High Court of KeralaSingle Judge2014-01-22Discharge petition to be filed in the trial cou...

Dr. Shaisav S. Dhage v. State of Kerala

Case / Petition Number:Crl.MC.No.803 of 2014

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Harun-ul-Rashid, J.
Judgment Date: 2014-01-22
Court Decision / Holding: Court declined to examine the merits at this stage and directed the petitioner to file a discharge petition in the trial court within three weeks. If filed, the trial court is to consider and pass appropriate orders within three months. The petitioner’s absence due to studies in the United Kingdom may be accommodated; if discharge is dismissed, the petitioner may appear through counsel and, upon surrender on 25.01.2014, bail proceedings may be considered, with non-bailable warrants kept in abeyance.
Final Disposition: Discharge petition to be filed in the trial court within three weeks; if filed, the trial court to decide within three months; applicant allowed to appear through counsel; non-bailable warrants stayed pending bail decision; if discharge petition is dismissed, the petitioner may surrender and seek bail."

Parties to the Case

Appellants / Petitioners

Dr. Shaisav S. Dhage

Respondents

State of Kerala, represented by the Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri.C.S.Ajith Praksh
• Sri.Paul C. Thomas

Counsels for Respondents

• Sri. Renjith R. (Public Prosecutor)

Case Synopsis & Summary

Dr. Shaisav S. Dhage, a Maharashtra resident and medical post-graduate trainee at Amrita Institute of Medical Sciences, Ernakulam, stands as the first accused in Crime No. 327/2006. In Crl.MC No. 803 of 2014 before the Kerala High Court, he moves to quash Annexure-34, the final report in a case under sections 304A and 201 IPC arising from a patient’s death on 22 December 2006. The petitioner contends that the material including Annexure-32 and various CW statements do not establish that the death was the direct result of a rash and negligent act by the petitioner; he relies on the Apex Court judgment Kurban Hussein Mohammedali Rangawalla v. State of Maharashtra to argue that the death must be the proximate and efficient result of the accused’s rash act, without intervening negligence. He urged quashing of the final report on this basis. The State, represented by the Public Prosecutor, opposes quashing and maintains the matter’s merits. The High Court, however, notes the discharge petition is highly belated and declines to adjudicate the merits at this stage. It directs the petitioner to approach the trial court with a discharge petition within three weeks, promising a timely consideration within three months if filed. The petitioner, presently in the United Kingdom, may appear through counsel; if discharge is dismissed, bail could be sought when surrender occurs, and a non-bailable warrant will be kept in abeyance pending bail proceedings.

Provisions of Law Cited

Section 304A IPCSection 201 IPC

Legal Doctrines & Maxims

Proximate and efficient cause

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends Annexure-32 was not framed in conformity with the Apex Court's dictum and Annexure-34 (Final Report) should be quashed. Relying on Kurban Hussein Mohammedali Rangawalla v. State of Maharashtra, he argues that death must be the direct result of a rash and negligent act, without intervening negligence, and the evidence does not establish this proximate causation.

