Allowed

Dr. Abdul Khader Thidil v. State of Kerala

Kerala HC2 Nov 2020Crl.MC/5309/2015

Case brief

AI extract

What is this about?

The High Court of Kerala quashed an additional charge sheet filed against a medical doctor accused of fabricating medical records to shield alleged offenders under the SC/ST (POA) Act. The court held that the prosecution failed to prove the requisite mens rea since the original accused were acquitted and the factual basis of the petition was repelled by other trial court judgments.

What did the court decide?

The B charge sheet and all proceedings arising therefrom (C.P No.59/2015) against the petitioner stood quashed.

Dr. Abdul Khader Thidil Vs State of Kerala — Caste Atrocities | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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MONDAY, THE 02ND DAY OF NOVEMBER 2020 / 11TH KARTHIKA, 1942

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Crl.MC.No.5309 OF 2015

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CP 59/2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,HOSDRUG

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CRIME NO.698/2011 OF Neeleswaram Police Station, Kasaragod

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PETITIONER/ACCUSED NO.6:

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DR. ABDUL KHADER THIDIL S/O LATE M. ABDUL REHMAN, CASUALITY MEDICAL OFFICER, KANHANGAD NURSING HOME, MAIN ROAD,KANHANGAD, HOSDURG

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BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.M.REVIKRISHNAN SRI.VIPIN NARAYAN

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA REPRESENETED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM

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BY ADVS. SRI.B.JAYASURYA, PUBLIC PROSECUTOR

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.M.C No. 5309 of 2015

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ALEXANDER THOMAS, J. (C.R)

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Criminal M.C. No. 5309 of 2015

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Dated this the 2^nd day of November, 2020

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O R D E R

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The prayer in the afore captioned Criminal Miscellaneous Case

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filed under Sec.482 of Cr.PC is as follows:

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“.....to allow this Criminal Miscellaneous Case, and quash Anx.A Final Report (B Charge submitted in Crime No.698/2011 of Neeleswaram Police Station, Kasaragode district against the petitioner/accused No.6 now pending as C.P No.59/2015 on the files of the Court of the Judicial Magistrate of the First Class-II, Hosdurg, so as to secure the ends of justice.”

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Heard Sri.P.Vijaya Bhanu, learned Senior Counsel instructed

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by Ms.Sruthi Bhatt, learned counsel appearing for the petitioner/accused No.6 and Sri.B.Jayasurya, learned Public Prosecutor appearing for the respondent.

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The petitioner herein has now been arrayed as additional accused No.6 in the impugned crime No.698/2011 of Neeleswaram Police Station, Kasaragod, which is now pending as C.P No.59/2015, on the file of the Judicial First Class Magistrate Court-II, Hosdurg. Originally, there were five accused persons in the abovesaid crime No.698/2011 of Neeleswaram Police Station and Police after investigation has filed Anx.J Final report/charge sheet as against the

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said original accused Nos.1 to 5, which later led to the pendency of Sessions Case, S.C No.3/2014, in which the offences alleged are those punishable under Secs.143, 147, 148, 447, 323, 324, 356, 506(ii) read with Sec.149 of the IPC and Secs.3(1)(x) & (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The allegations against original accused Nos.1 to 5 in the said proceedings are to the effect that, on 18-11-2011 at about 11.30 a.m, while Charge Witnesses CWs 1 and 2, who belong to Scheduled Tribe were doing tapping work in the property of CW3, the said accused persons coming to five in number had allegedly, due to existing property dispute with CW3, formed themselves into an unlawful assembly and allegedly trespassed into the property of CW3 and assaulted CWs 1 & 2. Further that accused 2 & 3 had abused CWs 1 & 2 calling their caste names and as such accused persons 1 to 5 have committed the aforesaid offences. The police after investigation has filed Anx.J Final report/charge sheet in this case as against said accused Nos.1 to 5 and Sessions Case S.C No.3/2014 is pending on the file of Principal Sessions Court, Kasaragod.

