Partly allowed

Dr.R.Radhakrishnan Nair v. Sreeja Prasad

Kerala HC27 Jun 2008Crl.MC/2358/2004

Case brief

AI extract

What is this about?

This judgment quashed the cognizance taken against the Managing Director of a hospital in a private complaint alleging medical negligence. The court directed the Magistrate to forward the complaint for investigation under Section 156(3) Cr.P.C. in accordance with guidelines in Jacob Mathew. No specific overt acts were alleged against the petitioner.

What did the court decide?

Quashed the cognizance taken by the Chief Judicial Magistrate and directed the Magistrate to forward the complaint under Section 156(3) Cr.P.C. for police investigation and report.

Dr.R.Radhakrishnan Nair Vs Sreeja Prasad — Quashing and FIR | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MRS. JUSTICE M.C.HARI RANI

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FRIDAY, THE 27TH JUNE 2008 / 6TH ASHADHA 1930

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Crl.MC.No. 2358 of 2004()

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--------------------------------CC.69/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PATHANAMTHITTA

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PETITIONER/ACCUSED NO.1. :-

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DR.R.RADHAKRISHNAN NAIR,

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MANAGING DIRECTOR, PEOPLE'S CLINIC AND HOSPITAL, (KOTTAYAM-KARANTE HOSPTAL), PATHANAMTHITTA.

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BY ADV. SRI.P.VIJAYA BHANU

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SMT.P.MAYA

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RESPONDENTS/COMPLAINANT AND STATE :-

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SREEJA PRASAD, D/O.T.PRASAD, THAZHATHETIL VEEDU, MYLAPRA VILLAGE, KUMBAZHA VADAKKU, PATHANAMTHITTA.

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STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY PUBLIC PROSECUTOR SRI.S.U.NAZAR - R2.

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SRI.C.S.MANILAL - R1

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 27/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No. 2358 of 2004

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ORDER IN Crl.M.Appln.No.10253 OF 2004 IN Crl.M.C.No. 2358 OF 2004

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DISMISSED.

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27.06.2008

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M.C. HARI RANI, JUDGE

-TRUE COPY-

P.A. TO JUDGE

pac

M.C.HARI RANI, J.

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Crl.M.C. No.2358 OF 2004

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Dated this the 27^th day of June, 2008

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O R D E R

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The petitioner herein is the 1^st accused in C.C.69/2004 on the file of Judicial First Class Magistrate-II, Pathanamthitta, which arose out of the private complaint filed by the 1^st respondent against 3 accused persons including the petitioner herein who is the first accused, alleging commission of offences punishable under sections 338, 506(ii) read with 34 of IPC. The petitioner herein who is the 1^st accused in the complaint is mentioned as the Managing Director of the hospital by name 'Peoples Clinic and Hospital'. The prayer in this petition is to quash the Annexure A complaint and all further proceedings in C.C.69/2004 pending on the file of Judicial First Class MagistrateII, Pathanamthitta.

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Heard the learned counsel appearing for the petitioner and the 1^st respondent. Heard the learned Public Prosecutor also. 3. It is submitted by the learned counsel appearing for the petitioner that the petitioner has been implicated in

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Crl.M.C.2358/2004

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C.C.69/2004 as the Managing Director of the concerned hospital and he has no vicarious liability for the acts and commissions, if any, on the part of other Doctors in the same hospital. It is also submitted by the petitioner's counsel that no physical or specific overt act has been stated against him in the private complaint so as to attract the offence under section 338 of IPC. So also section 506(ii) of IPC will not attract to implicate him as the 1^st accused. It is submitted by the learned counsel appearing for the 1^st respondent that specific allegations are there against the petitioner herein who is the 1^st accused in the complaint. The learned counsel appearing for the 1^st respondent has produced an order in Crl.M.C. 2496/2004 dated 24.09.2007 of this court which is an order passed in a similar petition filed by the 3^rd accused in the same case. This Court has already considered the facts of this case and based on the decision of the Apex Court reported in

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Jacob Mathew Vs. State of Punjab [2005 (6) SCC Page 1]

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wherein specific importance have been given with regard to certain guidelines mentioned in that decision. I am not reiterating the same. But, I am accepting the findings therein. It is

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Crl.M.C.2358/2004

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submitted by the learned counsel appearing for the 1^st respondent that the above direction mentioned in the order dated 24.09.2007 in Crl.M.C. 2496/04 has not been proceeded with for the reason of the stay order in this case and prays to vacate the said order and to refer the matter to the investigation agencies under section 156 (3) of Cr.P.C. It is submitted by the learned Public Prosecutor also that a direction may be given to the petitioner herein to co-operate with the investigation and with liberty to the petitioner to express his grievances before the panel mentioned in the above mentioned decision. So also direction may be given to complete the investigation as expeditiously as possible.

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The merits of the case is yet to be decided on the basis of the investigation to be done by the authorities concerned by adopting the guidelines mentioned in above mentioned order.

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Considering the facts and circumstances of this case and after hearing both counsel appearing for the petitioner, 1^st respondent and also the learned Public Prosecutor, I am convinced that the same course adopted by this Court in the

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Crl.M.C.2358/2004

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earlier case can be the proper remedy to the petitioner in the present case also.

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In the result I quash the cognizance taken by the learned Chief Judicial Magistrate and direct the Chief Judicial Magistrate, Pathanamthitta to forward the complaint under section 156(3) Cr.P.C. for investigation and report by the Police in accordance with the procedure prescribed in the circular in view of the above mentioned decisions and to file the final report as expeditiously as possible.

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This Crl.M.C. is disposed of with the above directions.

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M.C. HARI RANI, JUDGE

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pac

Dr.R.Radhakrishnan Nair v. Sreeja Prasad

Case brief

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Dr.R.Radhakrishnan Nair v. Sreeja Prasad

Case brief

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What did the court decide?

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