JUDGMENT : [WP(C) Nos.3649/2024, 38061/2022] Recognising that not all medical complications are the result of medical negligence or iatrogenic lapses, the Hon’ble Supreme Court, in Jacob Mathews v. State of Punjab [ (2005) 6 SCC 1 ], declared the law that in cases where a criminal prosecution is initiated against a doctor or health care professional, the Investigating Officer is expected to obtain expert opinions from the best inputs, for which, Expert Committees consisting of Medical Experts and Forensic Experts require to be established. 2. The specific directions in the afore judgment would require to be kept in mind while I proceed to deliver judgment with these cases; and therefore, extracted them as under: “51. As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by 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 so as to determine whether the act of the accused medical professional amounts to rash or negligent act within the domain of criminal law under Section 304-A of IPC. 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 or discharge but the loss which he has suffered in his reputation cannot be compensated by any standards. 52. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society, for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against. 53. Many a complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against. 53. Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. 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 or 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 Bolam's test to the facts collected In the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (sifmply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.” 3. I am considering the afore two cases together because, in one of them, the Expert Body has found in favour of the doctor; while, in the other, against - though involving two distinct and different instances of alleged medical negligence. I am of the view that these matters require to be tested against each other, so that the forensic issues involved would obtain its best reflection, recognition and resolution because, both sides of the perspective is now available. 4. I do not propose to record the specific facts involved in these cases in great detail because, admittedly, investigation by the police in both matters are still on going. 5. 4. I do not propose to record the specific facts involved in these cases in great detail because, admittedly, investigation by the police in both matters are still on going. 5. However, for the sake of comprehension, I record that, as far as WP(C)No.38061/2022 is concerned, it has been filed by a Hospital and the accused doctor, challenging the report of the ‘State Level Apex Body’, (Apex Body) producing it as Ext.P3, whereby, an opinion was entered by them that the allegations against the second among them is capable of being proceeded for investigation by the competent investigating officer. 6. Coming to WP(C)No.32649/2024, it presents the opposite scenario because, in this case, the “Apex Body” has taken a contrary view and has found that the allegations of the medical negligence against the doctor concerned are untenable. 7. Sri.N.N.Sugunapalan – learned Senior Counsel, instructed by Sri.S.Sujin - appearing for the petitioner in WP(C)No.38061/2022, argued that Ext.P3 in the said case – being the report of the “Apex Body” - is wholly untenable and illegal because, it has entered an opinion that the doctor is guilty, without even adverting to Ext.P5, which is another report settled by the same body on an earlier date, exonerating the said doctor. The learned Senior Counsel submitted that the “Apex Body” has travelled much beyond its powers and competence, in having settled Ext.P3 report; and consequently, that the Investigating Officer could not have even looked into the same, much less relied upon it, in conducting the investigation. He argued that, resultantly, there has been a complete failure of investigating processes in this case; thus leading to grave injustice being caused to the doctor concerned. 8. As I have already said above, the facts involved in WP(C)No.3649/2024 has different tale to tell. Smt.Smitha Babu, learned counsel for the petitioner, argued that Ext.P5 opinion issued by the “Apex Body” exonerating the doctor was done without understanding the imputations made against her in its proper perspective and with the premeditated intend of saving her, thus shielding her from future prosecution. She argued that when one reads Ext.P5 even in a cursory manner, it would become discernible that the Committee has settled their opinion in favour of the doctor concerned, without adverting to the medical processes that ought to have been adopted and in blatant disregard to the protocols that are in place, as per the established mechanisms. She argued that when one reads Ext.P5 even in a cursory manner, it would become discernible that the Committee has settled their opinion in favour of the doctor concerned, without adverting to the medical processes that ought to have been adopted and in blatant disregard to the protocols that are in place, as per the established mechanisms. She thus prayed that Ext.P5 be quashed; asserting that, based on this, her clients - who are the parents of the deceased patient – justifiably believe that the police will close the investigation and file a “Refer Report” before the court of the competent Magistrate. 