Madras High Court
Dr.K.Ravindran vs The State on 4 February, 2011
Crl.O.P.(MD)Nos.16026 of 2018, 1221 and 4115 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on 02.01.2025
Delivered on 07.01.2025
CORAM
THE HON'BLE MR.JUSTICE N.ANAND VENKATESH
Crl.O.P.(MD) Nos.16026 of 2018, 1221 and 4115 of 2020
Crl.O.P.(MD) No.16026 of 2018
Dr.K.Ravindran ... Petitioner/
Accused No.12
Vs.
1.The State
Rep. by the Inspector of Police,
Asaripallam Police Station,
Kanniyakumari District.
Cr.No. 158 of 2011.
2. Dr.D.Sriramkumar, M.D,D.G.O.,
Medical Superintendent,
K.K.G.M.C.H. Asaripallam,
Nagarkovil. ... Respondents
PRAYER : Criminal Original Petition filed under Section 482 of
Criminal Procedure Code, call for the records in connection with the
impugned charge sheet in S.C.No.191 of 2015 pending on the file of the
Additional Sessions Judge, Kanyakumari District at Nagarkovil and
quash the same insofar as the petitioner is concerned.
1/20
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)Nos.16026 of 2018, 1221 and 4115 of 2020
Crl.O.P.(MD) No.1221 of 2020
Vivekanandhan ... Petitioner/
Accused No.5
Vs.
1.The State
Rep. by the Inspector of Police,
Asaripallam Police Station,
Kanniyakumari District.
Cr.No. 158 of 2011.
2. Dr.D.Sriramkumar, M.D,D.G.O.,
Medical Superintendent,
K.K.G.M.C.H. Asaripallam,
Nagarkovil. ... Respondents
PRAYER : Criminal Original Petition filed under Section 482 of
Criminal Procedure Code, call for the records in S.C.No.191 of 2015 on
the file of the learned Principal Assistant Sessions Judge, Nagarkovil and
quash the same as against the petitioner.
Crl.O.P.(MD) No.4115 of 2020
1.Barnabas
2.Rajkumar
3.Devi
4.Mayakrishnan ... Petitioners/
Accused Nos.1 - 4
Vs.
1.The State
Rep. by the Inspector of Police,
Asaripallam Police Station,
Kanniyakumari District.
Cr.No. 158 of 2011.
2/20
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)Nos.16026 of 2018, 1221 and 4115 of 2020
2. Medical Superintendent,
Kanyakumari Govt. Medical College Hospital,
Asaripallam, Nagarkovil. ... Respondents
PRAYER : Criminal Original Petition filed under Section 482 of
Criminal Procedure Code, call for the records in S.C.No.191 of 2015 on
the file of the Principal District Court, Kanykaumari at Nagarkovil and
quash the same as against the petitioners proceedings in S.C.No.191 of
2015.
For Petitioners : Mr.R.Ilayaraja
in Crl.O.P(MD) No.16026/2018
Mr.V.Kathirvelu, Senior Counsel
for M/s.K.Prabhu
in Crl.O.P(MD) No.4115/2020
Mr.Ramsundar Vijayraj
for M/s.Veera Associates
in Crl.O.P(MD) No.1221/2020
For Respondents : Mr.B.Thanga Aravindh
Government Advocate (Crl. Side)
for R1
Mr.R.Alagumani,
Counsel for Victim
COMMON ORDER
These petitions have been filed by A12, A5 and A1 to A4 respectively, to quash the proceedings pending in SC.No.191 of 2015 on the file of the Additional Sessions Judge, Kanyakumari District at Nagercoil.
3/20 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.16026 of 2018, 1221 and 4115 of 2020
2. The case of the prosecution is that on 18.03.2011 Tmt.Rukmani, wife of Ganesan was admitted at Asarippallam Medical College Hospital, Nagercoil, to undergo abortion and vasectomy. On 19.03.2011, she was brought to operation theatre and A12, is the anesthetist to the said Rukmani and Dr.Cardilla Bose was supposed to perform the operation. While administering anesthesia from cylinder No. 287717, the anesthetist had actually administered 'Nitrous Oxide' ( N2O) to the patient which was inhaled. As a result, Tmt.Rukmani became unconscious and went into coma. From there, the patient was shifted to Rajaji Government Medical College Hospital on 18.04.2011 and till then, the patient was treated in the same hospital. There was no further improvement in the health condition and therefore, the patient was shifted to Vellore Christian Medical College Hospital, where she was treated. Unfortunately, the said Rukmani died on 04.05.2012 at about 6.15 a.m. Based on the complaint given by the Medical Superintendent, an FIR came to be registered in Crime No.158 of 2011. The investigation was completed and the police report was filed as against 12 accused persons for offences under Sections 284, 328, 304, 338, 304A of IPC 4/20 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.16026 of 2018, 1221 and 4115 of 2020 read with Rules 4, 5, 6 and 35 of the Gas Cylinder Rules and Section 20A of the Indian Medical Council Act. The Court below took cognizance of the offence and issued process to the accused persons. Aggrieved by the same, A1 to A5 and A12 have filed these quash petitions seeking to quash the proceedings.
