Dr.Hilmi Abdul Salam vs State Of Kerala
2023 Latest Caselaw 6417 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                THE HONOURABLE MR.JUSTICE V.G.ARUN
     TUESDAY, THE 13TH DAY OF JUNE 2023 / 23RD JYAISHTA, 1945
                        CRL.MC NO. 2447 OF 2014
AGAINST THE ORDER/JUDGMENT IN CC 1220/2012 OF JUDICIAL MAGISTRATE
                    OF FIRST CLASS -I, KANNUR
PETITIONER/S/ACCUSED:

    1     DR.HILMI ABDUL SALAM
          AGED 38 YEARS, S/O.ABDUL SALAM, E.N.T.SUREGEON,
          A.K.G.HOSPITAL ,KANNUR
    2     DR.AMEER ALI
          AGED 58 YEARS, S/O.AHAMMAD, ANESTHETIST,A.K.G.HOSPITAL,
          KANNUR
          BY ADVS.
          SRI.M.RAMESH CHANDER (SR.)
          SRI.ANEESH JOSEPH
          SMT.DENNIS VARGHESE


RESPONDENT/S/COMPLAINANT & STATE:
     1     STATE OF KERALA
           REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
           ERNAKULAM 682 031.
     2     BIJU.C
           S/O.NANDANAN,AGED 40 YEARS,CHOYON HOUSE,NEAR PAZHASSI
           QUARTERS, PUZHATHI AMSOM,KANNOTHUMCHAL, KANNUR 670 006.
     3     ANIL
           AGED 46 YEARS
           S/O.NANDANAN,CHOYON HOUSE,NEAR PAZHASSI QUARTERS,
           PUZHATHI AMSOM,KANNOTHUMCHAL, KANNUR 670 006.
     4     NANDAKUMAR
           AGED 50 YEARS
           S/O.NANDANAN,,CHOYON HOUSE,NEAR PAZHASSI QUARTERS,
           PUZHATHI AMSOM,KANNOTHUMCHAL, KANNUR 670 006
     5     RAJANI
           AGED 52 YEARS, D/O.NANDANAN,,CHOYON HOUSE,NEAR PAZHASSI
           QUARTERS, PUZHATHI AMSOM,KANNOTHUMCHAL, KANNUR 670 006
     6     REVATHY
           AGED 70 YEARS, W/O.NANDANAN,,CHOYON HOUSE,NEAR PAZHASSI
           QUARTERS, PUZHATHI AMSOM,KANNOTHUMCHAL, KANNUR 670 006
           BY ADVS.SRI.V.TEKCHAND
           PUBLIC PROSECUTOR, SRI. M.C.ASHI
     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
13.06.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 CRL.MC NO. 2447 OF 2014
                                2



                    ORDER

Dated this the 13th day of June, 2023

The petitioners are the accused in CC No.1220 of

2012 on the files of the Judicial First Class Magistrate

Court-I, Kannur. The case originated from Crime

No.1090/2011 registered at the Kannur Town Police

Station, alleging commission of offences under Section

304A read with Section 34 of IPC. The crime was

registered on the basis of a complaint received from the

relatives of one Naiju, who succumbed to death while

undergoing treatment at the AKG Hospital, Kannur

pursuant to the injuries sustained in an assault. The

relatives of Naiju alleged that he had died due to the

medical negligence of the doctors at the hospital. The first

petitioner is an ENT surgeon and the second petitioner an

Anesthetist at the AKG hospital and were part of the team

of doctors who had treated Naiju. This Crl.M.C is filed

seeking to quash the further proceedings in CC No. 1220 CRL.MC NO. 2447 OF 2014

of 2012 on the strength of the settlement arrived at

between the hospital and the legal representative of

deceased Naiju.

2. Adv.M.Ramesh Chander, learned Senior Counsel

appearing for the petitioners, drew attention to Annexure

A2 affidavit sworn by the legal heirs of Naiju. It is pointed

out that the legal heirs were paid Rs.8,50,000/- by the

hospital and they received the said sum in full satisfaction

of all their claims. The legal heirs have stated that they

have no subsisting grievance against the petitioners.

3. Learned Counsel appearing for the legal heirs of

Naiju/respondents 2 to 6 submitted that even though his

clients had a suspicion regarding the cause of Naiju's

death, they realised that death had not occurred due to

negligence on the part of the petitioners and hence agreed

for the compromise.

4. I heard the learned Public Prosecutor also.

5. Indisputably, Naiju was admitted in the hospital CRL.MC NO. 2447 OF 2014

pursuant to a clash in which he suffered injuries. His

death occurred during the course of surgery conducted at

the hospital. The crime got in registered based on the

suspicion raised by certain persons regarding the cause of

Naiju's death. The very same persons later stated the

death was not due to medical negligence. I also find that

there are materials to indicate that the death had occurred

due to any rash or negligent act on the part of the

petitioners. Even otherwise, no purpose will be served by

continuing the prosecution since the de facto complainant

and other legal heirs of Naiju have made it clear that they

are not interested in prosecuting the petitioners.

(Narinder Singh and Others v. State of Punjab and

Another (2014 (6) SCC 466)). Merely because the

charge sheet incorporates provisions of Section 304A, that

cannot be a ground to reject the petition under Section 482

Cr.P.C. and refuse to accept the settlement between the

parties (see Narinder Singh and Others v. State of CRL.MC NO. 2447 OF 2014

Punjab and Another (2014 (6) SCC 466)). Further,

there is no element of public interest involved .

For the aforementioned reasons, the Crl.M.C is

allowed and all further proceedings in CC No. 1220 of

2012 on the files of the Judicial First Class Magistrate

Court-I, Kannur, is quashed.

Sd/-

V.G.ARUN JUDGE

RK CRL.MC NO. 2447 OF 2014

APPENDIX OF CRL.MC 2447/2014

PETITIONER ANNEXURES ANNEXURE A1 COPY OF THE CHARGE SHEET ANNEXURE A2 ORIGINAL OF THE AFFIDAVIT DATED 18/4/2014 ANNEXURE A3 COPY OF THE AGREEMENT