Contentions of Respondents

The State opposes discharge of the petition and urges that the discharge petition is belated and not a suitable vehicle to attack the final report; merits need not be considered at this stage; the proper course is to dispose of the discharge petition in the trial court, if filed, with appropriate orders.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Kurban Hussein Mohammedali Rangawalla v. State of Maharashtra	1965 (2) SCR 622	Mentioned Only	Cited by the petitioner to support the proposition that death must be the proximate result of a rash and negligent act, but the case is not relied upon by the court to sustain quashing; the court treats it as a background reference rather than a controlling authority in this order.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Dr. Shaisav S. Dhage v. State of Kerala and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID** **WEDNESDAY, THE 22ND DAY OF JANUARY 2014/2ND MAGHA, 1935** ## **Crl.MC.No. 803 of 2014 ()** **-------------------------CRIME NO. 327/2006 OF CHERANALLORE POLICE STATION, ERNAKULAM ---------------------** **PETITIONER / ACCUSED :** **--------------------------------------** **DR.SHAISAV S. DHAGE, S/O.SASIKANT VISHNU DHAGE, SANKARAPUR PETH, JUNNAR PUNE, MAHARASHTRA PRESENTLY EMPLOYED AT THE PENNINE ACUTE HOSPITALS NHS TRUST, UNITED KINGDOM.** **BY ADVS.SRI.C.S.AJITH PRAKASH SRI.PAUL C. THOMAS** **RESPONDENT/COMPLAINANT : ---------------------------------------------** **STATE OF KERALA, REPRESENTLY BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. RENJITH R.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22-01-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Mn** **...2/-** **Crl.MC.No. 803 of 2014 ()** ## **-----------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -------------------------------------** - **ANNEXURE 1: TRUE COPY OF THE FIR IN CRIME NO.327/2006 OF CHERANELLOOR POLICE STATION.** - **ANNEXURE 2: TRUE COPY OF THE INQUEST REPORT IN CRIME NO.327/2006 OF CHERANELLOOR POLICE STATION.** - **ANNEXURE 3: TRUE COPY OF THE FURTHER STATEMENT DATED 22/12/2008 OF CW-1 IN CRIME NO.327/2006 OF CHERANELLOOR POLICE STATION.** - **ANNEXURE 4: TRUE COPY OF THE FURTHER STATEMENTS DATED 22/12/2006 AND DATED 28/04/2007 OF CW-1 IN CRIME NO.327/2006 OF CHERANELLOOR POLICE STATION.** - **ANNEXURE 5: TRUE COPY OF THE STATEMENT OF CW-2 IN CRIME NO.327/2006 OF CHERANELLOOR POLICE STATION.** - **ANNEXURE 6: TRUE COPY OF THE FURTHER STATEMENT OF CW-2 IN CRIME NO.327/2006 OF CHERANELLOOR POLICE STATION.** - **ANNEXURE 7: TRUE COPY OF THE STATEMENT OF CW-3 IN CRIME NO.327/2006 OF CHERANELLOOR POLICE STATION.** - **ANNEXURE 8: TRUE COPY OF THE FURTHER STATEMENT OF CW-3 IN CRIME NO.327/2006 OF CHERANELLOOR POLICE STATION.** - **ANNEXURE 9: TRUE COPY OF THE STATEMENT OF CW-4 IN CRIME NO.327/2006 OF CHERANELLOOR POLICE STATION.** - **ANNEXURE 10: TRUE COPY OF THE STATEMENT OF CW-5 IN CRIME NO.327/2006 OF CHERANELLOOR POLICE STATION.** - **ANNEXURE 11: TRUE COPY OF THE FURTHER STATEMENT OF CW-5 IN CRIME NO.327/2006 OF CHERANELLOOR POLICE STATION.** - **ANNEXURE 12: TRUE COPY OF THE FURTHER STATEMENT DATED 11-12-2007 OF CW-5 IN CRIME NO.327/2006 OF CHERANELLOOR POLICE STATION.** - **ANNEXURE 13: TRUE COPY OF THE STATEMENT OF CW-6 IN CRIME NO.327/2006 OF CHERANELLOOR POLICE STATION.** - **ANNEXURE 14: TRUE COPY OF THE FURTHER STATEMENT OF CW-6 IN CRIME NO.327/2006 OF CHERANELLOOR POLICE STATION.