IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 23RD OCTOBER 2008 / 1ST KARTHIKA 1930 Crl.MC.No. 3964 of 2008 ---------------------------------- (C.C. NO. 292/08 PENDING BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE, PAYYANNUR) ..................... PETITIONER(S)/ ACCUSED: --------------------------------------- DR. V. MOHANAN, CONSULTANT PHYSICIAN, NCC ROAD, PAYYANNUR.P.O., KANNUR. BY ADV. SRI.G.JANARDHANA KURUP (SR.), ADV. SRI. P.K. VARGHESE, ADV. SRI. E.C. BINEESH. RESPONDENT(S)/ COMPLAINANT: ------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. A.V. LAKSHMIKUTTY AMMA, W/O. LATE T.K. NARAYANA PODUVAL, RESIDING AT VIJAYA NIVAS, NEAR JUDICIAL FIRST CLASS MAGISTRATE COURT, PAYYANNUR.P.O., KANNUR. BY PUBLIC PROSECUTOR SRI. GIKKU JACOB. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23/10/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. R.BASANT, J. ---------------------- Crl.M.C.No.3964 of 2008 ---------------------------------------- Dated this the 23rd day of October 2008 O R D E R The petitioner faces indictment in a prosecution under Section 304A I.P.C. Cognizance has been taken on the basis of a private complaint filed by the respondent herein. Pre-summons enquiry was conducted. CWs 1 to 10 were examined and Ext.C1 was marked. Allegations were raised initially in the complaint that the offence under Section 304 Part II I.P.C has been committed. The learned Magistrate, after considering the materials that were placed before him in the form of oral evidence of CWs 1 to 10 and Ext.C1, came to the conclusion that there was culpable and contumacious negligence in having administered AB positive blood to the deceased whereas he was really of A positive blood group. The request to take cognizance of the offence under Section 304 Part II I.P.C was rejected by the learned Magistrate and cognizance was taken only of the offence punishable under Section 304A I.P.C. Summons has been issued to the accused. Crl.M.C.No.3964/08 2 2. The learned counsel for the petitioner submits that there was no proper application of mind by the learned Magistrate as insisted by the decision of the Supreme Court in Jacob Mathew v. State of Punjab [2005(3) KLT 965] and in these circumstances the cognizance taken is liable to be quashed invoking the extraordinary inherent jurisdiction under Section 482 Cr.P.C. 3. The learned Magistrate is not obliged to pass a speaking order while choosing to exercise the discretion under Section 203/204 Cr.P.C. But Annexure II order recorded in the order sheet of the court produced by the petitioner clearly shows that there has been application of mind by the learned Magistrate to the fact situation in the case. I am unable now to agree with the learned counsel for the petitioner that the satisfaction entertained by the learned Magistrate at the threshold - that there is sufficient ground to proceed against the accused is, in any way, grossly erroneous or incorrect as to warrant the invocation of the extraordinary inherent jurisdiction under Section 482 Cr.P.C. Sufficient application of mind as is demanded in Jacob Mathew (Supra) is certainly shown to be Crl.M.C.No.3964/08 3 made in the impugned order issuing process. The order is one which speaks satisfactorily. I am, in these circumstances, not persuaded to agree that the proceedings initiated against the petitioner deserves to be quashed under Section 482 Cr.P.C. This, I am satisfied, is an eminently fit case where the petitioner must appear before the learned Magistrate and advance his contentions. Needless to say, at the stage of reading over the particulars of offence at the stage of Section 251 read with 258 Cr.P.C as explained in the decision in Kamala Rajaram v. State of Kerala [2005(3) KLT 617], it shall be open to the petitioner to contend that proceedings are liable to be discontinued against him. 4. With the above observations, this Crl.M.C is dismissed. (R.BASANT, JUDGE) jsr Crl.M.C.No.3964/08 4 Crl.M.C.No.3964/08 5 R.BASANT, J. CRL.M.C.No. of 2008 ORDER 09/07/2008