9. Smt.Vidya Kuriakose – learned Government Pleader, began her submissions making it clear that the official respondents have no interest in the actual investigation or the allegations made against the doctor in either of these cases. She submitted that she would like to address this Court almost in the position of an Amicus Curiae, bringing to my notice the compass in which the entire processes are to be confined and the purposes for which the systems have been put in place. 10. Smt.Vidya Kuriakose began saying that, as rightly noticed by this Court in the prefatory paragraph of the judgment, the Government of Kerala set up two Expert bodies, namely the District Level Expert Panel (“Expert Panel”), as also the State Level Apex Body in full obedience of the directions of the Hon’ble Supreme Court in Jacob Mathew (supra). She explained that, normally, when a complaint is made against the doctor, by either a patient or the by-stander or relative, it requires to be criminally investigated into by the concerned police official; but that this can be done, going by the declaration of the Hon’ble Supreme Court, only being assisted and guided by the opinion of a competent Body. She pointed out that, therefore, once the afore Committee/Panel were so constituted, every Investigating Officer is obligated to refer the matter to the “Expert Panel” at the first instance and if there is any difference of opinion among its members, then it would require to be placed before the “Apex Body” appositely. She explained that, in both these cases, there was difference of opinion between the members of the “Expert Panel”, which led the matter to be placed before the “Apex Body”, which then issued the impugned orders. 11. She explained that, in both these cases, there was difference of opinion between the members of the “Expert Panel”, which led the matter to be placed before the “Apex Body”, which then issued the impugned orders. 11. Smt.Vidya Kuriakose then further explained that, the aforementioned expert bodies were constituted by the order of the Government dated 16.06.2008, which was followed by subsequent orders - one of which is Ext.P4 dated 16.06.2008 produced along with WP(C)No.38061/2022; and that they make it manifest that the “Expert Panel/Apex Body” is obligated to submit its views before the Investigating Officer within a period of 30 days, and that it is a duty of the said officer to consider the same and continue investigation in the light of the view taken by it. She submitted that, however, as is ineluctable from the Government Orders, including Ext.P4 in WP(C)No.38061/2022, the Investigating Officer is not bound by the views of the Expert Body; and that if he is not satisfied with it, he can obtain additional expert opinion from any source of his choice and then proceed to complete the investigation and file Charge Sheet, as he deems fit, within the purlieus of the criminal investigation processes. 12. Smt.Vidya Kuriakose argued that, therefore, both these writ petitions are unnecessary because, the Investigating Officer concerned will not act exclusively by the views of the “Apex Body”, but will certainly make his own investigations, as is warranted in law, including by obtaining additional expert opinion and such other inputs; and that, in any event, these opinions are irrelevant, once the matter reaches the Trial Court since, as is well recognised, the accused obtains full rights and opportunities to seek exoneration on evidence, dehors the opinion referred to by the “Expert Panel/Apex Body”. She added that this is particularly so because, the Charge Sheet will have to be justified not merely on the basis of the opinion of the “Expert Panel/Apex Body”, but on the strength of every other relevant criteria as may be applicable. She thus prayed that both of these writ petition be dismissed; adding that as far as WP(C)No.38061/2022 is concerned, it has now become irrelevant because, the Investigating Officer has already filed a Charge Sheet against the accused doctor and that the trial is pending before the competent Court of Magistrate, before which, the views of the “Apex Body” would be of little significance. 13. 