Failure to conduct pre-anaesthetic check-up constitutes prima facie negligence under Section 304A IPC, warranting trial; factual disputes not resolved in revision.

O R D E R

The order dated 21.03.2019 of the Additional Assistant Sessions Court, Palakkad in S.C No.778/2016 framing charges against the accused in the said case for the commission of offence under Sections 304A I.P.C, and forwarding the case to the Judicial First Class Magistrate Court-III, Palakkad under Section 228 Cr.P.C for trial, is under challenge in this revision petition filed by the accused in that case.

2. The petitioner herein is an Anesthetist Doctor, who had been working in a private hospital by name Palghat Poly Clinic. A 23 year old lady, who delivered a baby on 11.09.2014, had undergone Post Partem Sterilization (PPS) surgery in that hospital on 13.09.2014. The petitioner was the Anesthetist, who attended her during that time. After the surgery performed in between 6:30 p.m and 8:40 p.m on 13.09.2014, the above lady died due to peripartum cardiomyopathy caused as a result of primary pulmonary hypertension. Initially, an F.I.R was registered under Section 174 Cr.P.C in connection with the aforesaid death. Later on, the offence under Section 304 I.P.C was incorporated against the petitioner herein, and the Gynaecologist who conducted the surgery. After considering the report of the District Level Expert Committee of Doctors, the Investigating Officer laid the final report against the petitioner herein alone, for the commission of offence under Section 304 I.P.C, in connection with the aforesaid death of that lady after PPS surgery. It was alleged that the failure of the petitioner to conduct pre-anaesthetic check-up had resulted in the complications leading to the death of that lady.

3. The petitioner filed Crl.M.P No.350/2017 before the learned Additional Assistant Sessions Judge, seeking discharge from criminal prosecution. After hearing both sides, the learned Additional Assistant Sessions Judge came to the conclusion that the offence under Section 304 I.P.C is not attracted, in the facts and circumstances of the case. However, it was found that there were prima facie materials to proceed against the petitioner for the commission of offence under Section 304A I.P.C. Accordingly, the learned Additional Assistant Sessions Judge framed charges under the aforesaid Section, and passed the order under Section 228 Cr.P.C forwarding the case to the Judicial First Class Magistrate concerned for proceeding with the trial. It is the aforesaid order, which is under challenge in this revision petition.

4. Heard the learned counsel for the revision petitioner, and the learned Public Prosecutor representing the State of Kerala.

5. As already stated above, gross negligence in administering treatment is attributed to the petitioner herein, stating the reason that he gave anesthesia to the deceased lady, without conducting pre-anesthetic check-up, prior to her PPS surgery. According to the prosecution, the aforesaid omission was the cause of death of that 23 year old lady, who delivered a female child without any medical complications, two days prior to her death. The report of the District Level Expert Committee consisting of five Senior Medical Officers including Specialists in Gynaecology and Paediatrics and the D.M.O concerned, is relied on by the prosecution in support of the aforesaid allegation. The findings in the postmortem report are also pointed out by the prosecution to contend that the petitioner displayed gross negligence by his failure to conduct pre-anesthetic check-up upon the deceased lady before proceeding with the process of anaesthesia.

6. The petitioner strongly disputes the aforesaid allegation about his failure to conduct pre-anesthetic check-up upon the lady, who lost her life due to peripartum cardiomyopathy, after the procedures of PPS. According