Madras High Court
Dr.Issaac Abraham Roy vs State Rep. By on 24 March, 2021
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
Crl.O.P.No.7382 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On : 14.06.2022
Delivered On : 05.08.2022
CORAM:
THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
Crl.O.P.No.7382 of 2021
and
Crl.M.P.Nos.4910 and 12752 of 2021
Dr.Issaac Abraham Roy ... Petitioner/Accused
-vs-
1.State rep. by
Inspector of Police,
South Crime Police Station,
Vellore – 632 001. ... 1st Respondent/Complainant
2.B.Jaisankar ... 2nd Respondent/De-facto Complainant
PRAYER: Criminal Original Petition has been filed under Section 482 of
Cr.P.C, praying to call for records in Crime No.38 of 2021, dated
24.03.2021 on the file of the first Respondent, the Inspector of Police, South
Crime Police Station, Vellore – 632 001 and quash the same.
For Petitioners : Mr.C.Manishankar
Senior Counsel
for Mr.K.Krishnamoorthy
For Respondent 1 : Mr.L.Baskaran
Government Advocate (Crl. Side)
For Respondent 2 : Mr.V.Prakash
Senior Counsel
for Mr.K.Krishnamoorthy
1/22
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.7382 of 2021
ORDER
This Criminal Original Petition had been filed seeking to quash the proceedings in Crime No.38 of 2021, dated 24.03.2021 on the file of the first Respondent, the Inspector of Police, South Crime Police Station, Vellore – 632 001.
2.Mr.Manishankar, learned Senior Counsel appearing on behalf of the Petitioner submitted his arguments. It is the submission of the learned Senior Counsel for the Petitioner that the Petitioner herein is a Doctor attached to Dr.Agarwal Eye Hospital, Vellore. He is an experienced Ophthalmic Surgeon having performed eye surgeries for a period of more than ten years. The second Respondent is a practicing Lawyer in Vellore. It is further contended that the second Respondent underwent an eye surgery, conducted by the Petitioner and thereafter, he was discharged from the hospital, on the day itself. While discharging, a detailed summary containing the treatment given/surgery done and the lens fixed on the second Respondent had been clearly mentioned. The second Respondent gave a complaint before the Tamil Nadu Medical Council also and the Petitioner 2/22 https://www.mhc.tn.gov.in/judis Crl.O.P.No.7382 of 2021 received a notice dated 09.03.2020, asking him to give his reply. Accordingly, the Petitioner replied to the same. It was analysed by the medical experts and thereafter no action was taken on the complaint lodged by the second Respondent. Meanwhile, the second Respondent filed a petition under Section 156(3) Cr.P.C., for registration of FIR. Against which, the learned Chief Judicial Magistrate No.I, Vellore, directed the first Respondent to register the FIR. Thereafter, he lodged a complaint before the first Respondent and it was registered for the offence under Section 337 and 420 IPC in Crime No.38 of 2021, which is still pending. The first Respondent police had enquired Government Doctor and registered his opinion, wherein the Government Doctor clearly stated that the surgery has been performed in a proper and correct manner and there is no possibility of decrease in vision quality. He further opined that the lens implanted on the second Respondent is of the make of Indian Supra Phob and it is evident from the discharge summary. Further, the Petitioner placing reliance on the case of Jacob Mathew Vs. State of Punjab reported in [(2005) 6 SCC 1] and followed it by other cases of this Court and Apex Court, wherein it has been clearly held that the medical practitioners cannot be harassed by filing 3/22 https://www.mhc.tn.gov.in/judis Crl.O.P.No.7382 of 2021 complaints without proper materials and without getting any expert's opinion. In the case on hand, the Government Doctor has clearly opined that nothing wrong in the surgery and the lens implanted is of specification Indian Supra Phob and it is found in the discharge summary. The learned counsel for the Petitioner would also submit that the second Respondent is not a illiterate person and he is an Advocate by profession and that he has been filed this complaint with an ulterior motive.
