K. Natarajan vs V.L. Venkatachalam

Shivappa, J.—The Petitioner is seeking for quashing the proceeding in C.C. No. 8233 of 1994 on the file of XIII Metropolitan Magistrate,

Egmore, Madras.

The brief facts are: The Petitioner joined the judicial service in the year 1968 as District Munsif. Thereafter, he was promoted as Subordinate

Judge and then as District Judge in 1985. He was Chairman, State Appellate Tribunal, Special Officer, Vigilance Cell, High Court and

Administrator General and Official Trustee. At present he is serving as District Judge, Tirunelveli.

It is his case that he married one Geetha, the daughter of the Respondent herein on 15.9.1977. She was not able to conceive ever since her

marriage. Hence they consulted several Doctors and were informed that there was a cist on the ovaries, which had to be removed through a simple

operation and that would enable her to conceive. They were further informed that the procedure was very simple and did not carry any risk

whatsoever. The Doctors said that a surgery would be performed through a sophisticated laparoscopic advanced surgical endoscope instrument,

which they were importing from Singapore and asked him to wait till December 1992 and in the month of January 1993, the Doctors at Shiefa

Hospital and Research Centre at Triplicane, Madras, informed that they received the laparoscopic advanced surgical endoscopic instrument.

Thereafter, the Petitioner''s wife had undergone several tests like E.C.G., X-ray, blood test etc. and informed fit for surgery. They further informed

that the operation would be over in 1 1/2 hours. The Doctors fixed the date for surgery as 13.2.1993 and she was admitted to the hospital on

12.2.1993. She was taken to the operation theatre at 12.15 p.m. on 13.2.1993. The Petitioner''s wife was not brought out from the operation

theatre even up to 5.00 p.m. and he became restless and he made several enquiries with the Doctors and ultimately, he was taken to the room,

where his wife was kept and shocked to find her in a serious coma condition. The Doctors were not able to give any reason for her then existing

condition. At last informed that her condition was very serious and she had to be shifted to Trinity Acute Care Hospital and in that hospital she

died on 19.2.1993.

The Petitioner not being satisfied with the treatment given by the Doctors at Shiefa Hospital as well as at the Trinity Acute Care Hospital, filed a

complaint before the National Consumer Disputes Redressal Commission, New Delhi, claiming compensation from the Doctors on the ground that

they have not given proper and necessary treatment and were grossly negligent while performing their duties in not taking proper care and skill

while conducting the surgery as well as giving post operative treatment. The said complaint in O.P. No. 32 of 1994 is pending enquiry before the

National Consumer Disputes Redressal Commission, New Delhi.

The Respondent herein, is none other than the father-in-law of the Petitioner, who also gave a complaint to the Inspector of Police, Triplicane

Police Station, Madras, on 19.2.1993 against the Doctors of the Shiefa Hospital for offence u/s 304-A of the Indian Penal Code and the same

was registered in Cr. No. 494 of 1993 and subsequently transferred to C.B. C.I.D., Police at the request of the Respondent herein. The case

ended in a charge sheet.

The Respondent herein, after 1 1/2 years, preferred a complaint against the Petitioner and cognizance was taken for an offence u/s 304-A of the

Indian Penal Code by the learned Magistrate.

The Petitioner contends that the private complaint has been filed with an ulterior motive to tarnish his image and to spoil his career and also to

disturb his family life, since he has married for the second time and it is further submitted that the complaint is actuated by mala fides and there is

absolutely not truth in it and the learned Magistrate without applying his mind, mechanically has taken cognizance even though there are no

averments to show that death has been due to the rash and negligent act of the Petitioner. It is further contended that the fastening a criminal liability

in the absence of ingredients of the offence u/s 304-A and continuance of such proceeding is an abuse of process of court.

In the complaint, the Respondent herein has made certain accusations alleging that after marriage, his daughter was living with the accused in a

joint family and was subjected to harassment and there was a demand for money and property. It is also alleged that his daughter was admitted in

the hospital much against the advice of the complainant and his family members. It is stated that the Petitioner was a silent spectator and stood in

the room even without bothering as to why the delay had occurred in the operation and his unconcerned attitude has given an impression that he

was negligent and not acted as a prudent husband and because of his negligence, his daughter died. Thus he has committed an offence u/s 304-A

of the Indian Penal Code.

