K J MARYKUTTY Vs. STATE OF KERALA

JUDGEMENT

(1.) Cri. M.C. No.1008/2013 was filed by accused Nos. 2 and 3 while Cri. M.C. No.1009/2013 was filed by first accused in S.T. No.2108/2012 on the file of the Judicial First Class Magistrate Court, I, Kottayam to quash the proceedings under Section 482 of Code of Criminal Procedure.

(2.) The case of the complainant in the complaint was that, the first accused in the case, namely, the petitioner in Cri. M.C. No.1009/2013 was the hospital, in which, accused Nos.2 and 3 who are the petitioners in Cri.M.C.No.1008/2013 were working as Gynaecologist and Anesthesiologist. The case of the complainant was that, the second respondent's wife was admitted in that hospital for second pregnancy. On 01.01.2010, she had underwent a caesarian operation for the delivery and the delivery was successful, but, while the abdomen was to be closed, she developed unexpected cardiac arrest and though she was shifted to some other hospital, she became unconscious and fell in coma. On the basis of the complaint given by the second respondent, Ayarkunnam police had registered Annexure A7 First Information Report as Crime No.62/2010 against the second accused thereon originally for the offence under Section 338 of Indian Penal Code alleging that due to the criminal negligence on the part of the doctor who conducted the caesarian operation, she sustained the injury, namely, cardiac arrest and secondly, consequential falling into coma. The investigating officer referred the matter to a Special Medical Board consists of Assistant Professor of Department of Anaesthesia, Medical College Hospital, Kottayam, Professor - Department of Obstetrics and Gynaecology, Medical College Hospital, Kottayam, doctor from Department of Cardiology of the same hospital and Associate Professor of Department of Medicine and Surgery of the same hospital and that Board gave Annexure A8 opinion stating that the management given to the patient after developing cardiac arrest was adequate. On that basis, Annexure A9 final report was filed stating that, there is no criminal negligence warranting filing of final report to proceed against the doctor who conducted the surgery and referring the matter as further action dropped and a notice was issued to the complainant and on that basis, Annexure A10 private complaint was filed by the second respondent including not only the doctor who conducted the surgery, but also the hospital and the Anaesthesiologist as accused Nos.1 to 3. CWs 1 to 4 were examined on the side of the complainant and after considering this evidence, the learned Magistrate has taken the case as S.T.No.2108/2012 under Section 338 of Indian Penal Code against all the accused persons and process was issued to the accused persons which is being challenged by the petitioners by filing these two cases seeking the following reliefs:

(3.) Heard the Counsel for the petitioners in both the cases - Senior Counsel Dr. S. Gopakumaran Nair and the Counsel appearing for the second respondent namely., Shri.C.C.Padmakumar and the Public Prosecutor, Smt. V. H. Jasmine.