ORDER

Challenging the criminal proceedings in P.R.C.No.120 of 2023 on the file of the XIV Metropolitan Magistrate Court, Egmore, Chennai, the present criminal original petition has been filed.

2.The prosecution case is that the defacto complainant Josebeen's son Santhosh Kumar came to the ARHT Global Clinic for hair transplantation on 15.05.2016, which is owned by the first accused Dr.Santhosh Kumar. Dr.Vinith the petitioner herein (second accused) treated the deceased Santhosh Kumar. After treatment, since his temperature had risen, he was taken to the nearby Guest Hospital, where the treatment was given for fever, thereafter, his mother the defacto complainant took him to C.M.C. Hospital, Vellore and taken for treatment on 16.05.2016, unfortunately, he died on 17.05.2016. In the postmortum report, the Doctor opined that the cause of death is “ Refractory shock and metabolic Acidosis Anaphylactic shock, Toxic Shock Syndrome, Septic Shock, Multiorgan Dysfunltion- Acute Renal Failure.” Further the allegation is, if he had not undergone hair transplantation treatment, he would not have died. The cause of death is, the hair transplantation done by untrained petitioner without any basic facilities at ARHT Global Clinic Centre. Since without any required qualification, with the knowledge and if the act is done, it is likely to cause death the petitioner done hair transplantation to the deceased Santhosh Kumar and thereby, committed the offence punishable under Section 304(ii) IPC, which is now under challenge.

3.The learned counsel for the petitioner contended that the treatment was given by the petitioner to the deceased on 15.05.2016 morning and died on 17.05.2016 morning after 48 hours. In this context, as has been held in Jackob mathew's Case (2005 SCC Cr 1369), this is not a case where the death is the direct result of the treatment given by the petitioner. The Courts have held that the death must be the proximate to the treatment given. It must be the Causa Causans. It is pertinent to point out that the complaint in the present case has been given after a long gap of 18 days which clearly reflects that it is an afterthought and ill motivated. As has been held in the above supreme Court Judgment, assuming that there is negligence, it should be gross negligence in order to attract section 304A of IPC whereas on a reading of the entire materials, it will be seen that there is no negligence at all in as much as the deceased died of some other ailment absolutely unconnected with the hair treatment.

4.Further, the learned counsel for the petitioner submitted that the Court below erred in taking the cognizance of the case. Because simply a patient has not responded to treatment given by a doctor cannot be held liable for medical negligence much less criminal negligence. As has been held by various settled decisions the essential ingredients of mens rea cannot be excluded from consideration when the charge in the criminal Court consists of criminal negligence which is admittedly absent in this case even taking to entire materials to be true. In fact, it is not the case of the prosecution that there is mens rea attributed to the accused. The learned counsel further submitted that there is no prima facie case made out for the offence under Section 304(ii) IPC, there is no material to show that the act of the accused/petitioner amounted to culpable homicide by implanting hair. On this ground also, the proceedings on the court below are liable to be quashed.

5.To support his argument, the learned counsel for the petitioner relied upon the decision of the Hon'ble Supreme Court in (i) Crl.A.No.770 of 2009 Anjana Agnihotri & Anr. Vs. The State of Haryana & Anr. (ii) Crl.A.No.1389 of 2018 Nitinchandra Somnath Raval Vs. The State of Gujarat & Ors (iii).Jacob Mathew Vs. State of Punjab and another reported in (2005) 6 SCC page 1 (iv)Martin F.D'Souza Vs. Mohd. Ishfaq reported in (2009) 3 SCC page 1 (v) Lakshmi Nursing Home, represented by Dr.C.Je