AJITH, Vs. STATE OF KERALA

JUDGEMENT

(1.) THE revision petitioners herein are the three accused in S.C No.1675 of 2011 of the Court of Session, Kollam. Crime in the case was registered on a complaint of extreme medical negligence causing the death of a Nurse. Investigation was delayed at the preliminary stage, and much later it was taken over by the CBCID. After thorough investigation, the CBCID submitted final report under Section 304 of Indian Penal Code (for short 'I.P.C') on the allegation that the death of Lakshmi occurred due to the acts of extreme carelessness and negligence committed by the accused, with full knowledge of consequence that such acts will cause death. Pending the proceedings, the revision petitioners filed application before the court below as Crl.M.P. No.2387 of 2013 seeking discharge under Section 227 of Cr.P.C. The case advanced by them is that in no circumstance there can be a prosecution under Section 304 I.P.C because the allegations will at the most reveal culpable medical negligence, under Section 304 -A I.P.C. Though such a legal objection was raised, the plea was for a total discharge.

(2.) THE learned trial Judge heard the learned counsel for the accused and the learned Public Prosecutor. Without discussing and coming to a definite finding on the legal and factual issues raised on both sides regarding charge under Section 304 I.P.C, the learned trial judge found that charge under Section 304 I.P.C will not lie against the accused. The learned Judge also found that the offence revealed by the records is only one punishable under Section 304 A of I.P.C. The basis for such a findingappearsto be an impression, revealed by the first portion of paragraph 18 of the order which reads as follows: "However, as per the settled law, petitioners who are doctors cannot be proceeded for an offence under Section 304 of Indian Penal Code".

(3.) IT is not known where it is settled that in no circumstance doctors can be prosecuted under Section 304 of I.P.C , or that even a case of extreme medical negligence committed with the full knowledge of consequence that it will cause death, will not attract prosecution under Section 304 of I.P.C. Anyway, the learned trial Judge referred to so many decisions of the Hon'ble Supreme Court, and ultimately found that, at the most, what is involved is the offence punishable under Section 304 A of I.P.C.