Madras High Court
P.K.Pounraj ... Revision vs Dr.S.Ranganathan on 4 February, 2022
Author: R.N.Manjula
Bench: R.N.Manjula
Crl.R.C.No.1022 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 24.01.2022
Pronounced on 04.02.2022
CORAM
THE HONOURABLE Ms.JUSTICE R.N.MANJULA
Crl.R.C.No.1022 of 2016
P.K.Pounraj ... Revision Petitioner /
Defacto complainant
Vs
1.Dr.S.Ranganathan
2.Dr.P.Poonkodi ... Respondents 1 & 2 /Accused
3. The State Rep. By
Inspector of Police,
B-1Police Station,
Dharmapuri .
[Crime No.1017 /2014] ... Respondent/Respondent/complainant
PRAYER: This Criminal Revision Case is filed under Section 397 r/w 401
Cr.P.C.,1973, to call for the records in C.C.No.46 of 2015 on the file of the
Chief Judicial Magistrate at Dharmapuri and set aside the order passed by
the Chief Judicial Magistrate at Dharmapuri in Crl.MP.No.412 of 2015 in
1/24
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1022 of 2016
C.C.No.46 of 2015 dated 27.04.2016 and thereby direct the Chief Judicial
Magistrate to frame charges as against the accused /Respondents 1 and 2 for
the offences punishable under sections 304(A), 201, 465, 468 and 471 IPC
in the above C.C.No.46 of 2015 and dispose the same in accordance with
law.
For Petitioner : Mr.S.Thirumavalavan
For Respondents : Mr.R.Jhon Sathyan for RR1 and 2
: Mr.A.Gopinath
Government Advocate (Crl.Side)
for R3
ORDER
This Criminal Revision Case has been preferred challenging the order of the learned Chief Judicial Magistrate, Dharmapuri dated 27.04.2016 made in Crl.MP.No.412 of 2015 in C.C.No.46/2015.
2. The facts of the case in brief are as follows:
The revision petitioner is the defacto complainant, on whose complaint a case was registered by the 3rd respondent police in Cr.No.1017/2014 of B1 Police Station, Dharmapuri under Sec.304(A), 201, 465, 468 and 471 IPC. The defacto complainant is the father in law of one 2/24 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1022 of 2016 deceased Vijay @ Venkatraman. On 18.08.2014 Vijay @ Venkatraman was admitted at OM Sakthi Hospital run by the 2nd and 3rd respondents. Immediately after admitting the deceased at OM Sakthi Hospital, ECG was taken. Since the condition of the deceased was not improving and he continued to be suffocating and sweating excessively even while he was in the air conditioned room, his care takers were suspected of some cardiac issue. But the 1st and 2nd respondents had continued to give assurance to the care takers that the deceased had only gastric problem due to digestive disorder.
2.1. Despite it was suggested to think in term of shifting him to a better Centre for getting further medical investigation and get the right treatment suiting to his symptoms, the 1st and 2nd respondents ignored their anxiety and continued to keep the deceased in their hospital. On the morning of 19.08.2014 only the deceased was shifted to Intensive Care Unit and thereafter cardiac specialists were summoned. Even before the cardiac specialists arrived the patient died due to cardiac arrest. 3/24
https://www.mhc.tn.gov.in/judis Crl.R.C.No.1022 of 2016
3. On these allegations, a complaint was given by the defacto complainant for taking action against the respondents doctors 1 and 2 for medical negligence. After the completion of the investigation the 3 rd respondent police filed a Final report against the respondents 1 and 2 for the offences punishable under Sec.304 (A), 201, 465, 468 and 471 IPC. After the case was taken on file by the learned Judicial Magistrate-I, Dharmapuri, in CC.No.24/2015, it was transferred to the learned Chief Judicial Magistrate and got renumbered as CC.No.46/2015. The respondents1 and 2 were also summoned to be present.
4. However, the respondents 1 and 2 had filed a petition for quashing the proceedings in Crl.OP.No.10008/2015 before this Court on 17.03.2015. The same was dismissed as withdrawn on 23.04.2015 even at the admission stage itself. Later a petition was filed by the respondents 1 and 2 before the trial Court to discharge R1 and R2 vide Crl.MP.No.412/2015 in C.C.No.46/2015. The defacto complainant has also filed an intervening petition in Crl.MP.No.221/2016, seeking permission to 4/24 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1022 of 2016 file counter. Accordingly the defacto complainant was also permitted to file his counter and make his appearance through counsel. The learned Chief Judicial Magistrate allowed the Crl.MP.No.412/2015 on 20.07.2016 and discharged the respondents 1 and 2. Aggrieved over the same the defacto complainant has preferred this Revision Case.
