HC refuses to quash proceedings against doctor charged under IPC 304ii in hair transplant linked death case

IPC 304(ii) is a subcategory under IPC 304, specifying a more severe form of culpable homicide. It refers to causing death with the knowledge that the act is likely to cause death but without any intention to cause death. This falls between culpable homicide not amounting to murder (IPC 299 and 300) and causing death by negligence (IPC 304A).

Justice V Sivagnanam, in his order dated September 21, 2023 remarked that the matter needs to be adjudicated on the facts of the case which the High Court could not do under Section 482 CrPC.

In 2016, a student of Madras Medical College approached ARHT Global Clinic Hair Transplant for Hair Transplant treatment, for that, surgery was done by Dr Vinith. As a consequence of the treatment, he suffered fever, prompting a visit to Guest Hospital for fever treatment. The patient's father Josebeen took him to C.M.C. Hospital in Vellore, where he subsequently died.

The postmortem report identified the cause of death as "Refractory shock and metabolic Acidosis Anaphylactic shock, Toxic Shock Syndrome, Septic Shock, Multiorgan Dysfunction- Acute Renal Failure." It was alleged by the deceased's father that the patient's death was a direct result of the hair transplantation conducted by an untrained doctor without proper facilities at ARHT Global Clinic. He assert that had he not undergone this procedure, he would not have died.

Consequently, a criminal case was filed against the doctor, and he was charged under Section 304(A) IPC, however, based on the supplementary final report of the police the case was altered into 304(ii) IPC. However, the doctor challenged the criminal proceedings and contested the charge against him in the high court of Madras.

The doctor's counsel argued that the patient died 48 hours after the treatment. Citing the Jackob Mathew's Case (2005 SCC Cr 1369), it was emphasized that the death isn't a direct result of the petitioner's treatment, per legal precedent. The courts have stressed that the death must be proximate to the treatment and the 'Causa Causans.' The complaint was filed after 18 days, indicating an afterthought and possible ulterior motives. Referring to the Supreme Court judgment, the counsel stated that even if negligence is assumed, it must be gross negligence to warrant section 304A of IPC. Moreover, the counsel argued that the deceased's death was due to an unrelated ailment, demonstrating no negligence in the hair treatment.

He further submitted that the Court below (XIV Metropolitan Magistrate, Egmore, Chennai) erred in taking the cognizance of the case. Mere lack of patient response to treatment does not constitute medical negligence, let alone criminal negligence. The petitioner's counsel further highlighted that mens rea, essential for criminal negligence, is absent in this case as confirmed by established legal precedents. The prosecution does not attribute mens rea to the accused. Subsequently, the counsel sought quashing of the criminal proceedings, while submitting 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 (doctor) amounted to culpable homicide by implanting hair.

Meanwhile, the Government Advocate for the State Rep by the Inspector of Police and the counsel appearing for the defacto complainant argued that ARHT Global Clinic Hair Transplant Centre is not fit to do any hair transplant or any other medical procedures and that the doctor is not a competent person for doing hair transplant. They further submitted that the Director of Medical and Rural Health Services conducted an investigation and reported that the procedure site at the center lacked proper sterility. The clinic, licensed as a Hair Cutting Salon by the Corporation of Chennai, did not follow adequate sterilization procedures. Moreover, CMC Vellore's assessment suggested that the deceased could have died due to toxic shock syndrome, septic shock, or anaphylactic syndrome, indicating prima facie negligence and rule violations. Given these findings, they concluded that the court cannot embark upon the appreciation of evidence, while considering the petition for quashing the criminal proceedings and dismissing the criminal original petition.

In the light of the submissions made by the counsels, and perusing the materials on record the court considered a statement about the cause of death given by Dr S.Saravan M.D. Assistant Professor, Department of Forensic Medicine, K.A.P.V.Govt. Medical College, Tiruchirappalli. The statement indicated that the patient likely died from complications arising from the cumulative effects of the hair transplant procedure and anesthesia. Additionally, the Joint Director of Health Services investigated ARHT Global Clinic Hair Transplant and found it unfit for conducting hair transplants or any medical procedures. The report highlighted that the center paid professional tax for hair implantation and was later licensed as a hair cutting salon by the Corporation of Chennai.

The court opined that the key issue to determine was if ARHT Global Clinic Hair Transplant suitable for hair transplant procedures and if the petitioner is a qualified doctor for such procedures.

Deliberating the issue, the court clarified that it can't dismiss a criminal case using Section 482 Cr.P.C. if the allegations in the FIR or charge sheet suggest a crime. This legal provision is meant to prevent misuse of the legal process and ensure justice. The court can't assess evidence at this stage. It observed;

"It is no more res integra that exercise of power under Section 482 Cr.P.C to quash a criminal proceeding is only when an allegation made in the FIR or the charge sheet not constitute the ingredients of the offence alleged. Interference by the High Court under Section 482 Cr.P.C. is to prevent the abuse of process of any Court or otherwise to secure the ends of justice. It is trite law that the High Court cannot embark upon the appreciation of evidence while considering the petition filed under Section 482 Cr.P.C. for quashing the criminal proceedings."

Noting that the case questions whether the clinic is suitable for hair transplants and if the petitioner is qualified, the court further clarified that;

"It is clear from the fact that there is a question of fact involved whether the centre is fit to do any hair transplant and whether the petitioner is competent to do hair transplant. Therefore, it cannot be adjudicated in this proceedings. The decisions relied upon by the learned counsel appearing for the petitioner is not helpful to support the case of the petitioner, since the case involved adjudication of factual dispute. Therefore, it does not meet the parameters laid down by the Hon'ble Supreme Court in State of Haryana vs. Ch.BhajanLal (AIR 1992 SC 604), M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and others (2021 SCC online 315) & PRATIBHA RANI Vs.SURAJ KUMAR & ANR (1985 Crl.L.J.817), the matter has to be enquired to find out the truth. Therefore I find no merit in the present criminal original petition."

Subsequently, the court refused to dismissed the criminal original petition. It held;

" In the result, the criminal original petition is dismissed. Consequently, the connected miscellaneous petition is closed."

To view the original order, click on the link below: