Madras High Court
N.Kulasekaran vs Dr.Iyyappan on 28 February, 2023
Author: G.Ilangovan
Bench: G.Ilangovan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 28/02/2023
CORAM
The Hon'ble Mr.Justice G.ILANGOVAN
Crl.RC(MD)No.519 of 2021
N.Kulasekaran : Petitioner/Complainant
Vs.
1.Dr.Iyyappan
2.Dr.Nallathambi
3.M.Namachivayam
4.N.Kulalvaimozhi : Respondents/Respondents
Prayer:- This Criminal Revision Petition has been
filed under section 397 r/w 401 of the Criminal Procedure
Code, to call for the records of the order passed in
Cr.MP No.248 of 2014, dated 12/03/2020 by the Judicial
Magistrate No.1, Tirunelveli and set aside the same.
For Petitioner : Mr.N.Kulasekaran
(Party in person)
For 1st Respondent : Mr.R.Anand
For 2nd Respondent : No appearance
For R3 and R4 : Mr.R.J.Karthick
https://www.mhc.tn.gov.in/judis
2
O R D E R
This criminal revision has been filed seeking to set aside the order passed in Cr.MP No.248 of 2014, dated 12/03/2020 by the Judicial Magistrate No.1, Tirunelveli.
2.The facts in brief:-
The petitioner is the son of the respondents 3 and
4. The respondents 1 and 2 are the Doctors, who treated the petitioner for some ailments. Now the allegation on the part of the petitioner against the respondents is that he was not properly taken care by the parents and they were insulting and forcing him to work in the shop, which belongs to his father. But he wanted to pursue MCA decree, for which also the parents refused. Since they were forcing, he went to his relatives house in Bangalore and working in a Garment Factory. Even that was not liked by the parents, again he was driven from the relatives family. Later, he joined under graduation, that was also stopped by the parents. They were also compelled him to marry one Santhi stating that he is aged about 21 years. Again, he was chased away from the house, again, he went to his relative house in Bangalore. The father https://www.mhc.tn.gov.in/judis 3 came there along with rowdy elements and injected some medicine. When he regained his conscious, he came to know that he was admitted in Krishna Hospital, Tirunelveli. He was treated by a Psychiatrist. Whenever, he was making request with them to stop the medication, they used to give injections. In the very same set of dizzy, he was retained. Even when he was in a conscious state of mind, he was subjected to electric shock treatment and medication. Later, he was shifted to Thanvanthri Poly Clinic, Tirunelveli, where he was also treated by Dr.Balagurusamy and his son Iyyappan. In spite of the repeated pleadings, they continued the treatment. He was mentally and physically affected, because of the continuous wrong medication. Again, he was forced to marry stating that after the marriage, the above said treatment will be stopped. On 06/06/2008, he was married to one Muthukumari. But that also failed, because of non-cooperation of the wife. Now they separated through the court. Even after the marriage, he pleaded the parents to stop the treatment. But they never cared. After that, he came out of the house and stayed in a separate house. The parents were spreading false information that he was affected by mental illness. In https://www.mhc.tn.gov.in/judis 4 spite of the above said situation, he pursued B.L. and now practicing as an Advocate. Even though he was making allegation against the parents and the Doctors, no action was taken. Later, he obtained information through Right to Information Act regarding the complaint. He came to know that the enquiry was done with the first respondent namely Dr.Iyyappan and the father of the petitioner namely M.Namachivayam. But the statement that was recorded from them was suppressed. So because of the trouble, that has been made by the parents and the wrong treatment given by Doctors, who are the respondents 1 and 2 herein, they are liable to be punished for the offences under sections 328, 341 and 500 IPC and section 30 of the Protection of Human Rights Act and Regulations 6.6 and 7.5 of Indian Medical Council Professional Conduct Etiquette and Ethic Regulations 2002.
3.That was enquired by the Judicial Magistrate No.1, Tirunelveli, in Cr.M.P No.248 of 2014 and during the course of enquiry, it was found that the parents took care of the petitioner and performed their duty in order to safeguard the interest of the petitioner and the respondents 1 and 2 also treated the petitioner to save https://www.mhc.tn.gov.in/judis 5 him from the illness. Finding that no prima facie case has been made out, the above said petition was dismissed.
