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Judgment
P.R. Shivakumar, J.—Mr. Mahaveer Shivaji, a practising Advocate, has filed Criminal Original Petition No. 18043 of 2008 u/s 482
Cr.P.C. praying for a direction to the Investigating Officer, namely the Inspector of Police, T15, SRMC Police Station, Porur, Chennai to act
neutrally in investigating the criminal case in Crime No. 1196 of 2006 on the file of the above said Police Station. Besides the said prayer, the
petitioner in the above said Criminal Original Petition has also prayed that this Court should constitute a Special Medical Board of 3 members to
submit their opinion to the Investigating Officer. Dr. S. Balagopal, who figures as the second respondent in the criminal original petition filed by Mr.
Mahaveer Shivaji (Crl.O.P. No. 18043 of 2008) is the petitioner in Criminal Original Petition No. 7614 of 2008. Since the Investigating Officer,
namely the Inspector of Police, T15, SRMC Police Station, Porur, Chennai submitted a final report in the above said crime number accusing Dr.
S. Balagopal of having committed offences punishable under Sections 336, 201, 465 and 471 IPC and the same was taken on file as C.C. No. 13
of 2008 on the file of the learned Judicial Magistrate No. I, Poonamallee, he has chosen to file Crl.O.P. No. 7614 of 2008 u/s 482 Cr.P.C. for
quashing the criminal proceedings initiated in the said calender case based on the final report submitted by the Investigating Officer. The defacto
complainant, namely Mahaveer Shivaji, was not made a party in the petition filed by Dr. S. Balagopal, who has been arraigned as accused in the
said case. Subsequently on a miscellaneous petition filed by the defacto complainant Mr. Mahaveer Shivaji, he was added as a party respondent in
Crl.O.P. No. 7614 of 2008 and was arrayed as the second respondent in the said petition.
Since both the petitions have been filed in respect of the very same criminal proceedings, both the criminal original petitions are taken up
together for disposal by a common order.
The narration of the facts leading to the filing of this petitions, in brief, shall be helpful to understand the case in proper prospective. The facts, in
brief, are follows:
i) Dr. Balagopal is working as a Consultant Paediatric Surgeon at Sri Ramachandra Medical College, Porur. Mr. Mahaveer Shivaji, the defacto
complainant, took his male child Niveshik Kumar, aged 1 = years, to the hospital for some problem. On admission he was diagnosed with.
1) descended right side testis with inguinal Hernia
2) Undescended left testis ? Palpable inguinal ring
The right side testis was found in normal size and was seen in right scrotum sac whereas the left side testis was measuring some what smaller and
was seen in superficial inguinal region. For the above said defects surgery under General Anaesthesia was advised. According to the defacto
complainant, his consent was obtained for bilateral Orchidopexy to position the testicles in the scrotum sac. The further contention of the defacto
complainant is that while the operation was in the progress, from the operation theatre Dr. Balagopal contacted him over phone and asked his
consent for the removal of the left side testis on the premise that he may develop cancer after some years and there was 30% possibility of his
getting cancer if the lest side testis was not removed; that the defacto complainant replied that if such complication would develop at a later point of
time, necessary treatment would be provided at that point of time and for that remote possibility, the testis need not be removed and that despite
the fact that he had declined to give his consent for the removal of the left side testis, something happened in the operation theatre and the left testis
was removed. It is his further contention that after the completion of the surgery, the defacto complainant was informed of the fact that the left side
testis of the boy was removed and that thereafter, the defacto complainant made complaint to the hospital authorities that such a removal of the
testis was done without and against his consent. It is the further contention of the defacto complainant that in order to find out whether it was
necessary to remove the left side testis he got the pathological report and after getting the pathological report, he obtained advise from other
doctors; he also saw the tissue displayed in the computer by the pathologist of Sri Ramanchandra Medical Centre, Porur who commented that it
was normal and wondered why the testis was removed and the same made the petitioner get opinion from other doctors; that based on the
information received by him from other Medical Officers, he came to know that something had happened in the operation theatre which resulted in
the removal of the left side testis of his son without his consent and that, therefore he had to lodge a complaint against the hospital and Dr.
