Karnataka High Court
Dr. Mahesh Kukreja, M.B.B.S. M.D vs State Of Karnataka By on 21 January, 2025
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NC: 2025:KHC:2415
CRL.P No. 2827 of 2018
C/W CRL.P No. 2826 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL PETITION NO. 2827 OF 2018
C/W
CRIMINAL PETITION NO. 2826 OF 2018
IN CRL.P NO. 2827/2018
BETWEEN:
DR. MAHESH KUKREJA, M.B.B.S. M.D
S/O NARAYANA DAS,
AGED ABOUT 49 YEARS,
MALLIGE MEDICAL CENTER,
NO 31/32, CRESCENT ROAD,
BANGALORE - 560 001.
RESIDING AT NO.2025,
EMBASSY APARTMENT,
59, PALACE ROAD,
BANGALORE - 560 052.
Digitally signed ...PETITIONER
by SWAPNA V
Location: high
(BY SRI. KRISHNAMURTHY K.R., ADVOCATE)
court of
karnataka IN CRL.P NO. 2826/2018
BETWEEN:
DR. S. MUTHU, M.B.B.S., M.S.
S/O. SUBBAIAH,
AGED ABOUT 60 YEARS,
ORTHOPEDIC SURGEON,
MALLIGE MEDICAL CENTER,
NO. 31/32, CRESCENT ROAD,
BANGALORE - 560 001.
RESIDING AT: 96, 3RD CROSS,
P & T COLONY, R.T. NAGAR,
BANGALORE - 560 032
... PETITIONER
(BY SRI. KRISHNAMURTHY K.R., ADVOCATE)
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NC: 2025:KHC:2415
CRL.P No. 2827 of 2018
C/W CRL.P No. 2826 of 2018
AND:
1. STATE OF KARNATAKA BY
SUB-INSPECTOR OF POLICE,
HIGH GROUNDS POLICE STATION,
BANGALORE - 560 001.
2. M. MUNIRAJ
S/O MUKUNDAPPA,
AGED ABOUT 47 YEARS,
R/O #47/2, TANGA NILAYA,
SWATI MAIN ROAD,
SHANTHINAGARA,
BANGALORE - 560 027.
...COMMON RESPONDENTS
(BY SMT. RASHMI PATEL, HCGP FOR R1
SRI. P.H. VIRUPAKSHAIAH, ADVOCATE FOR R2)
THESE CRIMINAL PETITIONS ARE FILED U/S.482 CR.P.C
PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN
C.C.NO.19168/2013, PENDING ON THE FILE OF VIII ADDL.C.M.M.,
BENGALURU AT ANNEXURE-A FOR ALLEGED OFFENCE P/U/S 338 OF
IPC.
THESE CRIMINAL PETITIONS, COMING ON FOR FURTHER
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE M G UMA
COMMON ORAL ORDER
The petitioner in Crl.P.No.2827 of 2018, being accused No.1 and the petitioner in Crl.P.No.2826/2018, being accused No.2 are seeking to quash the criminal proceedings initiated against them in Crime No.161 of 2011 of High Grounds Police Station, pending in C.C.No.19168 of 2013, on the file of the -3- NC: 2025:KHC:2415 CRL.P No. 2827 of 2018 C/W CRL.P No. 2826 of 2018 learned VIII Additional Chief Metropolitan Magistrate, Bengaluru, for the offences punishable under Section 338 of Indian Penal Code (for short 'IPC').
2. Brief facts of the case are that, the informant Sri Muniraju filed the first information against accused Nos.1 to 6 and others alleging commission of the offence punishable under Section 326 read with Section 34 of IPC. It is alleged by the informant that, his wife Shylaja, 36 years, was suffering from backache and she was admitted to Mallige Medical Center for treatment. The accused being the doctors working in Mallige Medical Center, advised her to undergo surgery. Accordingly, she underwent surgery on 30.11.2009. Due to the negligence on the part of the accused, she went into coma immediately after undergoing surgery. Later, she was taken to M.S.Ramaiah hospital, without his permission and the informant came to know that, it is only due to the negligence of the accused, she went into coma, and therefore, he requested the police to register the case and to initiate legal action.