4.Against which, this criminal revision has been filed.
5.The petitioner is a practising Advocate and he also appeared as party in person before this court. Finding that it is an issue between the parents and son, the matter was referred to the Mediation and Conciliation Centre, attached to this Bench. Even though, some sort of objection was made by the petitioner, but however, some sort of compromise was reached between the parents and the petitioner. He wanted to abandon the prosecution against the parents. So far as the respondents 1 and 2 herein are concerned, he wanted to pursue the petition/ complaint.
6.He was also heard. The learned counsel appearing for the 1st respondent heard, in the presence learned counsel appearing for the parents. https://www.mhc.tn.gov.in/judis 6
7.Reading of the complaint shows that some sort of trouble arose right from the graduation of the petitioner. Absolutely, there is no reason much less any motive to subject this petitioner to unnecessary medication and treatment. He has set out some sort of facts in his marital life. But we are not concerned about that here, since only limited point is available for discussion, to find out whether any prima facie case has been made out against the respondents 1 and 2 to proceed. We need not go into the other details, which are personal in nature.
8.According to the petitioner, four witnesses have been examined on his side and five documents marked, which also corroborated his allegations and even his father has also admitted his expulsion from the house.
9.The respondents would submit that even during the course of enquiry, the Dean was summoned and he has given a clear statement with regard to the issue.
10.Records called from the trial court shows that one Dr.Ramanujam was examined on the side of the https://www.mhc.tn.gov.in/judis 7 petitioner and he has given details about the treatment, that can be given to a psychiatric patient. He has gone through the entire medical records of the petitioner.
11.From the records, he found that he was undergoing treatment for “Paranoid Schizophrenia” From his assessment, he could not say that the above said treatment was given without any proper ailment.
12.In the light of the above evidence, who is the expert on the field, now let us go to the allegation made by the petitioner.
13.As stated above, the allegation of the petitioner is that without proper ailment, he was subjected to the above said unnecessary medical treatment at the instance of his parents. Even the mother, who was examined on his side, has given a clear picture with regard to the conduct of the petitioner. She would say that he used to make quarrel even on trivial issues and used to get angry. So it seems to be the character of the petitioner.
https://www.mhc.tn.gov.in/judis 8
14.Now in the light of the above said, the question, which arises for consideration is whether any prima facie case is available to proceed against respondents 1 and 2, who are the Doctors. But in the light of the statement of the Doctor Ramanujam, no prima facie case is made out.
15.In this background, the judgment of the Hon'ble Supreme Court in the case of Jacob Mathew Vs. State of Panjab and others (AIR 2005 SCC 3180) is relevant for answering the issue. The relevant portion of the judgment would run like this:-
“53.Statutory Rules or
Executive Instructions incorporating
certain guidelines need to be framed
and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should 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 https://www.mhc.tn.gov.in/judis 9 the complainant has produced prima facie evidence before the Court 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 Bolam's test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.” https://www.mhc.tn.gov.in/judis 10
16.In the above said judgment, detailed guidelines have been given before prosecuting the medical practitioners. Even though relating to negligent aspect, the allegation of the petitioner is that they gave treatment without any ailment. Absolutely, I find no merit to connect the respondents 1 and 2 with the issue, that he was having with his parents.
17.Even on negligent aspect, the statement of Dr.Ramanujam is against the petitioner's case. None of the guidelines has been complied or attracted. So, I find no error or irregularity in dismissing the complaint by the trial court.
18.In the result, this criminal revision is dismissed.
28/02/2023 Index:Yes/No Internet:Yes/No er https://www.mhc.tn.gov.in/judis 11 To, The Judicial Magistrate No.1, Tirunelveli.
https://www.mhc.tn.gov.in/judis 12 G.ILANGOVAN,J er Crl.RC(MD)No.519 of 2021 28/02/2023 https://www.mhc.tn.gov.in/judis 13 https://www.mhc.tn.gov.in/judis