3.After proper medical check up and prior to performance of surgery the second Respondent/De-facto Complainant was subjected to medical test and only after advising him regarding the outcome of surgery and the risk involved, the Petitioner proceeded with Cataract Surgery. The Petitioner was in-patient and after surgery, he was discharged after the test. It is the complaint of the second Respondent that after the surgery, he was unable to see. There had been exchange of messages regarding the eye sight of the second Respondent/De-facto Complainant and the Petitioner through whatsapp. It is his complaint that due to medical negligence committed by the Petitioner herein, the second Respondent/De-facto Complainant had lost 4/22 https://www.mhc.tn.gov.in/judis Crl.O.P.No.7382 of 2021 his vision on his eyes. He had preferred a complaint before the Court of the learned Chief Judicial Magistrate, Vellore, based on which FIR was registered in Crime No.13 of 2021 and based on the registration of FIR, the Investigation Officer proceeded with the investigation.
4.As per the standing instructions regarding offences alleged against the professionals, particularly, in this case regarding loss of eye sight, the Investigation Officer had to get an opinion from a specialist in a Government Hospital in a particular branch. Accordingly, they had taken opinion from Government Ophthalmic Surgeon attached to the Government Medical College, Vellore. On furnishing the medical records of the second Respondent/De-facto Complainant, the Ophthalmic Surgeon attached to the Government Medical College, Vellore had given his opinion stating that due procedures had been followed by the Petitioner in performing the Cataract Surgery on the second Respondent/De-facto Complainant, nothing is found to arrive at a conclusion that there had been medical negligence, that resulted in the second Respondent/De-facto Complainant losing his eye sight. Therefore, the Investigation Officer had filed a closure report before 5/22 https://www.mhc.tn.gov.in/judis Crl.O.P.No.7382 of 2021 the Court of the learned Chief Judicial Magistrate, Vellore.
5.The second Respondent/De-facto Complainant, who is a practicing Lawyer, had filed a protest petition, based on which, the learned Chief Judicial Magistrate, Vellore, had rejected the closure report and ordered investigation. It is the submission of the learned Senior Counsel for the Petitioner that the second Respondent/De-facto Complainant had also filed a complaint against the professional negligence before the Medical Council of Tamil Nadu.
6.The Medical Council of Tamil Nadu had also conducted enquiry and they had issued show cause notice to the Petitioner. The Petitioner had sent his reply with all relevant materials. Therefore, the Committee of Experts in the Medical Council of Tamil Nadu which had conducted the enquiry found that there was no medical negligence involved in the performance of eye surgery on the second Respondent/De-facto Complainant. Therefore, the enquiry against the Petitioner was closed. The second Respondent/De-facto Complainant, who is a practicing Lawyer, is 6/22 https://www.mhc.tn.gov.in/judis Crl.O.P.No.7382 of 2021 not an illiterate. It is his submission that instead implanting an imported lens, the Petitioner herein had fixed a lens manufactured in India which had caused him loss of vision. Had the Petitioner implanted an imported lens, the second Respondent/De-facto Complainant might not have suffered blindness – loss of vision. The second Respondent/De-facto Complainant had spent a sum of Rs.40,000/- for the cataract surgery and the cataract surgery had been a failure. As a result, he had lost his vision. Not only that he lost vision, he had lost his livelihood also. Therefore, it is his contention that the complaint herein is a weapon to harass the Petitioner for extracting money. It is the submission of the learned Senior Counsel for the Petitioner that the complaint preferred by the second Respondent/De-facto Complainant with the learned Chief Judicial Magistrate, Vellore was registered as an FIR and investigation was ordered and in the investigation, the Investigation Officer had followed due procedure regarding the professional work of Senior Specialist. Accordingly, they have obtained opinion from the Ophthalmic Surgeon of Government Medical College Hospital, Vellore, as per the Standing Operating Procedures based on which he had closed the investigation. A similar complaint lodged by the second 7/22 https://www.mhc.tn.gov.in/judis Crl.O.P.No.7382 of 2021 Respondent/De-facto Complainant with the Medical Council of Tamil Nadu was also closed after due enquiry. However, as an after-thought, the second Respondent/De-facto Complainant had come with a new allegation that instead of an imported lens, the Petitioner had implanted an Indian made lens which had caused loss of vision and also loss of livelihood for the second Respondent/De-facto Complainant, who is a practicing Lawyer at Vellore.