5. Heard, Mr.S.Thirumavalavan, learned counsel for the petitioner and Mr.R.Jhon Sathyan, learned counsel for respondents 1 & 2 and Mr.A.Gopinath, learned Government Advocate (Crl.Side) appearing for the 3rd respondent/State.
6. The learned counsel for the revision petitioner submitted that the learned Magistrate had allowed the petition to discharge the respondents 1and 2 by not properly appreciating the prima facie materials available in this case; the delay in giving the complaint was exaggerated, despite the delay alone cannot be the reason to discharge the accused; the learned Magistrate had made a roving enquiry with regard to the materials produced by the prosecution even at the initial stage itself; at the stage of framing 5/24 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1022 of 2016 charges against the accused it is sufficient for the learned Magistrate to see the prima facie materials against the accused to make out a case; in fact as per the latest guidelines of the Hon’ble Supreme Court a report from the higher Medical Board was also obtained on 15.12.2014 in connection with this case; but the learned Magistrate ignored the materials placed before him and discharged the accused on his own premises and surmises and hence the revision petition should be allowed.
7. The learned Government Advocate (Crl.side) appearing for the 3rd respondent endorsed the arguments of the learned counsel for the petitioner.
8. The learned counsel for the respondents 1and 2 submitted that the deceased was given with prior treatment at other hospital and there was no negligence on the part of the respondents 1 and 2; so far as the medical negligence is concerned, not every negligence of the doctor can be taken seriously in order to file a case against him; since the doctors are forced to take some choice of treatment in the interest of the patients, any stringent 6/24 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1022 of 2016 view cannot be taken for their opinion and treatment given in certain specific circumstances; if a doctor is punished for taking some harsh choice in the interest of the patient and if the patient dies consequently without responding to the treatment the doctor cannot be pulled to Court by alleging that there is a criminal negligence on his part; the learned Judicial Magistrate has allowed the petition to discharge the accused only by seeing that there are no sufficient materials available on record to frame charges against the accused. Hence the criminal revision case should be dismissed.
9. Point for consideration:
“Whether the order of the learned trial Judge in discharging the accused on a finding that there is no prima facie case made out is fair and proper?”
10. So far as medical negligence is concerned, as per the guidelines laid down by the Hon'ble Supreme Court in the judgement of Jacob Mathew Vs.State of Punjab and another reported in (2005) 6 SCC 1, no Investigation Officer should take up the compliant made on allegations of 7/24 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1022 of 2016 medical negligence without obtaining an independent medical opinion, from a competent person preferably from a doctor in Government services, qualified in their profession of medical practice who can normally be expected to give an impartial and unbiased opinion applying 'Bolam test' to the facts collected during the cause of investigation. The extract of the 'Bolam test' prescribed in Bolam vs. Friern Hospital Management Committee and reported in [1957]1 W.L.R. 582 is given below for a better understanding and in the academic interest.
“..... In the ordinary case which does not involve any special skill, negligence in law means a failure to do some act which a reasonable man in the circumstances would do, or the doing of some act which a reasonable man in the circumstances would not do; and if that failure or the doing of that act results in injury, then there is a cause of action. How do you test whether this act or failure is negligent? In an ordinary case it is generally said you judge it by the action of the man in the street. He is the ordinary man. In one case it has been said you judge it by the conduct of the man on the top of a Clapham omnibus. He is the ordinary man. But where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is 8/24 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1022 of 2016 well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. I do not think that I quarrel much with any of the submissions in law which have been put before you by counsel. Mr. Fox-Andrews put it in this way, that in the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. That is a perfectly accurate statement, as long as it is remembered that there may be one or more perfectly proper standards; and if he conforms with one of those proper standards, then he is not negligent.”
