Kerala High Court
Mp No.1647/2012 Of Judicial First … vs By Adv. Sri.M.V.Paulose on 31 May, 11
        

 
IN THE HIGH COURT OF KERALAAT ERNAKULAM

                                              PRESENT:

                          THE HONOURABLE MR. JUSTICE A.HARIPRASAD

             WEDNESDAY, THE 20TH DAY OF SEPTEMBER 2017/29TH BHADRA, 1939

                                    Crl.MC.No. 3352 of 2013 ()
                                        ---------------------------
          MP NO.1647/2012 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KOCHI
           CRIME NO. 776/2011 OF MATTANCHERRY POLICE STATION , ERNAKULAM


PETITIONER/2ND ACCUSED:
-------------------------

                      DR.BINOY,AGED 32 YEARS, FORMERLY MEDICAL OFFICER,
                     GAUTHAM HOSPITAL, PANAYAPPILLY, KOCHI-682002.

                      BY ADV. SRI.M.V.PAULOSE

RESPONDENTS/RESPONDENTS:
--------------------------

       1.            ASHIK, AGED 21, S/O. LATE SHERIF, CC 5/295, BSS ROAD
                      MATTANCHERY, KOCHI-682002.

       2.            STATEOF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,
                     HIGH COURT OF KERALA.

                      R1 BY ADVS. SRI.S.RAJEEV
                                    SRI.K.K.DHEERENDRAKRISHNAN
                      R2 BY PUBLIC PROSECUTOR MS.K.K.SHEEBA

            THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20-09-2017,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

Crl.MC.No. 3352 of 2013 ()
---------------------------

                                         APPENDIX

PETITIONER(S)' EXHIBITS
-----------------------
           ANNEXURE 1 A PHOTOCOPY OF THE CONSENT LETTER DT. 28-3-11 OF THE
RESPONDENT.

           ANNEXURE 2 A PHOTOCOPY OF THE FIR 776/11 DATED 31-5-11 OF
MATTANCHERRY POLICE STATION.

           ANNEXURE 3 A PHOTOCOPY OF THE MP 1647/12 ON THE FILES OF THE FILES OF
THE JFMC-II COCHIN.

RESPONDENT(S)' EXHIBITS                         NIL
-----------------------



                            A.HARIPRASAD, J.
                       --------------------------------------
                         Crl.M.C. No.3352 of 2013
                       --------------------------------------
              Dated this the 20th day of September, 2017

                                    ORDER

Heard the learned counsel for the petitioner and the learned Public Prosecutor.

2. Petitioner is the 2nd accused in M.P.No.1647 of 2012 of C.P. No.20 of 2013 of the Judicial First Class Magistrate Court-II, Kochi, . The said case is transferred to the Judicial First Class Magistrate Court, Mattancherry and pending as C.P.No.9 of 2014.

3. Gist of the allegations against the petitioner and other accused is as follows: Petitioner worked as Medical Officer in Gautham Hospital, Panayappilly, Kochi. On 28.03.2011, father of the defacto complainant was admitted in the above hospital with severe chest pain. He was taken to ICU. Thereafter the complainant and other relatives wanted him to be removed to another hospital with better facilities. It is the allegation that during that time, he was kept to wait for 20 minutes for an ambulance, without giving oxygen to the patient when he was struggling for breath. Ultimately he was again admitted to ICU of the said hospital and he succumbed due to heart attack.

4. The complainant approached the court below with a private  complaint which was forwarded for investigation by the Police under Section 156(3) of the Code of Criminal Procedure, 1973 (in short, “Cr.P.C.”). After investigation, a final report was filed stating that no offence was made out against the accused persons. When that was sought to be accepted by the court below, a protest complaint was filed. On that matter the court below took cognizance of the offences punishable under Section 304read with Section 34 of the Indian Penal Code (in short, “IPC“). Petitioner, who figures in as 2nd accused in the case, has approached this Court seeking quashment of the charge against him.

5. Annexure-3 is a protest complaint. Learned counsel for the petitioner submitted that even if the entire allegations in Annexure-3 are accepted, there is no material to implicate the petitioner in an offence under Section 304 IPC. Section 304 IPC deals with punishment for culpable homicide not amounting to murder. In order to attract an offence under Section 304 IPC, there must be allegations constituting murder as defined under Section 300. On a reading of Annexure-3, I am at a loss to find out any ingredient to attract an offence under Section 304 IPC insofar as this petitioner is concerned. Learned counsel appearing for the 1st respondent/defacto complainant contended that there are specific allegations against the accused 1, 3 and 4. However, I am not concerned with those allegations as the petitioner, who is the 2nd accused, has only  come forward seeking quashment of the charge. It is also seen from the records that the petitioner was a doctor in the pay rolls of the hospital.

6. Learned counsel for the petitioner relying on Shantibhai J.Vaghela and another v. State of Gujarat and others (AIR 2013 SC

571) contended that the entire allegations in Annexure-3 will not constitute an offence under Section 304 IPC against the petitioner. The principles of law stated in paragraph 19 of the decision read thus:

“19. Commission of the offence of culpable homicide would require some positive act on the part of the accused as distinguished from silence, inaction or a mere lapse. Allegations of not carrying out a prompt search of the missing children; of delay in the lodging of formal complaint with the police and failure to take adequate measures to guard the access from the ashram to the river, which are the principal allegations made in the FIR, cannot make out a case of culpable homicide not amounting to murder punishable under Section 304 IPC. To attract the ingredients of the said offence something more positive than a mere omission, lapse or negligence on the part of the named accused will have to be present. Such statements are conspicuously absent in the FIR filed in the present case. A reading of the relevant part of the opinion of the Forensic Medicine  Department of the BJ Medical College Ahmedabad would go to show that possibility of death of the children by drowning cannot be ruled out. Expert opinion available on record indicates that mere absence of diatom will not exclude the aforesaid possibility. The relevant part of the post mortem report, as extracted, indicates presence of mud in the trachea of the children which fact also point to the possibility of death by drowning. The absence of any injuries on the body of the deceased; the attack on the bodies by wild animals and the possibility of the taking away of the missing organs of the deceased Dipesh by wild animals are all mentioned in the post-mortem report. The said facts cannot be excluded or ignored while construing the prima facie liability of the accused named in the FIR. The absence of any positive material to show the practice of black magic in connection with the incident is another significant fact that has to be taken note of. Taking into account all the aforesaid facts it cannot be said that the High Court, in the present case, had committed any error in exercising its jurisdiction to interdict the investigation of the offence under section 304 IPC against the accused named in the FIR. Such power, though must be exercised sparingly, has to be invoked if the facts of any given case so demand. This is precisely what the  High Court had done in the present case without departing from any of the well settled principles of law emanating from the long line of decisions of this court noticed in Asmathunnisa v. State of Andhra Pradesh Rep. by the Public Prosecutor, High Court of Andhra Pradesh, Hyderabad.”

7. After hearing the learned counsel on both sides and having regard to the facts and circumstances, I find that prosecution of the petitioner/2nd accused in the above case is without any sufficient materials and therefore, it will amount to harassment.

In the result, petition is allowed. Proceedings against the petitioner in M.P.No.1647 of 2012 of C.P. No.20 of 2013 of the Judicial First Class Magistrate Court-II, Kochi, now pending in C.P.No.9 of 2014 on the file of Judicial First Class Magistrate Court, Mattancherry is hereby quashed.

All pending interlocutory application will stand dismissed.

A. HARIPRASAD, JUDGE.

cks

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