Balagopal.
ii) Since his complaint made to the Police did not evoke any response as he expected, he preferred a complaint before the jurisdictional
Magistrate, who forwarded the complaint to the police u/s 156(3) Cr.P.C. for investigation and thus, the above said crime number came to be
registered on the file of T-15, SRMC Police Station, Porur. Since final report was not filed till February 2007, the defacto complainant filed
petition u/s 482 Cr.P.C. in Crl.O.P. No. 5760 of 2007 on the file of this Court for a direction for completion of investigation and submission of the
final report and this Court, by order dated 02.03.2007, allowed the said petition and directed the Investigating Officer to file final report within two
months thereafter. Subsequently, a contempt petition came to be filed in Contempt Petition No. 845 of 2007 for non-compliance with the above
said order. Meanwhile, the final report dated 11.10.2007 was submitted on the file of the learned Judicial Magistrate I, Poonamallee and the said
contempt petition was closed. The final report was taken on file by the learned Judicial Magistrate I, Poonamallee as C.C. No. 13 of 2008. Dr.
Balagopal alone had been arraigned as the accused in the said calender case. Thus, Dr. Balagopal was facing the charge of having committed the
offences u/s 336, 201, 465 and 471 IPC.
iii) On receipt of summons Dr. Balagopal appeared before the said Court, obtained copies and thereafter filed Crl.O.P. No. 7614 of 2008 for
quashing the criminal proceedings initiated on the basis of the final report dated 11.10.2007 submitted by the Investigating Officer in Crime No.
1196 of 2006 on the file of T.15 SRMC Police Station Porur, Chennai. The said petition has been filed contending that the guidelines issued by the
Hon''ble Supreme Court in Jacob Mathew Vs. State of Punjab and Another, was not followed. Meanwhile the defacto complainant filed Crl.O.P.
No. 37213 of 2007, perhaps in ignorance of the fact that a final report has already been filed in the above criminal original petition for change of
investigation and on being apprised of the fact that a final report had been filed and the same had been taken on file by the Judicial Magistrate I,
Poonamallee as C.C. No. 13 of 2008 and this Court passed an order in the said criminal original petition directing the Investigating Officer to
conduct further investigation and submit a further investigation report in C.C. No. 13 of 2007 on the file of the learned Judicial Magistrate I,
Poonamallee.
iv) Meanwhile, Crl.O.P. No. 7614 of 2008 came to be filed by Dr. Balagopal for quashing the criminal proceedings on the ground that the
Investigating Officer had obtained opinion from a paediatrician which show that there was no negligence on the part of Dr. Balagopal and that only
a Medical Officer in the Forensic Science has given opinion to the effect that there was no necessity to remove the testis at that point of time and it
could be removed at a later point of time, if necessity would arise. The contention of Dr. Balagopal in the said petition is that since opinion of the
paediatrician rule out medical negligence, the Investigating Officer chose to disregard the medical opinion given by him and submitted the final
report enclosing a report of a Medical Officer of the Forensic Medicine and that hence, the prosecution launched on that basis should be quashed.
v) Now the defacto complainant has come forward with Crl.O.P. No. 18043 of 2008 seeking a direction to the Investigating Officer to act
impartially and also praying that this Court should constitute a special Medical Board of three members to give their opinion. The defacto
complainant submits that he was forced to seek such a direction, because the Investigating Officer failed to get the pathological report of the tissue
block before concluding his investigation and submitting his final report. In that context alone the defacto complainant has also prayed for
constitution of a Medical Board constituting 3 medical officers.
