Madras High Court
Dr.S.Periyaswamy vs E.Stalin on 1 November, 2023
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.OP.No.25201 of 2018
'IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.11.2023
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
Crl.OP.No.25201 of 2018 and
Crl.MP.No.14261 of 2018
Dr.S.Periyaswamy ... Petitioner
Vs.
E.Stalin ... Respondent
PRAYER: Criminal original petition is filed under Section 482 of Cr.P.C. to
call for the records relating to CC.No.2148 of 2017 on the file of the learned V
Metropolitan Magistrate, Egmore @ Allikulam and to quash the same.
For Petitioner : Mrs.K.Jenitha
For Respondent : Mr.V.Sundar Raman
for M/s.A.Laxmi Rajarathinam
ORDER
This Criminal Original Petition has been filed to quash the private complaint proceedings initiated in CC.No.2148 of 2017 on the file of the learned V Metropolitan Magistrate, Egmore @ Allikulam, Chennai.
2. The respondent lodged a private complaint for the offence https://www.mhc.tn.gov.in/judis Page 1 of 8 Crl.OP.No.25201 of 2018 punishable under Section 304A of IPC alleging that his daughter fell sick and she was hospitalised in the first accused hospital for high fever. She was treated by hospital nurse and attender. It was questioned by the respondent for which they informed that only on the instruction of the second accused through phone, the treatment is given. After administering some injection, the fever got reduced and her daughter was taken to house. Once again, in the early morning on the next day, she suffered with fever and as such, again she was taken to the same hospital. At that juncture, the petitioner visited the hospital and advised to go to a bigger hospital for treatment since the first accused / hospital had no such facility. The second accused himself had taken her daughter to another hospital and on the way to hospital, ambulance had come and his daughter was shifted to the ambulance. However, on the way to Government Hospital, she died and duty doctor reported that his daughter was brought dead. Hence, the complaint.
3. Heard, the learned counsel appearing on either side.
4. Initially, the respondent lodged complaint before the jurisdiction police and on receipt of the same, the Inspector of Police, Kolathur Police https://www.mhc.tn.gov.in/judis Page 2 of 8 Crl.OP.No.25201 of 2018 Station, Chennai registered FIR in crime No.423 of 2009 under Section 174 of Cr.P.C. However, after completion of investigation, it was closed as 'mistake of fact'. Therefore, the respondent lodged private complaint. After recording the sworn statement and on perusal of records, the trial court had taken cognizance for the offence under Section 304A of IPC and issued summons to the petitioner.
5. On perusal of the complaint, revealed that the respondent's daughter fell ill due to fever. Therefore, she was taken to the hospital owned by the petitioner. However, the petitioner was not there and nurse only treated the patient. They administered injection and prescribed paracetamol tablet. They also administered IV fluid to the patient. Immediately, the fever got reduced and as such the patient was taken to home by the respondent. Once again, in the early morning of the next day, again she suffered with high fever. Therefore, once again she was taken to the petitioner's hospital. At that juncture, the petitioner had come and suggested to take the patient to a higher hospital since he had no such facility to treat the patient. Further, there was no ambulance available and as such, in the humanitarian ground, the petitioner himself had taken the patient in his car to the hospital. On the way to hospital, the ambulance came and as such, the patient was shifted to ambulance for giving https://www.mhc.tn.gov.in/judis Page 3 of 8 Crl.OP.No.25201 of 2018 first aid. Unfortunately, on the way to hospital by the ambulance, she died and the duty doctor of the Government hospital reported that she was brought dead.
6. The crux of the allegation alleged by the respondent is that the petitioner was not there in the hospital while his daughter was given treatment. Even according to the respondent, the patient was treated by nurse and attender. When the doctor was not available, no prudent man would agree for treatment by nurse or attender. Therefore, only on consent of the respondent, the nurse of the hospital had treated the patient. That apart, they administered only Taxim injection and prescribed paracetamol tablet. They also administered IV fluid. Immediately, the fever got reduced and the patient was taken by the respondent to his home. Therefore, no role was played by the petitioner in this occurrence except he owned the said hospital. Even on the next day, the petitioner did not treat the patient and on his advice, the patient was taken to other hospital for better treatment. Since there was no ambulance facility, the petitioner himself had taken the patient in his car. Therefore, the petitioner did not play any role on the treatment to the respondent's daughter.
