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Dr. Khanna and anr. Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtKerala High Court
Decided On
Judge
Reported inII(1984)ACC114
AppellantDr. Khanna and anr.
RespondentState of Kerala
Excerpt:
.....the provisions of the m. act as well as commission of offence punishable under section 304 i. 7. learned counsel for the first accused submitted that as a matter of fact sobhana was pregnant and wanted the pregnancy to be terminated and insisted on pregnancy being terminated, that in the best judgment of the first accused it was a fit case for medical termination of pregnancy and curettage, that curettage was not contra-indicated in the case, that, as a matter of fact, first accused insisted on urine test but the parties were not agreeable as no facility was available locally and it was a fairly costly test and that the use of cyclenorm drug is not banned. is disclosed and at best it could only be a case of negligence. it requires strong public opinion, fearless press and independent..........and met the second accused at his house. however, subsequently, she was admitted m kovili hospital cannanore where she was examined by two doctors of the hospital they thought that it was a medico-legal case requiring laprotomy. they referred her to the district hospital, cannanore on 26-11-1983 and she was kept under observation and examined by the second accused and other doctors. her condition worsened and she was discharged on 27-11-1983 as her relations wanted to take her to the medical college hospital calicut. she was accordingly admitted in the medical college hospital, on 27-11-1983. it appears her condition was grave and sub-total historactomy was done. however, she died on 6-12-1983. a brother of subhana gave information to the police on 8-12-1983 and a case was.....
Judgment:

U.L. Bhat, J.

1. The death of Sobhana alleged to have been subjected to medical termination of pregnancy (MTP) led to registration of a case unnatural death in Crime No. 101 of 1983 of Kannapuram Police Station, later transferred to Balipatnam Police Station and registered as Crime No. 164 of 1983 against the two petitioners as accused for offences under Sections 304 and 314 I.P.C. and and Sections 3 and 7 of the M.T.P. Act. They were arrested on 3-3-1984 and on the very next day they were granted interim bail by the Sessions Judge,Tellicherry After bearing both sides, the learned Sessions Judge, rejected the request for bail made by the first accused and granted conditional bail to the second accused. Both the accused, being aggrieved, have filed these M.C. cases. The case diary has been placed before me and I have heard both sides.

2. Sobhana, mother of two children, along with her husband approached the first accused, Medical Officer in the Pappinissery Primary Health Centre, on 11-11-1983 with complaint of absence of menstrual periods for about two months It appears, the first accused prescribed Cyclenorm drug, a combination of rogestran and estrogen and asked her to come back after 10 days. She met him on 21-11-1983 with the report that the drug had no effect. At 6 30 p m on that day, first accused conducted M.R. Syringe procedure as also curettage allegedly for the purpose of termination of pregnancy. She was disarged in about half-an-hour. On 23-11-1983, Sobhana met the first accused and complained of severe pain in the abdomen area. She was admitted in the dispensary and kept there for Cannanore by the first accused two days and referred to the District Hospital, on 25 11-1983 with a letter to the second accused and also a chit. Apparently the letter has not yet been traced. Sobhana went to Cannanore and met the second accused at his house. However, subsequently, she was admitted m Kovili Hospital Cannanore where she was examined by two doctors of the hospital They thought that it was a medico-legal case requiring Laprotomy. They referred her to the District Hospital, Cannanore on 26-11-1983 and she was kept under observation and examined by the second accused and other doctors. Her condition worsened and she was discharged on 27-11-1983 as her relations wanted to take her to the Medical College Hospital Calicut. She was accordingly admitted in the Medical College Hospital, on 27-11-1983. It appears her condition was grave and sub-total historactomy was done. However, she died on 6-12-1983. A brother of Subhana gave information to the police on 8-12-1983 and a case was registered as a case of unnatural death. The case was duly transferred to Balipatam Police Station. Preliminary investigation having disclosed commission of certain offences mentioned above, a report was submitted to that effect and investigation was taken over by the Superintendent of Police, Cannanore. The two accused were arrested on 3 3-1984 a Saturday. The next day, that is Sunday, bail applications were submitted to the Sessions Judge at his residence and interim bail was ordered with direction that they should stay at the premises of the: Government District Hospital Cannanore under the supervision of the D.M.O. or the Hospital Superintendent. They appeared in court the next day. Thereupon after hearing both sides, the court modified the condition and directed the to stay in the Rest House, Tellicherry at their own expense under police surveillance. The petitions were ultimately disposed of on accused 7-3-1984 The learned Sessions Judge came to the conclusion that on prima facie case was made out against the second accused and he was granted bail subject to the condition that he executes a bond for Rs. 10,000/- and furnishes two solvent sureties in the like amount and that he shall not enter the Cannanore Taluk or the premises of the Medical College, Calicut until final report is filed or otherwise ordered. The learned Sessions Judge came to the conclusion that there are materials to hold that the first accused has committed the various offences attributed to him and that m view of his status and position he is likely to tamper with the witnessses and obstruct the investigation. Therefore, bail was refused to him.

3. It was pointed out to the learned Sessions Judge that after arrest on the evening on 3-3-1984 when the two accused were taken to the Central Jail, the Jail authorities allowed them to go to the living quarters of the Jail Superintendent. The learned Sessions Judge thought that it was a matter which required enquiry and directed the Inspector General of Prisons to submit a report regarding the same. I agree that the matter should be pursued.

4. The grievance of the second accused relates to the condition to the effect that he shall not enter Cannanore Taluk. It is stated that he is residing at a place called Chaovva in Cannanore Taluk with his family and is a diabetic patient. If the condition imposed is to stand, he cannot live in his house with his family. I am of opinion that such a severe condition need not have been imposed. It is sufficient that he is directed not to enter the limits of the Cannanore Municipality and the premises of the Medical College Hospital, Calicut.

5. The request for bail on behalf of the first accused is seriously opposed by the learned Public Prosecutor. According to him, the circumstances of the case and the materials collected to far clearly disclose violation of the provisions of the M.T.P. Act as well as commission of offence punishable under Section 304 I.P.C. The learned Public Prosecutor submitted that Sobhana was actually not pregnant at the time and therefore neither M.R. Syringe procedure nor currettage was called for. Learned Public Prosecutor also submitted that in due course a report will be submitted to court deleting the offence under Section 314 I.P.C.

6. It appears, urine test was not conducted to verify whether Sobhana was pregnant. Instead, Cyclenorm drug (which according to the learned Public Prosecutor is a banned drug and this submission is controverted by the petitioner's counsel) was administered to induce bleeding. The administration of a banned drug, particularly in the later stages of pregnancy, is described by the Prosecutor as nothing other than criminal. Sobhana was not kept in the dispensary for post-operative observation and was discharged within half-an-hour. The necessary procedures required under the M.T.P. Act were also not followed. The necessary certificate was not made out. Post-mortem disclosed two perforations in the uterus, perforations in the ileum and a perforation in the intestines and a piece of catheter in the utrine cavity. This also, according to the learned Public Prosecutor, supports the line of investigation presently undertaken. It is alleged that the first accused did not even care to elicit from Sobhana when she had given birth to her last child. This would have been necessary to find out the condition of the uterus before introducing curette into the uterus. If there was recent delivery, the walls of the uterus would be soft and more susceptible to injury. Even when Sobhana was taken back with complaint of acute pain, first accused did not exercise due care and caution and did not treat her for peritonitis and it was peritonitis which led to death.

7. Learned Counsel for the first accused submitted that as a matter of fact Sobhana was pregnant and wanted the pregnancy to be terminated and insisted on pregnancy being terminated, that in the best judgment of the first accused it was a fit case for medical termination of pregnancy and curettage, that curettage was not contra-indicated in the case, that, as a matter of fact, first accused insisted on urine test but the parties were not agreeable as no facility was available locally and it was a fairly costly test and that the use of Cyclenorm drug is not banned. Learned Counsel for the first accused also submitted that the first accused could not be held responsible for the internal injuries found and at any rate curettage is attended with a degree of risk and the same had been performed with utmost care and after taking all necessary precautions and in any event, no offence under Section 304 I.P.C. is disclosed and at best it could only be a case of negligence. I do not think I should go into the details of the controversies except to indicate that the possibility of commission of an offence Under Section 304 I.P.C. cannot be ruled out at this stage.

8. However, that is only one of the circumstances relevant in the matter of consideration of the question of granting bail. According to the Prosecutor, some doctors land para-medical personnel are yet to be questioned and some vital documents are yet to be recovered. He would also submit that the position and status of the first accused is such that there is every possibility of the investigation being blocked if he is let out on bail. In the facts and circumstances of the case, I do not think the grant of bail to the first accused, of course on appropriate conditions, would have a deleterious effect on the investigation. The circumstances of the case do not appear to be such as to warrant rejection of the request for bail. I am of opinion that conditional bail could be granted to the first accused.

9. Before parting with the case, I am reluctantly constrained to refer to the massive publicity being given in mass media in the recent past to crime cases and police investigation. It is the duty of courts to decide criminal cases; it is no part of the duty of newspapers to take up that function in the name of serving public cause.

10. Democracy is a way of life: it must maintain human dignity, equality and rule of law. It requires strong public opinion, fearless press and independent judiciary. The importance of free and fearless press cannot be overemphasized. Thomas Jafferson once said:

Where it is left to me to decide what we should have, a Government without newspapers or newspaper without Government, I should not prefer the latter.

Freedom of the press, however, is not an end in itself, but it is only a means to an end. Freedom of the press, as any other freedom, is capable of being misused. Freedom of the press is implicit in the constitutional right of freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution. The right to practice the profession of journalism is also constitutionally guaranteed under Article 19(1)(g) of the Constitution. But these rights are subject to reasonable restrictions as provided in subsequent clauses of Article 19, one of the restrictions being found in the the law of contempt court. Independent judiciary is to stand guarantee against deprivation of life and liberty except according to the procedure established by law as contemplated in Article 21 of the Constitution. The procedure relating to criminal trials is procedure established by law and the rule judiciary, interalia, is to ensure that no person shall lose his life or liberty except according to the procedure established by law. Article 39(a) postulates that the operation of legal system shall be such as to promote justice. In their anxiety to ensure that the judiciary shall function impartially and without fear or prejudice the founding fathers of the Constitution prescribed separation of the Executive from the Judiciary in Article 50 of the Constitution. The Constitution is extremely solicitous regarding free and just trial of persons facing accusation. Judiciary cannot function properly if what the press does is calculated to disturb the judiciary in the performance of its duty and capacity to act solely on the evidence placed before it.

11. Free trial is an impartial and open trial conducted by an independent Judge free from prejudice and after considering all the available evidence which is properly submitted before him. Publicity to trial is, no doubt, one of the means of ensuring fair trial for, if publicity is present, the Judge would be careful in acting free from bias, prejudice or illegally. But it is well recognised that over publicity of crime cases may prejudice the trial, inducing feeling of hostility among members of the public and thereby consciously building up pressures on the court. This is so even in a country like ours where trial is not by jury but by legally Judges. Such over publicity may also deter witnesses from going to court or sometimes from speaking the truth. It may affect a proper, just, and truthful investigation. This is true of publicity at the pre-trial or investigation stage also.

12. The press has, no doubt, the right and duty to inform the public about crimes and bare facts relating to investigation, arrest and the like. But excessive publicity with all lurid details, interview of witnesses, accused or investigating officers tend to pre-judge issues which, in the final analysis, are within the jurisdiction of the court to decide. Courts, no doubt, are manned of Judges knowledgeable in law and trained to act impartially and free from bias or prejudice. But in the words of the Great Cardoza (see 'Judicial process') 'They (Judges) do not stand aloof on chill and distant heights...The great tides and currents which engulf the rest of the men . do not turn aside in their course and pass the Judges by'. As Lord Denning observed in Road to Justice', 'The press plays a vigilant part in the administration of justice. It is the watch-dog to see that every trial is conducted fairly, openly and above-board...The watch-dog may sometimes break loose and has to be punished for its behaviour'.

13. In relation to the present case and some other crime cases in the recent past, the mass media has been giving tremendous publicity. The crimes, in all their lurid details, full particulars--correct or otherwise--the various steps and stages of police investigation, freely embroidered with subjective comments and observations tending either to pronounce on the guilt of certain persons or on the motives of the investigators, are being splashed in the mass media. Sometimes, reports based on investigative journalism in relation to crime cases are also seen published. Introspection by the press with a view to fulfil its true role within the limitations set by law is called for, heeding the caution that otherwise it is possible to poison the fountain of justice before it begins to flow.

14. In the result, the two Crl. M. Cs. are disposed of in the following manner:

1. The bail condition imposed on the second accused to the effect that he shall not enter Cannanore Taluk is deleted and instead it is directed that he shall not enter the limits of Cannanore Municipality. To this extent, Crl. M.C. 170 of 1984 is allowed.

2. It is directed that the first accused will be released on bail on his executing a bond for Rs. 10,000/- and furnishing two solvent sureties in the like amount to the satisfaction of the Judicial Magistrate of the Second class Cannanore, subject to the condition that he shall not enter the limits of Pappinissery Panchayat, Cannanore Municipality and shall not enter the premises of the Medical College Hospital, Calicut. Crl. M.C. 169 of 1984 is allowed in this manner.


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