ORDER

A doctor who was requested to assist a Magistrate to record a dying declaration allegedly refused to come in aid. The refusal resulted in initiation of a crime at the behest of the Sub- Inspector of Police who claims to have accompanied the Magistrate. The complaint was taken cognizance of as STC No.3724/2015 alleging offence under Section 187 of the Indian Penal Code, 1860.

2. Petitioner is a surgeon in the Department of Gastroenterology at Pariyaram Medical College Hospital. Petitioner pleaded that on 15/11/2015, he performed a surgery on a person, who had suffered a stab injury on his neck. On the next day the Judicial Magistrate of the First Class, Payyannur, accompanied by a Police officer came to the hospital. Unfortunately, since the petitioner was performing another surgery he could not assist the learned Magistrate to record the dying declaration and instead deputed his Junior doctor to render assistance to the Magistrate, who had reached the hospital for taking the statement.

3. Though it was conveyed that the patient cannot speak and the Junior Doctor was entrusted to give a certificate to that effect, the learned Magistrate is alleged to have insisted on the certificate being issued by the petitioner himself. Since the petitioner could not provide the certificate as he was performing a surgery, the Magistrate as well as the police officer became agitated and subsequently a complaint dated 16/11/2015 was filed before the Judicial First Class Magistrate Court, Taliparamba through the Sub- Inspector of Police, Payyavoor.

4. Sri.P.Sheeba, the learned counsel for the petitioner submitted that, apart from an offence of the nature under Section 187 of the IPC having not been made out, the very complaint itself was not maintainable and hence the cognizance taken by the learned Magistrate was void ab initio. The learned counsel submitted that the provisions of Section 195 of Code of Criminal Procedure 1973 had not been followed and therefore the Court ought not have taken cognizance. Petitioner thus sought for quashing all proceedings in STC No.3724 of 2015 on the files of Judicial First Class Magistrate Court, Taliparamba.

5. Smt.Pushpalatha M.K., the learned Public Prosecutor contended that the averments in the petition are not entirely correct since the complaint avers that petitioner was not inside the operation theatre and that he refused to come to the aid or assistance of the learned Magistrate when sought for. It was further submitted that, it was the duty of a doctor to provide the required assistance to the Magistrate. Since the Magistrate was carrying out a performance obliged under law, it was mandatory for the petitioner to have come to the aid of the said Magistrate.

6. I have considered the rival contentions.

7. There is no quarrel that when a Magistrate requests for a certificate of fitness of an injured, a Doctor is bound to provide it. However, legislature has incorporated certain safeguards through Section 195 Cr.P.C. in respect of complaints filed alleging violation of Section 187 of Indian Penal Code, 1860.

8. Section 195 of the Cr.P.C. deals with a mandatory procedure and provides that cognizance in certain instances can be taken only on a complaint in writing by the public servant concerned. The said statutory provision deals with certain specific offences, including those punishable under Section 172 to 188 of the IPC. For the purpose of better comprehension Section 195(1) is extracted as below:

“(1) No Court shall take cognizance (a)(i) of any offence punishable under sections 172 to 188(both inclusive) of the Indian Penal Code(45 of 1860), or (ii) of any abetment of, or attempt to commit, such offence, or (iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;

(b)(i) of any offence punishable under any of the following sections of the Indian Penal Code(45 of