SIVANANDA N R Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner is the 1st accused in a case pending on the file of the Chief Judicial Magistrate Court, Kasaragod. The above case arose from crime registered by the Kasaragod police station for the offence punishable under Section 304(A) read with Section 34 of the Indian Penal Code. One Vijayan, husband of the de facto complainant, was admitted in Kasaragod United Hospital to undergo surgery for hernia on 4-1-2008. Allegedly, due to complications arising from the application of anesthesia by the petitioner, who is an anesthesiologist, on the same day, just preceding the operation fixed, condition of Vijayan became critical and his operation could not be performed and he had to be rushed for better care to a hospital in Mangalore and, later, to another hospital in Manipal. On account of the anesthetic complications arising from the reckless application of anesthesia by the petitioner, it is alleged, Vijayan breathed his last on 14-1-2008 while undergoing treatment in a hospital in Manipal. Petitioner, when engaged by the 2nd accused to administer anesthesia to Vijayan, had not fully recovered after having undergone a surgery on his right shoulder and was not fit for performing the professional duty cast upon him. Though he was unfit at that point of time he administered anesthesia to Vijayan without even having an assistant with him. The 2nd accused, Managing Director of the hospital in engaging the petitioner while he was unfit to discharge his professional duties and allowing him to administer anesthesia to Vijayan without even having an assistant with him was also reckless and culpable of criminal negligence. Both the accused by their reckless and negligent acts caused the death of Vijayan, is the charge imputed to indict them for the offence punishable under Section 304(A) read with Section 34 of the Indian Penal Code. Annexure A-2 is the charge laid before the court under Section 173 (2) of the Code of Criminal Procedure, for short, the 'Code' after completing the investigation of the crime by the Deputy Superintendent of Police, Kasaragod. Annexure A-2 charge is assailed in the petition invoking the inherent jurisdiction of this Court under Section 482 of the Code contending that it is an abuse of process of the court and it is liable to be quashed.

(2.) Learned senior counsel appearing for the petitioner urged that the allegations against the petitioner in Annexure A-2 final report are totally incorrect and contrary to the facts involved in the case. Though the petitioner had undergone surgery on his right shoulder, he was perfectly fit to perform his duties and that is borne out by Annexure A-3 certificate issued by the doctor, who conducted surgery for dislocation of his right shoulder, is the submission of the learned senior counsel. The allegation imputed that he was unfit on the day when he performed his duty as an anesthesiologist and that on account of his unfitness there was negligent and reckless application of anesthesia to Vijayan, is totally baseless and unworthy of any credence, is the further submission of the learned senior counsel. Though the District Level Expert Panel, to which a reference was made by the Investigating Officer to examine whether there was professional negligence on the part of the petitioner in the application of anesthesia to Vijayan, gave an adverse report, in the appeal filed by the petitioner, the Apex Body Committee, after looking into all aspects involved, has unequivocally and categorically held that there is no willful negligence. Annexure A-4 report given by the Apex Body Committee is relied by the counsel contending that that Committee has concluded so after taking note that the cause of death of Vijayan is on account of anesthetic complication. Mere fact that the death of Vijayan was on account of anesthetic complication is no ground to prosecute the petitioner for the grave offence imputed when the Apex Body Committee has opined that there is no willful negligence on his part, is the submission of the learned senior counsel. The learned senior counsel for the petitioner has relied on Jacob Mathew v. State of Punjab, 2005 3 KerLT 965 , Martin F. D Souza v. Mohd. Ishfaq, 2009 3 SCC 1, V. Kishan Rao v. Nikhil Super Speciality Hospital and another, 2010 5 SCC 513 and an unreported decision rendered by a learned Single Judge of this Court in Crl. M.C. No. 3404 of 2011 by order dated 7th December, 2011 to contend that the opinion given by the Apex Body Committee constituted by the Government as per the Circular published thereof that there was no willful negligence should have been accepted and acted upon by the Investigating Officer to conclude that the petitioner cannot be prosecuted imputing him of culpable criminal negligence in discharge of his professional duty as an anesthesiologist when he applied anesthesia to Vijayan, to facilitate his operation. Annexure A-2 report filed by the Investigating Agency and cognizance of the offence imputed thereunder against the petitioner are ab initio bad in law and that report is liable to be quashed ordering cessation of all criminal proceedings thereof against the petitioner invoking the inherent powers of this Court, is the submission of the learned senior counsel. Learned Public Prosecutor opposing the petition submitted that the facts involved in the case would show that there was callous and culpable criminal negligence on the part of the petitioner when he had applied anesthesia to Vijayan. Petitioner was then unfit to perform duties as an anesthesiologist. He had not fully recovered from a surgery which he had a few days back for the dislocation of his right shoulder. Anesthetic application required injection to the spinal cord to facilitate the operation for hernia on Vijayan but the petitioner, anesthesiologist, who was unfit after the surgery for the dislocation of his right shoulder, and at a time when his right arm was kept in slings, gave anesthetic injection to the patient. Anesthetic complication by the introduction of sensorcaine into the blood vessels of Vijayan due to the culpable rash and negligent acts of the petitioner, while he was unfit to administer anesthesia in performance of his professional duties, caused the death of the patient. In such a case, the opinion given by the Apex Body Committee that there was no 'willful negligence' even after noticing that death of Vijayan was on account of anesthetic complications cannot be given much significance, submits the Public Prosecutor.

(3.) In Jacob Mathew's case, cited supra, the Apex Court has laid down certain norms rather guidelines to be followed for prosecuting medical professionals when they are imputed of medical negligence. To prosecute a medical professional for negligence under criminal law, it is held, it must be shown that the accused did something or failed to do something, which, in the given facts and circumstances, no medical professional in his ordinary senses and prudence would have done or failed to do. The Apex Court has observed thus: