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2007 DIGILAW 3970 (MAD)

S. Balagopal v. Inspector of Police, Chennai

2007-12-04

T.SUDANTHIRAM

body2007
Judgment : 1. The petitioner who apprehends arrest at the hands of the respondent police for the alleged offences under Sections 312, 325, 426, 465,468, 471, 506 (i) and (ii) read with 120-Bof I.P.C., seeks anticipatory bail. 2. The learned counsel appearing of the petitioner submitted that the petitioner is an Associate Professor in Sri Ramachandra Medical College and Paediatric surgeon at Sri Ramachandra Medical Centre and he is an experienced Doctor and successfully completed number of surgeries on children. But the de facto complainant who is an Advocate had lodged complaint against the petitioner with regard to the surgery done to his child for removing his left testis. 3. The learned counsel for the petitioner further added that the child was referred to the petitioner by another Doctor who treated the child for some cardiology problem. On examination of the child, it was found that left testis was undescended and there was swelling on the right side testis. The de facto complainant / father of the child was advised by the petitioner to admit the child for hernia and for treatment of the left testis. The operation was fixed with the consent of the de facto complainant. It was also explained to the de facto complainant that with regard to the removal of the left testis, the decision can be taken only on seeing the ‘Fowler Stephen Test‘ and as it was decided in the interest of the child to remove the left testis, the petitioner came out of the operation theatre and explained the position to the de facto complainant and only with his consent, the operation was performed and the left testis was removed. After the operation was performed, on 24.8.2005, the de facto complainant gave complaint to the police on the hospital authority on 20.3.2006, nearly seven months after the operation and the hospital authorities gave reply on 19.9.2006. 4. The learned counsel appearing for the petitioner submits that though the petitioner had performed the duty with utmost care and as there was a possibility of getting cancer as the testis was small in size, the de facto complainant was informed about the possibility of Orchiodomy and it was explained that if cancer occurs in such a testis, it can be detected only in a later stage and it is impossible to treat at that stage. Therefore, the decision was taken at the time of surgery to remove the left testis. 5. The learned Government Advocate (Criminal side) submitted that a complaint was filed before the learned Judicial Magistrate -I, Poonamallee and it was forwarded to the police under Section 154 Cr. P.C. and a case has been registered. The learned Government Advocate also submitted that certain opinion has obtained from the Doctor who is a Director and Professor, State Police Surgeon Tamil Nadu, Institute of Forensic Medicine, Madras Medical College, Chennai and the opinion is as follows : “This removal of (L) testis is not an emergency surgery. If the doctors plan to remove the testis on one side, they have to come out of the O.T. and explain the matter to the parents and then only they have to undertake the operation. Further this removal of testis can be done leisurely after the boy grows upto 10 years or 15 years”. 6. The de facto complaint himself appeared as party in person / intervenor and submitted that the removal of left side testis was unnecessary one and the petitioner had no authority to remove the organ. The petitioner had insisted him to accept for the operation of removing left testis along with hernia problem and in the middle of operation, the petitioner called him over the phone and informed that the left side testis had to be removed for which he had to consult his wife and after discussing with his wife, informed the petitioner not to remove the left testis. But without his knowledge, the petitioner had deliberately removed the left testis. He further added that the left testis which was removed was normal as per the pathology test. The de facto complainant vehemently contended that the petitioner should not be granted anticipatory bail, since the relationship between the Doctor and child is based on trust, sacredness and confidence, but commercialization and plundering of organs has crept in their dealings and it is a great menace to the society. The de facto complainant also submitted that the petitioner had vengeantly removed the organs, due to complaint made to the Medical Director during the course of treatment for his recklessness attitude after fixing the time of operation and delaying thereafter. 7. The de facto complainant also submitted that the petitioner had vengeantly removed the organs, due to complaint made to the Medical Director during the course of treatment for his recklessness attitude after fixing the time of operation and delaying thereafter. 7. Both the counsel for the petitioner and the de facto complaint put forth their submissions with regard to whether the removal of testis was necessary or not. 8. The learned counsel for the petitioner relied on some of the medical literature and American University Publications that the testis may be removed from six months to one year. The learned counsel for the petitioner also produced the copy of the report given by one Doctor Jayakumar, Professor and Head of Paediatric Surgerly, Madras Medical College, Chennai, given to the respondent / Inspector of Police, Porur, wherein it is stated as follows: “Dr. Balagopal seems to have made a thorough and honest attempt to bring down the hypoplastic left testis and having realized the futility of the effort has removed the left testis after discussion with the parent. His decision to remove the left testis is correct and is in the best interest of the child. His decision to fix the only normal testis (Right) to the scrotum is commendable as it protects a mobile testis from torsion injury. The histopathology report mentions the size of the Left testis as 1.0* 0.5 cm which confirms its hypoplastic nature. Further there is interstitial fibrosis noted as would be expected in a hypoplastic testis which vindicates the surgeons decision. Based on the case records submitted, I find that Dr.Balagopal has acted with diligence and followed the highest professional standards in the management of this child. May I suggest a histopathological review of deeper sections of the removed testis to further validate the hypoplasia”. 