1394/2013. i i ,,-1,

ll

have been aware of the same. The materials now before the

court show that the petitioner was called at a time when the

patient had gone into the morbjd condition and the!"e js no

marerial or any report of any committee suggesting that the

petitioner had omitred to do something which he could have

done to save the petitioner or he had done something which

ought not to have been done. There is nothinq to show that

the patient could have been managed in such a (ritical

condition by any method except putting the patient on

ventilator. Of course, there is materials. to show that she

should have been given adrenalin tnjunction, since respiraroty

problem had developed as a result of ampicillin iniunction.

There is an allegation that proper test dose was not taken

before ampicillin injunction was given to Smt.Lakshmi

Santhosh" Whatever that be, the materiais do not disclose that

Dr.Ravikumar had ever treated the patient or attencled her or

had prescribed any medicines for her. His role is confined ro

CrI.M.C. 1394/2013.

14

the last stage when Smt.Lakshmi Sanrhosh had gone iniomorbid stage which is noticed by the various committeesconstituted and the Consumer Disputes Redressal Forum.

I l. lt is surprising to note that the apex body wasvery casuar in its approach and seems to be infruenced by thebirds of the same feather syndrorne and was keen toexonerate the doctors who had actually attended to andtreated the patient" .fhe

statement of C.W.g, the chargewitness, would indicate that the calarnity occurred due to theadministration of ampicillin injunction^ C.W.g is a CarrJiologistattached to VSM Hospital, Mavelikkara. C.W.7 has opined rhata patient who is administered with ampicillin, if reacts to thesame, is administered Diazepam, it will be counter produetive.On the other hand, when the patient develops acuterespiratory problem due to ampicillin injunction, life 5avingmedicine Adrinal should be admrnrstered to her rnstead ofdiazepam. He is of the opinion that when a patient has

Crl.M.C. i3941201i.

15

developecJ reaction to arnpicillin injunction, ua ri, irtriit,i.ofdiazepam was faral. lI is significant to notice that AnnexureA7 which is the report of the apex body, is totally silent aboutthis aspect. ln the findings recorded by the body, it is seenstated that cause of death is anaphylactic shock due toampicilin injunction. significantry enough the report is sirentabout the act of Dr.Ajith, who is the first accused herein, whoadm,nistered diazepam injunction to Smt.Lakshmi Santhoshwho had shown acute reaction to ampicillin injunction" Morecuriously enough, the said report draws the conclusion thatthere was no negligence on the part of any particular doctor,but there was coiiective negligence.

12. There is ronsiderable substance tR thegrievance voiced by the petitioner that exeept for Annexure47, there is absolutely no material to connect the petitioner r.lthe death of Smr.Lakshmi Santhosh.

Y-"'

Crl.M.at 1394/2013 . :,., li

l6

13. The next c ':i.,.

is whether this court

Juestion that arises for consideration

circumstances o, ,nu .u.'"' be iustified in the facts and

against the peritioner. an,u 'n o"tn'ng the proceedings

as

4g2 of r_, D /_ :- , e power of thjs court under Section.-.., .L. rs rndeed Ve

be exercised onry sparingry

wide However, that. power is to I

'ln fact a perusai of section in exceptional circumstances

scope is considerabry rimite of cr'P c' would show that its

follows: d. The said provision reads as

"482. Saving of irNorhins , ,0, ,.,,!1,y,::wer

or Hish couft._

atfee the inherento:-to"o be dee'med b limtt or

make such oro"r, ,oo*"" o1" the High cotJrt tu

etfect b any order:: ,''"' be necessary ro qtve

abuse of the pror"r'!d"' this code' or to prevent

secure rhe oro, orrurl!"":' court or otherwise ro

l4_ A reading ofuRder the said section .the

provision shows that the power

!:ontrngencies, they are, (i) t

be exercised under three

*/

o give effect to an order under the

Cr|M.C. t394/2013.

17

secure the ends ofjustice. Among the three, (ii) and (iii) workin both ways^ While rhey deal with prevention of harassmentof innocent persons, they also ensure that a just cause is notthrown out. Even though the power is wide, it is.ir.umscribel

I

by self irnposed reslrictions. Norrnally, the courts will notinterfere at the stage of inv

there are compering .,r.ut''"t''n or filing of charge unress

providedbytheCode,theirUsually,inmattersrherent powers are not invoked. ln

the decision reported in R.

r960 sc 866) some of the c Kapur v' state of Puniab (AlR

ategories of iases where inherentjurisdiction io quash proceedings is exercised are noticed.They are

"(i) htnere it manit'est/y ,

bar pg6i7757 ,t,r ,rurirullpuars thar there is a legar

crimina/ prrsceet.ring ;:' " rontinuance of the

alleged. Ab.sence of the' respect of the offence

iostance, fitrntsh tases ;;:::; :::;tnav, fbr

Cr|.M.C. t)94/2013.

l8(lD l,lthere the al/ega t

1.'.