7.The learned Senior Counsel for the Petitioner invited the attention of this Court to the documents furnished as typed set along with this Petition viz., 1) Out-Patient Department summary, 2) Scan Report of the second Respondent/De-facto Complainant, 3) Notes of the Physician, 4) Consent for HIV Test, 5) Investigation Report about the health of the second Respondent/De-facto Complainant, 6) Echocardiogram Test done at Muhil Heart Centre done on the second Respondent/De-facto Complainant, 7) Eye Test Report done on the second Respondent/De-facto Complainant, 8) Out- Patient Department Summary taken after the surgery, 9) Initial Patient Assessment, 10) Consent for guarded visual prognosis, 11) Patient Consent 8/22 https://www.mhc.tn.gov.in/judis Crl.O.P.No.7382 of 2021 Form, 12) Consent for operation – Cataract surgery with/withou implantation of intraocular lens, 13) Consent for local anesthesia service, 14) Local Anesthesia Assessment, 15) Intra operative assessment, 16) Surgical safety checklist, 17) Operation Theatre Top Sheet, 18) Operation Notes, 19) Operative Summary 20) Criteria for discharging patients from recovery area,
21) Discharge Summary, 22 to 28) Out-Patient Department Summary from 10.10.2019 to 29.11.2019, 29) Legal Notice issued on behalf of the second Respondent/De-facto Complainant dated 14.12.2019, 30) Interim reply by the Petitioner dated 28.12.2019, 31) Reply notice issued by the Hospital dated 14.01.2020, 32) Copy of complaint given by the second Respondent/De-facto Complainant to the Tamil Nadu Medical Council, dated 02.03.2020, 33) Notice issued by the Tamil Nadu Medical Council to the Petitioner, dated 09.03.2020, 34) Reply sent by the Petitioner to the notice issued by the Tamil Nadu Medical Council, 35) Copy of the Consumer Complaint filed by the second Respondent/De-facto Complainant before the State Consumer Disputes Redressal Commission at Chennai in C.C.No.19 of 2020, dated 11.03.2020, 36) Copy of the FIR in Crime No.38 of 2019 and 37) Summons issued under Section 91 of Cr.P.C. by the first 9/22 https://www.mhc.tn.gov.in/judis Crl.O.P.No.7382 of 2021 Respondent Police to the Petitioner along with typed copy, dated 26.03.2021.
8.The learned Senior Counsel for the Petitioner invited attention of this Court to all these medical records wherein it had been clearly mentioned that no such allegation regarding medical negligence and that the Petitioner herein had instead of implainting imported lens, implanted Indian manufactured lens which had caused loss of vision to the second Respondent/De-facto Complainant. The said complaint had not at all been stated any where. Therefore, the submission of the learned Senior Counsel for the Petitioner that in spite of the complaint preferred through Court of the learned Chief Judicial Magistrate having been closed based on the expert opinion of the Government Doctor and the complaint of the second Respondent/De-facto Complainant to the Professional Body vis., Medical Council of Tamil Nadu, which was also duly enquired and the complaint was found to be without any basis. Therefore, it was closed. The second Respondent/De-facto Complainant having approached the Consumer Forum also could not succeed. Therefore, this complaint to the learned Chief 10/22 https://www.mhc.tn.gov.in/judis Crl.O.P.No.7382 of 2021 Judicial Magistrate, Vellore, which was registered as FIR on the basis of the direction issued by the learned Chief Judicial Magistrate, Vellore and the investigation having been closed, the second Respondent/De-facto Complainant having been filed Protest Petition had proceeded with the investigation only to extract money from the Petitioner. Therefore, it is the submission of the learned Counsel for the Petitioner that it is nothing but an exercise by the second Respondent/De-facto Complainant as an abuse of process of Court to cause harassment to the Petitioner. Therefore, he had approached this Court under Section 482 of Cr.P.C. to quash the FIR in Crime No.38 of 2021 on the file of the first Respondent.