11. The records of this case would show that before proceeding with the investigation, the Investigation Officer had obtained a report from a Special Medical Team of Government Mohan Kumaramangalam Medical College Hospital, Salem-1. The enquiry report of the medical team would list out certain points which would show a possibility for medical negligence and the same is extracted hereunder:
“THERE IS POSSIBILITY FOR MEDICAL NEGLIGENCE AS PER THE FOLLOWING POINTS:
1) The Om Sakthi Hospital has not followed hospital protocol where it is mandatory to get the D.I.L (Dangerous Ill List) information signed by the family members, and to identify the person signing by writing the name in capital letters and mentioning the relationship with the patient. Therefore, it is doubtful whether the patients relatives were 9/24 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1022 of 2016 aware about the seriousness of the condition of the patient. The Hospital authorities had ample time of 18 hours within which they could have got the D.I.L. Signed by a family member.
2) Hospital has not documented refusal of patient for important investigations and treatment (eg.MRI Scan, Urinary cathererization and Nasogastric tube insertion). They have not got the signature of either the patient or his relative underneath a statement to this effect.
3) The hospital has neither confirmed the diagnosis of Acute Pancreatitis by doing a serial serum Amylase test and Radiological imaging like CT and Ultrasound. Nor have they ruled out the possibility of Acute Coronary Syndrome by doing serial ECG, serial Cardiac Enzymes, and Cardiac imaging apart from getting opinion of a physician who is on call for the hospital and just a phone call away.
4) Being a Gynaecologist with M.D., (O& G) Qualification Dr.Ranganathan's credentials to intubate and manage a ventilator without calling an Anaesthetist who was available on call is questionable. Moreover as seen in the CCTV footage the resuscitation measures were not upto the protocol.
5) The hospital authorities once realizing that there is agitation and anger on the part of the relatives, soon after the Death of the patient, should have informed the police made the case as Medico -legal and sent the body for post mortem. There is no evidence on the part of the hospital regarding this. This is evident by the failure of the hospital to get a documentation signed by the relatives indicating that they are not willing for Post- Mortem. “
12. The learned counsel for the petitioner submitted that the above 10/24 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1022 of 2016 points would show that there are sufficient materials available to take up the investigation and accordingly Investigation was done and final report also filed.
13. However the learned counsel for the respondents 1 and 2 /accused would submit that not all negligence can be classified under medical negligence and in order to take an action against a doctor for negligence there should be materials to show that there was a gross negligence. He invited the attention of this Court to the elaborate discussion made by the Full Bench of the Hon'ble Supreme Court in the celebrated case of Jacob Mathew Vs.State of Punjab and another reported in (2005) 6 SCC 1.
14. In the said judgement, it is held that the word “gross” would imply a high degree of negligence and it is necessary that there should be proximity between the negligence and the resultant damage. In order to understand professional medical negligence it is worthwhile to refer the above judgement which is an encyclopaedia on the subject of professional 11/24 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1022 of 2016 negligence. The conclusions of the above judgement itself could throw more light on the relevant subject. For the benefit of appreciation it is extracted below:
“Conclusions summed up
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 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 12/24 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1022 of 2016 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 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.13/24
https://www.mhc.tn.gov.in/judis Crl.R.C.No.1022 of 2016 (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.”
15. The Hon'ble Supreme Court in the above judgement would emphasise that a professional should be held liable for negligence on only on two counts. (i) either he was not possessed of the requisite skill which he professed to have possessed, or (ii) he did not exercise, with the reasonable competence in the given case, the skill which he did possess.
16. So the medical negligence can be proved before the Court either by proving that the person who rendered the professional services did not have the requisite skill which he ought to have possessed or having the requisite skill, he omitted to exercise the reasonable competence expected from him as a professional. A doctor cannot be immediately blamed for any unfavoured result of his treatment unless he had omitted to exercise reasonable competence in the given circumstances of the case.
14/24https://www.mhc.tn.gov.in/judis Crl.R.C.No.1022 of 2016
17. Since an ordinary man who stands as a patient before the doctor does not have the technical knowledge about the medicines or the nuances / suitability of the treatment in a given case, he should not be allowed to pull the doctor to Court if he happened to face a result which he did not expect or wish to face. All that have to be seen is whether the doctor had exercised reasonable competence while treating his patient with his professional skill which he ought to possess. It is exactly for the said reason the Hon'ble Supreme Court has laid down certain guidelines in Jacob Mathew case. In view of that it is mandatory that a report of an independent expert or a body who has the skill in the profession should be obtained before starting up the investigation on the complaint for medical negligence.
