HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL PETITION No.5777 OF 2008 Date: 04-07-2011 Between: Dr. Boppana Durga Suresh and two others. --- Petitioners/ A-1 to A-3. And State of A.P. Rep. by Public prosecutor, High Court, Hyderabad and another. --- Respondents. This Court made the following : HON'BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL PETITION No.5777 OF 2008 ORDER: This Criminal Petition is filed by the Petitioners under Section 482 Cr.P.C., seeking to quash proceedings in C.C. No.953 of 2005 on the file of I Additional Judicial Magistrate of First Class, Khammam, registered for offence punishable under Section 304-A of I.P.C. 2. The petitioners are the Accused Nos.1, 2 and 3 and the first respondent is the State and the second respondent is the de-facto complainant in the Calender Case. For the sake of convenience the parties hereinafter will be referred as arrayed in the Calendar Case. 3. The prosecution version in brief is as follows : The complainant/deceased namely Kanneboina Venkateswarlu was working as Manager and Keyboard player in Anna Audio Lab at Hyderabad. One week prior to 10-11-2004 he went to Khammam on his personal work and on 08-11-2004 at 12 noon he developed stomach pain and consequently he was admitted in Kinnera Bolleneni Super Speciality Hospital, Khammam. Concerned doctors there informed that there was nothing serious with him but they did not attend on him neglecting to give necessary treatment to him. While so, on 09-11-2004 at about 07-30 p.m. the condition of the deceased became very serious and therefore his attendant S. Venkateswarlu, requested the hospital authorities to call concerned doctors but no action was taken. He struggled for his life and ultimately expired on 10-11-2004 consequently. Therefore, the Accused Nos.1 to 3 are jointly responsible for his death being concerned doctors and in charge of the management of the hospital. 4. It is the contention of learned counsel for the Accused that the deceased was attached with “pan creative out line not clearly visualized and moderate fatty changes in the liver” which facts were intimated to the deceased and necessary treatment was given to him but during the treatment he (the deceased) died. It is further contended by him that the guidelines laid down by the Supreme Court in Jacob Mathew V. State of Punjab[1] that an independent opinion of a competent doctor should be taken with regards to such acts, were not followed in this case and as such there is no basis to say that all the accused are guilty of negligence in attending the deceased and giving him necessary treatment. 5. It is the contention of learned counsel for the complainant that the admission record of the deceased, copy of which is filed provides that on 10-11-2004 no adequate treatment was given to him as required, which establishes the negligence of the accused in the matter and the said decision is not applicable here as there is record to the effect that minimum care was taken by the accused in the matter, whereas otherwise also there is evidence to prove the guilt of the accused for the charge. 6. The point for consideration is whether sufficient grounds are shown in order to quash the proceedings? 7. In the decision cited supra, the Supreme Court observed as follows : “51. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefer recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against. 52. Statutory rules or executive instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused 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 and unbiased opinion applying the Bolam9 (Bolam V. Friern Hospital Management Committee, (1957) 1 WLR 582) test to the facts collected in the investigation.” 8. The admission record provides that lastly at 10-00 p.m. on 09-11-2004 and on 10-11-2004 at 01-00 a.m. and later also he was given treatment. It is difficult to say on that now whether he was given necessary treatment or not? 9. There is no basis to say that such guidelines were followed in this case. Unless a competent medical officer gave his opinion about the cause prima-facie it cannot be asserted that because of the negligence of the accused only the death occurred. Mere saying that the doctors failed to attend on the patient and because of their negligence the patient died is not suffice here because even for that opinion of a competent doctor is needed as held by the Supreme Court. In the result, the Criminal Petition is allowed quashing the entire proceedings in C.C. No.953 of 2005 on the file of I Additional Judicial First Class Magistrate at Khammam. However, the Court below and the complainant are at liberty to take necessary measures subject to law. ___________________________ G. KRISHNA MOHAN REDDY, J. 04th July, 2011. Dsh. THE HON'BLE SRI JUSTICE G. KRISHNA MOHAN REDDY 156 CRIMINAL PETITION No.5777 of 2008 Date:04-07-2011 Dsh. [1] (2005) 6 SCC