MADAN GOPAL Vs. STATE OF KERALA

JUDGEMENT

(1.) Second respondent is a Doctor employed in Government service and third respondent is a private medical practitioner running a hospital. They were charge sheeted and tried in C. C No. 203 of 1987 before the Judicial First Class Magistrate, Cochin for an offence punishable under S.304(A) of the Indian Penal Code. Revision is against the order allowing the application filed by the Assistant Public Prosecutor in charge of the case under S.321 of the Code of Criminal Procedure to withdraw the prosecution. Petitioner is the defacto complainant and husband of the deceased.

(2.) The circumstances under which respondents 2 and 3 happened to be prosecuted are these. Mala, wife of the petitioner, became pregnant and she was taken to the second respondent on 24-2-1983 for consultation and prenatal treatment. That was during the second month of her pregnancy. On examination second respondent diagonised that Mala had Ventricular Septal defect. But petitioner or Mala were not informed of it or directed to take her for examination by a Cardiologist. Treatment by second respondent continued till 21-9-1983, on which day she gave birth to a cyanosed baby and she also died. Delivery was in the private hospital run by the third respondent, where she was admitted as directed by the second respondent. Respondents 2 and 3 purposely suppressed facts even at the time of admission for confinement and said that the case of Mala is a normal delivery case. Due to the culpable suppression, she could not get expert medical attention. She was not given proper medical attention also. That is the cause of death. It amounts to culpable negligence.

(3.) Petitioner claims to have filed a complaint to the City Commissioner of Police, Cochin on 14-10-1983. Since there was no action, he again filed another petition on 30-10-1984. There is nothing in the case diary to show that there was a complaint filed on 14-10-1983. When called upon by the second respondent, the police reported that such a petition is not traceable. Action was taken only on the petition filed on 30-10-1984, which was claimed by the petitioner himself only to be a reproduction of an earlier petition filed on 14-12-1983, which is also not traced. On the petition filed on 30-10-1984 itself action was taken only very late. Case was registered and investigation started only late in 1985.