** - **ANNEXURE 15: TRUE COPY OF THE STATEMENT OF CW-7 IN CRIME NO.327/2006 OF CHERANELLOOR POLICE STATION.** **(Contd...)** ## **Crl.MC.No. 803 of 2014 ()** |**ANNEXURE**|**16:**|**TRUE COPY OF THE STATEMENT OF CW-8 IN CRIME**| |---|---|---| |||**NO.327/2006 OF CHERANELLOOR POLICE STATION.**| |**ANNEXURE**|**17:**|**TRUE COPY OF THE STATEMENT OF CW-9 IN CRIME**| |||**NO.327/2006 OF CHERANELLOOR POLICE STATION.**| |**ANNEXURE**|**18:**|**TRUE COPY OF THE FURTHER STATEMENT DATED 24/7/2007**| |||**OF CW-9 IN CRIME NO.327/2006 OF CHERANELLOOR POLICE**| |||**STATION.**| |**ANNEXURE**|**19:**|**TRUE COPY OF THE FURTHER STATEMENT DATED 23/11/2007**| |||**OF CW-9 IN CRIME NO.327/2006 OF CHERANELLOOR POLICE**| |||**STATION.**| |**ANNEXURE**|**20:**|**TRUE COPY OF THE STATEMENT OF CW-10 IN CRIME**| |||**NO.327/2006 OF CHERANELLOOR POLICE STATION.**| |**ANNEXURE**|**21:**|**TRUE COPY OF THE STATEMENT OF CW-11 IN CRIME**| |||**NO.327/2006 OF CHERANELLOOR POLICE STATION.**| |**ANNEXURE**|**22:**|**TRUE COPY OF THE STATEMENT OF CW-12 IN CRIME**| |||**NO.327/2006 OF CHERANELLOOR POLICE STATION.**| |**ANNEXURE**|**23:**|**TRUE COPY OF THE STATEMENT OF CW-13 IN CRIME**| |||**NO.327/2006 OF CHERANELLOOR POLICE STATION.**| |**ANNEXURE**|**24:**|**TRUE COPY OF THE STATEMENT OF CW-14 IN CRIME**| |||**NO.327/2006 OF CHERANELLOOR POLICE STATION.**| |**ANNEXURE**|**25:**|**TRUE COPY OF THE STATEMENT OF CW-15 IN CRIME**| |||**NO.327/2006 OF CHERANELLOOR POLICE STATION.**| |**ANNEXURE**|**26:**|**TRUE COPY OF THE STATEMENT OF CW-16 IN CRIME**| |||**NO.327/2006 OF CHERANELLOOR POLICE STATION.**| |**ANNEXURE**|**27:**|**TRUE COPY OF THE STATEMENT OF CW-17 IN CRIME**| |||**NO.327/2006 OF CHERANELLOOR POLICE STATION.**| |**ANNEXURE**|**28:**|**TRUE COPY OF THE STATEMENT OF CW-18 IN CRIME**| |||**NO.327/2006 OF CHERANELLOOR POLICE STATION.**| |**ANNEXURE**|**29:**|**TRUE COPY OF THE STATEMENT OF CW-19 IN CRIME**| |||**NO.327/2006 OF CHERANELLOOR POLICE STATION.**| |**ANNEXURE**|**30:**|**TRUE COPY OF THE STATEMENT OF CW-20 IN CRIME**| |||**NO.327/2006 OF CHERANELLOOR POLICE STATION.**| |**ANNEXURE**|**31:**|**TRUE COPY OF THE STATEMENT OF CW-21 IN CRIME**| |||**NO.327/2006 OF CHERANELLOOR POLICE STATION.**| |**ANNEXURE**|**32:**|**TRUE COPY OF THE EXPERT OPINION IN CRIME NO.327/2006**| |||**OF CHERUNELLOOR POLICE SATION.**| **(Contd...)** ## **Crl.MC.No. 803 of 2014 ()** **ANNEXURE 33: TRUE COPY OF THE POSTMORTEM REPORT DATED 22/12/2006 IN CRIME NO.327/2006 OF CHERANELLOOR POLICE STATION. ANNEXURE 34: TRUE COPY OF THE FINAL REPORT IN CRIME NO.327/2006 OF CHERANELLOOR POLICE STATION. ANNEXURE 35: TRUE COPY OF RELEVANT PAGES FROM THE BOOK 'INTERNAL MEDICINE' BY HARRISON'S. RESPONDENT(S)' EXHIBITS : NIL ------------------------------------------------------------** **//TRUE COPY//** **P.S. TO JUDGE** ## **HARUN-UL-RASHID, J. -----------------------Crl.M.C No.803 Of 2014 ---------------------Dated this the 22[nd] day of January, 2014.** ## **O R D E R** Petitioner is the 1[st] accused in C.C.No.691/2008 on the file of the Judicial First Class Magistrate Court-II, Ernakulam. The offences alleged against the petitioner are punishable under Sections 304A and 201 IPC. The alleged incident happened on 22.12.2006. Crime was registered on the same day. Final Report was submitted on 22.4.2008. The 2[nd] accused was the Assistant Professor of General Medicine. 