Kerala High Court Quashes 304A IPC Case Against Doctor | Prescribing Medicine Over Phone Does Not Amount To Criminal Negligence If Course Matches Ordinary Medical Practice
Sanchayita Lahkar
The High Court of Kerala Single Bench of Justice G. Girish held that prescribing medicine over the telephone by a medical practitioner, in response to a call from a hospital nurse, does not amount to criminal negligence under Section 304A of the Indian Penal Code. The Court quashed the proceedings initiated against the petitioner, a consultant gastroenterologist, observing that there was no material to demonstrate gross negligence warranting criminal prosecution. The Court allowed the petition and terminated the case at the pre-trial stage.
The matter involved a petition seeking to quash proceedings in C.C. No. 174/2018 pending before the Additional Chief Judicial Magistrate, Ernakulam. The case stemmed from an incident involving the death of a 29-year-old patient who had previously undergone a kidney transplant and was admitted on 14 May 2012 with abdominal pain and vomiting. The petitioner, a consultant gastroenterologist, was attending to the patient for intestinal complications. The patient was also under regular monitoring by the nephrology department of the hospital due to his renal history.
After the intestinal condition was medically managed, the patient was advised discharge on 25 May 2012. That night, around midnight, the patient complained of breathlessness. The duty nurse administered oxygen and found blood oxygen saturation to be sufficient. However, the symptoms persisted, and by 4:30 a.m. on 26 May 2012, the nurse called the petitioner at his residence. The petitioner advised medication for fever and vomiting and instructed that blood and urine tests be conducted.
The patient was transferred to the Nephrology Intensive Care Unit (NICU) by 8:00 a.m. and remained under care until his death at 2:00 p.m. on 27 May 2012. The cause of death was renal complications. A postmortem was not conducted, reportedly due to the natural course of illness. Allegations were raised against the petitioner that he failed to instruct an immediate nephrology consultation during the emergency.
The patient’s father submitted a complaint to the Chief Minister of Kerala. Following administrative routing, Crime No. 432/2013 was registered under Sections 304 and 34 IPC by Ernakulam Town North Police, naming the “Doctor and Nurse on duty” as suspects.
The case was initially evaluated by an Expert Panel formed as per Circular Memorandum No.73304/SSB3/2007/Home dated 16 June 2008, which found the care reasonable. The investigation then sought opinions from Dr. K.R. Vijayakumar and Dr. Jacob George, heads of the gastroenterology and nephrology departments of Government Medical College, Thiruvananthapuram, who opined that the treatment between midnight and 8:00 a.m. was typical and sufficient. They further stated that earlier ICU admission likely would not have changed the outcome.
Still dissatisfied, the Investigating Officer approached the State Level Apex Body, which included top officials from the health and legal departments. The Apex Body found fault with the petitioner, citing that he neither attended to the patient personally nor referred him for nephrological evaluation despite knowing the renal transplant history. The Apex Body concluded that the petitioner had failed to act in a manner expected of a prudent medical professional.
Relying on the Apex Body’s opinion, the police filed a final report under Section 304A IPC, upon which the Magistrate took cognizance and issued summons. The petitioner moved the High Court to quash the case, stating the continuation of proceedings amounted to abuse of process in the absence of evidence showing criminal negligence.
The Court examined the facts and observed in italicized terms that “the pertinent issue to be looked into is whether the conduct of the petitioner prescribing some medicine over telephone and directing the laboratory analysis of blood and urine of the patient, instead of requiring the duty Nurse to arrange examination of the patient by the Nephrologist, would amount to criminal negligence to fasten him with the culpability under Section 304A IPC.”
It was “pertinent to note that the patient was advised discharge after successful medical management of the intestinal complaint,” and that “he was admittedly being examined on a daily basis by the Nephrologist.” The Court further recorded that the petitioner was not on duty that night and had responded from home when contacted.
Referring to expert opinions, the Court stated that “Dr. Jacob George… stated before the State Level Apex Body, in unequivocal terms, that even he would have administered the same treatment to that patient as done by the petitioner at the relevant time.” It noted that there was no treatment administered by the petitioner that precipitated the patient’s death, and that the decision to prescribe medicine remotely did not equate to criminal neglect.
The Court referred to established legal precedent, quoting the Supreme Court in Suresh Gupta v. Government of NCT of Delhi, “For fixing criminal liability on a doctor… the standard of negligence required to be proved should be so high as can be described as ‘gross negligence’ or ‘recklessness’.”
It also cited the Apex Court’s observation that “criminal prosecution of Doctors would amount to great disservice to the community at large, if it has been initiated without sufficient materials to show that there was gross ignorance or negligence.”
In applying this legal framework to the facts, the Court stated, “By no stretch of imagination, it could be said that the above course adopted by the petitioner would amount to an act of criminal negligence coming within the purview of Section 304A IPC.”
The Court concluded that there was “absolutely nothing on record to show that the act of the petitioner prescribing some medicines and directing the laboratory evaluation… amounted to gross negligence.” It recorded that other competent professionals would have acted similarly under the circumstances.
The Court held that there was absolutely nothing on record to show that the petitioner’s act of prescribing certain medicines and directing laboratory evaluation of the patient's vitals amounted to gross negligence that could not be expected from a doctor of similar standing.
The Court noted that the materials available demonstrated that the course adopted by the petitioner would have been followed by any other competent medical professional in the same field if faced with an identical situation.
Accordingly, it concluded that the criminal prosecution initiated against the petitioner amounted to an abuse of the process of court and required termination at the threshold.
In light of this finding, the Court allowed the petition. It quashed the proceedings pending against the petitioner in C.C. No.174/2018 on the files of the Additional Chief Judicial Magistrate Court, Ernakulam.
Advocates Representing the Parties
For the Petitioner: C.R. Syamkumar, P.A. Mohammed Shah, Sooraj T. Elenjickal, K. Arjun Venugopal, V.A. Haritha, Sidharth B. Prasad, R. Nandagopal, Gayathri Muraleedharan
For the Respondents: Sangeetharaj N.R., Public Prosecutor
Case Title: Dr. Joseph John v. State of Kerala & Another
Neutral Citation: 2025: KER:33952
Case Number: Crl.M.C. No. 5692 of 2018
Bench: Justice G. Girish
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