PADMANABHA SHENOY M Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioners are accused 1 to 3 in C.C. No. 208/2006 on the file of the Judicial Magistrate of the First Class-I, Kannur. The second respondent herein filed Annexure A6 complaint against the petitioners and three others alleging offence under S. 304 read with 34 I.P.C. 1st petitioner is the 1st accused. Petitioners 2 and 3 were arrayed as accused 4 and 5. In the complaint, accused 2 and 3 are two other doctors. After taking the sworn statement of the second respondent and other witnesses, the learned Magistrate discharged the accused 2 and 3 in the complaint. Cognizance was taken against the petitioners for offence under S. 304A read with 34 I.P.C. and process was issued. Assailing the order taking cognizance and seeking an order to quash Annexure A6 complaint in exercise of the powers under S. 482 of the Code of Criminal Procedure this petition is filed. The brief facts of the case is that the daughter of the second respondent, Vidya, aged 13 years, was brought to the hospital, run by the third petitioner, wherein the first petitioner is a Pediatrician and the second respondent is a nurse, at 11.55 a.m. on 8/4/2003, with history of high fever. The girl was admitted in the hospital and while undergoing treatment, the girl expired at 8.55 p.m. At 8.45 p.m., Adrenalin injection was given. According to the second respondent, the medicine for the injection and the syringe along with other medicines were purchased from the hospital. Copy of the bill is one of the documents referred to as Annexure-A5. The second respondent noticed in the bill that the expiry of the medicine and the syringe supplied was over as early as 1.3 and 10/02 respectively. It is alleged that the death of the child was due to the criminal negligence of the petitioners by giving the injection of medicine with a syringe, expiry of both was over.

(2.) From the arguments advanced and as per the documents produced, it is revealed that attributing the negligence against the first petitioner, the second respondent preferred a complaint before the Deputy Superintendent of Police. But no action was initiated. On 27.8.2004, a First Information Statement was lodged before the Sub Inspector of Police, Kannur Town Police Station, on the basis of which, a case as Crime No. 535/2004 was registered alleging offence under S. 304 I.P.C. against the first petitioner. Annexure-A2 is the First Information Report. The Deputy Superintendent of Police, Kannur, took over the investigation. During the investigation, a report of the Drug Inspector was obtained. The Drug Inspector conducted a detailed enquiry and submitted Annexure-A1 report, wherein it is reported that enquiry revealed that the alleged batch of drug Adrenalin injection, the expiry of which was over, was not in stock in the pharmacy on the date of incident and the entry in the sale bill as if it was an expired drug might be a computer mistake. The expiry period of the syringe supplied to the patient was also not over and a mistake occurred in the bill due to oversight in entering the particular entry in the computer as in the case of drug. Basing upon the report of the Drug Inspector, Annexure-A5 final report was submitted by the Deputy Superintendent of Police, Kannur stating that the expiry of the medicine administered was not over and that it is a case of mistake of facts and that the death of the child was not due to any medical negligence. Protesting against the refer report filed, the second respondent preferred the complaint before the trial court as stated earlier.

(3.) I have heard Sri. Vijayabhanu, the learned senior counsel appearing for the petitioner, Sri.K.R. Avinash the learned counsel appearing for the 2nd respondent and the learned Government Pleader. Perused the records including the refer report and the complaint.