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Later, allegations have been raised against the petitioner herein, arraying him as additional accused No.6 in the said crime

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No.698/2011 of Neeleswaram Police Station, alleging that the petitioner herein, as additional accused No.6, has committed the offence punishable under Secs.3(2)(vi) of the SC/ST (POA) Act, 1989.

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The said allegations against the petitioner were also investigated and final report/charge sheet was separately filed against the petitioner herein as additional accused No.6, which is referred for short as 'B Charge sheet' against the petitioner as additional A6 therein. The brief of the allegations against the petitioner is that, with the intention to screen accused 3 & 4 in the abovesaid crime from legal punishment, the petitioner, who is medical Doctor, had created false documents and wound certificates etc, to the effect that accused 3 & 4 were medically treated by the petitioner on 18-11-2011 at about 11 a.m and as such, the petitioner has committed the abovesaid offence. Annexure A is the copy of the impugned B charge sheet filed by the Neeleswaram Police in crime No.698/2011 against the petitioner herein, which is pending against him as Committal Proceedings, C.P No.59/2015 on the file of the Judicial First Class Magistrate Court-II, Hosdurg.

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The petitioner would point out that accused Nos. 3 & 4, namely, one Smt.Chandrakumari and one Smt.Jayasree, had come to

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the Nursing Home of the petitioner on 18-11-2011 at about 11.00 a.m

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for treatment, complaining that they were assaulted by one Sri.T.K.Narayanan and others on the previous day (17-11-2011) at about 11.30 p.m in the night. The case of the prosecution is that the petitioner had thereupon given Anx-B police intimation from his Nursing Home (Kanhangad Nursing Home) on 18-11-2011 to the Sub Inspector of Police, Hosdurg intimating the fact that the abovesaid Chandrakumari and Jayasree (A3 & A4) had been treated at his Nursing Home as aforesaid. Further that the incident in which Chandrakumari and Jayasree had allegedly suffered injuries, led to the registration of crime No.697/2011 of Neeleswaram Police Station, Kasaragod District against five accused persons, alleging offences punishable under Sec.452 of IPC. The Police after investigation has filed final report/charge sheet before the Judicial First Class Magistrate Court-II, Hosdurg, alleging that the accused persons therein have committed the abovesaid offence in question, in which the abovesaid two ladies are the victims and the case later became pending and Calendar Case thus got registered as C.C No.278/2012, on the file of the Judicial First Class Magistrate Court-II, Hosdurg. Annexure C is the final report/charge sheet filed in the said crime

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No.697/2011 of Neeleswaram Police Station, in which the abovesaid two ladies are the victims and substratum of the prosecution case in Anx.C case is on the basis of the abovesaid medical intimation sent by the petitioner as per Anx.B. In Anx.C, the allegations are that on 17-11-2011, at about 11.30 p.m, the house in which the defacto complainant in that crime viz, accused No.3 in crime No.698/2011 of Neeleswaram Police Station, was residing with family has been trespassed into by the accused therein and the defacto complainants/victims were assaulted by the said accused persons. Annexures D & E are the wound certificates issued to the abovesaid ladies by the petitioner and Anxs.F & G are the cash memo receipt evidencing payment of the case by those ladies for treatment.

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The allegation against the petitioner in Anx.A additional Charge sheet in crime No.698/2011 of Neeleswaram police Station is that, Chandrakumari & Jayasree could not have physically come to the petitioner's Nursing Home on 18-11-2011 at 11.00 a.m, as they had allegedly committed the offence in crime No.698/2011 on 18-11-2011 at about 10.30 a.m and that Anx.B medical intimation is a document falsely created by the petitioner, who is a Doctor, in order to shield the abovesaid two ladies from the prosecution measures in crime

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No.698/2011 of Neeleswaram Polcie Station. Further it is seen that a crime was also registered at the behest of the Deputy Superintendent of Police, Kasaragode, Mobile Special Squad against Jayasree on the allegation that, the complaint given by Jayasree to said Police authority on 09-01-2012 regarding the false implication of Jayasree in crime No.698/2011 of Neeleswaram Police Station, as she was apparently unavailable at the scene of occurrence in crime No.698/2011 based on treatment records like Anx.B herein etc, was false.

