Materials on record not sufficient to fix criminal liability.

Dr. L. Prakash, seeking to quash the proceedings in C.C. No. 3711 of 1998 on the file of II Metropolitan Magistrate, Egmore, Chennai, for the offence under S. 304-A, I.P.C. has approached this Court with this application filed under S. 482, Cr.P.C.

2. The petitioner is arrayed as A3 in this case. The accusation contained in the charge-sheet against A1 to A3 is as follows :-

"On 24-5-1997 at about 12.00 hours at Padmini Nursing Home situated at Panchayappas College Hostel Road, Chennai, Dr. Parthasarathy (A1), Dr. Rajagopal (A2) and Dr. L. Prakash (A3) acted in a rash and negligent manner in conducting the operation on the person by name Jayakumar for his fractured injuries sustained on his right leg in a road accident, the first accused Dr. Parthasarathy being the Anaesthetist, the second accused Dr. Rajagopal and the third accused Dr. L. Prakash being in charge of the operation fixed for the patient, during which process the second accused abruptly left the operation theatre on some reason for a short duration leaving the third accused and after the administration of anaesthesia by A1, as a result of which the patient died of acute respiratory failure. Therefore, all the three doctors being negligent in their duties are liable to be punished for the offence under S. 304-A of I.P.C."

2A. Mr. Karuppan, the counsel for the petitioner (A3) would mainly contend that the charge as against the petitioner under S. 304-A, I.P.C. is not made out, since he was in no way connected with the cause of death, which is said to have caused out of complications that had arisen due to spinal anaesthesia administered by Dr. Parthasarathy (A1) who is an Anaesthetist. He would also submit that the post-mortem report did not specify that the cause of death was due to any negligence on the part of any one involved in the operation except for stating that the cause of death was due to lung shock. He would also point out that the second opinion which was sought from Dr. Cecilia, Head of the Department of Forensic Sciences would certify that the cause of death was due to acute respiratory failure - a sequelae to spinal anaesthesia administration and that, therefore, the person answerable to the charge is only (A1), the Anaesthetist and the petitioner (A3) could not be charged of contributing the said act. According to the counsel, the petitioner could not be attributed with any sort of negligence, as there are no materials to show that he was in any way responsible for the death of the deceased.

2B. I have heard Mr. Elango, the learned Government Advocate appearing for the respondents.

2C. A perusal of the records would give the following details :-

(a) One Jayakumar aged about 24 years is a student of III Year B.E. in B.M.S. Engineering College, Bangalore. He met with a road accident on 14-5-1997, due to which he sustained injuries on his hand, leg and head. Initially he took treatment at Manipal Hospital, Bangalore. Since his father Sethuraman and his family are residing at Madras, the said Jayakumar was brought to Madras for further treatment. On 16-5-1997 the patient was taken to Dr. Rajagopalan (A2), Ortho Surgeon, who is the family doctor of the said Sethuraman, at his clinic, who in turn got the patient admitted in the Padmini Nursing Home on the same day. Thereupon, Dr. Rajagopalan (A2) and his son-in-law Dr. L. Prakash (A3), the petitioner both being the Ortho Surgeons and visiting consultants of Padmini Nursing Home attended over the patient Jayakumar and commenced the treatment. On 23-5-1997 both the Doctors decided to conduct surgical operation on the right leg of the patient for compound fracture. They had also promised the father of the patient that it was a minor operation in which they have planned to adopt and carry out a foreign method of treatment and that there was nothing to worry about.

(b) On 24-5-1997 at 8.30 a.m. the patient was taken to operation theatre. Dr. Rajagopalan and Dr. Prakash, Ortho Surgeons and Dr. Parth