JUDGMENT

Babu Mathew P. Joseph, J.— This writ appeal is directed against the judgment of a learned Single Judge in W.P.(C) No. 6921 of 2012. The appellant is not a party to this writ petition. Therefore, she has preferred this writ appeal with the leave of this Court.

2. Heard Sri. Manoj R. Nair, the learned counsel appearing for the appellant, Dr. S. Gopakumaran Nair, the learned Senior Counsel appearing for the respondents 1 and 2 and Sri. C.R. Syamkumar, the learned Senior Government Pleader appearing for the respondents 3 to 5.

3. The appellant’s daughter Megha, aged 10, was admitted to Christian Mission g Hospital, Pandalam (for short, the Hospital) with abdominal pain and vomiting. She was attended by the 1st respondent, a Pediatrician, and the 2nd respondent, the Resident C.R. Medical Officer, of that hospital. She was administered certain medicines. On seeing signs of discomfort, she was given an injection allegedly without administering test dose. Soon the child began to show signs of discomfort. She was again administered certain drugs including antibiotics. At 8.30 p.m. on that day, the child had oral and nasal bleeding. She was shifted to the Medical Trust Hospital, Ernakulam at 12.45 a.m. on the next day. The child expired at 9.50 p.m. on 5.8.2010 while undergoing treatment there.

4. The appellant preferred Ex. P1 complaint before the Pandalam Police in respect of the matter. Based on Ex. P1, F.I.R. No. 808 of 2010 of Pandalam Police Station has been registered for the offences under Sections 336 and 337 of IPC. The 5th respondent, the Deputy Superintendent of Police, Adoor, has taken over the investigation of the a case. As per the instructions issued by the Government of Kerala in its Circular Memorandum dated 16.6.2008. after registration of a case against doctors in Government service and private sector for criminal negligence, the investigating Deputy Superintendent of Police should immediately refer the case to an Expert Panel. Accordingly, the Investigating Officer in this case referred the matter to the Expert Panel. The Expert Panel, after examining the matter, prepared Ex.P6 Report on 18.1.2011. It is noted in Ex.P6 that the cause of death has been stated as choking in the Post-mortem Report. A gauze was found blocking pharynx and upper part of trachea along with blood clots blocking air passages. The opinions of the Expert Panel noted in Ex.P6 are as follows:

“1. Medical record keeping appeared improper.

2. Tampering could be observed in the Case record given for perusal.

3. Reasonable care had not been found exercised in administering intravenous drugs given at 2.20 p.m. on 2.8.2010.

4. The source of the gauze in the pharynx and trachea seen during postmortem could not be traced from the case sheet.

5. There was no evidence of injection mark suggestive of a test dose as per the postmortem findings.

6. The attending doctors and nursing staff who had administered the injection are liable in this case.”

The Investigating Officer, after considering the views of the Expert Panel and completing the investigation, filed Ex.P2 Final Report against the respondents 1 and 2 and 3 members of staff of the Hospital before the judicial First Class Magistrate’s Court, Adoor. The offence alleged against the accused is under Section 304A read with Section 34 of IPC. The respondents 1 and 2 are the accused 1 and 5 respectively in the Final Report. The learned Magistrate took the Final Report on his file as C.C. No. 720 of 2011.

5. Dr. T.G. Varghese, the Superintendent of the Hospital has preferred an appeal challenging Ex. P6 Report before the Apex Body prescribed in the said Circular Memorandum dated 16.6.2008. The appellant has filed W. P.(C) No. 5017 of 2012 before this Court for declaring that Dr. T.G. Varghese, who is not an accused in the Final Report or in the First Information Report, was incompetent to file that appeal against Ex.P6 Report before the Apex Body and for other reliefs. The plea raised by the