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Accordingly, Crime No.722/2012 of Neeleswaram Police Station was registered against Jayasree under Sec.117 D of the Kerala Police Act, 2011, on the allegation that the complaint that she had given to the Deputy Superintendent of Police was false. Annexure H is the FIR in crime No.722/2012 of Neeleswaram Police station registered as against Jayasree as accused therein. Later, Annexure H crime No.722/2012 of Neeleswaram Police station got resulted in Calendar Case, C.C No.35/2013, on the file of the Judicial First Class Magistrate Court-II, Hosdurg and this ultimately resulted in judgment of acquittal by the criminal court in favour of Jayasree. It is pointed out that Jayasree was acquitted by the criminal court on the

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Crl.M.C No. 5309 of 2015

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ground that inspite of repeated steps the prosecution witnesses, who are responsible police personnel including the Deputy Superintendent of Police, had not turned up to give evidence, on that account, Jayasree was acquitted in C.C No.35/2013, which has arisen out of the said crime No.722/2012 of Neeleswaram Police Station. Annexure I is the copy of the judgment dated 11-06-2015 rendered by the Judicial First Class Magistrate Court-II, Hosdurg, acquitting the accused Jayasree in C.C No.35/2013.

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Both sides have been heard in extenso. The only offence alleged against the petitioner as per Anx.A additional charge sheet in crime No.698/2011 of Neeleswaram Police station is the one as per Sec.3(2)(vi) of the SC/ST(POA) Act, 1989. Section 3(2)(vi) of the SC/ST (POA) Act, 1989 reads as follows:

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“3. Punishments for offences of atrocities:-

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(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,-

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(i) xxx (ii) xxx (iii) xxx (iv) xxx (v) xxx

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(vi) knowingly or having reason to believe that an offence has been committed under this Chapter, causes any evidence of the commission of that offence to disappear with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false, shall be punishable with the

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punishment provided for that offence;”

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So one of the prime ingredients of the first limb of the abovesaid offence is that, a person, who is accused of the offence as per Sec.3(2)(vi) of the abovesaid Act should be imputed or attributed with a knowledge that an offence has been committed by the principal accused person concerned or that he should be imputed with having reason to believe that an offence has been committed under that Chapter. The scope and ambit of the requirements that an accused person should be imputed with a knowledge but commission of an offence or that he should be imputed with reasons having to believe about the commission of offence are dealt within detail in judgments of the Apex Court as in A.S.Krishnan v. State of Kerala [(2004) 11 SCC 576, paras 8 to 11], which reads as follows:

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“8. The essential ingredients of Section 471 are (i) fraudulent or dishonest use of document as genuine (ii) knowledge or reasonable belief on the part of person using the document that it is a forged one. Section 471 is intended to apply to persons other than forger himself, but the forger himself is not excluded from the operation of the Section. To attract Section 471, it is not necessary that the person held guilty under the provision must have forged the document himself or that the person independently charged for forgery of the document must of necessity be convicted, before the person using the forged document, knowing it to be a forged one can be convicted, as long as the fact that the document used stood established or proved to be a forged one. The act or acts which constitute the commission of the offence of forgery are quite different from the act of making use of a forged document. The expression

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'fraudulently and dishonestly' are defined in Sections 25 and 24 IPC respectively. For an offence underSection 471, one of the necessary ingredients is fraudulent and dishonest use of the document as genuine. The act need not be both dishonest and fraudulent. The use of document as contemplated bySection 471 must be voluntary one. For sustaining conviction under Section 471 it is necessary for the prosecution to prove that accused knew or had reason to believe that the document to be a forged one. Whether the accused knew or had reason to believe the document in question to be a forged has to be adjudicated on the basis of materials and the finding recorded in that regard is essentially factual.

