High Court of KeralaSingle JudgeCrl.M.C disposed with directions to wait for Ap...

Dr. Jessy M. Antony v. State of Kerala and George Thomas @ Tito

Case / Petition Number:Crl.M.C. No. 1588 of 2017

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • B. Sudheendra Kumar
Judgment Date
2017-08-30
Court Decision / Holding
The petition is disposed by directing that the case shall not proceed further until a report from the Investigating Officer is received regarding the outcome of the Apex Body’s decision on the appeal. The Investigating Officer is bound to act in accordance with the Apex Body’s views; if the Apex Body reverses the Expert Panel’s conclusions, the benefit shall enure to the accused and further investigation must be conducted under CrPC 173(8) with a fresh report. If the Apex Body upholds the Expert Panel’s findings, the prosecution may be continued. The petitioner may challenge the final report in a fresh proceeding after the Apex Body’s decision.
Final Disposition
Crl.M.C disposed with directions to wait for Apex Body decision; petitioner free to challenge final report after Apex Body decision; no further proceedings until such decision is received.

Parties to the Case

Appellants / Petitioners

  • Dr. Jessy M. Antony

Respondents

  • State of Kerala represented by the Public Prosecutor, High Court of Kerala, Ernakulam
  • George Thomas @ Tito S/O Thomas, Nellikkakuzhi House, Eravuchira, Thottakkadu P.O., Kottayam

Legal Representation & Advocates

Counsels for Petitioners

  • • Dr. S. Gopakumaran Nair (Sr.)
  • • P. Chandrasekhar
  • • C. R. Syamkumar
  • • P. Sreekumar
  • • S. Prasanth
  • • Sooraj T. Elenjickal
  • • P. A. Mohammed Shah
  • • K. Arjun Venugopal
  • • Mary Reshma George
  • • V. A. Haritha
  • • Sandhya R. Nair
  • • P. M. Mazna Mansoor

Counsels for Respondents

  • • A. Jayasankar
  • • Manu Govind
  • • Ashwin Sethumadhavan
  • • B. Meera
  • • S. Sabarinadh
  • • Public Prosecutor

Case Synopsis & Summary

Dr. Jessy M. Antony, a Gynecologist nun, faced charges under IPC sections 336 and 338 for allegedly leaving a surgical mop inside the surgical site during a gynecological procedure, causing post-operative complications and necessitating another operation at Medical College Hospital, Kottayam. Crime No. 911/2015 of Kottayam East Police Station led to a final report under Section 173(2) Cr.P.C., with CC 607/2016 pending before the Judicial Magistrate of First Class-IV, Kozhikode. The petitioner sought quashing the final report and proceedings on the ground that it was filed during pendency of her appeal against findings of an Expert Panel, which, under Government Circular No. 73304/SSB3/2007/Home dated 16-06-2008, requires the Investigating Officer to consider the Apex Body’s views and continue the investigation accordingly. The Division Bench in Suvarna v. Dr. Reni Philip and Others (2014 (1) KHC 112) is cited to illustrate that if the Apex Body reverses the Expert Panel and such reversal benefits the accused, the investigating authority must act in light of that decision and file further reports under CrPC 173(8). In the present case, the final report was filed before the Apex Body’s decision on the appeal. The court directed that no further proceedings be taken until the Apex Body resolves the appeal; the Investigating Officer is to act according to the Apex Body’s decision and, on that basis, the petitioner may challenge the final report in a fresh proceeding after the decision.

Provisions of Law Cited

Section 336 IPCSection 338 IPCSection 173(2) Cr.P.C.Section 173(8) Cr.P.C.Government Circular No. 73304/SSB3/2007/Home dated 16-06-2008

Legal Doctrines & Maxims

  • Investigating Officer must consider the views expressed by the Apex Body and continue investigation in light of the Apex Body's views (as per Suvarna v. Dr. Reni Philip and Others).
  • If the Apex Body reverses the conclusions of the Expert Panel, the benefit should enure to the accused and the Investigating Officer must continue investigation as directed by the Circular and CrPC 173(8).
  • The Government Circulars binding the investigation process in light of Apex Body findings and pending appeals.
  • Court shall await Apex Body decision before further proceedings in cases involving expert panels and final reports.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the final report was filed during the pendency of her appeal against the Expert Panel’s findings and is therefore unsustainable. She relies on the Government Circular dated 16-06-2008, as well as the decision in Suvarna v. Dr. Reni Philip, to argue that the Apex Body’s views must be considered and that the investigation should be held in abeyance or revisited when the Apex Body decides the appeal. Thus, the final report should be quashed and further proceedings stayed until the Apex Body resolves the appeal; if the Apex Body reverses the Expert Panel’s conclusions, the investigation must continue in light of that decision and a further CrPC report must be filed.