3. The charge against A1 to A5 is that N2O was filled in the cylinder bearing No.287717 which was sent by M/s.Falcon Air in which A1 was working as Manager, A2 was working as the Marketing Executive and A3 and A4 were working in the branch office at Nagercoil as Managers. The empty cylinder was received from the Government Medical College Hospital, Kanyakumari at Asaripallam, which was collected by the branch office named as M/s.Shivaji and Co., in which A3 and A4 are working as Mangers. This cylinder was sent to M/s.Life Care Nitrous India (P) Ltd in which A5 was incharge of the company and are manufacturers of Nitrous and this cylinder was filled up with N2O. It was sent back to M/s.Shivaji and Co., and in turn, it was collected by M/s.Falcon Air and the cylinder was sent back to the Government Medical College Hospital through a Delivery Note dated 04.02.2011. It 5/20 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.16026 of 2018, 1221 and 4115 of 2020 was found that M/s.Falcon Air was not holding a valid drug license during the relevant point of time for stocking and distribution of medicinal gases but were engaged by the hospital for supplying to the Government Medical College Hospital. Thus, M/s.Shivaji and Co., received the cylinder filled with N2O which was filled and supplied by M/s.Life Care Nitrous India Private Limited, Coimbatore, and it was distributed to M/s.Falcon Air without holding a valid drug license. That apart, N2O was filled in a cylinder which was supposed to be filled with Oxygen (O2) since the cylinder No.287717 contained the label O2. This cylinder reached the hospital and when anesthesia was administered, N2O was administered in the place of O2 which was inhaled by the deceased which proved fatal. Insofar as the charge against A12, he is the anesthetist who is expected to properly verify the cylinder before administering the anesthesia and there was gross negligence on his part to have not verified the same and not properly checked the valve which is different for a cylinder filled up with O2 and a cylinder filled up with N2O. As a result, the unfortunate incident took place. 6/20 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.16026 of 2018, 1221 and 4115 of 2020
4. Heard the learned counsel for the petitioners, the learned Government Advocate appearing on behalf of the first respondent and the learned counsel appearing on behalf of the victim.
5. The main grounds that were raised on behalf of A1 to A5 is that the two cylinders which included cylinder No.287717 were sent by the hospital only to fill N2O and this was going on for sometime and there are no materials to show that the petitioners filled N2O instead of O2 in a cylinder which was supposed to be filled up only with O2. It was contended that even as per the letter of the Assistant Chemical Examiner, Forensic Sciences Department, Chennai, dated 25.03.2011, it has been mentioned that gas cylinder bearing No.287177 has been labelled as N2O cylinder and it was found to contain N2O at the time of inspection. Therefore, to come up with the different theory that the cylinder was engraved as O2 is totally false and motivated. That apart, the statement of witnesses namely, LW1, LW7, LW8, LW12, LW14 to LW18 clearly establishes the fact that the cylinder was actually labelled as N2O and later an attempt has been made to throw the blame on A1 to A5 as if they have filled up N2O in a cylinder which was supposed to be filled up with 7/20 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.16026 of 2018, 1221 and 4115 of 2020 O2. It was submitted that there was absolutely no negligence on the part of A1 to A5 since they filled up N2O only based on the instructions received from the hospital and the hospital authorities in order to escape from the consequences are attempting to throw the blame on A1 to A5.
6. The main contention raised on the side of A12 is that the anesthetist had properly exercised his diligence and care and the anesthetist was not aware of the fact that the cylinder was filled up with N2O since the cylinder was engraved with O2 and therefore, there is absolutely no negligence on the part of the anesthetist. It was further contended that the guidelines given in Jacob Mathews v. State of Pujab case, reported in 2005 (6) SCC 1, was not followed. Sanction was not obtained under Section 197 of IPC and even if the charges made against the petitioner in the police report is taken as it is, no offence has been made out. The learned counsel also relied upon the order of discharge passed in favour of A7 in Crl.R.C (MD) No.469 of 2018, dated 12.10.2018.
8/20 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.16026 of 2018, 1221 and 4115 of 2020
7. Per contra, it was contended on the side of the prosecution that prima facie materials are available to proceed further with the trial against the accused persons and there is absolutely no ground to quash the proceedings. It was further submitted that the various discrepancies that were pointed out on the side of the petitioners are all factual in nature and it cannot be decided in a quash petition.