7. In fact, on perusal of post mortem report also revealed that no definite opinion could be given as to the cause of death. Further, enquiry was https://www.mhc.tn.gov.in/judis Page 4 of 8 Crl.OP.No.25201 of 2018 conducted by the Joint Director of Health Services and the relevant portion of the enquiry report dated 28.03.2011 is extracted hereunder:
nkw;go tprhuizfis ed;whf Muha;eJ ; ghh;ff; g;gl;ljpy;
fhuzk; bjhpahj fha;r;rYf;F cz;lhd kUe;J Inj.Taxim Tab Paracetamol kw;Wk; IV Fluids midj;Jk; clnd bfhLf;fg;gl;lJ/ ,uj;jg;ghpnrhjid Kot[ Leptospirosis vd;W te;jhYk; mjw;Fz;lhd kUe;J Inj.Taxim MFk;/ nkYk; Leptospirosis-y; cldo ,wg;gpw;F tha;gg; py;iy/ gpnujg;ghpnrhjidapYk; bjspthd fhuz';fs; ,y;iy vd;W Twg;gl;Ls;sJ/ fha;rr; ypdhy; Vw;gLk; ,wg;g[fspy; 20 rjtPjk; ,wg;gf[ spy; ve;j fhuzKk; ,y;yhky; Vw;gl tha;gg; s [ s ; jhf kUj;Jt mfuhjpfspy; Twg;gl;Ls;sJ/ vdnt nkw;go kUj;Jth;fspd; ftdf;Fiwthnyh. jtwhd rpfpr;irapdhnyh ,we;jpUf;f tha;gg; py;iy/
8. Therefore, the petitioner is no way connected with the alleged occurrence and due to other reason, the patient died. Non presence of the doctor would not amount to negligence. It is relevant to extract provision under Section 304 A of IPC hereunder:
304A. Causing death by negligence — Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. https://www.mhc.tn.gov.in/judis Page 5 of 8 Crl.OP.No.25201 of 2018
9. Thus, it is clear that 'whoever caused the death of any person by doing any rash or negligent act'. The non presence of the petitioner would not amount to any negligence. If the doctor was available in the hospital and failed to visit the patient, then the act of the doctor would amount to negligence. In the case on hand, the petitioner was not at all available in the hospital. He was somewhere else at the time of bringing the patient to the hospital. Even according to the respondent, the nurse and other attender only were available in the hospital. The respondent consented for treatment by the nurse. In fact, she also rightly administered the injection of Taxim and prescribed only paracetamol tablets. As per the enquiry report, it would not harm the patient at any cost and it is the correct medicine for fever. Therefore, no offence under Section 304A of IPC is made out as against the petitioner and the entire complaint is nothing but clear abuse of process of law.
10. In view of the above discussion, the impugned proceedings is liable to be quashed. Accordingly, the entire proceedings in CC.No.2148 of 2017 on the file of the learned V Metropolitan Magistrate, Egmore @ Allikulam is quashed and this criminal original petition is allowed. Consequently, connected miscellaneous petition is closed. https://www.mhc.tn.gov.in/judis Page 6 of 8 Crl.OP.No.25201 of 2018 01.11.2023 Index :Yes/No Internet : Yes/No Speaking order/non-speaking order lok G.K.ILANTHIRAIYAN, J.
lok To The learned V Metropolitan Magistrate, Egmore @ Allikulam https://www.mhc.tn.gov.in/judis Page 7 of 8 Crl.OP.No.25201 of 2018 Crl.OP.No.25201 of 2018 01.11.2023 https://www.mhc.tn.gov.in/judis Page 8 of 8