On the averments made in the complaint, the two aspects to be considered are:

Whether the death of the wife of the Petitioner can be attributed to his negligence and the circumstances set out in the sworn statement and

complaint, if taken in totality, can fasten criminal liability on the Petitioner?

The circumstances set out by the Respondent to show the alleged negligence can be recapitulated as under:

(a). He should have verified the availability of the most necessary alternative intensive care unit facility in the hospital;

(b). Enquiry about the condition of the patient after 1 1/2 hours;

(c). leaving the operation theatre in sheer negligence;

(d). when the condition of the patient was informed, he was in such a composure and did not reflect worry on his face;

(e). the Petitioner had not chosen to meet the Chief Doctor.

Learned Counsel for the Petitioner invited my attention to the following circumstances:

(a). The Petitioner took precaution to see that all the tests are properly conducted prior to the operation,

(b). He waited for the import of the sophisticated machinery from Singapore;

(c). The moment the patient was not brought, as promised, within the stipulated time from the operation theatre, he made enquiries, showed his

concern, accused the Doctors at the appropriate forum for action,

(d). the Respondent herein, immediately after the death of the Petitioner''s wife filed a complaint, which was investigated by the C.B.C.I.D., which

ended in a charge sheet and in that complaint there is not even a whisper against the Petitioner about his negligence or about the ill-treatment meted

out to his daughter, when she was alive.

(e). the complaint was filed after 1 1/2 years after the operation that too when the Petitioner had married for the second time.

According to the learned Counsel for the Petitioner, the Doctors, who performed the surgery, were guilty of rashness and negligence in

performing their duties. It is on account of their omission to do and take proper care, death occurred. In such an event, the cause of death cannot

be imputed to the Petitioner.

In the backdrop of these facts, whether the averments made in the complaint and the circumstances set out, constitute negligence and fasten

criminal liability on the Petitioner, has to be seen.

The requirement of Section 304-A of the Indian Penal Code is the causing of the death by doing rash or negligent act and this means the death

must be the direct or proximate result of the negligent act. The mere fact that the death would not have taken place if the accused would have been

still more cautious would not be enough to make liable u/s 304-A of the Indian Penal Code. If the possibility of the danger emerging is reasonably

apparent, then to take no precaution is negligence; but if the possibility of danger emerging is only a mere possibility which would never occur to

the mind of a reasonable man, then there is no negligence in not having taken extraordinary precautions. The criminality lies in running the risk of

doing such an act with recklessness or indifference as to the consequences. There must be material that the Petitioner''s conduct has contributed to

the result or that the Petitioner himself did such act or omitted to do something, whereby the death has occurred. The Petitioner must have been

aware that certain specified harmful consequences would or could follow and it must be primarily an over hasty act done without due deliberation

or caution. Negligence is that breach of a duty cast by omission to do something which a reasonable man guided by those consideration which

ordinarily regulate the conduct of human affairs would do or the doing of something which a prudent and reasonable man would not do. In the

instant case tests were conducted prior to the operation; there was assurance by the Doctors that the operation was simple and there is no risk to

life; he awaited for the import of the sophisticated machinery from Singapore; only thereafter she was admitted to the hospital for operation. These

facts show there was no recklessness or hastiness or negligence on the part of the Petitioner herein and as a prudent husband he has taken all the

precautions. Criminal negligence u/s 304-A of the Indian Penal Code is gross and culpable neglect or failure to exercise the reasonable and proper

care and to take precaution to guard against the injury to a particular individual and it must further show that death should have been the direct

result of the negligent act of the Petitioner and that act must be proximate and have been caused without the intervention of another''s negligence.

The expression ''negligence'' means the absence of such care as there is a legal duty to use in any particular circumstance. In Kurban Hussein

Mohammedali Rangwalla Vs. State of Maharashtra, at para 4, the Supreme Court referred to Emperor v. Omkar Rampratap (4 Bom. LR 679)

where Sir Lawrence Jenkins had to interpret Section 304-A and observed as follows:

To impose criminal liability u/s 304-A of the Indian Penal Code, it is necessary that the dear should have been the direct result of a rash and

negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another''s negligence. It must be the

causa causans, it is not enough that it may have been the causa sine qua non.