13. Smt.Vidya Kuriakose concluded reasserting that there is no cause for the petitioner to be concerned in any manner because, the Government Order makes it explicitly clear that the ‘Expert Panel’ or the ‘Apex Body’ cannot intervene in the investigation in whatsoever manner. 14. Sri.K.Anand, learned Senior Counsel, instructed by Sri.S.Vishnu – learned counsel for the 7th respondent in WP(C)No.38061/2022, argued that the ‘Apex Body’ is without error because they have correctly recognized the omissions committed by the accused Doctor, which led to the unfortunate death of his client’s wife during child birth and to the consequent rendering of the child to be without mother. He argued that, therefore, when the facts speak for themselves – which, he asserted points to a clear iatrogenic lapse – investigation was bound to be completed, which has now been done, and a Charge Sheet having been filed before the competent Court of Magistrate. He argued that, therefore, it is for the petitioners to seek exoneration, if they are able to do so; and that, therefore, they cannot rely upon Ext.P5 in substantiation of their defence, which they are otherwise entitled to impel. 15. The rival positions of the parties being so recorded, it is certainly without doubt that, in cases where allegations are made against doctors, a greater degree of care and scrutiny will require to be maintained. This is what the Honourable Supreme Court, in Jacob Mathew (supra) recognized, leading to the directions extracted as afore. 16. In the perspective of the afore directions, it becomes apodictic that, had it not been for the intervention of the Honourable Supreme Court, any complaint against any Doctor, alleging medical negligence, would have had to be investigated by the Investigating Officer, leading to either the filing of Charge Sheet, or referring of the same, but without proper scientific and medical assistance. It is this lacunae which was addressed by the Honourable Supreme Court, leading to the Government of Kerala constituting the ‘Expert Panels’ at the District Level and the ‘Apex Body’ at the State Level. 17. As lucidly explained by Smt.Vidya Kuriakose – learned Government Pleader, every case of medical negligence put up for a criminal investigation will have to go through an evaluation of the merits by one of these Bodies; and, at the first instance, it is always done by the ‘Expert Panel’ at the District Level. 17. As lucidly explained by Smt.Vidya Kuriakose – learned Government Pleader, every case of medical negligence put up for a criminal investigation will have to go through an evaluation of the merits by one of these Bodies; and, at the first instance, it is always done by the ‘Expert Panel’ at the District Level. It is when there is difference of opinion between the members of the said panel, that the matter will reach the ‘Apex Body’ at the State Level, as has been reflected in both these cases. 18. It is, therefore, easy to understand that, what has been done by the Honourable Supreme Court is to cast some kind of a check on the power of the Police to investigate a complaint against a Medical Doctor/Healthcare Personnel and this, in fact, operates to the benefit of such persons, rather than to their detriment. This is because, without such, an Investigating Officer could have done anything that he pleased, thus completing the investigation as per his choice, leading to charges being framed or dropped, as the case may be. 19. Therefore, prima facie, the Doctors cannot have any objection against the processes now put in place by the Government of Kerala through their various orders, including Ext.P4 in WP(C)No.38061/2022; and in any event, even going by the said order, it does not make it obliged on the Investigating Officer to act exclusively as per the views of the ‘Expert Panel/Apex Body’, but, on the contrary, enjoins him to continue the investigation using other expert opinion, if required, thus culminating it as per law, before the competent Court. It is eventually the Court which takes the final call either way because, even if the Investigating Officer is to refer the complaint against a Doctor, the complainant would nevertheless obtain the right to file a ‘private complaint’ or ‘protest complaint’, as the case may be; thus leading the processes forward, which would then be completed without any reference to the opinion of the ‘Expert Panel’ or the ‘Apex Body’. 20. Viewed from the afore orientation, when I examine Ext.P3 in WP(C)No.38061/2022, the ‘Apex Body’ is seen constituted of three Doctors and the Director General of Prosecution – which is an eminent post under the State of Kerala – who entered an opinion that ‘ there is medical negligence from the part of the treating doctor’ (sic). 