SATHY M PILLAI Vs. SARMA

JUDGEMENT

(1.) 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 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 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 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 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 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 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 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 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 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 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 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 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 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.