18. The parameter for gross negligence is different from that of the simple negligence. The alleged negligence should have been a gross one or in other words it should be a criminal negligence, which entails a criminal liability on the doer. On this aspect the Hon'ble Supreme Court has distinguished in the above judgement as under:
“Negligence __ as a tort and as a crime 15/24 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1022 of 2016
12. The term 'negligence' is used for the purpose of fastening the defendant with liability under the Civil Law and, at times, under the Criminal Law. It is contended on behalf of the respondents that in both the jurisdictions, negligence is negligence, and jurisprudentially no distinction can be drawn between negligence under civil law and negligence under criminal law. The submission so made cannot be countenanced inasmuch as it is based upon a total departure from the established terrain of thought running ever since the beginning of the emergence of the concept of negligence upto the modern times.
Generally speaking, it is the amount of damages incurred which is determinative of the extent of liability in tort; but in criminal law it is not the amount of damages but the amount and degree of negligence that is determinative of liability. To fasten liability in Criminal Law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in Civil Law. The essential ingredient of mens rea cannot be excluded from consideration when the charge in a criminal court consists of criminal negligence. In R. v. Lawrence, [1981] 1 All ER 974 (HL), Lord Diplock spoke in a Bench of five and the other Law Lords agreed with him. He reiterated his opinion in R. v. Caldwell 1981(1) All ER 961 (HL) and dealt with the concept of recklessness as constituting mens rea in criminal law. His Lordship warned against adopting the simplistic approach of treating all problems of criminal liability as soluble by classifying the test of liability as being "subjective" or "objective", and said "Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the 16/24 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1022 of 2016 section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting 'recklessly' if, before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognized that there was such risk, he nevertheless goes on to do it."
13. The moral culpability of recklessness is not located in a desire to cause harm. It resides in the proximity of the reckless state of mind to the state of mind present when there is an intention to cause harm. There is, in other words, a disregard for the possible consequences. The consequences entailed in the risk may not be wanted, and indeed the actor may hope that they do not occur, but this hope nevertheless fails to inhibit the taking of the risk. Certain types of violation, called optimizing violations, may be motivated by thrill-seeking. These are clearly reckless.
14. In order to hold the existence of criminal rashness or criminal negligence it shall have to be found out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The element of criminality is introduced by the accused having run the risk of doing such an act with recklessness and indifference to the consequences. Lord Atkin in his speech in Andrews v. Director of Public Prosecutions, [1937] A.C. 576, stated, "Simple lack of care such as will constitute civil liability is not enough; for purposes of the criminal law there are degrees of negligence; and a very high degree of negligence is required to be proved before the felony is established."
Thus, a clear distinction exists between "simple lack of care" incurring civil liability and "very high degree of negligence" which is required in criminal cases. Lord Porter said in his speech in the same case ___ "A higher degree of negligence has always been demanded in order to establish a criminal offence than is sufficient to create civil liability. (Charlesworth & Percy, ibid, Para 1.13) 17/24 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1022 of 2016
15. The fore-quoted statement of law in Andrews has been noted with approval by this Court in Syad Akbar v. State of Karnataka (1980) 1 SCC 30. The Supreme Court has dealt with and pointed out with reasons the distinction between negligence in civil law and in criminal law. Their Lordships have opined that there is a marked difference as to the effect of evidence, viz. the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man, beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
16. Law laid down by Straight, J. in the case Reg v. Idu Beg (1881) 3 All. 776, has been held good in cases and noticed in Bhalchandra Waman Pathe v. State of Maharashtra 1968 Mh.L.J. 423 ? a three-Judge Bench decision of this Court. It has been held that while negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do; criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted.