Report or rhu ,o.rrrr'rnt in the First tnrormaiiion

their face va/ue and "'rt

"'"o tt' they are hken at

not constitute ,ou or*n',1"""0 in their entirety' do

question or uppruci"l) al/eged in such cases no

mafter mere,ly or uo*u1 evidence arises, it is a

First hrormaro, ;:;::: at rhe comp/ainr or the

. orrence a/tes,o ,, ,;:;;:o:, dectde whether the

(iir) lUhere the a//egation.sperson do cons tute un "'"'u

against the accused

either no rega/ evidence 'ffence al/eged but there i.t

case or the evidence ,,r;,''"u, in support or, the

rai/s to prove ,o; ;;,;;:":"o c/ear/v or manires y

or ca.ses tr is importan,/n dealing with this class

distincton u"r.."i|, i"!, ttt bear in mind trte

evtdence or where ,o"o *!"r:.l!"o is no legal

mainfesrly "ro r,")r,r'-,'_1.-_.ll*"'*

which is

accusatian rnade and case consistent with the

evidence which on _; ,:;; wttere there is /esat

:,uppott the arcusarion, n)"""on may or may not

jurirdiction under s' ,'u',llut'-n /n exerci.sinq rs

nor embark upon an urrr,llu _''no (:ourr Lvourd

e vi cl e n c e . o, " r, i u'' iJ,ir:,:; _':, : r' ::" :, ::

Crl.M.C. 1394/2013.

i.t ' '', ,n'.: ,.'r.ti.

function of the trial magistrate, and ordinarii/. ii,would not be open to any party to invake the HlghCoart's inherent .lurisdictlon and contend that on areasonable apprectation of the evidence theaccusation made against the accused would not besustained."

ln the decision reported in Raj Kapoor v. State (Delhi Admn.)

(ArR r 980 SC 25S), was observed as follows:

"10. The first question is as to whether theinherent power of the High Court under Section 4g2stands repelled when the revisional power underSec.. 397 overlaps.The opening words ofSection 4g2contradict this contention because nothing in theCode, not even Section jgZ can affect the amplitudeof the inherent power preserved in so nany termsby the language of S. 482. Even so, a genera!principle pervades this branch of law,. when a

specific provlsion is made easy resort to inherentpower is not right' except under compeltingcircumstances. Not that there is absence ofjurisdiction but that inherent power should notinvade areas set apart for specific power under tlrc

19

Crl.M.C 1394/201i

20

same Code.ln Madhu Lirth is Co urt h a s

" - r r r r;;:; ;: ;: :;,Xr' :; r:7;great respect, correctl!,, discussed ana aemeatte,athe law beyond mistuke.

482 is pervasive it s,whi/e it is true that sec'

interdicts written inb hou/d not subvert /egal

instance, in section ,riortirri"li";r:;::; Iarise in some sirua ons band a happy solution..

etween the two provisions

"wou/d be b say that the bar provided in sub-section (2) of Section 397of the revisrona/ power oroo""'"t

only in exercise

thereby that the High ,or'ou ''no court meaning

re t t s i o n i n re / a ti o n rr r r rt ; ::: :: ;:r' : ;: :;::in accordance wth ctneenunciated above, the inher

the other principre

o/1r, there betns no "r;";;:::rt::,::::#::,the redress of the grievanceEut rhen ir th. ora*, ;:r::r::":';,r";:;":,,l.r:r^.**, character which could be corrected inexercke ol the revisional power of the High Courtunder the lggg Code, the High Court L,tti/l refuse toexerclse ib inherent potyer. gut in case the

Crl.M.C. 1394/201i

" .....impugned order clearly brings about a situatLitwhich is an abuse of the process of the Court or farthe purpose of securing the ends of justiceinterference by the Hlgh Court is absolutelynecessary, then nothing contained in Section 3gZ(2) can limit or affect the exercise of the inherentpower by the High Court. But such cases would befew and far between. The High Court must exercisethe inherent power very sparingly. One such case

would be the desirability of the quashing of a

criminal proceeding inltiated illegal/y, vexatiou.sly ctr

;ts being without jurisdiction.,, (at p. S t )/ shorl, there is no total ban on the exercise ofinherent power where abuse of the process of thecoart or other extraordinary situation excites thpcourt's jurisdiction. The llmitation is self-restraint,nothing more. The poticy of the law is clear thatinterlocutory orders, pure and sintple, should not betaken up ta the High Court resultlng in unnec.essary

litigatlon and delay.. Ar the other extreme, finalorders are clearly capable of beinq consdlered inexercise af inherent power, if glaring injusricestares the court in the face. ln between is a tertium

cd.M.( I ',to4 20t I !#; .: "h ; .,. ftY'qutd, as untwalia, J. has

'r . r' ., i.