Contentions of Respondents

The Respondents argue that the final report may be considered and the proceedings continued in accordance with the Apex Body’s eventual decision. They rely on the circular and the statutory framework to justify continuing the inquiry if the Apex Body sustains the Expert Panel’s conclusions or directs further action, and contend that even if the final report is filed prior to the Apex Body’s decision, it may be subject to reconsideration in light of the Apex Body’s ruling.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Suvarna v. Dr. Reni Philip and Others2014 (1) KHC 112PositiveCited to illustrate the obligation to consider the Apex Body’s views and to continue investigation in light of its decision, and to apply the Circular in directing further investigation or closure depending on the Apex Body's reversal or confirmation.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR WEDNESDAY, THE 30TH DAY OF AUGUST 2017/8TH BHADRA, 1939 Crl.MC.No. 1588 of 2017 () --------------------------CC 607/2016 of J.M.F.C.,KOTTAYAM CRIME NO. 911/2015 OF KOTTAYAM EAST POLICE STATION , KOTTAYAM PETITIONER(S)/ACCUSED: --------------------------------------- DR. JESSY M. ANTONY D/O. ANTONY, S.H CONVENT,8 MARTHOMA SEMINARI, KOTTAYAM 686 001 BY ADVS.DR.S.GOPAKUMARAN NAIR (SR.) SRI.P.CHANDRASEKHAR SRI.C.R.SYAMKUMAR SRI.P.SREEKUMAR SRI.S.PRASANTH SRI.SOORAJ T.ELENJICKAL SRI.P.A.MOHAMMED SHAH SRI.K.ARJUN VENUGOPAL SMT.MARY RESHMA GEORGE SMT.V.A.HARITHA SMT.SANDHYA R.NAIR SMT.P.M.MAZNA MANSOOR RESPONDENT(S): ------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA,ERNAKULAM 2. GEORGE THOMAS @ TITO S/O. THOMAS, NELLIKKAKUZHI HOUSE NEAR MADATHAMY, ERAVUCHIRA, THOTTAKKADU P.O KOTTAYAM, PIN 686 539 R2 BY ADV. SRI.A.JAYASANKAR R2 BY ADV. SRI.MANU GOVIND R2 BY ADV. SRI.ASHWIN SETHUMADHAVAN R2 BY ADV. SMT.B.MEERA R2 BY ADV. SRI.S.SABARINADH R BY PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30-082017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 1588 of 2017 () --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ---------------------------------ANNEXURE A1 TRUE COPY OF THE FINAL REPORT DATED 07-08-2015 ANNEXURE A2 TRUE COPY OF THE LETTER ADDRESSED BY THE DISTRICT MEDICAL OFFICER TO THE ADMINISTRATOR S.H MEDICAL CENTRE DATED 12-10-2015 ANNEXURE A3 TRUE COPY OF THE REPORT DATED 09-12-2015 ANNEXURE A4 TRUE COPY OF THE COMPLAINT SUBMITTED BY THE RESPONDENT TO THE DISTRICT MEDICAL OFFICER DATED 03-08-2015 ANNEXURE A5 TRUE COPY OF THE PROCEEDINGS NO 2283/TDR/15/KSD OF THE DISTRICT LEVEL EXPERT COMMITTEE ANNEXURE A6 TRUE COPY OF THE APPEAL DATED 28-01-2017 ANNEXURE A7 TRUE COPY OF THE GOVERNMENT CIRCULAR DATED 16-06-2008 RESPONDENT(S)' EXHIBITS : NIL --------------------------------------- // True Copy // PA to Judge ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl.M.C. No.1588 of 2017 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 30[th] day of August 2017 ## O R D E R The petitioner is a Gynecologist, who is also a nun. The petitioner was charge-sheeted for the offence under Sections 336 and 338 I.P.C. on the accusation that during the gynecological surgery of the wife of the 2[nd] respondent, one of the surgical mops was left behind in the surgical side without taking it from there, when the surgery was complete, which resulted in complication leading to another surgery in the Medical College Hospital, Kottayam, for the removal of the same. 2. On the said allegation, Crime No.911 of 2015 of ## Crl.M.C.1588/2017 -: 2 :- Kottayam East Police Station was registered for the offences under Sections 336 and338 I.P.C. After completing the investigation, the final report was filed before the court and the case is presently pending as C.C.No.607/2016 on the files of the Court of the Judicial Magistrate of First Class-IV, Kozhikode. 3. The petitioner has filed this Crl.M.C. praying for quashing the final report and further proceedings against the petitioner in the above said case. 4. Heard the learned counsel for the petitioner, the learned counsel for the 2[nd] respondent and the learned Public Prosecutor. 