IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR CRIMINAL PETITION No.1649 OF 2013 BETWEEN:
1. DR. ANANDA RAO S/O C.R. GOVINDA RAO AGE:52 YEARS R/AT NO.73, 33 MAIN ROAD BMCS LAYOUT, I PHASE, JP NAGAR BANGALORE-560 079 2. DR. PRAKASH CHANDRIAL S/O SRI. C. DATTATREYA RAO AGE:55 YEARS R/AT NO.1132, DEVAKI KRISHNA SERVICE ROAD, RPC LAYOUT VIJAYANAGAR, BANGALORE-560 004 ... PETITIONERS (BY SHRI. A.S. SHARATH, ADVOCATE SHRI. C.V. SUDHINDRA, ADVOCATE) AND:
1. STATION HOUSE OFFICER BANASHANKARI POLICE STATION BANGALORE-560 050 2. SRI. NANJAPPA S/O SAMPAGAPPA NO.322, SRINIVASA REDDY COMPOUND 1ST ROAD, BEHIND ANJANEYA TEMPLE YELACHENAHALLI BANGALORE-560 062 ... RESPONDENTS (BY SHRI. NASRULLA KHAN, HCGP FOR R1;
SHRI. N. KRISHNA MURTHY, ADVOCATE FOR R2-ABSENT) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.19560/12 FOR THE OFFENCES P/U/S 304A OF IPC ON THE FILE OF III ADDL.C.M.M., BANGALORE AS PER ANNEXURE-A.
THIS CRIMINAL PETITION COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Heard Shri A.S. Sharath, learned advocate for the petitioners and Shri Nasrulla Khan, learned HCGP for the State.
2. Learned advocate for the petitioners submits that petitioner No.2 has passed away. Therefore, petition qua petitioner No.2 stands abated.
3. Arguing in support of petitioner No.1, Shri Sharath, submitted that one Nanjappa registered FIR No.13/2010 in Banashankari Police Station contending that there was medical negligence while treating his daughter on 17.01.2010. Subsequently, on 18.01.2010, complainant’s daughter passed away. Police, after investigation have filed the charge sheet against two doctors-petitioners herein alleging commission of offence punishable under Section 304A of IPC.
4. Shri Sharath, contended that the procedure followed by the police in registering the complaint and investigating the matter is contrary to the law laid down by the Supreme Court of India in Jacob Mathew Vs. State of Punjab and Ors1. He further contended that following Jacob’s case, this Court in Dr. Seema Manohar Gunjal vs. The State of Karnataka2 has held that the Investigating Officers have to strictly follow the guidelines while registering the case against the Doctors. If the Public Prosecutor is entrusted with the work of scrutiny of the charge sheet, he shall also take care before permitting Investigating Agency to submit final report to the Court.
5. None appears for the complainant – respondent No.2.
6. Shri Nasrulla Khan, learned HCGP argued in support of the charge sheet.
1 (2005) 6 SCC 1 2 ILR 2018 KAR 1410 7. This Court, in Dr. Seema Manohar Gunjal, after considering Jacob’s case has held that as per the directions issued by the Supreme Court of India, the State and Central Governments are required to formulate rules or guidelines. Having noticed that no guidelines have been framed, this Court, while allowing the petition has issued further directions to enforce compliance of the directions issued by the Supreme Court of India. It is not in dispute that the Investigating Officer has made no efforts to find out if the allegations levelled in the complaint are attributable to acts and omissions on the part of doctors.
8. Shri Sharath, learned advocate also adverted to the report dated 06.09.2011 issued by the Karnataka Medical Council, wherein it is recorded thus:
“….. The R.M.O. had informed the Respondent but probably she could not assess the seriousness of the Case. Atleast one of the Consultants should have visited the Hospital on 17-01-2010. To that extent there is “Deficiency in Service”. Every effort was made to save the life of Kamalamma on 18-01-2010 but it was too late. Karnataka Medical Council has construed this as “Deficiency in Service” and not Negligence.”
9. Karnataka Medical Council is a statutory body established under the Karnataka Act No.34 of 1961. Having considered the complaint, it has given its findings as noted above. In the circumstances, the charge sheet filed against the petitioners without following the guidelines in Jacob’s case (supra), is unsustainable in law. Therefore, following the decision in Dr. Seema’s case, this petition merits consideration and hence the following order;
ORDER (i) The petition is allowed;
(ii) Entire proceedings in C.C.No.19560/2012 pending on the file of III ACMM, Bengaluru, are quashed;
(iii) However, liberty is granted to the respondent – Police if need be, to initiate proceedings, after strictly complying with the guidelines/directions of the Hon’ble Apex Court in the two decisions noted in the body of the order;
(iv) The learned Magistrate is directed to return entire case papers to the Police if a request is so made.
No costs.
Sd/-
JUDGE AV