3. The Investigating Officer after registering Crime No.161/2011 for the offence punishable under Section 338 of -4- NC: 2025:KHC:2415 CRL.P No. 2827 of 2018 C/W CRL.P No. 2826 of 2018 IPC, completed the investigation and filed the charge sheet against accused Nos.1 and 2 for the above said offence. The petitioners being accused Nos. 1 and 2 are seeking to quash the criminal proceedings.
4. Heard Sri Krishamurthy K.R, learned counsel for the petitioners, Smt. Rashmi Patel, learned High Court Government Pleader for respondent No.1 and Sri. P.H, Virupakshaiah, learned counsel for respondent No.2. Perused the materials on records.
5. Learned counsel for the petitioners contended that, accused No.1 is the Anesthesiologist and accused No.2 is the Orthopedic Surgeon. They conducted surgery on the fateful day i.e., on 30.11.2009. However, post surgery, some complications arose, as a result of which the patient went into coma. Subsequently, she died. A complaint was registered with the Karnataka Medical Council (KMC). As per its report, there was no negligence on the part of accused No.2. However, something is alleged against accused No.1. It is also the contention of learned counsel for the petitioners that, when the petitioners approached the Indian Medical Association (for short -5- NC: 2025:KHC:2415 CRL.P No. 2827 of 2018 C/W CRL.P No. 2826 of 2018 'IMA'), by challenging the order of Karnataka Medical Council, a clean chit is given to the petitioners. Under such circumstances, there are no reasons to continue the criminal proceedings and thus, prays for allowing the petitions.
6. Per contra, learned counsel for the respondent opposing the petitions submitted that even KMC submitted the report which clearly makes out that there was negligence on the part of the accused. Even though IMA has given clean chit to accused Nos.1 and 2, the same is challenged before this Court by filing W.P.No.10277 of 2021 as no notice was served on respondent No.2 by IMA before passing the order and the same is pending consideration. Under such circumstances, the order of IMA cannot be taken advantage by the petitioners. Learned counsel submitted that specific allegations are made against both the petitioners and the materials on record disclose gross negligence on their part, during and after the surgery. Under such circumstances, the petitioners have to face the trial. Accordingly prays for dismissing the petition. -6-
NC: 2025:KHC:2415 CRL.P No. 2827 of 2018 C/W CRL.P No. 2826 of 2018
7. In view of the rival contentions urged by the learned counsel for both the parties, the point that would arise for my consideration is:
"Whether the Petitioners have made out any grounds to allow the petition and to quash the criminal proceedings initiated against them?"
My answer to the above point is in 'Negative' for the following:
REASONS
8. On perusal of the materials on record, the informant has made allegations that his wife was suffering from backache and admitted to the hospital as per the advice of the petitioners to undergo surgery. Immediately after surgery, she went into coma. She was shifted to M.S. Ramaiah Hospital without information or permission from the informant, and negligence on the part of the petitioners is the cause for the medical condition of his wife. During investigation it is found that, even though the patient was administered anesthesia, accused No.1 being the Anesthesiologist has not taken post surgery care and accused No.2 has also not taken care when -7- NC: 2025:KHC:2415 CRL.P No. 2827 of 2018 C/W CRL.P No. 2826 of 2018 the patient had changed her positions i.e., from prone position to supine position during which the endotracheal tube had either slipped or it was bitten by the patient, due to which, oxygen was not supplied to her brain as a result of which, she suffered cerebral death of brain and slipped into permanent coma. Therefore, the Investigating Officer filed the charge sheet, alleging commission of the offence punishable under Section 338 of IPC as it is the gross negligence on the part of accused Nos.1 and 2 which resulted in the medical condition of the patient. It is stated that the patient died about a year back.
9. The report of KMC is produced by the learned counsel for the petitioners. The KMC after analyzing the history of the patient and treatment given to her in detail, arrived at the conclusion as under:
" The question before the Karnataka Medical Council:
(1) How Cerebral hopoxia could happen?
(2) Who is Responsible?
(3) What Action?
