The judgment establishes the principle that the power of the Public Prosecutor to withdraw from prosecution should be exercised in the interest of justice and with legitimate grounds, and the Court plays a crucial role in ensuring the proper exercise of this discretion.

1. econd respondent is a Doctor employed in Government service and third respondent is a private medical practitioner running a hospital. They were charge-sheeted and tried in C. C No. 203 of 1987 before the Judicial First Class Magistrate, Cochin for an offence punishable under S.304 (A) of the Indian Penal Code. Revision is against the order allowing the application filed by the Assistant Public Prosecutor in charge of the case under S.321 of the Code of Criminal Procedure to withdraw the prosecution. Petitioner is the defacto complainant and husband of the deceased.

2. he circumstances under which respondents 2 and 3 happened to be prosecuted are these. Mala, wife of the petitioner, became pregnant and she was taken to the second respondent on 24-2-1983 for consultation and prenatal treatment. That was during the second month of her pregnancy. Oh examination second respondent diagonised that Mala had Ventricular Septal defect. But petitioner or Mala were not informed of it or directed to take her for examination by a Cardiologist. Treatment by second respondent continued till 21-9-1983, on which day she gave birth to a cyanosed baby and she also died. Delivery was in the private hospital run by the third respondent, where she was admitted as directed by the second respondent. Respondents 2 and 3 purposely suppressed facts even at the time of admission for confinement and said that the case of Mala is a normal delivery case. Due to the culpable suppression, she could not get expert medical attention. She was not given proper medical attention also. That is the cause of death. It amounts to culpable negligence.

3. Petitioner claims to have filed a complaint to the City Commissioner of Police, Cochin on 14-10-1983. Since there was no action, he again filed another petition on 30-10-1984. There is nothing in the case diary to show that there was a complaint filed on 14-10-1983. When called upon by the second respondent, the police reported that such a petition is not traceable. Action was taken only on the petition filed on 30-10-1984, which was claimed by the petitioner himself only to be a reproduction of an earlier petition filed on 14-12-1983, which is also not traced. On the petition filed on 30-10-1984 itself action was taken only very late. Case was registered and investigation started only late in 1985.

4. Against the third respondent, practically there is not even a serious allegation involving an offence under S.304 (A). Against the second respondent, the main allegation is that she deliberately suppressed information. regarding the defective heart diagonised by her by examination on 24-2-1983. But the petitioner admits that defective heart was noted by the second respondent in the prescription given by her that day. Only allegation seems to be that it was not personally explained and a direction was not given to consult a Cardiologist. It is true that there is the opinion by CW 4, a Cardiologist, that expert treatment, if available, could have some times saved her. But the statement given by CW 20, Dr. Santha, during investigation shows that she examined Mala on 10-6-1983 and she informed Mala and the petitioner that she had a damaged heart. Deliberate suppression, which is the foundation of death by rash and negligent act, is therefore of doubtful sustenance. Except the statements of CWs 4 to 7 that if a Cardiologist and Paediatrician attended this calamity would not have happened and the statement of CW 8, the Cardiologist in the'Lakshmi Nursing Home' run by the third respondent, that he was not consulted, there is nothing serious collected by investigation to connect the accused to establish an offence under S.304(A). The only other allegation is a statement by respondents 2 and 3 that Mala's is a normal case of delivery. On that statement by itself, even if correct, a charge under S.304(A) may not stand.

5. It was in these circumstances that the Government informed the Assistant Public Prosecutor about it