9.In support of his submission, the learned Senior Counsel appearing for the Petitioner relied on the following rulings of the Hon’ble Supreme Court:
9.1.In the case of Jacob Mathew -vs- State of Punjab and Another reported in (2005) 6 SCC 1 wherein this Court had observed as under:
“48.We sum up our conclusions as under:-
(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or 11/22 https://www.mhc.tn.gov.in/judis Crl.O.P.No.7382 of 2021 doing something which a prudent and reasonable man would not do.
The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'. (2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.
(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of 12/22 https://www.mhc.tn.gov.in/judis Crl.O.P.No.7382 of 2021 expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. (4) The test for determining medical negligence as laid down in Bolam's case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India.
(5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution. (6) The word 'gross' has not been used in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be 'gross'. The expression 'rash or negligent act' as occurring in Section 304A of the IPC has to be read as qualified by the word 'grossly'.
(7) To prosecute a medical professional for negligence under criminal law 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 hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.
(8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.” 9.2.In the case of Dr.N.Rangabashyam -vs- Zeenath Begaum 13/22 https://www.mhc.tn.gov.in/judis Crl.O.P.No.7382 of 2021 reported in (2009) 1 LW (Cri) 223 wherein this Court had observed as under:
“9. At the outset, it is to be stated that if the allegations contained in the complaint to be taken in its entirety to be true, no offence made out much less the offence of cheating or criminal breach of trust. The allegation contained in the complaint is to the effect that the petitioner made a representation to the respondent/complainant that her illness would be cured fully is absurd. The contents of the impugned complaint discloses that the respondent underwent treatment on her own, willingly and voluntarily as the respondent/complainant was referred by another leading Doctor to the petitioner for the specialized treatment, in view of the complication of the illness. This Court is of the considered view that only in extreme and rarest of rare cases where there is gross negligence, recklessness, inaction and indifferent attitude shown towards the patient during treatment may attract the criminal action. It is needless to state that medical profession is a noble profession as they are rendering their uninterrupted service to the humanity round the clock during the day and night. But, unfortunately there is undesirable and unhealthy trend prevailing nowadays to drag the medical experts in both civil and criminal cases for the reasons best known to the concerned persons. This Court is constrained to state that the devoted and dedicated service of medical experts in different fields should not be hampered with by initiating unnecessary and unwarranted vexatious and frivolous cases both criminal and civil.
10. The Hon'ble Apex Court has held in Dr.Suresh Gupta Vs. Govt of N.C.T. Of Delhi and Another reported in 2004 (5) Supreme 604 that, "For fixing criminal liability on a doctor or surgeon, the standard of negligence required to be proved should be so high as can be described as "gross negligence" or "recklessness". It is not merely lack of necessary care, attention and skill.
Thus, when a patient agrees to got for medical treatment or surgical operation, every careless act of the medical man cannot be termed as 'criminal'. It can be termed 'criminal' only when the medical man exhibits a gross lack of competence or inaction and wanton indifference to his patient's safety and which is found to have arisen from gross ignorance of gross negligence."
