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--------------- Print Magazine --------------
  May 2016
  April 2016
Role of Investigating Officer in
Criminal Negligence
Anoop K. Kaushal, Advocate

Suresh and Selvaraj v. State of Tamil Nadu

W.P. No. 1207/2012 and W.P. No. 1696/2012, decided by the Madurai Bench of the Hon'ble Madras High Court on 20-8-2014.

Facts: On 21-1-2012 at the Government Primary Health Centre at M. Suppulapuram three children were brought for treatment with prolonged high fever and cough. Injection paracetamol was given to all the three. Soon, all the three fainted. The Doctor gave first aid and rushed them to the nearby Medical College Hospital. On their way, one child breathed his last and two of them survived. The mother of the deceased child made a complaint to the Sub- Inspector of Police, Kandamanur Police Station, alleging that the death of the child was due to the negligence on the part of the Doctor and the other paramedical staff of the said Primary Health Centre. The Sub-Inspector of Police, Kandamanur Police Station registered a case in Crime No. 14 of 2012 under section 174 Cr.P.C. The case was taken up for investigation by the then Inspector of Police Mr. Arumugam. During the course of investigation, he conducted inquest on the body of the child, examined many witnesses including the Doctor at the Primary Health Centre and forwarded the body for postmortem examination. A team of Doctors, at Theni Government Medical College, Theni, conducted autopsy on the body of the deceased child. The viscera was sent for chemical examination and brain was sent for pathological examination. Based on the said opinion, the team of Doctors, who conducted postmortem gave opinion that the history of the case, postmortem finding and pathological finding was consistent with death due to haemorrhagic fever. Thereafter, the Inspector of Police, forwarded all the records to three expert Doctors. They gave opinion that there was no negligence on the part of the Doctor, who administered paracetamol injection on the child and they concurred with the opinion of the team of doctors who conducted autopsy. Based on the said opinion of the Doctors and other materials collected during investigation, the Inspector of Police prepared a final report dropping all further proceedings. When the final report was yet to be filed before the Magistrate, the petitioner in W.P. (MD) No. 1207 of 2012, who is the father of the child, who died, filed the writ petition seeking a direction to transfer case in Crime No. 14 of 2012 to Crime Branch-Crime Investigation Division, Chennai, for further investigation. The father of the other child, who survived, came up with W.P. (MD) No. 1696 of 2012 making a similar request. While admitting the two writ petitions, interim orders were passed on 13-3-2013 restraining the investigating officer from filing the final report until further orders.

Expert Opinion: The team of Doctors by name, Dr. K.G. Juliana Jeyanthi, Senior Assistant Professor, Department of Forensic Medicine, District Police Surgeon, Theni Government Medical College Hospital, one Dr. P. Priya, Tutor in Forensic Medicine, Government Theni Medical College, conducted autopsy on the body of the child. There was no external injury on the body of the child. On internal examination, the Doctors recorded the following findings: "Other Findings: Peritoneal cavity contained 30ml of haemorrhagic fluid. Pleural cavities empty, pericardium contained 5ml of straw haemorrhagic fluid- Heart right side fluid blood, left side empty; coronaries patent. Lungs-cut section pale, floatation test-Both lungs floated in the water. Liver, spleen, and kidneys cut section pale. Larynx and trachea normal taken and preserved in formalin for pathological examination. Hyoid bone intact. Stomach-contained 5 gms of few cooked rice particles, nil specific odour. Mucosa-pale. Small intestine contained 5 gms of digested
food, nil specific smell, mucosa-pale, bladder-empty; brain-haemorrhagic spot of size 3 cms x 2 cms was seen over the right frontal lobe cut section pale. Brain was taken and preserved for pathological and chemical examination." The Doctors reserved their opinion awaiting pathological and microbiological report as well as chemical examination reports. Few ampules of paracetamol injection drug kept in the hospital were also seized and sent for examination in the Drug Testing Laboratory. The opinion of the analysts was that it was of standard quality. The forensic report was to the effect that the ampules contained 'acetaminophen', which is the chemical name of the drug paracetamol. Based on these opinions, the Doctors, who have conducted autopsy gave their final opinion on 12-3-2012 where, they have opined as follows:

"No definite opinion can be given regarding the cause of death. However, history of the case, postmortem findings and pathological findings are consistent with death due to haemorrhagic fever, 02 hrs. to 06 hrs. prior to autopsy, the cause of which could not be detected microbiologically". The opinion of the Doctors was clear that the death of the child was not due to the administration of paracetamol, that the death was due to haemorrhagic fever, which is consistent with the history of the patient that the child was running high fever for few days without treatment. All the above records were subsequently submitted to a team of expert Doctors for the further opinion as has been held by the Supreme Court in Jacob Mathew's case. One Dr. M.R. Manivannan, MD.DM., (Neuro), Professor and Head of Department of Neurology, Government Medical College Hospital, Theni, Dr. M. Raja Rajeshwaran, MD., Professor and Head of Department, Department of Pediatrics, Government Medical College Hospital, Theni and Mr. P. Manikanthan, Professor and Head of the Department, Department of Pediatric Surgery, Government Medical College Hospital, Theni, examined all the records. Finally, they gave their opinion on 30-11-2013 as follows:

"(i) The death of the child Madhubalan was not due to the administration of injection Paracetamol;

(ii) The death of the child was due to viral fever with complication of shock."

Expert Opinion During Hearing of the W p s: The Petitioner again raised certain doubts about the correctness of the opinion offered by the two Doctors, who conducted autopsy on the body of the deceased child and three other expert Doctors, from whom further opinion was obtained. Senior Civil Surgeon one Dr. K. Sarah of the Government Rajaji Medical College Hospital at Madurai and attached to the Dispensary of the Hon'ble Bench also gave the very same opinion that administration of paracetamol injection would not result in the death of the child, that it is the normal treatment given to any child who is running high fever, that the actual cause for the death could be either due to viral infection or due to bacterial infection. Since the child was no more, exact cause as to whether it was due to viral infection or bacterial infection could not be found out. However , she was of the definite opinion that the death was due to haemorrhagic fever. As seen in the postmortem, there was haemorrhage in the stomach of the child.

Observations: The Doctors have given opinion uniformly, with no dissent, that there was no negligence, much less gross negligence, at all on the part of the Doctor, who administered paracetamol injection. Therefore, prosecuting the Doctor and the paramedical staff for offence under section 304A of the Indian Penal Code, in the given case, is not at all possible. As has been held by the Hon'ble Supreme Court, if Doctors are to be prosecuted before the criminal courts in a casual manner for every death or every injury to the patient, then the Doctors, as and when called upon to enter into the operation theatre or the treatment room, will enter with shivering hands, which will not be good for the society at large. The Doctors should be given free hand to diagnose the disease and to decide about the course of treatment. At times, the diagnosis or the treatment given may not be a correct one. But such error of judgment cannot be considered as gross negligence in terms of 304A IPC. As has been held by the Hon'ble Supreme Court, it is the culpability of the negligence, which differentiates the negligence as a crime or the negligence as a tort.

Held: There is no material even to infer that the Doctor and the paramedical staff, who administered paracetamol injection had acted in a manner amounting to gross negligence warranting prosecution. Thus, I find no infirmity in the final report prepared by the Investigating Officer. Therefore, the question of transferring the investigation does not arise. In view of all the above, both the writ petitions are dismissed, with liberty to the Investigating Officer to present the report as drafted already to the Magistrate concerned. No costs. Consequently connected Miscellaneous Petitions are closed.

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