High Court of KeralaSingle Judge2017-07-20Crl.M.C. disposed of; directions issued to stay...

Dr. Rajagopal P. Menon v. State of Kerala and Sasi

Case / Petition Number:Crl.M.C. No. 1957 of 2017

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: B. Sudheendra Kumar
Judgment Date: 2017-07-20
Court Decision / Holding: The Court disposed of the Crl.M.C. directing that the case shall not proceed until a report from the Investigating Officer is received after the Apex Body’s decision on the appeal. It clarifies that this order does not bar the petitioner from challenging the final report in a fresh proceeding after the Apex Body’s decision. The petitioner may raise all contentions thereafter. The order states that the Investigating Officer must continue investigation in light of the Apex Body’s views if the Apex Body reverses the Expert Panel’s conclusions, and avoid proceeding if the Apex Body upholds them.
Final Disposition: Crl.M.C. disposed of; directions issued to stay further proceedings until Apex Body decision is received, with liberty to challenge after the Apex Body decision.

Parties to the Case

Appellants / Petitioners

DR.RAJAGOPAL P.MENON, GYNAECOLOGIST, IQRAA HOSPITAL, KOZHIKODE

Respondents

STATE OF KERALA, represented by the Public Prosecutor, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682018
SASI, S/O.CHEKKATTY, NELLIYULLA PARAMBIL HOUSE, KOYANNA, MATTANODE P.O., KOZHIKODE-673527

Legal Representation & Advocates

Counsels for Petitioners

• DR.S.GOPAKUMARAN NAIR (SR.)
• SRI.P.CHANDRASEKHAR
• SRI.C.R.SYAMKUMAR
• SRI.K.R.SRINIVASAN
• SRI.P.SREEKUMAR
• SRI.S.PRASANTH
• SRI.SOORAJ T.ELENJICKAL
• SRI.P.A.MOHAMMED SHAH
• SRI.K.ARJUN VENUGOPAL
• SMT.P.M.MAZNA MANSOOR

Counsels for Respondents

• SRI.C.K.PRASAD

Case Synopsis & Summary

This is a Criminal Miscellaneous Case (Crl.M.C. No.1957 of 2017) from Crime No.152/2015 of Nadakkavu Police Station, Kozhikode, under Section 304A IPC, involving a gynecologist who attended a delivery and faced allegations of negligence leading to the death of patient Shyma. The petitioner seeks to quash the final report filed under Section 173(2) Cr.P.C. and cancel further proceedings in CC No.173/2016 before the Judicial Magistrate First Class, Kozhikode. The core contention is that the final report was submitted during the pendency of the petitioner’s appeal against findings of an Expert Panel, and that government circulars require consideration of the Apex Body’s views and continuation of investigation in light of those views. The petitioner argues that if the Apex Body reverses the Expert Panel’s conclusions, the accused should receive the benefit, and the Investigating Officer must proceed accordingly under Section 173(8) Cr.P.C. The court relies on Suvarna v. Dr. Reni Philip and Others (2014 (1) KHC 112) to emphasize that the Investigating Officer must heed the Apex Body’s views and that prosecution may be continued or halted depending on those views. The order ultimately directs that no further proceedings occur until the Apex Body decision is received, but preserves the petitioner’s right to challenge the final report in a fresh proceeding after that decision.

Provisions of Law Cited

Section 304A IPCSection 173(2) Cr.P.C.Section 173(8) Cr.P.C.Government Circular No.73304/SSB3/2007/Home dated 16.06.2008

Submissions & Arguments

Contentions of Appellants / Petitioners

Learned counsel for the petitioner argued that the final report under Section 173(2) Cr.P.C. was filed during the pendency of the petitioner’s appeal challenging the Expert Panel’s findings. He relied on the Government Circular directing consideration of the Apex Body’s views and continuation of investigation in light of those views. If the Apex Body reverses the Expert Panel’s conclusions, the benefit should enure to the accused and the Investigating Officer must proceed under Section 173(8) Cr.P.C. He cited Suvarna v. Dr. Reni Philip and Others (2014 (1) KHC 112) to support this position and contended that proceeding with the final report would violate the circular and the accused’s rights. The petitioner sought quashing of the final report and stay of proceedings until Apex Body decision.

