Medical negligence does not constitute culpable homicide unless there is knowledge or intent of likely death; mere possibility does not satisfy the standard of culpability.

ORDER :

KAUSER EDAPPAGATH, J.

This criminal revision petition has been filed challenging the order passed by the Assistant Sessions Court (Addl.), Palakkad (for short, 'the trial court') in Crl.M.P. No.101 of 2016 in S.C. No.375 of 2015, dismissing the petition for discharge filed under Section 227 of the Cr.P.C.

2. The revision petitioner is the accused, and the 1^st respondent is the de facto complainant in S.C. No.375 of 2015 pending before the trial court. The offence alleged against him is under Section 304 of IPC.

3. The petitioner is a doctor by profession. In 2012, the petitioner was working as a visiting doctor at the Kerala Nursing Home in Palakkad. On 08.05.2012, the petitioner performed surgery on a child, namely Athira, the 10-year-old daughter of the 1^st respondent, for appendicitis. The petitioner himself administered spinal anesthesia to the child just before the surgery. He did not seek the service of an anesthetist. During the surgery, the child developed complications due to the anesthesia. The surgery started at 03.35 p.m. At 03.45 p.m., the oxygen saturation came down to 80%, and the child developed cardiac arrest. At 04.00 p.m., the child was declared dead.

4. On the same day, the Palakkad South Police registered a crime based on the statement given by the 1^st respondent, alleging medical negligence on the part of the petitioner, who conducted the surgery and administered the anesthesia. The police, after investigation, filed the final report against the petitioner, alleging an offence under Section 304 of IPC. Annexure A is the final report. The allegation in Annexure A final report is that the petitioner knowing well that conducting of surgery without the assistance of an anesthetist may lead to complications and even result in the death of the child, conducted the surgery on the child who died due to anesthesia complications and thereby committed the offence.

5. The petitioner appeared before the trial court and was released on bail. He filed a petition as Crl.M.P.No.101 of 2016 under Section 227 of Cr.P.C for discharge. The trial court, after hearing both sides, dismissed the petition as per the impugned order.

6. I have heard Sri.K.P.Balagopal, the learned counsel for the petitioner, Sri.Unni Sebastian Kappen, the learned counsel for the 1^st respondent and Sri.E.C.Bineesh, the learned Public Prosecutor.

7. The learned counsel for the petitioner submitted that a close reading of the FIR, the FIS, the statements of the witnesses and the documents on record would reveal that there is no sufficient ground for proceeding against the revision petitioner. The counsel further submitted that not even a prima facie case, even after the final report, is made out by the prosecution, for accusing the petitioner of the offence under Section 304 of IPC. The counsel also submitted that the sole allegation that the petitioner administered anesthesia by himself without availing the services of an anesthetist itself, cannot be taken as a ground for implicating him in the commission of an offence punishable under Section 304 of IPC. According to him, the petitioner cannot be said to have done the act of administration of anesthesia with the knowledge that his act was likely to cause the patient's death, and he did not know that administering anesthesia without seeking the assistance of an anesthetist was likely to cause death. The trial court ought to have discharged the petitioner under Section 227 of Cr.P.C., submitted the counsel. On the other hand, the learned counsel for the 1^st respondent as well as the learned Publi