8. The victim was permitted to intervene in this case and the learned counsel for the victim submitted that the gas suppliers and the hospital are trying to throw the blame against each other and confuse the entire issue and the victim lost his wife only due to the gross negligence on the part of the accused persons and therefore, the accused persons will have to necessarily undergo trial in this case and establish their defense. Insofar as the discharge of A7 is concerned, it cannot be taken advantage by A12 since A7 was not on duty on the fateful day and therefore, the order is based on the peculiar facts which cannot be taken advantage. It was further contended that the judgment in Jacob Mathews (supra) case does not completely exonerate Doctors from criminal prosecution and that the Court must only see that the Doctors are not put to unnecessary 9/20 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.16026 of 2018, 1221 and 4115 of 2020 harassment in a case where they have exercised care and caution and whereas, in a case where gross rashness or negligence is found on the materials collected, the Doctors will have to undergo trial and establish their defense. The learned counsel further submitted that A1 to A5 cannot feign ignorance for the simple reason that there was no valid license available for supply of gas and they were in fact convicted by the learned Judicial Magistrate, Boothapandi, in C.C.No.29 of 2012 by judgment dated 26.06.2012 after they pleaded guilty. Hence, their negligence started from the fact that they supplied gas for which they had no license and that apart, they filled up the cylinder with N2O which was supposed to be filled up only with O2. Accordingly, the learned counsel for the victim adopted the arguments of the learned Government Advocate and sought for the dismissal of these quash petitions.
9. This Court has carefully considered the submissions made on either side and the materials available on record.
10. It is an unfortunate case where the wife of the victim was admitted in the Government Medical College Hospital to undergo 10/20 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.16026 of 2018, 1221 and 4115 of 2020 abortion and vasectomy and instead of administering O2, she was administered with N2O, as a result of which, she suffered physically and mentally for a total period of 411 days in various hospitals and died on 04.05.2012 at Christian Medical College Hospital, Vellore. The death has taken place only due to the negligence and the said issue was gone into in detail by this Court in W.P.(MD) No.4301 of 2013 which was a writ petition filed by the victim seeking for payment of compensation by the State and this Court categorically found that the death has taken place only due to the gross negligence and the State is vicariously liable and accordingly, a total compensation of Rs.28,37,000/- was ordered with interest at the rate of 9% per annum by order dated 01.09.2016. In view of the same, it is not necessary for this Court to determine as to whether the death was caused due to negligence and it will suffice to take note of the order passed in the writ petition for this purpose.
11. The next issue is as to whether the petitioners (A1 to A5 and A12) must be made to undergo trial in this case based on the materials collected by the prosecution.
11/20 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.16026 of 2018, 1221 and 4115 of 2020
12. This Court after hearing the counsel on either side wanted to physically verify the cylinder No.287717 in order to see if it was labelled as O2. Accordingly, this Court directed the learned Principal District Judge, Kanyakumari at Nagercoil, to verify and submit the report along with the photographs. On verification, it is clearly seen that the cylinder contained “O2” sign in the neck of the cylinder. As per the relevant Rules provided by Indian Standard for Colour Identification of Gas Cylinders and related Equipment, the cylinder to be filled up with O2 must be painted with black colour in the body and at the valve end, it must be white. Insofar as N2O is concerned, the cylinder must be painted with blue colour in the body and it must be painted with blue colour in the valve also. The enquiry report dated 09.04.2011 that has been placed before this Court that has been given by the enquiry committee shows that the cylinder No.287717 had a pale white colour in the neck and rusted black colour in the body. Presently, the cylinder is looking rusted without any proper indication of its colour.
13. It is quite curious to note that the Assistant Chemical Examiner of Forensic Sciences Department, Chennai, has given a report 12/20 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.16026 of 2018, 1221 and 4115 of 2020 dated 25.03.2011 stating that the cylinder No.287717 was labelled as N2O cylinder. It is thus clear that there was gross negligence both on the part of the hospital as well as the gas suppliers in not caring to give that cylinder a proper indication as to whether it is a cylinder which is supposed to be filled up with O2 or with N2O.
14. On carefully reading the statements of the various witnesses and the materials collected by the police, it is quite clear that there is a blame game between the gas suppliers and the hospital. Each is blaming the other and there are contradicting statements where at one stage it reads as if the cylinder was repeatedly filled with N2O even earlier and whereas, it also contained the label O2 in the neck of the cylinder.
15. The fact remains that A1 to A5 did not have a valid license during the relevant point of time and as a result, they were prosecuted for offences under the Drugs and Cosmetics Act, 1940 in C.C.No.29 of 2012 and they pleaded guilty and accordingly, they were sentenced to payment of fine. This order is a prima facie material to 13/20 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.16026 of 2018, 1221 and 4115 of 2020 show that they were filling gas without a proper license and the hospital was engaging the services of gas suppliers who did not have a license and hence, both of them must be held liable for the supply and filling up of gas and using that cylinder in the process of operation.