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9. Under the IPC, guilt in respect of almost all the offences is fastened either on the ground of "intention" or "knowledge" or "reason to believe". We are now concerned with the expressions "knowledge" and "reason to believe". "Knowledge" is an awareness on the part of the person concerned indicating his state of mind. "Reason to believe" is another facet of the state of mind. "Reason to believe" is not the same thing as "suspicion" or "doubt" and mere seeing also cannot be equated to believing. "Reason to believe" is a higher level of state of mind. Likewise "knowledge" will be slightly on higher plane than "reason to believe". A person can be supposed to know where there is a direct appeal to his senses and a person is presumed to have a reason to believe if he has sufficient cause to believe the same. Sectoin 26 IPC explains the meaning of the words "reason to believe" thus:

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“26 - 'Reason to believe': A person is said to have 'reason to believe' a thing, if he has sufficient cause to believe that thing but not otherwise."

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10. In substance what it means is that a person must have reason to believe if the circumstances are such that a reasonable man would, by probable reasoning, conclude or infer regarding the nature of the thing concerned. Such circumstances need not necessarily be capable of absolute conviction or inference; but it is sufficient if the circumstances are such creating a cause to believe by chain of probable reasoning leading to the conclusion or inference about the nature of the thing. These two requirements i.e. "knowledge" and "reason to believe" have to be deduced from various circumstances in the case. (See Joti Parshad v. State of Haryana (AIR 1993 SC 1167)

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11. As noticed by the High Court in great detail, the factual position leaves no manner of doubt that the accused appellants

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had not only the knowledge, but also had reason to believe that the document was a forged one before they used it.”

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Reference in this connection may be made also to the decision of the Apex Court in See Joti Parshad v. State of Haryana (AIR 1993 SC 1167)

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The prosecution case as per Anx.A is that, the petitioner (additional A6) has issued treatment records as in Anx.B dated 18-11-2011 stating that A3 & A4 therein (Chandrakumari & Jayasree) had been treated by the petitioner (Doctor) on 18-11-2011 at about 11.00 a.m and that the versions of those patients were that they were assaulted by Sri.T.K.Narayanan & others, on account of the incident which is said to have happened on 17-11-2011 at about 11.30 a.m, etc. The other treatment records said to have been issued by the petitioner, who is a Doctor, to the abovesaid Chandrakumari & Jayasree are those at Anxs.D, E, F & G, all of which are bearing the date 18-11-2011, regarding the treatment said to have been given by the petitioner to those ladies on that day at 11.00 a.m.

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The crime No.698/2011 as against the principal accused 1 to 5, which is also inclusive of the abovesaid Chandrakumari and Jayasree, is in respect of the incident which is said to have happened

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on 18-11-2011 at 10.30 a.m and the FIR in that crime has been registered only on the next day, 19-11-2011. This can be seen from a mere reading of Anx.A additional charge sheet and Anx.J original charge sheet in respect of crime No.698/2011 of Neeleswaram Police Station. The prosecution has not brought in any materials to show that the petitioner (additional accused No.6) could be imputed or attributed with the knowledge that original accused 1 to 5 have committed the offence in crime No.698/2011 of Neeleswaram Police Station at the time, when he is said to have issued the abovesaid medical treatment records nor has the prosecution brought in any materials to show that the petitioner could be at least attributed with having reasons to believe that the abovesaid original accused persons, Chandrakumari & Jayasree have committed the abovesaid offence in crime No.698/2011 on 18-11-2011 at 10.30 a.m. Even according to the police, FIR in relation to that crime No.698/2011 has been registered only on the next day, viz, 19-11-2011.