where ir is more,r,, "'i#iii!":;:';.:;:::,t"and /ess than a final disposa/" The present case faltsunder that category where the accused tomp/ain ofharassment rhrough the court,-s process. Can westate that in this thtrd c,

can be exercised? ln rhef::::;'I;::' "*'"fhe answer ls obvious that the bar will not operateto prevent the abuse of the process of the Court. and/or to secure the ends ofjustice. The label ofthe petition filerl by an dggrieved party is im_materia/. i.he Hiqh Court can examine the mafter inan appropriate ca.te under the inherent powers" fhepresent case undoubtedly falls for exercise ol_ thepower of the High Court i482 0f the /97-? code,

";r':::::;;::;;:;:;'::,accepting, that invoking the revisiona/ power of theHigh Court rs imperrnisstble.,,

/ am, therefore clear in my mind that the inherentpower is not rebuffed in the case situation beforeus. Counse/ on borh sides, senst vely rcsponding tuour pllprgy tor legalisiics, rightty agreetl thaf thefana tal tn.sistence on the formal tiling of a e opy of

Fcrl.tr4.C. 139412013. ;,ar

z; f{qit+the order under tassat;^- -- tt,courtb me. or, *rrrirriii':::;:";;':: "concession of counsel t

because a copyof the "::"rt::;::;":';r:i::Jdespite its presence in thnot possible for me ro o',,"

'"'o"t in the (ourt' it is

power shnds ,rrruu*i'o that the entire revisory

stu/tified.,, 'nd the inherent potver I

. 15. What at worst could be said as against thepetitioner is that he hatj failed to give supportive treatment"But there is no material to show as to what is meant by failureon the part of the petitioner to give supportive treatment.Except for the collective negligence as stated by the apex bodyin its order as Annexure AZ, there is no material to show as towhat omission or commissic

petitioner to murct r,i, *,rrr'

had occurred on the part of the

liability. Of course, rhe facr thathe had given a wrong information to the relatives ofSmt.Lakshmi Santhosh after vising the patient in VSM Hospitalis there.

a

Crl.N,l.C. I3941201i.

24

16. Bur thar by itself may not

to proceed against him and to direct

trial.

be a s ufficient ground

the petitjoner to face

i 7. Thouqh not of much relevance and significance,

one cannot omit to note that the Consumer Disputes Redressal

Forum had exonerated the petitioner. ln fact, one would have

expected the pelitioner to be cited as the prosecution witness

who could have deposed wtlat had transpired in the hospital

and under what (ireumstance he was compelled to refer thepatient to VSM Hospital. Of course, the prosecution may have

a justification that the apex body has s.tated that .the death

was due to the collective negligence on the part of the doctors

who had treated and attended to the patient. But thal vague

statement by itself is not sufficient to proceed against thepetifioner.

Cri.M.C. 1394/2013.

25

lg. As already stated, as of now, there is no

material to show that the petitioner had treated or prescribed

medicines to the patient, or attended to her before he saw her

in a morbid stage. There is also nothing to show that thepetitioner had failed to take steps that should have been

immediately taken considering the state of affairs of the Ipatie n t.

' 19" Under these circumstances, there is

considerable .justification in the complaint voi(ed by thepetitioner that he is being unnecessarily prosecuted for theoffence under Section 304 of lndian penal Corje.

20. One can only say that as per the materials nowavailable, there is nothinE to show that the petitioner had

contributed in any manner to the death of Sm;.Lakshmi

Santhosh. ln fact, the defacto complainant does not seem

to have much grievance against him. Her wrath is directed

Crl.M.C. 1394/2013.

26

against the first and second accused.

that she is a Nurse with vast experience.

:,i'fF:*!'{,. "

One must remember

21. Under these circumstances, it is felt that the

prosecution of the petilioner for the offence under Section 304

of l.P.C. will not be justified and as rightly pointed our by the

learned counsel for the petitioner, it is only harassing the

petitioner. However, it may so happen that during the

evidence it may come out that the petitioner had a role, in

which case, the court concerned has ample powers under

Section 319 of Cr.P.C-. to proceed against the petitioner.

ln the result, this petition is allowed and the

proceedings as far as the petitioner is'concerned in S.C.'1 675

of 20'l I on the file of the First Additional Sessions Court,

Kollanr, inclr:ding that portion of the charge laid as against

him stands quashed reserving the liberty of the trial court to

proceed against the petitioner if situation so demands under

Seetion Jl9 of er"P.C. and also enabling the trial courr to

Ctl.M.C. 1394/2013.

examine the petitio ner

prosecutio n choose not to

rtt.. ':r

witness in case

as their witness.

lD.

27

as a court

examine him

'[he

a{lP. BHAVADASAN,

JUDGE

lnuc rr-,tr,

Ps<

CRlyc, I,iO. .,394/2orJ

APPENOXPEflIOTER S ANNEXURES

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