Dr.S.Gurumani v. The State

IN THE HIGH COURT AT CALCUTTA

[CIRCUIT BENCH AT PORT BLAIR] *** CRR/49/2024 Dr. Priya Krishna Vs The State With CRR/50/2024 Dr. S.Gurumani Vs The State Mr. Prohit Mohan Lall ... for the petitioners Mr. Sumit Karmakar ... for the State December 12, 2024 [AKB] Item Nos. 3 & 4 1.

Both Criminal Revisional Application being Nos.

CRR/49/2024 and CRR/50/2024 are taken up together as they have arisen out of self same incident and same set of facts and law is involved.

2.

The petitioner in CRR/49/2024 was working under the Directorate of Health Services since 26.08.2020 and was posted as Medical Officer at PHC, Bambooflat, whereas the petitioner in CRR/50/2024 was working as Professor & Head of Department, ENT under the Andaman & Nicobar Institute of Medical Science Since 2019.

3.

On 19th June, 2021 the petitioners attended a patient namely Nikhil who visited there with a complaint of throat pain and difficulty in swallowing. He was suffering from Acute pharygotonsillitis as diagnosed by them. Some oral medicine

was advised. On C.T. scan it was detected that due to "deep neck abscess with incision and drainage of diffuse neck swelling" his condition was deteriorated continuously. Latter he succumbed to multiple cardiac arrests on 28.06.2021 but postmortem examination was not conducted over the dead body. 4.

Father of the deceased lodged a complaint on 12th July, 2021 against the petitioners, to the Lieutenant Governor who constituted an expert committee with Dr. Shiv Shankar Singh, Senior Consultant, Medical Specialist and two other members. They submitted their report by giving clean chit to the petitioners and owing to the objection raised by the complainant, father of the deceased, a new committee was reconstituted with new members which held the petitioners guilty for medical negligence.

5.

In addition to that, the father of the deceased had filed a complaint under section 156 (3) of Cr.P.C before the Court of learned Chief Judicial Magistrate, Port Blair upon which learned Chief Judicial Magistrate, Port Blair had directed investigating agency to held investigation based on the guidelines of Jacob Mathew -vs- State of Pubjab reported in 2005 (6) SCC 1. Accordingly, concerned SHO requested the Director of Health Services to conduct fresh inquiry with regard to death of deceased Nikhil and submit a report that whether his death was caused due to medical negligence on the part of the petitioners or not. Consequently, Director of Health Services, G.B. Pant Hospital constituted a second committee with Dr. Shaji Verghese and Dr. Narayan Rajaram, Dr. Juulie

Abraham, Dr. Ashwini Kumar and Dr. Krishna Priya as member of the second committee, who submitted their report on 12.08.2022 wherein the petitioners was held guilty of medical negligence. Thereafter FIR No. 128/ 2022 under Section 304 A and Section 34 of IPC was initiated against the petitioners. 6.

Being aggrieved by the report of the second committee, the petitioner preferred a writ petition for quashing of the finding of second committee report on the ground that it was prepared after violating the guidelines framed by Hon'ble Apex Court in Jacob Mathew-vs- State of Pubjab and on violation of principle of natural justice. The report of second committee was quashed by Coordinate Bench on 7th July, in WPA/867/2022 on the ground that guidelines of Jacob Mathew case was not adopted by the committee and Bolam's test was not followed.

7.

In the meantime, the charge sheet No. 14/23 dated 06.02.2023 was filed under section 304/34 of the Indian Penal Code vide against Dr. Priya Krishna & Dr. S.Gurumani, upon which learned Chief Judicial Magistrate, Port Blair has taken cognizance of the offence and the case is now pending before the Trial Court for framing of charge.

8.

The petitioners pray for setting aside and quashing of impugned charge sheet No. 14/23 dated 06.02.2023 as it has been submitted solely on the basis of report of the second committee, but the same has not been in existence after its setting aside by the Coordinate Bench, therefore the charge sheet is bad in law and amount to abuse of process of law.

9.

Learned advocate for the petitioners submits that Investigating Officer committed mistake in submitting the charge sheet relying on the report of the second committee which has already been quashed by the Coordinate Bench of this court vide order dated 7th July, 2024 in WPA/867/2022 as the guidelines of Jacob Mathew case were not followed. 10.