(1) During the shifting of the patient from prone to supine position the Endotraceal Tube might have slipped leading to failure of supply of oxygen to brain resulting in Cerebral death. The other possibility could be that the patient while recovering from Anaesthesia might have -8- NC: 2025:KHC:2415 CRL.P No. 2827 of 2018 C/W CRL.P No. 2826 of 2018 bitten the Endotracheal Tube strongly. This could have happened for more than 3-4 minutes. (2 & 3) The Orthopaedic Surgeon had performed Surgery without any complications."
10. This report by KMC was challenged before IMA. The IMA has submitted its observations, which reads as under:
" After detailed deliberation, the Ethics Committee made the following observations:
• Dr. Mahesh Kukreja is qualified and experienced Anesthesiologist.
• Patient Shalja was posted for surgery on 30.11.2009 at Mallige Medical Centre for Fenestration Discectomy L4-
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• PAC done. Patient fit for GA. Patient positioned to prone from supine with all parameters maintained • During the surgery all the vitals were well maintained in prone position as per the protocols. • At the end of the surgery, patient again positioned from prone to supine. Again clinical parameters maintained.
• Patient had spontaneous effort for breathing with reversal agent with muscular relaxant forneuro muscular block.
• Patient developed sudden dysarythimia as ventricular tachycardia.
• Reversal agent triggers dysarythimia. Ventricular Techycardia was treated with proper protocol and expert opinion of a physician was also taken inside the OT.
• Patient was also given Injection Efcorlin 200mg. • There was total reversal of VT to sinus rhythm and oxygen saturation improved to 95% alongwith PR and BP also improved.
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NC: 2025:KHC:2415 CRL.P No. 2827 of 2018 C/W CRL.P No. 2826 of 2018 • Patient shifted to ICU for elective ventilation and further course of treatment.
It has also been noted that neo stigmine may interfere with AV conduction even without high doses. To support this contention, a case report "Immediate Cardiac Arrest after Neo stigmine- admistration" has also been submitted which is on record.
In view of the above observations, the Ethics Committee after perusing all reports, investigations and other materials on record and after hearing both the parties at length unanimously decided to exonerate Dr. Mahesh Kukreja from all the charges of medical negligence levelled against him."
11. It is stated that the observations made by IMA was without serving notice on respondent No.2 and therefore, he has challenged it by filing W.P.No.10277 of 2021 before this Court and the same is pending consideration.
12. From the materials that are placed on record, including the charge sheet filed by the Investigating Officer, there are specific allegations made against both the petitioners, who admittedly conducted surgery on the wife of respondent No.2. Immediately thereafter, she suffered coma and died recently. The materials on record prima facie discloses that accused No.1 being the Anesthesiologist and accused No.2 being the Orthopedic Surgeon, were negligent in taking post operative care.
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13. Learned counsel for the petitioner placed reliance on the decision of the Hon'ble Apex Court in P.B.Desai v/s State of Maharashtra & Another1, to contend that it is only rash and negligent act on the part of the accused will attract Section 338 and such a rash and negligent act should be deliberate or intentional and no such ingredients are satisfied in the present case. The decision, relied on by the learned counsel for the petitioners was rendered by the Hon'ble Apex Court, when there was a challenge for conviction of the accused after full-fledged trial.
14. In the present case, only the final report is filed by the Investigating Officer and no trial is undertaken. Even if the requirement of law to attract Section 338 of IPC is to be accepted, admittedly, there was grievous hurt to the person as the wife of respondent No.2 slipped into coma immediately, after surgery. Therefore, it was as a result of the act committed by the petitioners and it is specifically alleged that it was due to rash and negligent act on the part of the petitioners. When there are prima facie materials to attract Section 338 of IPC, I do not find any justification to quash the criminal proceedings 1 (2013) 15 SCC 481
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NC: 2025:KHC:2415 CRL.P No. 2827 of 2018 C/W CRL.P No. 2826 of 2018 initiated against them. The petitioners are liable to face the trial taking necessary defence which is available for them.
15. Accordingly, I answer the above point in the Negative and proceed to pass the following:
ORDER The petitions are dismissed.
Sd/-
(M G UMA) JUDGE SPV List No.: 1 Sl No.: 19