence on the part of the hospital staff and death could have been prevented if analgesia was ensured by proper introduction of the drug by qualified persons. Thereafter Annexure VII Crl.M.C. 1603/2009 3 final report was filed before the Magistrate. This petition is filed thereafter under section 482 of the Code of Criminal Procedure to quash Annexure VII report. 2. Learned counsel appearing for the petitioner and the learned Public Prosecutor were heard. 3. Learned counsel appearing for the petitioner pointed out that the expert panel based on which the subsequent final report was submitted before the court, does not consist of an anesthetist and hence the expert panel constituted in this case is not in compliance with the direction of the Apex Court in Martin F.D'souza v. Mohd.Ishfaq (2009) 3 SCC 1.) It was pointed out that as per the directions in paragraph 52 of the decision of the Apex Court in Jacob Mathew's case (2005)6 SCC 1) and paragraph 47 in Martin F.D'souza's case (supra) the Investigating Officer should before proceeding against the doctor accused Crl.M.C. 1603/2009 4 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 opinion and when negligence is alleged against anesthetist the doctor should be an expert anesthetist and as the panel does not contain an expert qualified in that branch of medical science the final report is not filed in compliance with the directions of the Apex court. Learned counsel also argued that even Annexure VI report does not show negligence on the part of the petitioner and the case is that subsequent to the operation when the patient developed pain, the nurse was directed to administer sensorcaine injection through the catheter which was given and death was not due to the administration of sensorcaine injection and in any case even if there is a negligence in the administration of the injection petitioner is not Crl.M.C. 1603/2009 5 liable as it could only be the fault of the nurse and therefore petitioner is not liable to be tried for an offence under section 304A of Indian Penal Code and in such circumstance the final report is to be quashed. 4. What is provided in the directions of the Apex Court is only that before proceeding against the doctor accused of rash or negligent act or omission, Investigating Officer shall obtain an independent and competent medical opinion from a qualified doctor in Government service, qualified in that branch of medical practice who can normally be expected to give an impartial opinion. Annexure VII report was submitted after getting report from a panel of expert which consist of not only the Professor of Forensic Medicine but the District Medical Officer as well as the Surgeon attached to the District Hospital. In such circumstance, it cannot be said that the final report was filed in violation of the directions of the Apex Court in Crl.M.C. 1603/2009 6 Jacob Mathew's case or Martin D'souza's case. In any case it is not to be settled in this petition. 5. Though learned counsel vehemently argued that on the materials, there is nothing to prove that petitioner was negligent as the anesthesia was administered before operation after the physician has certified that the pre anesthetist check up showed nothing abnormal and after surgery petitioner had returned from the hospital and later he was informed about the complaint of pain by the patient who had undergone surgery and the nurse was asked to give sensorcaine injection outside the epidural space and in such circumstance it cannot be said that petitioner committed any culpable negligence and so the charge is to be quashed. 6. The question whether the materials are sufficient to establish the guilt of the petitioner for the offence under section 304A of IPC is not to be decided in this petition filed under section 482 of the Code of Criminal Procedure. It is to be Crl.M.C. 1603/2009 7 decided on the evidence at the time of trial. Therefore on that ground, I do not find that this is a proper case to quash the proceedings. If the materials on record are insufficient to frame a charge as canvassed, petitioner is at liberty to move for an order of discharge as provided under section 239 of Code of Criminal Procedure. With that liberty to the petitioner the petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006