He further submitted that the charge sheet suffers from gross irregularity and liable to be quashed because 11.

Per contra, learned advocate for the state submits that there is no irregularity in filing of the charge sheet. The report of second committee has no role to play with the investigation of the matter. Both are two different things. The committee was constituted by the order of Lieutenant Governor on the complaint of father of the deceased to inquiry into the matter and the said committee has exonerated the petitioner from the charges of negligence in treatment of deceased. Whereas the charge sheet was the outcome of the investigation of the matter, initiated on the order of Learned Chief Judicial Magistrate, Port Blair given on the complaint of father of deceased filed under section 156 (3) of Code of Criminal procedure.

It has no connection with the report of first committee or of second committee or with the order passed by Hon'ble Court in connection with writ petition No. WPA/867/2022 7th July, 2024, whereby the report of second committee was quashed or the guidelines of Jacob Mathew was followed or not. Accordingly he prayed for dismissal of this revisional application with exemplary cost.

12.

It appears from the summery of findings of first committee report submitted on 27th July, 2021 that history of illness, clinical finding, consent for procedure notes, counseling and communication of the diagnosis, nature and prognosis of the disease and various stages of treatment were not properly maintained and there was lack of aggressive approached in the treatment of deceased, which could have made difference in result.

13.

The second committee has also come to the same finding with clinical history, diagnosis, symptomatic treatment of paracitamol, ORS, lack of proper documentation was there from the side of the petitioner and them medically negligent in the treatment of the deceased.

14.

However, the said report was quashed on the ground that guidelines of Jacob Mathew was not followed and direction was given to conduct fresh inquiry by new committee within a period of four weeks from the received of this order strictly, in adherence to the guidelines of Hon'ble Supreme Court given in Jacob Mathew and the committee should comprise of independent and impartial doctors who were not part of the team of the doctors of earlier committee.

15.

Later Anil Kumar, father of the deceased and S. Prabha mother of the deceased filed a petitioner under Section 156 (3) of the Cr.P.C to the Court of learned Chief Judicial Magistrate at Port Blair against the Dr. S.Gurumani and Dr. Priya Krishna upon which CR case No. 34 of 2022 was started and learned Chief Judicial Magistrate has given direction to SHO to lodge

FIR. Accordingly, PS case No. 128 of 18.08.2022 under section 304 (A) and 34 of IPC was started against the Dr. S.Gurumani, ENT Specialist and Dr. Priya Krishna, Medical Officer, GB Pant Hospital. During investigation Investigating Officer recorded the statement of Dr. Ashiwani Kumar, who stated that if Dr. S. Gurumani the attending Doctor of Nikhil conducted the surgery earlier the Nikhil could have been saved and to that effect there was medical negligence from the side of Dr. S.Gurumani. Dr. Saji Verghese stated to Investigating Officer that Dr. Priya Krishna and Dr. S. Gurumani were found negligent in treatment of Nikhil as such the advisory against them were issued. Same was stated by Dr. Narayan Rajaram, Dr. Juulie Abraham, Dr. Ashwini Kumar and Dr. Krishna Priya. Complainant Anil Kumar, his wife S. Prabha also stated that his son died due to negligence of Dr. Priya Krishna and Dr. S. Gurumani.

16.

Accordingly, investigating officer submitted his charge sheet against both the accused persons under Section 304 A & 34 of IPC and the charge sheet was submitted to the court of learned Chief Judicial Magistrate, who has taken cognizance of the offence, on 01 march, 2023. Now the matter is fixed for framing of charge as reported by learned advocate for both site. 17.

Prima facie, I do not find any irregularity, illegality and impropriety in the charge sheet, nor I find the abuse of process of court in submitting the charge.

18.

Accordingly, CRR/49/2024 and CRR/50/2024 is dismissed without any order as to the costs.

19.

Learned Trial Court is directed to proceed for Trial of this case and take all the necessary endeavour for expeditious disposal.

20.

Urgent Photostat certified copy of this order, if applied for, may be supplied to the parties upon compliance of usual formalities.

(Uday Kumar, J.)