IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 24TH MARCH 2011 / 3RD CHAITHRA 1933 Crl.MC.No. 850 of 2011() ------------------------ CC.510/2009 of CHIEF JUDICIAL MAGISTRATE, ALAPPUZHA .................... PETITIONER(S): DE-FACTO COMPLAINANT ----------------------------------- P.J.ROBIN, S/O.JOSEPH, AGED 59 YEARS, PARATHARA HOUSE, PATHIRAPPILLY VILLAGE, THUMBOLI P.O., ALAPPUZHA DISTRICT-688 008. BY ADV. SRI.SHOBY K.FRANCIS RESPONDENT(S): STATE & ACCUSED ------------------------------ 1. STATE OF KERALA/S.I. OF POLICE, ALAPPUZHA NORTH POLICE STATION, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31. 2. DR.SUMITHRA VENUGOPAL, W/O.VENUGOPAL, (CMO, SUMITHA NURSING HOME, THUMPOLI JN., ALAPPUZHA), "SARASSU", AARATTU VAZHI WARD, ALAPPUZHA MUNICIPAL LIMIT, ALAPPUZHA-688 001. PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA FOR R1 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.850 of 2011 -------------------------------------- Dated this the 24th day of March, 2011. ORDER Petitioner is CW1 in C.C.No.510 of 2009 of the court of learned Chief Judicial Magistrate, Alappuzha where the second respondent, a medical practitioner is being prosecuted for offence punishable under Section 304A of the Indian Penal Code for allegedly causing death of petitioner's daughter by rash or negligent act in the course of treatment for delivery. Petitioner states that it is not clear whether the Police had obtained the report of an expert before prosecution was launched as directed by the Supreme Court in Jacob Mathew v. State of Punjab and another [(2005) 6 SCC 1] and Mahadev Prasad Kaushik v. State of U.P. [(2008) 14 SCC 479]. According to the learned counsel absence of such a report may prove to be fatal to the case. It is contended by learned counsel that petitioner had filed Annexure-E, petition (dated 28.02.2011) through the Deputy Director of Prosecution in charge of conduct of case but, that application was not received by the learned Chief Judicial Magistrate. Learned Public Prosecutor was not able to get instruction within the short time whether any such report has been obtained by the Investigating Officer before filing of final report or before learned Chief Judicial Magistrate took cognizance of the offence. Crl.MC No.850/2011 2 2. I am told that the case is posted for trial this day. In such a situation I do not propose to go into that question in this proceeding. However, learned Chief Judicial Magistrate, Alappuzha is directed to receive Annexure-E, petition filed by petitioner and pass appropriate orders on the said petition. It is directed that trial of C.C.No.510 of 2009 of that court shall stand adjourned to a day after two weeks from this day. I make it clear that I have not expressed any opinion on the necessity or otherwise to have the expert's report before court. Petition is disposed of with the above directions. THOMAS P.JOSEPH, Judge. cks