Contentions of Respondents

The respondents contended that the final report was filed in due course and that the pendency of an appeal cannot halt the investigation indefinitely. They urged that the Apex Body’s views may come later, but the Investigating Officer should continue as per law and circulars. They argued that the court should not quash the final report merely because an appeal is pending and that the process should progress with due regard to the Apex Body’s eventual decision.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Suvarna v. Dr.Reni Philip and Others	2014 (1) KHC 112	Positive	Cited as authority to support the proposition that Apex Body’s views must be considered and that the investigation can be guided by that decision, with potential benefit to the accused if reversal occurs.

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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** **THURSDAY, THE 20TH DAY OF JULY 2017/29TH ASHADHA, 1939** **Crl.MC.No. 1957 of 2017 () ---------------------------** ## **CC 173/2016 of J.M.F.C.-IV, KOZHIKODE** **CRIME NO. 152/2015 OF NADAKKAVU POLICE STATION, KOZHIKODE -----------------------** **PETITIONER(S): -------------** **DR.RAJAGOPAL P.MENON, GYNAECOLOGIST, IQRAA HOSPITAL, KOZHIKODE.** **BY ADVS.DR.S.GOPAKUMARAN NAIR (SR.)** **SRI.P.CHANDRASEKHAR SRI.C.R.SYAMKUMAR SRI.K.R.SRINIVASAN SRI.P.SREEKUMAR SRI.S.PRASANTH SRI.SOORAJ T.ELENJICKAL SRI.P.A.MOHAMMED SHAH SRI.K.ARJUN VENUGOPAL SMT.P.M.MAZNA MANSOOR** **RESPONDENT(S):** - **--------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682018.** **2. SASI, S/O.CHEKKATTY, NELLIYULLA PARAMBIL HOUSE, KOYANNA, MATTANODE P.O., KOZHIKODE-673527.** **R1 BY PUBLIC PROSECUTOR SRI.C.K.PRASAD** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20-07-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 1957 of 2017 () ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **ANNEXURE A1- TRUE COPY OF THE F.I. STATEMENT DATED 18/02/2015. ANNEXURE A2- TRUE COPY OF THE FINAL REPORT DATED 25/01/2016. ANNEXURE A3- TRUE COPY OF THE POST MORTEM CERTIFICATE DATED 18/02/2015. ANNEXURE A4- TRUE COPY OF THE REPORT DATED 20/10/2015. ANNEXURE A5- TRUE COPY OF THE APPEAL MEMORANDUM DATED JANUARY, 2017. RESPONDENT'S EXHIBITS: NIL** ## **//TRUE COPY//** **P.A. TO JUDGE** **STK** ## **B. SUDHEENDRA KUMAR, J.** ## **-------------------------------Crl.M.C. No.1957 of 2017** **----------------------------------** Dated this the 20[th] day of July, 2017 ## **O R D E R** The petitioner is a Gynaecologist, who has been charge sheeted for the offence under Section 304A IPC on the accusation that he did not notice the bleeding from injuries sustained to uterus, cervix and vagina of a patient, namely, Shyma, W/o.Pavithran, whose delivery was attended by the petitioner and as a consequence of bleeding, the above said patient sustained shock and died. 2. On the said allegation, Crime No.152/2015 of Nadakkavu Police Station was registered for the offence punishable under Section 304A IPC. After completing the investigation, the final report was filed before the court and the case is presently pending as C.C.No.173/2016 on the files of the Court of the Judicial Magistrate of First Class-IV, Kozhikode. ## **Crl.M.C. No.1957 of 2017** ## **-: 2 :-** 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. Service is complete. However, there is no appearance for the second respondent. 5. Heard the learned counsel for the petitioner and the learned Public prosecutor. 6. The main argument of the learned counsel for the petitioner is that the final report was filed during the 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 **-: 3 :-** ## **Crl.M.C. No.1957 of 2017** 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 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 ## **Crl.M.C. No.1957 of 2017** ## **-: 4 :-** 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 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.” 7. 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 ## **Crl.M.C. No.1957 of 2017** ## **-: 5 :-** 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 continue 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 **-: 6 :-** ## **Crl.M.C. No.1957 of 2017** with regard to the outcome of the appeal. 8. 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 his contentions in a fresh proceeding before this Court. Sd/- **B. SUDHEENDRA KUMAR, JUDGE** STK //TRUE COPY// //P.A. TO JUDGE//