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The learned Prosecutor would point out that the words “knowingly or having reason to believe that an offence has been committed under this Chapter ” etc, appearing in the first limb of clause (vi) of Sec.3(2)(a), will not qualify the second limb of that

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section, which starts with the words “ or with that intention gives any information respecting the offence which he knows or believes to be false....etc ”. The learned Prosecutor is right in making that submission. So if the prosecution can satisfy that at least the second limb of Sec.2(2) (vi) is satisfied, then the prosecution will lie. This is so, so long as one of the two limbs is satisfied, then the ingredients of the offence will be satisfied and if that be so, then, the prosecution can be maintained. For attracting the second limb, the prosecution should prove that the accused with the intention to shield or screen the other offender gives any information respecting offence, knowing or believing the said information to be false. For this limb, it is utmost necessary that the accused should have the intention to screen the other offender in question and secondly with that intention, he should have given the information in respect of the offence, knowing or believing the information to be false. Both these conditions of the second limb have to be satisfied to press that limb into service. For that, the accused should have knowledge or reasons to believe the other person concerned is an offender or accused in a case and then should have the intention to screen such offender and with such intention, he should have given an information in respect of the offence in question

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involving the said offender, knowing or believing the information to be false. For the aforestated reasons, the prosecution has no materials to show that the petitioner accused could be imputed with knowledge or reasons to believe that the other person concerned is an offender or accused in a case, at the time when the accused had issued the certificate. So, even the threshold of the second limb is not satisfied.

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That apart, it is to be borne in mind that crime No.722/2012 of Neeleswaram police Station was registered against Jayasree as the sole accused therein, on the allegation that she has given a false complaint, regarding her alleged false implication in Crime No.698/2011 of Neeleswaram Police Station, etc. This, later led to the pendency of C.C No.35/2013 on the file of the Judicial First Class Magistrate Court-II, Hosdurg and the said accused Jayasree has been acquitted by the said court as per Anx.I judgment dated 11-06-2015. So it has to be borne in mind that the allegation of the prosecution that the accused Jayasree has made a false complaint to the Police that she has been falsely implicated in crime No.698/2011, has been repelled by the Court and accused Jayasree has been acquitted thereby. That apart, now it is brought to the notice of this Court that original accused 1 to 5 in Anx.J Final report/charge sheet,

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which led to the pendency of S.C No.3/2014, have all been acquitted by the Sessions Court, Kasaragod as per Anx.K judgment dated 27-02-2018 in S.C No.3/2014. Therefore, with the acquittal of all original accused 1 to 5 in Anx.J Final report/charge sheet, as evident from Anx.K judgment dated 27-02-2018 in S.C No.3/2014 on the file of the Sessions Court, Kasargod, it is only to be held that the entire edifice of the prosecution laid against the petitioner in Anx.A additional charge sheet would crumble to the ground. Still further, it is to be borne in mind that none other than the very same police have charge sheeted Narayanan and four other accused persons, which later led to the pendency of C.C No.278/2012, on the allegation that the abovesaid Jayasree and Chandrakumari were assaulted by Narayanan and other accused persons and the substratum of the prosecution case in that regard appears to be on the basis of Anx.B medical intimation sent by the petitioner as well as the abovesaid wound certificates as per Anxs.D & E.

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Now it is apprised this Court that the Judicial First Class Magistrate Court-II, Hosdurg as per Anx.L judgment dated 25-06-2016 in C.C No.278/2012 has held that all the accused persons therein stand convicted. In Anx.L, the abovesaid Jayasree &

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Chandrakumari are defacto complainants/victims, in which

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Narayanan mentioned in Anx.B treatment records is the 1^st accused and the substratum of the prosecution case are the treatment records issued by the petitioner as per Anx.B police intimation and Anxs.D & E wound certificates.

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It is pointed out by the petitioner that the wound certificates as per Anxs.D & E herein have been marked as Exts.P2 & P3 in Anx.L C.C No.278/2012. Hence, with the rendering of judgments of the trial court as per Anxs.K & L, it is only to be held that the entire edifice of the prosecution laid against the petitioner as per Anx.A additional charge sheet would stand shattered and the continuance of the impugned criminal proceedings as against the petitioner is nothing but a grave abuse of the process of the court.

