IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 19TH NOVEMBER 2009 / 28TH KARTHIKA 1931 Crl.MC.No. 2319 of 2009() ------------------------- (CRIME NO.298/2004 OF THE FORT POLICE STATION AND CP.36/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, TRIVANDRUM) .................... PETITIONER: ACCUSED ---------------------- DR.SAJIN VARGHESE, S/O.K.M.VARGHESE, ANESTHETIST, S.P.FORT HOSPITAL, EAST FORT, THIRUVANANTHAPURAM. BY ADV. SRI.S.GOPAKUMARAN NAIR, SENIOR ADVOCATE SRI.M.CHANDRA BOSE SRI.A.RAJASIMHAN DR.ABRAHAM P.MEACHINKARA RESPONDENT: COMPLAINANT -------------------------- STATE, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY DIRECTOR GENERAL OF PROSECUTION SRI.V.G.GOVINDAN NAIR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19/11/2009, ALONG WITH CRMC NO. 2144 OF 2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ----------------------------------- Crl.M.C No.2319/2009-D & 2144/2009-E ------------------------------------- Dated this the 19th day of November, 2009. O R D E R Petitioner in Crl.M.C.No.2144/2009 is the first accused and the petitioner in Crl.M.C No.2319/2009 is the second accused in S.C No.810/2009 pending before First Additional Sessions Court, Thiruvananthapuram. These petitions are filed under Section 482 of the Code of Criminal Procedure to quash the cognizance taken. The petitioner in Crl.M.C.No.2144/2009 is a Gynecologist who was working at S.P Fort Hospital, Thiruvananthapuram. The petitioner in Crl.M.C No.2144/2009 is an Anesthetist. The allegation against the petitioner is that they committed offence under Section 304 of Part II of the Indian Penal Code contending that Smt.Sudha Kumari who was admitted as an inpatient in the hospital on 27.5.2004 for delivery, delivered a child on 28.5.2004 and she was subjected to P.P.S operation on 31.5.2004 and thereafter she died on 1.6.2004. 2. On hearing the learned counsel for both petitioners and the learned Public Prosecutor, I find that when the petitioners are entitled to raise all the contentions raised herein before the learned Sessions Judge and seek an order of discharge under Section 227 of the Code of Criminal Procedure, it is not necessary for this Court to go into the question at this Crl.M.C No.2319/2009-D & 2144/2009-E : 2 : stage in a petition filed under Section 482 of the Code of Criminal Procedure. 3. The petitioners are at liberty to raise all the contentions raised herein and seek an order of discharge. The learned Sessions Judge has necessarily to consider all the contentions raised and decide whether a charge is to be framed or the accused are to be discharged and if not to be discharged what is the offence on which charge is to be framed. 4. The learned counsel for the petitioners submitted that presence of the petitioners may not be insisted for the purpose of hearing the petition under Section 227 of the Code of Criminal Procedure and their presence may be dispensed with. If the petitioners file petitions to dispense with their presence before the learned Sessions Judge, for the purpose of hearing the petition for discharge under Section 227 of the Code of Criminal Procedure, learned Sessions Judge not to insist for the presence of the petitioners. Petition is disposed accordingly. Sd/- M.SASIDHARAN NAMBIAR, JUDGE //True Copy// PA to Judge ab