Quashed

Dr.Biju P.V v. State of Kerala

Kerala HC6 Nov 2020Crl.MC/2483/2018

Case brief

AI extract

What is this about?

Crl.MC. No. 2483 of 2018 involved a petition to quash criminal proceedings under IPC Sections 341, 323, and 354 initiated via a final report against a doctor. The Court viewed the charge sheet as a counter-blast by the complainant and quashed the proceedings as an abuse of the process of court.

What did the court decide?

Annexure-A3 final report/charge sheet in Crime No.440/2017 and calendar case CC No.19/2018 against the petitioner stood quashed and set aside.

Dr.Biju P.V Vs State of Kerala — Medical Negligence | Kerala HC (2020)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

¶4

FRIDAY, THE 06TH DAY OF NOVEMBER 2020 / 15TH KARTHIKA, 1942

¶5

Crl.MC.No.2483 OF 2018

¶6

AGAINST THE ORDER/JUDGMENT IN CC 19/2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,NADAPURAM

¶7

CRIME NO.440/2017 OF Nadapuram Police Station , Kozhikode

¶8

PETITIONER/S:

¶9

DR.BIJU P.V AGED 37 YEARS, S/O.BALAKRISHNAN, ARANYA HOUSE, PANAGATTOOR.P.O, TANUR, MALAPPURAM-676302 WORKING AS ORTHOPAEDIC SURGEON IN VIMS HOSPITAL, KALLACHI, NADAPURAM, KOZHIKODE-673504.

¶10

BY ADVS. SRI.SHYAM PADMAN SRI.C.M.ANDREWS SMT.BOBY M.SEKHAR KUM.LAYA MARY JOSEPH SRI.P.T.MOHANKUMAR

¶11

RESPONDENT/S:

¶12

1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682031.

¶13

2 SAJITHA MUHAMMAD AGED 28 YEARS W/O.MUHAMMAD, MEETHALEVEETIL, KODIYURA.P.O., NADAPURAM, KOZHIKODE-673506.

¶14

OTHER PRESENT:

¶15

SRI.B.JAYASURYA, PUBLIC PROSECUTOR

¶16

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 06.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶17

Crl.MC.No.2483 OF 2018

¶18

¶19

ALEXANDER THOMAS, J.

¶20

= = = = = = = = = = = = = = = = = Crl.M.C. No.2483 of 2018

¶21

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

¶22

Dated this the 6^th day of November, 2020

¶23

O R D E R

¶24

The prayer in the aforecaptioned Criminal Miscellaneous case filed under Sec.482 of the Cr.P.C. is as follows :

¶25

“.....to quash Annexure-A3 final report Crime No.440/2017 of Nadapuram Police Station, Kozhikode in CC No.19/2018 pending before the Judicial First Class Magistrate Court, Nadapuram in the interests of justice.”

¶26

Heard Sri.Shyam Padman, learned counsel appearing for the petitioner (sole accused) and Sri.B.Jayasurya, learned Public Prosecutor appearing for R1-State of Kerala. Though notice has been duly served on contesting respondent No.2 (first informant/defacto complainant) there is no appearance for that party. As can be seen from the endorsement made by the Registry as early as on 10.6.2019, there is no appearance for that party.

¶27

The petitioner is stated to be an orthopedic surgeon in a private hospital at Kozhikode. According to him, on 7.8.2017 at about 5.10 p.m., when petitioner was dressing/suturing the wound of one of his patients in the consulting room, some unknown persons, who are identifiable had barged into his consultation room and insisted on treating a child brought

¶28

Crl.MC.No.2483 OF 2018 3

¶29

by them and the petitioner informed them that he is dressing the wound of one of his patients and that they can take the child to a doctor in the casualty for immediate treatment of those persons making hue and cry and obstructed and prevented the doctor and the nurses in the hospital from discharging their duties. Thereupon, steps were taken by the petitioner to immediately convey the first information in that regard to the Nadapuram Police Station and those persons were removed by the Police personnel from the hospital. Immediately thereafter, Annexure-A1 Crime No.439/2017 of Nadapuram Police Station was registered on 7.8.2017 at about 9.15 p.m. for offences punishable under Secs. 341, 323 and 506 of the IPC and Sec.4 of the Kerala Healthcare Service Persons and Health Care Service Institution (Prevention of Violence and Damage to Property) Act, 2012 in respect of the abovesaid incident on the basis of the first information conveyed by the petitioner against unknown persons.

¶30

As a counter blast to that, it appears that Annexure-A2 FIR has been registered for offences punishable under Secs. 341, 323, 354 r/w 34 of the IPC as Crime No.440/2017 of Thamarassery Police Station on the next day (8.8.2017) at about 12 noon in respect of the incident which happened on the previous day at about 5.15 p.m . In Annexure-A2, the petitioner has been made as accused No.1 and the three other nurses are also included in the accused array on the basis of the complaint/First Information said to

¶31

Crl.MC.No.2483 OF 2018 4

¶32

have been given by the 2^nd respondent. The allegations in Annexure-A2 are to the effect that on 7.8.2017, at about 5.15 p.m., when the defacto complainant had approached the petitioner, who is an orthopedic surgeon to treat her minor daughter, the petitioner had denied the treatment to the said girl child as the consultation time was over. When she insisted for treatment of the child, the petitioner had pushed the defacto complainant outside his room with his hands and that thereby, he had committed the abovesaid offences.