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In that view of the matter, it is ordered that Anx.A additional Final report/additional charge sheet filed against the petitioner in crime No.698/2011, which is referred to as “B charge sheet” against the petitioner in the said case, which has now led to the pendency of Committal proceedings, C.P No.59/2015 on the file of the Judicial First Class Magistrate Court-II, Hosdurg, as against the petitioner/accused herein and all proceedings emanating

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therefrom as against the petitioner herein (additional accused No.6) will stand quashed and set aside.

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The petitioner will produce certified copies of this order before the Investigating Officer concerned as well as before the Judicial First Class Magistrate Court-II, Hodsdurg, who is dealing with Committal Proceedings C.P No.59/12015 for necessary information.

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

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Sd/-

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ALEXANDER THOMAS, JUDGE

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KAS

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A ANNEXURE A: TRUE COPY OF THE B CHARGE SUBMITTED BY THE NEELESWARAM POLICE IN CRIME NO. 698/11 AS AGAINST THE PETITIONER HEREIN NOW PENDING AS CP NO. 59/15 ON THE FILES OF THE COURT OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASSII, HOUSDURG ANNEXURE B ANNEXURE B: TRUE COPY OF THE POLICE INTIMATION GIVEN FROM KANHANGAD NURSING HOME ON 18/11/2011 TO THE SUB INSPECTOR OF POLICE, HOSDURG INTIMATING TH FACT THAT CHANDRAKUMARI AND JAYASREE WERE TREATED AT THE NURSING HOME ANNEXURE C ANNEXURE C: TRUE COPY OF THE FINAL REOPOT IN CRIME NO 697/11 OF NEELESWARAM POLICE STATION, KASARGOD DISTRICT ANNEXURE D ANNEXURE D: TRUE COPY OF THE WOUND CERTIFICATE ISSUED FROM THE NURSING HOME OF THE PETITIONER PERTAINING TO CHANDRAKUMARI

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ANNEXURE E ANNEXURE E: TRUE COPY OF THE WOUND CERTIFICATE ISSUED FRON THE NURSING HOME OF THE PETITIONER PERTAINAING TO JAYASREE ANNEXURE F ANNEXURE F: TRUE COPY OF THE CASH MEMO PERTAINING TO CHANDRAKUMARI ANNEXURE G ANNEXURE G: TRUE COPY OF THE CASH MEMO PERTAINING TO JAYASREE ANNEXURE H ANNEXURE H: TRUE COPY OF THE FIR IN CRIME NO. 722/12 OF NEELESWARAM POLICE STATION, KASARAGOD DISTRICT

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ANNEXURE I ANNEXURE I: TRUE COPY OF THE JUDGEMNT DTD 11/6/05 IN CC NO. 35/13 PASSED BY THE COURT OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASS -II, HOSDURG ANNEXURE J ANNEXURE J; TRUE COPY OF THE FINAL REPORT IN CRIME NO. 698/2011 AS AGAINST ACCUSED NOS. 1 TO 5 , OF NEELESWARAM POLICE STATION, KASARAGOD DISTRICT ANNEXURE K TRUE COPY OF THE JUDGMENT DATED 27-022018 IN S.C NO.03/2014 OF THE COURT OF SESSION, KASARAGOD ANNEXURE L TRUE COPY OF THE JUDGMENT DATED 25-062016 IN C.C NO.278/2012 OF THE JUDICIAL FIRST CLASS MAGISTRATE II, HOSDURG.

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RESPONDENT'S/S EXHIBITS: NIL

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//TRUE COPY//

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PA TO JUDGE

Dr. Abdul Khader Thidil v. State of Kerala

Case brief

What is this about?

What did the court decide?

Dr. Abdul Khader Thidil v. State of Kerala

Case brief

What is this about?

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