Without Demonstrated Intention/Knowledge, Doctor's Absence From NICU When Fatal Injection Administered Not Culpable Homicide: Bombay High Court

The infants were wrongly administered "Potassium Chloride" instead of "Calcium Gluconate", which was the injection prescribed.

A Bench of Justices Avinash G. Gharote and Sunil B. Shukre found that no charge of culpable homicide punishable under Section 304 of the Indian Penal Code (IPC) as against the junior doctor was disclosed from the facts at hand. Drawing on the definition of culpable homicide in Section 299 IPC, the Court underscored that intention or knowledge needed to be present to make an act one of culpable homicide.

"There must be an act or omission coupled with the intention or knowledge as contemplated in Section 299 of the I.P.C. on the part of the person and if there is no such act or omission, there would be no offence of culpable homicide. If there is no offence of culpable homicide, further questions as to whether it amounts to murder as defined under Section 300 or it does not amount to murder as envisaged in Section 304 of the I.P.C. would not arise."

The petitioner doctor approached the High Court aggrieved that he had been implicated for causing the death of the infants in a chargesheet filed by the police in Amravati, Maharashtra.

The infants had been admitted in the Neonatal Intensive Care Unit (NICU) of the Department of Paediatrics at Dr. Punjabrao Deshmukh Medical College, Amravati. After the nurse on duty at the NICU administered drug "Potassium Chloride" instead of the injection prescribed, the infants died. It was found that the petitioner, who was occupying the post of Junior Resident Doctor was absent. Citing his absence at the crucial time, he was arrayed as an accused on the ground that he had not taken proper care and the deaths were attributed to him.

In Court, the petitioner's counsel Senior Advocate Anil Mardikar, argued that charging the petitioner with the offence of culpable homicide not amounting to murder along with acting on common intention was not justifiable in light of what transpired. He asserted that the petitioner while admittedly the petitioner was not present at the relevant time, he had not prescribed the injection that was to have been administered or the one that was finally injected. The nurse on duty had admitted her mistake, he submitted additionally.

Pointing out that the offence punishable under Section 304 required intention/knowledge that the act was likely to cause death, the Senior Advocate stated that the petitioner did not possess the required intention.

At the most, a departmental inquiry for his absence could be launched against him, the Senior Advocate said.

The APP S.M. Ghodeswar submitted that there it was the duty of the petitioner in his role as officer-on-duty at the NICU, to ensure that proper drugs were administered. Contending that the petitioner's actions amounted to criminal negligence, he prayed that the Court would dismiss the petition.

After referring the records produced, the Court concluded that the petitioner had no role to play in the entire matter, either of prescribing the drug, storing the same or of administering the drugs.

With reference to the charge of culpable homicide, the Court said,

"At the relevant time, the petitioner was not at all present in the NICU and so, there is no question of the petitioner doing any act with the requisite intention or knowledge. There would also not be any question of the petitioner omitting to do any act with such intention or knowledge as is required under Section 299 of the I.P.C…"

While stating that the situation would have been different if it had been demonstrated that the petitioner had deliberately stayed away from the NICU at the relevant time, the Court pointed out that no such material had been brought on record.

The Court specifically took notice of the fact that the hospital did not place on record a Standard Operating Procedure followed when injections were administered to the newborns in the NICU.

Reasoning that this could imply that no SOP was in place, the Court concluded that there was therefore no duty of care cast upon the doctor to be personally present while the injections were being administered.

The Bench held,

It then follows that this is a case wherein apart from absence of any blameworthy act, there being no act whatsoever done by the petitioner, there is also missing the element of culpable omission on the part of the petitioner, there being no duty in him to personally monitor the administration of injection by a trained nurse which absence of duty led to no breach of duty by the petitioner.

In this light, the principles developed in Jacob Mathew v. State of Punjab, viz. (i) duty to take care, (ii) breach of duty and (iii) consequential damage were not disclosed in the case, the Court ruled.

Holding that continuance of criminal proceedings against the petitioner would be an abuse of process, the Court quashed proceedings.

The Court clarified that its directions were in the context of criminal proceedings only.

"..even if everything as mentioned in the charge-sheet was presumed to be true, at the most, may lay a blame of dereliction of duty at his doorstep, for which Departmental action can always be taken by the authorities", the Court said.

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