17. In our opinion, the factor of grossness or degree does assume significance while drawing distinction in negligence actionable in tort and negligence punishable as a crime. To be latter, the negligence has to be gross or of a very high degree. Negligence by professionals
18. In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man 18/24 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1022 of 2016 entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of 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 necessary for every professional to possess the highest level of expertise in that branch which he practices. In Michael Hyde and Associates v. J.D. Williams & Co. Ltd., [2001] P.N.L.R. 233, CA, Sedley L.J. said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable. (Charlesworth & Percy, ibid, Para 8.03)“
19. At this juncture it is worthwhile to make a distinction of the facts involved in Jacob Mathew case (supra). The allegations of the complainant in that case is that the oxygen cylinder which was brought and connected to the patient was later found to be empty and there was no other gas cylinder available in the room; even when an another gas cylinder was 19/24 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1022 of 2016 brought from the adjacent room there was no arrangements to make the gas cylinder functional. Due to the wastage of precious 5 to 7 minutes time in tackling these inconveniences, the patient died. The Hon'ble Supreme Court held in the said case that non availability of oxygen cylinder may be either because of the hospital having failed to keep available gas cylinder or because of the gas cylinder being found empty; so for the damages caused, the hospital may be held liable in civil law, but not the doctor be prosecuted for the offence under section 304 A IPC.
20. In the case on hand the allegations were not about the lack of facility in the hospital but failure to exercise competence in taking appropriate steps to treat the patient in a given situation and failure to give proper suggestions to the caretakers for shifting the patient to the appropriate Ward or Unit either inside or outside the hospital.
21. It might be true that the treatment given by the respondents 1 and 2 might be correct in their judgement or suiting to the symptoms exhibited by the patient. But the fact remains that a qualified medical team 20/24 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1022 of 2016 has given its opinion about the possibility of the medical negligence and listed out some points. The said report has been given by a team of government doctors after analysing the medical documents and other connected reports of the patient and with their professional knowledge and expertise. Among several points noted by the independent doctors it is stated that the initial ECG ought to have been followed by series of ECG's, Cardiac Enzyme studies, series of Echo Cardiac examinations and cardiologist consultations to confirm the diagnosis of acute myocardial infarction, which usually cause unexpectable deaths within seconds, minutes, hours if left undiagnosed and untreated.
22. Despite the patient had exhibited some serious symptoms as alleged by the complainant, the respondents 1 and 2 failed to do the required tests and follow the medical management protocols in the given situation.
The anxiety shown by the care takers was also discarded and they were not suggested to shift the patient to any Speciality Centre. The golden hour in cardiac arrest cases is precious to save a patients' life and it ought not to have been omitted. When the allegations of the compliant is supported by 21/24 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1022 of 2016 the opinion of the medical team which is independent the trial Court ought not to have ignored the same at the very inception of the case.
23. At the stage of framing of charges, it is uncalled for the Courts to conduct a roving enquiry on the probative value of the materials produced before the Court. It has been held in various decisions of the Hon'ble Supreme Court that at the stage of framing of charges, the Court is expected to see whether or not a prima facie case is made out by taking the materials on its face value. The Hon'ble Supreme Court has held in the case of Central Bureau of Investigation, Hyderabad Vs.K.Narayana Rao reported in (2012) 9 SCC 512 that the Court should not conduct a roving enquiry into the pros and cons of the materials at the initial stage itself. For the purpose of framing of charges on the basis of the materials available on record it is sufficient if the Court could get an idea about the probability of the commission of the offence.
24. When the complainant had produced sufficient materials to make out a case of medical negligence and the investigation officer has also obtained an independent opinion from the experts in the relevant field 22/24 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1022 of 2016 before starting his investigation, the Court ought to have framed the charges and proceeded further. Since the learned Magistrate has failed to consider the materials available on record on its face value and ignored its sufficiency to make out a prima facie case for medical negligence, the impugned order is liable to be set aside.
In the result, this Criminal Revision Case stands allowed and the order of the learned Chief Judicial Magistrate, Dharmapuri dated 27.04.2016 made in Crl.MP.No.412 of 2015 in C.C.No.46/2015 is hereby set aside. The learned Chief Judicial Magistrate, Dharmapuri, is directed to frame the charges as proved with a trial and dispose the same in accordance with law within a period of 6 months from the date of receipt of copy of this order.
.02.2022 Index:Yes / No Internet:Yes/ No Speaking / Non-Speaking Order jrs R.N.MANJULA, J., 23/24 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1022 of 2016 jrs To
1. The Chief Judicial Magistrate, Dharmapuri.
2. The Inspector of Police, B-1Police Station, Dharmapuri.
3. The Public Prosecutor, High Court of Madras, Chennai.
Pre-delivery Order in Crl.R.C.No.1022 of 2016 .02.2022 24/24 https://www.mhc.tn.gov.in/judis