2. Petitioner is a permanent resident of Maharashtra State. He joined for DNB Degree Course conducted by the National Board of Examinations, New Delhi at Amrita Institute Of Medical Sciences, Ernakulam. While he was undergoing Post Graduate Course at AIMS, Ernakulam, a patient was brought to the casualty at about 10:30 pm on 21.12.2006. Medical investigation was conducted by the 2[nd] accused, the petitioner and an Orthopaedic Surgeon. Patient was admitted in the ward at about 2:00 am on 22.12.2006. He died at about 5:45 am on **::2::** ## **Crl.M.C.No.803 Of 2014** the same day. It is contended that the cause of death according to CW7, CW8, CW16, CW17 CW18 varies and that causes stated by the said charge witnesses are distinct and different as evident from Annexure-35. The learned counsel for the petitioner submits that Annexure-32 is not one made following the dictum laid down by the Apex Court and in the circumstances AnnexureA34 Final Report is liable to be quashed. Relying on the decision reported in _**Kurban Hussein Mohammedali Rangawalla v. State of Maharashtra**_ (1965 (2) SCR 622) the learned counsel for the petitioner contended that it is necessary that the death should have been the direct result of a rash and negligent act of the accused and that act must be the proximate and efficient cause without the intervention of another's negligence. Placing reliance on the report of the experts it is contended that the cause of death is not the direct result of rash and negligent act of the petitioner and other accused. Crl.M.C is filed seeking to quash Annexure-34 charge Sheet/Final Report in Crime No.327/2006 of Cheranallore Police Station. 3. The petition filed seeking to quash Annexure-34 is **::3::** ## **Crl.M.C.No.803 Of 2014** highly belated. The final report was submitted in the year 2008. There is no justification for approaching this Court at this distance of time. 4. I have examined the materials produced before this Court. This Court is not inclined to examine the merits of the contentions raised by the petitioner at this stage. 5. Accordingly, there will be a direction to the petitioner to approach the court below seeking discharge. In the event of the petitioner filing a discharge petition within a period of three weeks from today, the court below shall consider and pass appropriate orders on the same within a period of three months from the date of filing of the discharge petition. Personal appearance of the petitioner is dispensed with during the pendency of the discharge petition. 6. The petitioner is now in United Kingdom continuing his Post Graduate Course. He is not in a position to appear on every posting of the case. In the event of the dismissal of the application for discharge, the petitioner is permitted to appear through his lawyer during trial as well, except on postings where **::4::** ## **Crl.M.C.No.803 Of 2014** his presence is absolutely necessary. Due to his higher studies in various places, he was unable to appear before the court below. The court below issued non-bailable warrant against the petitioner. The petitioner is willing to surrender before the court below on 25.1.2014. The court below is directed to consider and pass appropriate orders on the bail application, if any, filed by the petitioner on the date of surrender itself with prior notice to the Assistant Public Prosecutor, in the event of the petitioner surrendering before the court below on 25.1.2014. Non-bailable warrant issued against the petitioner shall be kept in abeyance till the disposal of the bail application. **HARUN-UL-RASHID, Judge.** bkn/-