The learned counsel for the petitioner in Crl.O.P. No. 7614 of 2008, namely Dr. Balagopal, would submit that though the petition for quashing
the criminal proceedings came to be filed on the ground that the guidelines stipulated in the judgment of the Supreme Court referred supra were not
followed, later on, to give effect to the guidelines, the State Government issued a Government Order in G.O. Ms. No. 220 dated 04.07.2008 and
in view of the same, the petitioner in Crl.O.P. No. 7614 of 2008 cannot be prosecuted on the basis of the opinion of the Medical Officer in the
Forensic Medicine. It is the contention of Mr. Ravi Ananthapadmanabhan, learned counsel for Dr. Balagopal that the experts in the field, namely
Paediatric Surgeons alone are competent to give opinion. It is his further contention that in view of the earlier order of this Court directing further
investigation and submission of further report, the accused Dr. Balagopal may not have any objection for constitution of a Medical Board
consisting of Paediatric Surgeons and the submission of a final report by the Investigating Officer taking into account the opinion of such medical
board.
Per contra, it is the contention of Mr. Mahaveer Shivaji, the defacto complainant, that in the case on hand, the grievance of the petitioner is not
only medical negligence but also correction of records, which would amount to fabrication with the intention of showing that the defacto
complainant had given consent for the removal of the left side testis of his son, whereas his instruction being not to remove it and leave it intact by
placing it in the scrotum sac.
Ms. M.F. Shabana, learned Government Advocate (Crl. side), representing the State (Investigating Officer) would submit that there was no
flaw in the investigation and on the basis of opinion of a competent Surgeon, the Investigating Officer found negligence on the part of the accused
Dr. Balagopal in conducting the surgery and that there were also sufficient materials supporting the charge of commission of other offences
mentioned in the charge sheet and hence, the prayer of Dr. Balagopal for quashing of the criminal proceedings initiated on the basis of the police
report should be rejected.
This Court paid its anxious considerations to the above said submissions made by the defacto complainant, learned counsel for the accused and
by learned Government Advocate (Criminal side). The materials produced were also taken into account.
Though Crl.O.P. No. 7614 of 2008 has been filed for quashing of the criminal proceedings initiated in C.C. No. 13 of 2008 on the file of
Judicial Magistrate I, Poonamallee, in view of the fact that this Court after the initiation of the said proceedings chose to pass an order in Crl.O.P.
No. 37213 of 2007 directing further investigation and submission of a further report, Dr. Balagopal, the accused/petitioner in Crl.O.P. No. 7614
of 2008, is prepared to not press the said prayer for quashing the criminal proceedings, provided safe guard is made by staying all further
proceedings in the calender case pending submission of the final report, which will relieve the accused from making periodical appearance during
the pendency of further investigation. The above said submissions made by the learned counsel for the accused/petitioner in Crl.O.P. No. 7614 of
2008 seems to be quite reasonable. Hence, this Court comes to the conclusion that the prayer for quashing the criminal proceedings initiated in
C.C. No. 13 of 2008 on the file of learned Judicial Magistrate I, Poonamallee based on the final report of the Investigating Officer dated
11.10.2007 and all further proceedings will be stayed pending submission of the further report on completion of further investigation in accordance
with the order of this Court dated 25.03.2008 made in Crl.O.P. No. 37213 of 2007.
The prayer made by the defacto complainant in Crl.O.P. No. 18043 of 2008 is two fold. First one is to direct the Investigating Officer to act
impartially. The second limb of the prayer is for the constitution of a Special Medical Board to give opinion in this case. So far as the first part of
the prayer is concerned, unless specific allegations are made against the earlier Investigating Officer, issuing such directions will even demoralize the
Investigating Officer in this case. The additional factor that is to be taken into consideration is that the Investigating Officer who had conducted
investigation has been transferred and a new Inspector of Police has taken charge in the Police Station and he will be the Investigating Officer. We
have to trust the members of the Police force, who are investigating the case, in the absence of any specific instances of bias or malafide in the
course of investigation. Therefore, this Court comes to the conclusion that the first limb of the prayer of the defacto complainant, namely in W.P.
No. 18043 of 2008, in view of the present situation, has got to be negatived.
