DR.JOSEPH VARKEY Vs. STATE OF KERALA

JUDGEMENT

(1.) The prayers in the above Original Petition. Crl. found under the provisions under Article 227 of the Constitution of India are as follows:

(2.) Heard Sri. S. Gopakumaran Nair, learned Senior Counsel instructed by Sri.Sooraj T. Elanjickal, learned counsel appearing for the petitioners/accused and Sri. Saigi Jacob Paletty, learned Public Prosecutor appearing for the respondent State of Kerala. In the nature of the orders proposed to be passed in this O.P (Criminal), notice to contesting respondent No.2/defacto complainant will stand dispensed with.

(3.) The petitioners who are doctors are the accused in Ext.P2 FIR in Crime No. 102/2016 which was registered for offences punishable under Section 304 (A) IPC. The Police after investigation has filed Ext.P3 final report which has led to the institution of Calender Case CC 735/2018 on the files of Court of Judicial First Class Magistrate Court, Kanhangad. In terms of the directions issued by the Division Bench of this Court in the case in Suvarna Vs. Dr. Reni Philip, 2014 (1) KHC 112 and that of the Apex Court in Jacob Matthew V. State of Punjab in 2005 (6) SCC 1, it has been held that before a Doctor is prosecuted for the alleged Criminal negligence, the investigating Officer should obtain independent competent medical opinion from qualified doctors in that branch of medical specialty who can be normally expected to give impartial and unbiased opinion in the case. In that regard, the State Government has also issued Ext.P6 circular dated 16/06/2008 regarding the constitution of the Expert Panel and also providing for an appeal before the State Level Apex Committee to consider the challenge as against the decision of the District Level Expert Panel. According to the petitioners, now only they have come to know that the District Level Expert Panel have issued Ext.P4 proceedings dated 13/01/2017 which is adverse to the petitioners. It is pointed out that a copy of Ext.P4 report dated 13/01/2017 of the District Level Expert Panel has been made available to the petitioner only when the copies of the Court records have been made available to them recently. It is further pointed out that since the right of appeal is conferred on the petitioners in terms of Ext.P6 Government Circular, to challenge the correctness of Ext.P4 report, the respondents have to fully respect the said Appellate right of petitioners to prosecute such an appeal in terms of Ext.P6 G.O and that the legality of impugned prosecution will be dependent on such appellate outcome.