20. Viewed from the afore orientation, when I examine Ext.P3 in WP(C)No.38061/2022, the ‘Apex Body’ is seen constituted of three Doctors and the Director General of Prosecution – which is an eminent post under the State of Kerala – who entered an opinion that ‘ there is medical negligence from the part of the treating doctor’ (sic). Their opinion was not that the doctor is guilty – which they cannot, in any case, enter – but that the circumstances presented can lead to the opinion that there is negligence on the part of the doctor. 21. No doubt, Ext.P5 report by a Committee of two other doctors found that there was no medical negligence on the part of the 2nd petitioner, but again, this is only an opinion and would not be binding on the Investigating Officer because, he is only to be guided by it – if at all assumed that it has any relevance. However, as far as this case is concerned, the fact remains that the Authority which settled Ext.P5 is not the notified ‘State Level Apex Body’, though it is so stated therein, perhaps inadvertently, but was only a Committee constituted at the behest of the ‘Apex Body’ mentioned in Ext.P3, for further expert analysis. 22. Whatever be the reason, the ‘State Level Apex Body’, however, found that Ext.P5 was not acceptable and proceeded to settle Ext.P3, holding that further investigation against the Doctor concerned was necessary and justified. As rightly argued by Smt.Vidya Kuriakose, it would not warrant this Court to enter into the merits of the said opinion because, the Investigating Officer has proceeded with the investigation subsequently, perhaps having obtained various other inputs also in the process, to file a Charge Sheet against the Doctor and the trial is now stated to be pending against her. Nothing stops her from being exonerated and acquitted, if she is able to establish her innocence; for which, Ext.P3 or Ext.P5 would be of no significance or relevance, whatsoever. 23. To paraphrase, Criminal Courts are not bound by any such opinion, but only by the Investigation Reports and evidence to be presented; and I cannot, therefore, see the apprehensions of the petitioners in this case to be tenable, in any manner at all. 24. 23. To paraphrase, Criminal Courts are not bound by any such opinion, but only by the Investigation Reports and evidence to be presented; and I cannot, therefore, see the apprehensions of the petitioners in this case to be tenable, in any manner at all. 24. Moving on to WP(C)No.3649/2024, this Court certainly travels with the pathos of the petitioner therein, who lost his young daughter and believes that this was on account of an iatrogenic lapse on the part of the treating Doctor. Unfortunately, he suffered a shock when he understood that the ‘Apex Body’ has found against his imputations and in favour of the treating Doctor; and he justifiably believes that the Investigating Officer would do nothing more, but to accept it and then close the investigation by filing a ‘Refer Report’. I cannot find fault with him in harbouring such an apprehension because, going by Ext.P5, the ‘Apex Body’ has entered into an affirmative opinion that ‘ there is no gross medical negligence in Crime No.651/2022 of Town Police Station, Palakkad’ (sic). 25. I am afraid that the ‘Apex Body’ could not have entered into any such opinion, they being wholly incompetent to do so and it was upon the Investigating Officer to have completed the investigation, by collating materials and evidence as is necessary. Obviously, therefore, the officer cannot close investigation merely based on the opinion of the aforesaid Authority. If the scenario is so viewed, certainly, the apprehension of the petitioner would stand allayed fully, if not substantially. 26. In fact, Smt.Vidya Kuriakose affirmed to the afore view of this Court. 27. I notice from the files of this case that this Court has already injuncted the Investigating Officer from filing a final Charge Sheet in Crime No.651/2022 and this was done, adverting to the apprehensions of the petitioner as afore - that such a Charge Sheet would only exonerate the Doctor concerned. In the afore circumstances, I dispose of these Writ Petitions in the following manner: i) WP(C)No.38061/2022 is dismissed; however, clarifying that the learned Trial Court is not bound by either Exts.P3 or P5 expert opinions and that it will be obligated to complete the trial against the 2nd petitioner therein, as per law and based on the evidence to be adduced. ii) (a) WP(C)No.3649/2024 is allowed; with a consequential direction to the 4th respondent to complete the investigation as per law without being bound by Ext.P5 and based on every other relevant and germane inputs and materials; and only then to file a Charge Sheet before the competent Magistrate. b) Needless to say, the findings of the Apex Body, that there is no gross medical negligence, would be treated by the Investigating Officer only as an opinion and the investigation will be thus completed.