5. The main argument of the learned counsel for the petitioner is that the final report was filed during the Crl.M.C.1588/2017 -: 3 :- pendency of the appeal filed by the petitioner against the decision of the Expert Panel before the Apex Body and consequently, the further proceedings cannot be sustained. The Division Bench of this Court, after a survey of a catena of decisions of the Hon'ble Supreme Court, held in paragraph 27 in Suvarna v. Dr.Reni Philip and Others 2014 (1) KHC 112 thus:- “In the case on hand, on the strength of the directions contained in the impugned judgment, the respondents 1 and 2 have preferred appeal before the Apex Body challenging the findings in Ext. P6 Report of the Expert Panel as provided in the Circular. It shall be the duty of the Investigating Officer to consider the views expressed by the Apex Body and to continue further investigation in the light of the views taken by the Apex Body. The Investigating Crl.M.C.1588/2017 -: 4 :- Officer has already filed Final Report before the Court under S.173(2) of Cr.P.C. accepting the opinions expressed by the Expert Panel. If the Apex Body reverses the findings of Expert Panel, naturally, as provided in the Circular, that benefit should enure to the accused including the respondents 1 and 2. In that case, the investigating Deputy Superintendent of Police is bound to continue further investigation in the light of the view thus taken by the Apex Body and to file further report before the Court as provided under S.173(8) of CrPC. Since the Circular provides for an appeal and such an appeal has been filed by the respondents 1 and 2, necessarily, the Investigating Officer in this case is bound to consider the views of the Apex Body and continue further investigation on that basis. If the views of the Apex Body turn out to be against the respondents 1 and 2 confirming ## Crl.M.C.1588/2017 -: 5 :- the opinions of the Expert Panel, then the prosecution against them can be continued. If the Apex Body reverses the conclusions of the Expert Panel and finds no culpable negligence on the part of the accused, the Investigating Officer has to act as directed in the Circular.” 6. In this case, the final report was filed prior to the filing of the appeal by the petitioner herein, submitted by the learned Public Prosecutor. The learned counsel for the petitioner has also admitted the same. Any how, appeal filed by the petitioner herein is pending before the Apex Body. Therefore, if the Apex Body reverses the finding of the Expert Panel, naturally, as per the Government Circular No.73304/SSB3/2007/Home dated 16.06.2008, the benefit should enure to the accused, who is the petitioner herein. In that case, the Investigating Officer is bound to conduct Crl.M.C.1588/2017 -: 6 :- further investigation in the light of the view taken by the Apex Body and to file further report before the court as provided under Section 173 (8) Cr.P.C. Therefore, in this case, if the views of the Apex Body are turn out to be against the petitioner confirming the opinion of the expert panel, the prosecution against the petitioner can be continued. On the other hand, if the Apex Body reverses the conclusions of the Expert Panel and finds no culpable negligence on the part of the petitioner, the Investigating Officer has to act as directed in the Circular. In view of the above reasons, the court below shall not proceed with the case, until a report from the Investigating Officer is received with regard to the outcome of the appeal. ## Crl.M.C.1588/2017 -: 7 :- In the result, this Crl.M.C. stands disposed of as above. However, I make it clear that this order will not stand in the way of the petitioner in challenging the final report, after getting the report of the Investigating Officer after the receipt of the decision of the Apex Body. In that event, the petitioner shall be at liberty to raise all her contentions in a fresh proceeding before this Court. Sd/- **B.SUDHEENDRA KUMAR, JUDGE** _dl/31.8..2017_