Karnataka High Court
Sri. R.L.Jalappa vs State Of Karnataka on 16 August, 2023
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NC: 2023:KHC:28880
WP No. 41763 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
WRIT PETITION NO. 41763 OF 2016 (GM-RES)
BETWEEN:
1. SRI. R.L. JALAPPA,
AGED ABOUT 90 YEARS,
CHAIRMAN,
SRI. DEVRAJ URS ACADEMY OF
HIGHER EDUCATION AND RESEARCH,
TAMAKA, KOLAR - 563 101.
(DIED).
2. SRI. G. H. NAGRAJ,
AGED ABOUT 70 YEARS,
SECRETARY,
SRI. DEVRAJ URS ACADEMY OF
HIGHER EDUCATION AND RESEARCH,
Digitally TAMAKA, KOLAR - 563 101.
signed by
SUMA
Location:
HIGH 3. DR. SRIRAMULU,
COURT OF
KARNATAKA PROFESSOR,
AGED ABOUT 46 YEARS,
DEPT. OF SURGERY,
R.L. JALAPPA HOSPITAL AND RESEARCH CENTER,
TAMAKA,
KOLAR - 563 101.
4. DR. AMBRESH R.,
MBBS, DCH, SENIOR RESIDENT,
AGED ABOUT 48 YEARS,
DEPT. OF PAEDIATRICS,
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NC: 2023:KHC:28880
WP No. 41763 of 2016
R.L. JALAPPA HOSPITAL AND RESEARCH CENTER,
TAMAKA,
KOLAR - 563 101.
...PETITIONERS
(BY SRI. N.C.MOHAN., ADVOCATE)
AND:
1. STATE OF KARNATAKA,
REPRESENTED BY STATION HOUSE OFFICER,
KOLAR POLICE STATION,
KOLAR - 563 101.
2. SMT. H. B. HEMAVATHI,
W/O. SRI. CHANDRAPPA,
JAYAMANGALA VILLAGE,
BANGARUPET TALUK,
KOLAR - 563 101.
...RESPONDENTS
(BY SRI. RAJAT SUBRAMANYAM., HCGP FOR R-1;
SRI. M. NARAYANAPPA., ADVOCATE FOR R-2 (ABSENT))
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF
THE CRIMINAL PROCEDURE CODE PRAYING TO CALL FOR THE
RECORDS IN C.C.NO.286/2016 ARISING OUT OF PCR
NO.599/2014 PENDING ON THE FILES OF THE I ADDL. CITY
CIVIL JUDGE AND J.M.F.C KOLAR AND ETC.,
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
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NC: 2023:KHC:28880
WP No. 41763 of 2016
ORDER
The petitioners are aggrieved by the order dated 18.08.2016 passed by the I Additional Civil Judge and JMFC, Kolar, (henceforth referred to as 'Trial Court') taking cognizance of an offence punishable under Sections 269, 284, 287, 320, 322, 324, 338, 491, 24, 25, 107 of the Indian Penal Code, 1860 ('the IPC' for short) and registering CC.No.286/2016 for the aforesaid offences.
2. Respondent No.2 filed a private complaint alleging that her daughter was taken to R.J.Jalappa Hospital on 09.09.2013 with a history of fever and epilepsy. She alleged that the doctors at the hospital administered medicines and that the left upper limb of her daughter turned cold and turned bluish. She alleged that the doctors at R.J.Jalappa Hospital advised her to take her daughter to NIMHANS in Bangalore and at NIMHANS she was advised to take her daughter to Indira Gandhi Institute of Child Health. From there she was shifted to Bhagwan Mahaveer Jain Hospital, where her upper limb was amputated to arrest further worsening of her condition. She alleged that doctors at R.J.Jalappa Hospital were negligent, which resulted in amputation of her left upper limb. The Trial -4- NC: 2023:KHC:28880 WP No. 41763 of 2016 Court without recording the sworn statement of respondent No.2, took cognizance of the offences and thereafter posted the case for recording the sworn statement of the complainant/respondent No.2. Later, the Trial Court recorded the sworn statement of respondent No.2 and then took cognizance of the offences punishable under Sections 269, 284, 287, 320, 322, 324, 338, 491, 24, 25, 107 of the IPC and issued process to the accused and registered CC.No.286/2016. The petitioners herein were arraigned as accused Nos.1, 2, 3 and 5.
3. The learned counsel for the petitioners submitted that the procedure adopted by the Trial Court is wholly irregular in as much as, the Trial Court could not have taken cognizance without recording the pre-summons evidence of respondent No.2. He further submits that the Trial Court thereafter took cognizance without obtaining medical opinion from a competent doctor, as mandated by the Apex Court in the case of JACOB MATHEW VS. STATE OF PUNJAB AND ANR reported in (2005) 6 SCC 1. He therefore, contended that the cognizance of the offences taken by the Trial Court warrants interference. -5-
NC: 2023:KHC:28880 WP No. 41763 of 2016
4. Per contra, the learned counsel for respondent No.2 submits that the Court had applied its mind to the sworn statement of the complainant and after perusing the medical records, took cognizance and therefore, this Court may not interfere with the order taking cognizance and issuing process to the accused.
5. At first look at the allegations made in the private complaint does indicate there is some amount of medical negligence in treating the daughter of respondent No.2. However, the Trial Court which did not have the expertise to verify whether the treatment administered to the daughter of respondent No.2 was the standard medical practice or not, it could not have taken cognizance. The best course that must have been adopted by the Trial Court was to refer the patient for examination before a medical board and after taking a medical opinion, it could proceed further to either take cognizance or refer the case to the jurisdictional police station for investigation to file a final report. This is also the law declared by the Apex Court in the case of JACOB MATHEW VS. STATE OF PUNJAB AND ANR (supra) where the Apex -6- NC: 2023:KHC:28880 WP No. 41763 of 2016 Court considered the case of negligence by a medical professional and held as follows:
" A mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence. So also an error of judgment on the part of a professional is not negligence per se. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person incharge of the patient if the patient is not be in a position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure."
6. Therefore, in the fitness of things, it is appropriate to direct the Trial Court to first take a report from a qualified medical professional such as Medical Board at the General Hospital, Kolar and thereafter proceed in accordance with law. This will also meet the ends of justice, as the defence if any of the petitioners could be considered by such Board and this -7- NC: 2023:KHC:28880 WP No. 41763 of 2016 would also avoid unnecessary prosecution of medical professionals.
7. In that view of the matter, this petition is allowed-in-part and the order dated 18.08.2016 passed by the Trial Court taking cognizance and registering CC.No.286/2016 is set aside and the case is remitted back to the Trial Court with a direction to refer the daughter of respondent No.2 to a Medical Board at General Hospital, Kolar and after obtaining the report of such Medical Board, the Trial Court may proceed further to either take cognizance or to refer the matter under Section 156(3) of Cr.P.C to the jurisdictional police for securing the other accused and to file a final report in accordance with law.
The Trial Court shall expedite the process at the earliest.
Sd/-
JUDGE PK CT:STK