The Supreme Court in that case acquitted the accused on the ground that the death was not directly the result of a rash and negligent act and was

not proximate and efficient cause without the intervention of another''s negligence. The same principle is reiterated in Suleman Rehiman Mulani and

Another Vs. State of Maharashtra, and held that there must be proof that the rash or negligent act of the accused was the proximate cause and

direct nexus between the death of a person and the rash or negligent act of the accused. The same view has been adopted in Ambalal D. Bhatt Vs.

The State of Gujarat, . There is no material to show that the rash and negligent act of the Petitioner was the proximate cause of the death. It has to

be kept in mind that the Respondent herein, when he filed the complaint before the police, immediately after the operation, did not array the

Petitioner as one of the persons responsible for the death of his daughter. He did not further whisper about the ill-treatment meted out to his

daughter at the hands of the Petitioner. At the earliest opportunity, in his complaint before police, he has stated thus:

During the progress of the operation some of the staff of the hospital were found running to get some medicines reason, they falsely stated that the

medicines were necessary to prepare the next patient for operation and they were not for my daughter. They grossly neglected the supply of

oxygen to the brain. As a result, her brain was severely affected and she entered into deep coma condition.

This shows that the Petitioner was present in the hospital at the time of the operation and he showed concern and he made enquiries about the

condition of the patient and he put the entire blame on the Doctors. This earliest version, if taken into consideration and the subsequent statement in

the complaint that after one and half years, the Petitioner never made enquiries about the condition of the patient, he was not in the hospital and

ever showed any concern, all appears to be false. In these circumstances, there is no direct nexus to the cause of death and there is no negligence

on the part of the Petitioner and he has taken all care as a prudent husband; awaited for the machinery to come and after the required tests

subjected her to the operation and his subsequent conduct immediately approaching the Court and the case resulting in a charge sheet against the

doctors, all put together show that there was no lapse on the part of the Petitioner.

Therefore I hold that there are no circumstances to show that die death of the wife of the Petitioner can be attributed to his negligence.

The next point is whether in the totality of the circumstances set out in the complaint and the sworn statement is it feasible to allow the

prosecution to continue? In Madhavrao Jiwajirao Scindia and Others Vs. Sambhajirao Chandrojirao Angre and Others, it has been held by the

Supreme Court that the test to be applied by the court at the initial stage when asked for quashing is as to whether the uncontroversial allegations

prima facie establish a treble case. It is also for the court to take into consideration any special features which appear in a particular case to

consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be

utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, no useful purpose is likely to

be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the

proceeding even though it may be at a preliminary stage.

In State of Haryana and others Vs. Ch. Bhajan Lal and others, the Supreme Court has held that the power u/s 482, Code of Criminal

Procedure should be exercised sparingly and that too, in the rarest of rare cases, where if the complaint and the materials placed for cognizance

are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused; or

where the complaint is so absurd and inherently improbable or where it is instituted maliciously with an ulterior motive to take vengeance and with a

view to spite him due to private and personal grudge; or where the averments are so absurd in such fact situation, the continuance of the criminal

prosecution is nothing but an abuse of the process of the court, resulting in miscarriage of justice.

The Apex Court has held in several decisions that u/s 482, Code of Criminal Procedure it is not open to the High Courts to evaluate the

genuineness or the creditworthiness of the averments made in the complaint and it is for the trial court to resort to such exercise. It has to be so, if

there is any averment touching the ingredients of the offence alleged, but in the instant case, none of the circumstances alleged in the complaint or

the sworn statement constitute any nexus as the direct case for the death of the daughter of the Respondent herein and it is a case of no averment

either in the sworn statement or in the complaint. In such a case, a judicial officer facing a trial is nothing but waste of time any energy. In the

absence of any allegation touching the ingredients of the offence alleged, it is an abuse of the process of the court to drive a person to face trial, he

did exercise the prudence required of a prudent husband and took all precautions before subjecting her for operation and subsequent actions show

his concern to his wife. Keeping in view the fact that the complaint was filed after 1 1/2 years of the marriage of the Petitioner for the second time

and also no averment regarding negligence at the initial stage when complaint was lodged by the responded herein to the police for action and

looking from any angle in this case from the given facts, the continuance of the proceedings is nothing but the abuse of the process of court. Hence

I make the following order:

The proceedings in C.C. No. 8233 of 1994 on the file of XIII Metropolitan Magistrate, Egmore, Madras, is quashed and the petition is allowed.

Consequently, Crl.MP. No. 528 of 1995 is dismissed.