16. The statements recorded from the witnesses under Section 161(3) of Cr.P.C., blames both the suppliers as well as the hospital authorities. Who exactly was responsible for filling up the cylinder with N2O which was supposed to be filled up with O2, is a matter of evidence and it cannot be decided in a quash petition since the Court is not expected to conduct a mini trial in a quash petition.
17. Insofar as A12 is concerned, he is the anesthetist who claims that he administered gas from the concerned cylinder thinking that it was filled with O2 and that A12 was not aware that it was filled up with N2O. It was brought to the notice of this Court that the valve system for a cylinder with O2 and a cylinder with N2O are completely different and even that has been not noticed by A12 while administering anesthesia.
14/20 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.16026 of 2018, 1221 and 4115 of 2020
18. This Court has already held that without any doubt, the death of the patient had taken place only due to gross negligence. It is true that the Apex Court in Jacob Mathews case has held that the Court should be circumspect before instituting criminal proceedings against the medical professional, more particularly, in a case where the medical professional has exercised due care at the time of performing his duty. If a medical professional has the requisite skill and has undertaken the task entrusted to him with reasonable care, he should not be held liable for any consequence. At paragraph No.48 of the judgment, the Apex Court had summed up the conclusions which are required to be followed in cases involving medical negligence. The Apex Court has imported the bolam test for determining medical negligence. The Apex Court has also held that res ipsa loquitur has a very limited application while dealing with criminal negligence and it cannot be pressed into service for determining per se the liability for negligence within the domain of criminal law.
15/20 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.16026 of 2018, 1221 and 4115 of 2020
19. It must be kept in mind that the above judgment of the Apex Court should not be misunderstood so as to hold that Doctors can never be prosecuted for an offence which involves rashness or gross negligence. The judgment of the Apex Court in issuing guidelines was only to ensure that frivolous or unjust prosecution is not launched against Doctors. This Court must also keep in mind that the case in hand is only at the stage of framing of charges and this Court must only find if there are prima facie materials sufficient to frame charges. It is not necessary for this Court to examine and assess the materials in detail. The law on this issue is too well settled and this Court is not inclined to burden this order by citing all the precedents in this regard.
20. The patients are subjecting themselves to the Doctors believing that they would do everything in their command to save their life. Hence, there is an utmost responsibility and commitment which is required on the part of the Doctor. This is more so, in the case of an anesthetist since the wrong administering of anesthesia can virtually cause not only physical damage but also mental complications. In the case in hand, the deceased has suffered for nearly 411 days and the death 16/20 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.16026 of 2018, 1221 and 4115 of 2020 has been caused only due to the gross negligence. On whose part the negligence lies is a matter to be decided only in the course of trial and this Court cannot decide the same in these quash petitions.
21. This Court is not consciously rendering any findings on the merits of the case since it will have more serious impact on the accused persons before the trial Court while defending themselves before the Court below. This Court holds that there are prima facie materials sufficient to frame charges against the accused persons and this Court does not find any ground to interfere with the proceedings in exercise of its jurisdiction under Section 482 of Cr.P.C. It is left open to the parties to raise all the defense before the trial Court and the same will be considered on its own merits and in accordance with law. If any observations have been made by this Court in this order, it will have no bearing on the trial Court and the trial court is expected to apply its mind independently while deciding the case.
22. In the result, all these Criminal Original Petitions are dismissed and there shall be a direction to the learned Additional 17/20 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.16026 of 2018, 1221 and 4115 of 2020 Sessions Judge, Kanyakumari at Nagercoil, to dispose of S.C.No.191 of 2015 within a period of six months from the date of receipt of a copy of this order. The trial shall be conducted on a day to day basis in accordance with the guidelines given by Hon'ble Supreme Court reported in Vinod Kumar Vs State of Punjab [2015 (1) MLJ (Crl) 288 SC]. If the petitioners adopt any dilatory tactics, it is open to the trial Court to insist upon the presence of the petitioners and remand them to custody as per the judgment of the Hon'ble Supreme Court in State of Uttar Pradesh v. Shambhu Nath Singh (JT 2001 (4) SC 3191).
07.01.2025
NCC : Yes
Index : Yes
Internet : Yes
PKN
18/20
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)Nos.16026 of 2018, 1221 and 4115 of 2020 To
1.The Additional Sessions Judge, Kanyakumari District at Nagercoil.
2.The Inspector of Police, Asaripallam Police Station, Kanniyakumari District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
19/20 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)Nos.16026 of 2018, 1221 and 4115 of 2020 N.ANAND VENKATESH,J.
PKN Crl.O.P.(MD)Nos.16026 of 2018, 1221 and 4115 of 2020 Dated: 07.01.2025 20/20 https://www.mhc.tn.gov.in/judis