So far as the second limb of the prayer of the defacto complainant is concerned, in view of the divergent opinions obtained by the Investigating
Officer during the course of investigation leading to the filing of the final report dated 11.10.2007, this Court is of the considered view that it shall
be in the interest of justice to seek the opinion of a Medical Board consisting of experts and direct the Investigating Officer to take such opinion of
the Medical Board into account and submit his final report. In this regard, learned counsel for the accused would contend that only paediatric
surgeons should be included in the Medical Board to give opinion regarding the case of the defacto complainant''s son and other Medical Officer
not being an expert in Paediatric surgery, should not be included in the Board. The said submission of the learned counsel for the accused is
purportedly based on the direction given by the Supreme Court in Jacob Mathew''s Vs. State of Punjab reported in 2005(2) SCC (Crl) 1369,
which has also been again incorporated in the Government Order. The observation of the Supreme Court in the said case reads as follows:
A Private Complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible
opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating
officer should, before proceeding against the doctor accused of rash and negligent act or omission, obtain an independent and competent medical
opinion preferably from a doctor in government service, qualified in that branch of medical practice who can normally be expected to give an
impartial and unbiased opinion applying the Bolam Test, (1957) 2 All ER 118, at p. 121 D-F set out in para 19 herein], to the facts collected in the
investigation.
Similar language is used in the Government Order issued by the Government. Interpreting the said observation of the Hon''ble Supreme Court
and the Government Order issued by the Government, learned counsel for the accused would submit that the patient being a child, only a
paediatric surgeon shall be an expert in the field and hence the members of the Medical Board should be Paediatric Surgeons and none else.
Mr. Mahaveer Shivaji, the defacto complainant would contend that though the patient happened to be a child, it cannot be said that only
paediatric surgeons will be construed as an experts especially when one of the testicles of the patient was removed on the premise that there was
possibility of the child developing cancer at a later point of time. It is the further contention of the defacto complainant that in such cases experts in
Pathology and Oncologists (experts in treatment of cancer) are also specialists who could be validly consulted for opinion. This Court accepts the
same to be correct. Hence, this Court comes to the conclusion that the interest of justice can be best served by directing constitution of a special
Medical Board consisting of a Paediatric Surgeon in the Government Service, a Pathologist in the Government Service and an Oncologist in the
Government Service. Such a Board shall be constituted by the Director of Medical Services, who is Respondent No. 3. Accordingly, both the
criminal original petitions, namely Crl.O.P. Nos. 18043 of 2008 and Crl.O.P. No. 7614 of 2008 are disposed of with the following directions:
a) The prayer for quashing of the criminal proceedings in C.C. No. 13 of 2008 made by the accused in his petition in Crl.O.P. No. 7614 of 2008
shall stand rejected.
b) Since further investigation has been ordered, all further proceedings in C.C. No. 13 of 2008 shall stand stayed till the completion of the further
investigation and submission of the further report subject to a rider that the accused shall cooperate with the Investigating Officer in conducting
further investigation.
c) The first part of the prayer made in Crl.O.P. No. 18043 of 2008 filed by the defacto complainant viz., for a direction to the Investigating Officer
to act impartially is negatived.
d) The second part of the prayer made in Crl.O.P. No. 18043 of 2008 praying for constitution of the Medical board is allowed and the Director
of Medical Services, Chennai is directed to constitute a Medical Board consisting of following persons:
i) a Specialist in Paediatric Surgery in Government Services;
ii) An expert in Pathology in Government Services;
and
iii) An expert in Oncology in Government Services.
e) The Medical Board should be constituted within one month from the date of receipt of a copy of this order and the Medical Board shall submit
the report as early as possible preferably within two months from the date of constitution of the Medical Board. The report shall be submitted to
the Investigating Officer, marking a copy to the Registrar Judicial of this Court.
f) The Investigating Officer shall complete the investigation within two months after the receipt of the opinion of the Medical Board and submit
further Final report.
g) It shall not be necessary for the accused to make periodical appearance before the learned Judicial Magistrate I, Poonamallee till the submission
of further final report.
Consequently, the connected miscellaneous petitions are closed.