¶33

According to the petitioner, the police without any proper investigation has filed Annexure-A3 final report/charge sheet in AnnexureA2 Crime No.440/2017 of Nadapuram Police Station and the impugned criminal proceedings are now pending as calendar case CC 19/2018 on the file of the Judicial First Class Magistrate Court, Nadapuram. Whereas the case in Annexure-A1 crime in which the petitioner is the defacto complainant has not been investigated properly by the police authorities, only to support the accused persons therein as well as the defacto complainant in the present case.

¶34

After hearing both sides, it is seen that Annexure-A1 crime has been registered on the same day of the incident (7.8.2017) on the basis of the first information statement of the petitioner, who is the doctor of the hospital for the abovesaid offences as per Secs. 341, 323 and 506 of the IPC

¶35

Crl.MC.No.2483 OF 2018 5

¶36

as well as Sec.4 of the Kerala Health Care Service Persons and Health Care Service Institutions (Prevention of Violence and Damage to Property) Act, 2012. It is only thereafter that the impugned Annexure-A2 crime has been registered on the next day (8.8.2017) at 12 noon. Even going by the admitted allegations in Annexures-A2 and A3, it can be seen that the case of the 2^nd respondent is that she had come to the consultation room of the petitioner, who is the doctor of the hospital for purpose of treatment of her child. At that time, the petitioner was busy with treating another patient and he said that he cannot treat the child and that the 2^nd respondent should take her child to another doctor in the casualty. Whereas the 2^nd respondent insisted that her child should be treated by the petitioner. At that time, the petitioner had pushed her outside the room etc. Merely on account of these allegations, it cannot be said that the offence as per Sec. 354 of the IPC is made out (outraging the modesty of the woman).

¶37

Taking note of overall facts and circumstances of this case as well as the institution of Annexure-A1 FIR at the instance of the petitioner, immediately after the incident, this Court is of the considered view that Annexures-A2 and A3 are only a counter blast to Annexure-A1 FIR registered at the instance of the petitioner.

¶38

Even going by the allegations of the prosecution, the petitioner and the other nurses, who are made accused in Annexure-A2 are all

¶39

Crl.MC.No.2483 OF 2018 6

¶40

medical and health personnel, who are working in the hospital, where the 2^nd respondent had gone for treatment of her child. Going by the admitted allegations of the prosecution and taking note of the nature of the incidents, this Court is of the considered view that the allegations have been made in Annexure-A2 regarding the offences as per Secs. 323 and 341 etc. only to make out a case as a counter blast to Annexure-A1.

¶41

Accordingly, taking note of the totality of the facts and circumstances of this case, this Court is of the considered view that the continuance of the impugned criminal proceedings at Annexures-A2 and A3 is an abuse of process of court, which would deserve interdiction at the hands of this Court by exercise of the powers under Sec.482 of the Cr.P.C. In that view of the matter, it is ordered that the impugned Annexure-A3 final report/charge sheet filed in Crime No.440/2017 of Nadapuram Police Station, which has now led to the pendency of calendar case CC No.19/2018 on the file of the Judicial First Class Magistrate Court, Nadapuram as against the petitioner will stand quashed. The police after investigation had deleted the other accused persons included in AnnexureA2 and the petitioner herein has been arrayed as the sole accused in Annexure-A3 final report/charge sheet and all further proceedings emanating therefrom as against the petitioner (sole accused) will stand quashed and set aside.

¶42

¶43

Crl.MC.No.2483 OF 2018

¶44

The petitioner will produce a certified copy of this order before the investigating officer concerned and before the Judicial First Class Magistrate Court, Nadapuram for necessary information and further action.

¶45

With these observations and directions, the above Criminal Miscellaneous Case will stand finally disposed of.

¶46

Sd/ALEXANDER THOMAS JUDGE

¶47

SKS

¶48

Crl.MC.No.2483 OF 2018

¶49

¶50

APPENDIX

¶51

PETITIONER'S/S EXHIBITS:

¶52

ANNEXURE A1	TRUE COPY OF THE FIR IN CRIME NO.439/2017 DATED 07/08/2017.
ANNEXURE A2	CERTIFIED COPY OF THE FIR IN CRIME NO.440/2017 DATED 08/08/2018 REGISTERED BY THE 2ND RESPONDENT.
ANNEXURE A3	CERTIFIED COPY OF THE FINAL REPORT DATED 03/01/2018 IN CRIME 440/2017.
ANNEXURE A4	TRUE COPY OF THE ORDER DATED 17/01/2018 PASSED BY THE KERALA STATE COMMISSION FOR PROTECTION OF CHILD RIGHTS IN C.R.M.P.NO.8608/11/LA2/2017/KESCPCR
ANNEXURE A5	TRUE COPY OF THE COMPLAINT DATED 17/08/2017 FILED BY THE 2ND RESPONDENT BEFORE THE KERALA STATE WOMEN'S COMMISSION.

Dr.Biju P.V v. State of Kerala

Case brief

What is this about?

What did the court decide?

Dr.Biju P.V v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Majeed Vs Fousiya

Sheteer Khan K.S Vs State of Kerala

Santhi Vs Seema Vinod

Shamsudheen Vs Victim

Mariamma K. George Vs State of Kerala

O.v.Sreedath Vs State of Kerala