11. In yet another decision in Jacob Mathew Vs State of Punjab and another reported in (2005) 6 SCC 1, the Hon'ble Apex Court has held that, 14/22 https://www.mhc.tn.gov.in/judis Crl.O.P.No.7382 of 2021 "Indiscriminate prosecution of medical professionals for criminal negligence is counter-productive and does no service or good to society. A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out case of negligence before a medical practitioner is charged with or proceeded against criminally. A surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient. If the hands be trembling with the dangling fear of facing a criminal prosecution in the event of failure for whatever reason-whether attributable to himself or not, neither can a surgeon successfully wield his life-saving scalpel to perform an essential surgery, nor can a physician successfully administer the life-saving dose of medicine."
12. In the same decision, the Hon'ble Apex Court has laid down the following guidelines :
Guidelines for prosecuting medical professionals for criminal negligence:
The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to a rash or negligent act within the domain of criminal law under Section 304-A IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharges but the loss which he has suffered to his reputation cannot be compensated by any standards. Many a complainant prefer recourse to criminal process as a tool for pressurising the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have be to guarded against. The service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions.
Statutory rules or executive instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Government in consultation with the Medical Council of India. So long as it is not done, the following guidelines will be in force which shall govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court 15/22 https://www.mhc.tn.gov.in/judis Crl.O.P.No.7382 of 2021 in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service, qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying the Boam test, (1957) 2 All ER 118, at p. 121 D-F (set out in para 19 herein) to the facts collected in the investigation. (Emphasis made by this Court)"
13. The above well settled principles of law laid down by the Hon'ble Apex Court in the decisions cited supra are squarely applicable to the facts of the instant case as in this case also the impugned complaint was entertained by the learned Magistrate in spite of the non-production of prima facie materials in the form of a credible opinion given by another competent Doctor qualified in that particular branch to substantiate the allegations and in the decision cited supra the Hon'ble Apex Court has held that without such opinion, a private complaint may not be entertained and as such the impugned complaint is liable to be quashed on this ground alone.
14. The Hon'ble Apex Court in a landmark decision in State of Haryana V. Bhajan Lal reported in 1992 Supp. (1) SCC 335 has laid down the following guidelines for quashing:
(1)Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2)Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3)Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4)Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5)Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever 16/22 https://www.mhc.tn.gov.in/judis Crl.O.P.No.7382 of 2021 reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6)Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7)Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
15.In the above said guidelines, guidelines Nos.1 and 5 are squarely applicable to the facts of the instant case, as stated above, as in this case also even if the entire allegations contained in the impugned complaint taken in its face value, no offence made out much less the offence of cheating or criminal breach of trust and it is further so absurd and inherently improbable for the petitioner to give assurance to the respondent/complainant to fully cure her illness in view of admitted averment contained in the complaint that the respondent/complainant was referred to the petitioner by another leading Surgeon from the Mofussil due to the complication of her illness.”
10.In the light of the above two rulings, the learned Senior Counsel for the Petitioner Mr.C.Manishankar sought the discretion of this Court under Section 482 of Cr.P.C. to quash the FIR in Crime No.38 of 2021 on the file of the first Respondent, as an abuse of process of Court.
11.The learned Senior Counsel appearing for the second Respondent/De-facto Complainant Thiru.V.Prakash submitted that the second Respondent/De-facto Complainant is not an ordinary illiterate 17/22 https://www.mhc.tn.gov.in/judis Crl.O.P.No.7382 of 2021 person. He had raised the issue of medical negligence at the initial stage itself after the surgery when he suspected that he had lost vision. The Petitioner herein had advised the Second Respondent for implanting of imported lens. Therefore, the second Respondent/De-facto Complainant admitted for surgery instead of implanting an imported lens for reasons best known to the Petitioner, the second Respondent/De-facto Complainant was implanted with local made lens which had caused irritation and loss of vision, medical negligence can be proved only through evidence available before the trial Court and this Court exercising discretion under Section 482 of Cr.P.C. cannot consider the same and quash the FIR at this stage. What are all raised by the Petitioner can be treated as valuable defence of the Petitioner before the trial Court. For the present, the second Respondent’s/De-facto Complainant’s protest petition having been allowed by the learned Chief Judicial Magistrate, Vellore, the Investigation shall be allowed to reach its logical conclusion.
