IMPORTANT POINT
Negligence under Section 336 IPC established when a medical professional fails to conduct a requested test, endangering patient safety, regardless of the eventual outcome.

ORDER :

(A. BADHARUDEEN, J.)

The accused in CC 93/2022 on the files of the Additional Chief Judicial Magistrate Court, Ernakulam seeks the following relief in this petition filed under Section 482 of the Code of Criminal Procedure, 1973:

“To quash Annexure II Final Report in Crime No.825/2021 of ET North Police Station, Ernakulam District, which is now pending as CC No.93/2022 before the Hon'ble Additional Chief Judicial Magistrate Court, Ernakulam in the interest of justice.”

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the records.

3. Even though notice served upon the 2nd respondent/de facto complainant, she did not appear.

4. In the instant case, prosecution alleges commission of offence punishable under Section 336 of the Indian Penal Code, 1860 (for short 'the IPC') by the accused and the precise accusation is that the accused, who was working at Metropolis Lab, when requested to conduct 'Elisa Hit Antibody Test' as per the prescription of the doctor, for the mother of the de facto complainant, she informed the de facto complainant that Elisa method by using Hit Antibody Test was not available in the lab. Subsequently the accused at 1:20 hours on 11.06.2021, conducted Hit Antibody Test by 'Particle Gel Immuno Assay Method' rashly and negligently so as to endanger the life, and thereby committed offence punishable under Section 336 of IPC.

5. The learned counsel for the petitioner, who pressed for the relief vehemently argued that merely conducting Elisa Test by using Particle Gel Immuno Assay method instead of using the Hit Antibody Test by itself would not attract offence under Section 336 of IPC. According to the learned counsel for the petitioner, even though copy of request forwarded by Dr. Boby Varkey (Consultant Neurologist, Aster Medcity) to Metropolis Lab (Town Hall, Kacheripady) stated “kindly do ELISA-Hit Antibody Test, with the sample given along,” when the accused conducted 'Particle Gel Immuno Assay method' instead of conducting Hit Antibody Test, the doctor gave statement that since the said test was not useful, blood sample was again collected and positive result obtained from Medical College, Vellore, and subsequently the doctor treated the patient and avoided fatality to her. Therefore, by conducting 'Particle Gel Immuno Assay Method Test', no overt acts endangering the life or personal safety of the mother of the de facto complainant occurred so as to attract the offence under Section 336 of the IPC.

6. Opposing this contention, the learned Public Prosecutor gave much emphasis to the doctor’s request which is part of Annexure-II, specifying to conduct 'Elisa Hit Antibody Test' and with support of the doctor's evidence, contended that the accused herein had done 'Particle Gel Immuno Assay Method Test' without any authorisation and the doctor's statement is that the same was not useful. Accordingly, the doctor collected another sample of blood and obtained report from the Medical College, Vellore, and on getting a ‘positive’ report, the patient was treated and fatality avoided. At the same time, the report by using Particle Gel Immuno Assay Method gave the result as 'negative' as per the report that appears in page No.33 of the paper book. It is pointed out by the learned Public Prosecutor that if the said result was relied upon, without getting report of 'Elisa Hit Antibody Test' with ‘positive’ result and the patient was not given timely treatment to avoid fatality on account of positive result, the same would have been fatal to the patient. Thus, the offence is prima facie made out warranting trial.

7. In consideration of the rival submissions, the crucial question to be decided is; whether the allegations of the prosecution would attract the offence under Section 336 of IPC?. In this connection it is apposite to extract Section 336 of the IPC as under:

“336. Act endangering life or personal safety of others.-- Whoever does any act so rashly or negligently