9. The de facto complainant who relied on the opinion made by the Police Surgeon that the surgery may be done between 12 to 15 years of age also submitted that according to the commentaries of the Medical Literature both the surgical procedure (i. e. Orchiopexy and Orchiodomy) will not serve any purpose other than the financial gain to the surgeon. The de facto complainant who relied on the opinion made by the Police Surgeon that the surgery may be done between 12 to 15 years of age also submitted that according to the commentaries of the Medical Literature both the surgical procedure (i. e. Orchiopexy and Orchiodomy) will not serve any purpose other than the financial gain to the surgeon. He further added that chance of getting cancer among Asian black racial groups is only 0.4 person per one lakh persons during the age of 32 - 45 years and as such, the surgical procedure will not at all applicable to one and half year old baby. 10. This Court carefully considered the rival submissions made by both parties and also gone through the copies of the records furnished by both parties. There is no dispute with regard to the fact that the child had problem with testis. The question is whether the removal of left testis of the child is necessary and whether the consent of the parents of the child was obtained or not and if not whether it was motivated. 11. With regard to the fact that whether consent for removal of testis was given by the de facto complainant or not; according to the petitioner, the removal of testis can be decided at the time of operation only, and therefore, the petitioner came out of the operation theatre and obtained the consent of the defector complainant after explaining the position, but the de facto complainant had denied having given consent. Though the de facto complainant had denied the fact that he had given the consent, it is admitted by him that the petitioner explained to him that in future at the age around 30 years, there is 30-40% possibility of getting cancer. With regard tot he necessity of removal of the testis, there seems to be divergent of opinions. While so, it is not proper for this Court to conclude at this stage whether the removal of left testis of the child is necessary or not and whether such surgery should be done at that age or not. With regard tot he necessity of removal of the testis, there seems to be divergent of opinions. While so, it is not proper for this Court to conclude at this stage whether the removal of left testis of the child is necessary or not and whether such surgery should be done at that age or not. This is a matter to be decided only after all the parties are given chance to explain and put forth motive to the act of the petitioner, again it is to be said that it is neither possible to conclude nor proper to infer at this stage that the petitioner acted with any criminal intention or on error of judgment. 12. The Honourable Supreme Court in Jacob Mathew v. State of Punjab and Another AIR 2005 SC 3180 : (2005) 6 SCC 1 : (2005) MLJ (Crl) 1077, has held as follows : at pp. 1090 & 1098. “34. The Criminal law has invariably placed medical professional on a pedestal different from ordinarily mortals. The Indian Penal Code enacted as far back as in the year 1860 sets out a few vocal examples. Section 88 in the Chapter on General Exceptions provides exemption for acts not intended to cause death, done by consent in good faith for persons benefit. Section 92 provides for exemption for acts done in good faith for the benefit of a person without his consent though the acts cause harm to the person and that person has not consented to suffer such harm. There are four exceptions listed in the section which are not necessarily in this context to deal with. Section 93 saves from criminality certain communications made in good faith…” “ 50. As we have noticed herein above that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometime such prosecution are filed by private complainants and sometimes by the police on an FIR being lodged and cognizance taken. The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science of as to determine whether the act of the accused medical professional amounts to a rash or negligent act within the domain of criminal law under Section 304-A I.P.C. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal of discharge but the loss which he has suffered to his reputation cannot be compensated by any standards”. 13. Going deep and analysing this matter at this stage may cause prejudice to the parties in the proceedings either criminal or civil. 14. Therefore, considering the facts and circumstances of the case, the petitioner could be enlarged on anticipatory bail. Accordingly the petitioner shall appear before the Investigating officer within a period of two weeks from today and on his appearance, in the event of arrest, he shall be released on bail, subject to the following conditions. i) The petitioner shall execute a bond for a sum of Rs. 25,000/-with two sureties each for a like sum to the satisfaction of the Investigating Officer. ii) The petitioner shall appear before the respondent police daily at 10.00 a.m. for three days and thereafter as and when required for interrogation.