12.The learned Government Advocate (Crl. Side) for the first Respondent vehemently objected the submission of the learned Senior Counsel for the Petitioner and submitted that the investigation is still 18/22 https://www.mhc.tn.gov.in/judis Crl.O.P.No.7382 of 2021 pending and investigation has to reach its logical conclusion and this Court exercising powers under Section 482 of Cr.P.C. cannot quash the FIR. Therefore, this Petition may be dismissed as not maintainable.
13.On consideration of the rival submissions, the documents filed along with this Petition and specifically the opinion given by the Ophthalmic Surgeon of the Government Medical College Hospital, Vellor that there was no medical negligence and due procedure had been followed in this case and also the report of the Enquiry Committee under the Medical Council of Tamil Nadu wherein the complaint given by the second Respondent/De-facto Complainant was also closed accepting the explanation offered by the Petitioner in the light of the documents furnished by him. It has to be noted that the second Respondent is a diabetic and the risk involved had been informed to him prior to the surgery as found from the records available in the typed set of papers which had been discussed earlier in Paragraph No.7, the submission of the learned Senior Counsel is found acceptable and reasonable. Therefore, when the professional body dealing with Doctors' negligence has found that there is no medical negligence involved and also 19/22 https://www.mhc.tn.gov.in/judis Crl.O.P.No.7382 of 2021 the consent letters by the second Respondent/De-facto Complainant before undergoing surgery, wherein risk has been explained to him, as he is a practicing Lawyer and not an illiterate, it can be safely concluded that the Doctor had already given warning regarding the outcome of the surgery and the risk involved.
14.The submission of the learned Senior Counsel for the second Respondent that the Petitioner had committed negligence by not fixing imported lens as per the advice given to the second Respondent and implanted available material i.e., the lens made in India, there is no expert opinion from competent Ophthalmic Surgeon that the second Respondent/De-facto Complainant had suffered loss of vision only because of not implanting imported lens. In the absence of such materials, the vehement objection of the learned Senior Counsel Mr.V.Prakash to the line of arguments of the learned Senior Counsel for the Petitioner Mr.C.Manishankar to quash the FIR cannot be accepted in the light of the records furnished along with this Petition.
20/22 https://www.mhc.tn.gov.in/judis Crl.O.P.No.7382 of 2021
15.Further, on perusal of the rulings cited by the learned Senior Counsel for the Petitioner in the cases of Jacob Mathew -vs- State of Punjab and Another reported in (2005) 6 SCC 1 and in the case of Dr.N.Rangabashyam -vs- Zeenath Begaum reported in (2009) 1 LW (Cri) 223, the facts of the above cases are squarely applicable to this case and in the light of the the decision of the Hon'ble Supreme Court in the case of State of Haryana -vs- Bhajan Lal reported in 1992 Suppl.(1) SCC 335, the FIR in Crime No.38 of 2021 is liable to be quashed.
In the result, this Criminal Original Petition is allowed. The FIR in Crime No.38 of 2021 on the file of the first Respondent/Inspector of Police, Vellore South Crime Police Station, Vellore – 632 001 is quashed. Consequently, the connected miscellaneous petitions are closed.
05.08.2022 SRM Index : Yes / No Internet : Yes / No SATHI KUMAR SUKUMARA KURUP., J.
SRM 21/22 https://www.mhc.tn.gov.in/judis Crl.O.P.No.7382 of 2021 To
1.The Inspector of Police, South Crime Police Station, Vellore – 632 001
2.The Public Prosecutor, High Court, Madras.
Order made in Crl.O.P.No.7382 of 2021 05.08.2022 22/22 https://www.mhc.tn.gov.in/judis