The necessity for the death to be the direct result of the negligent act under S. 304A of the I.P.C. and the limited circumstances under which non-registration of FIR or irregularities in investigation would vitiate the proceedings.

THOMAS, J.

The petitioner, a lady Civil Surgeon of the General Hospital, Cochin, is arraigned as an accused in an FIR registered by the city police commissioner, Cochin, alleging commission of the offence under S. 304A of the I.P.C. She was arrested and released on bail on 1-11-1985. This petition filed S. 482 of the Criminal P.C. (for short 'the Code') is to quash the said FIR and all subsequent proceedings thereto. A learned single Judge who heard the Crl.M.C. was of the opinion that the case involves "substantial questions for which direct precedents are lacking." and referred the case to a Division Bench and the Division Bench, in turn, referred the case to a Full Bench.

2. The FIR is mainly based on a petition filed by one Madan Gopal. His wife Mala aged 28 died at the Lakshmi Nursing Home on 21-9-1983. The substance of the petition filed by Madan Gopal is this : When his wife Mala became pregnant, he took her to the petitioner on 24-2-1983 for consultation and prenatal treatment. The petitioner examined her and assured that there was nothing abnormal and that Mala would have a normal confinement. Mala continued to be under observation of the petitioner. She developed labour pain on 19-9-83 and was admitted in Lakshmi Nursing Home on the advice of the petitioner. After examining her, the petitioner again assured Madan Gopal that there would be no problem with the patient. Mala gave birth to a cyanosed baby on 21-9-1983 and soon after the delivery both the mother and child died. As a matter of fact, the petitioner knew that Mala had a damaged heart (Ventricular Septal Defect - 'VSD' for short) but the petitioner never divulged this to the patient or to her husband despite the diagnosis made by the doctor. Death of Mala is hence attributed to the absence of specialised care and attention with the help of a specialist in Cardiology, since the petitioner did not divulge the above fact to the patient or to her husband. In the concluding portion of the petition, Madan Gopal has stated that Mala's death occurred "as a direct consequence of the gross and willful negligence" of the petitioner.

3. Madan Gopal filed the petition on 14-10-1983 before the city police commissioner, Cochin. According to the petitioner, the police fully enquired into the said complaint and closed the matter in 1983 itself. However, Madan Gopal filed a second petition before the city police commissioner on 30-10-1984 complaining of inaction on the part of the police and annexing a copy of the petition dated 14-10-1983. On 21-9-1985, the city police commissioner registered Crime No. 155/85 of Mattanchery Police Station against the petitioner under S. 304A of the I.P.C. The FIR mentions that the case was registered on the basis of the petition presented by Madan Gopal to city police commissioner on 30-10-1984 and "on the basis of the enquiry and legal opinion."

4. The learned counsel contended first that, when once a crime was registered on an FIR which was investigated by the police, a second FIR on the same set of allegations for the same offence is not permitted by law. This argument was based on the assumption that police had registered a crime and FIR had been prepared on the basis of the petition filed by Madan Gopal on 14-10-1983. This assumption is factually incorrect, according to the learned Public Prosecutor. The petitioner did not produce a copy of the alleged first FIR, nor could he furnish the number of the crime registered. Nowhere in his petition did the petitioner state that FIR was registered prior to registration of Crime No. 155/85 on 21-9-1985 in regard to the allegations made against the petitioner. It is therefore, a futile exercise to consider the contention which is based on a wrong assumption that there was an earlier FIR prepared by the police.

5. The next contention was that after receipt of earlier petition the investigation was conducted and hence it must be deemed that FIR had been registered even though, the polic