IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No 90 of 2004 For Approval and Signature: HON'BLE MR.JUSTICE C.K.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- DR.B.T.MALAMPARA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Revision Application No. 90 of 2004 MR PRITESH L PARIKH for Petitioner No. 1-2 MR HM PRACHCHHAK, APP for Respondent No. 1 RULE SERVED for Respondent No. 2 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE C.K.BUCH Date of decision: 02/09/2004 ORAL JUDGEMENT 1. Heard ld. counsel Mr. MM Tirmizi for ld. counsel Mr. Pritesh Parikh for the petitioners -original accused nos. 5 & 6 and ld. APP Mr. HM Prachchhak for respondent No.1 Served. Respondent No.2, though served, has opted not to appear. 2. The petitioners -original accused Nos.5 & 6 have preferred the present Cri. Rev. Application challenging the legality and validity of the order passed by ld. Addl. Sessions Judge (Fast Track Court), Dhrangadhra, District : Surendranagar dated 5.2.2004 dismissing the application Exh.9 for discharge submitted in Sessions Case No.14/1999. Vide application exh.9, the petitioners requested to drop the proceedings and discharge them as no case is made out against them and for the sake of arguments even if it is accepted that the petitioners or any of them can be prosecuted for the offences punishable under Sections 177,201 & 218 of the Indian Penal Code, even then, in absence of sanction required to be obtained under Sec.197 of CrPC, the prosecution is bad and ld.Addl. Sessions Judge can not take cognizance in absence of any legal and valid sanction. Original accused Nos. 1 to 4 are facing charged for the offences punishable under Sec.498-A, 501, 302 etc. of Indian Penal Code. Of course, the petitioners have been arraigned as accused for all the offences mentioned in the chargesheet by the police, but it is contended that they are innocent and they are unnecessarily dragged into serious criminal case. 3. It is averred in para-2 of the memo of Revision Application that in view of the nature of the allegations made against the present petitioners, this Court had granted anticipatory bail and till the date they are on bail. It was specifically pleaded before the trial Court that none of these two petitioners could have been prosecuted by the agency in absence of formal sanction under Sec.197 of CrPC and registration of a criminal offence in absence of such legal and valid sanction can be said to be an illegal institution of a criminal case. 4. Both the petitioners are doctors and at relevant point of time, they are serving in Government hospital and they are government or public servants. The main allegation against the petitioners is that a deadbody of deceased Madhuben was brought at Halvad Community Health Centre and petitioner No.1 Dr. BT Malampara had informed Halvad Police Station and thereafter Halvad Police had drawn inquest panchanama in the presence of panchas. The officers who have drawn the panchanama and the panchas had examined the body of deceased Madhuben and it is recorded in the panchanama that there were no visible marks of injuries on any part of the body of the deceased. According to the prosecution, deceased Madhuben was initially examined by one Dr. Durlabhji. In the same way, Madhuben was also examined by another Doctor , but none of these two doctors have noticed any mark of violence or injury on the body of deceased Madhuben. It is the case of the prosecution that deceased Madhuben was pregnant and she had foetus of approximately 7 months and was taking treatment of Dr. Durlabhji for High Blood Pressure. Ultimately, investigating agency found that while carrying out autopsy, skull was not opened and after opening the skull during the post mortem by the panel of doctors, it was found that she had injury on her head of the nature that can be caused by a hard and blunt substance. It is opined that such injury is possible in the event when a person falls on earth having hard and blunt surface. Ld. Addl. Sessions Judge found that both the petitioners by ignoring the injury that was ultimately found on head, can not be said to be an act of discharging duty or error committed in proper discharge of the duty as a government/public servant. Ld. Addl. Sessions Judge, ultimately held that on the point of sanction, the petitioners accused does not deserve discharge and nature of the allegations against both the doctors are also serious in nature. So, the material conflict in two different post mortem notes had led the Investigating Officer to a conclusion that both the petitioners doctors are involved either in the commission of the offence or they have committed an offences punishable under sections 177, 201 & 218 of Indian Penal Code. 5. Original complainant is served with Rule and I am told by ld. APP Mr.Dave that he is not interested to press the case against both the petitioners. 6. Without entering into the merits of Ground (d) of the memo of Cri. Rev. Application on which reliance is placed, I would like to reproduce the same as it is:- "(d) The ld. Judge ought to have appreciated that the deceased and the petitioner were residing together in village Samli, Ta: Halvad. Immediately after the deceased felt sick, she was shifted to the nearest doctor for medical treatment and thereafter to Halvad General Hospital which is the only nearest hospital. Thus, the conduct of the original accused was absolutely natural. However, the brother of the deceased i.e. complainant has his close relative namely Dr. Gadhiya in Jamnagar Irwin Hospital and is a Professor of Physiology department in the said hospital. The complainant has therefore, managed to get the post mortem in Jamnagar Irwin Hospital wherein neither the prosecution side nor the accused side reside.The Jamnagar Irwin Hospital is at a distance of more than 140 kms. from village Samli where the deceased died natural death. The complainant is resident of Maliya Miyana of District : Rajkot which is very close to Maliya Hospital as well as Morvi Civil Hospital. Despite these facts, the complainant had deliberately taken the dead body of the deceased to Jamnagar Irwin Hospital. Now on perusing the report of the Jamnagar Irwin Hospital, it is stated that the cause of death might be head injury however, there is no injury whatsoever on head of the deceased. The death has occurred due to Subarchnoid Hemorrhage which normally occurs in advance stage of pregnancy in certain cases. Thus, the very act of the complainant taking the dead body of the deceased to Jamnagar Irwin Hospital creates doubt of the conduct of the complainant and therefore, this is the fit case for discharging the applicants. 7. Mr. Tirmizi, ld. Counsel appearing for the petitioners has rightly placed reliance on the scheme of Sec.197(1) of CrPC which provides as under:- "When any person who is or was a judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty,no court shall take cognizance of such offence except with the previous sanction......". The section falls in the chapter dealing with conditions requisite for initiation of proceedings, i.e. if the conditions mentioned are not made out or are absent, then no prosecution can be set into motion. 8. The ratio of the decision of the Apex Court in the case of State of Bihar v/s Kamla Prasad Singh & Others, 1998 SCC (Cri.) P.1374 would positively help the present petitioners. It is observed by the Apex Court in the case of State of Orissa & Ors. v/s Ganesh Chandra Jew, 2004 AIR SCW 1926, that: "... So far public servants are concerned the cognizance of any offence, by any Court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression "no Court shall take cognizance of such offence except with the previous sanction". Use of the words, "no" and "shall" make it abundantly clear that the bar on the exercise of powers by the Court to take cognizance of any offence is absolute and complete. Very cognizance is barred. That is the complaint, can not be taken notice of. According to Black's Law Dictionary the word "cognizance" means "jurisdiction" or "the exercise of jurisdiction" or "power to try and determine causes". in common parlance it means taking notice of. A Court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have committed during the discharge of his official duty." It has been further observed by the Apex Court as under:- " Such being the nature of the provision the question is how should the expression, "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty", be understood? What does it mean? "Official" according to dictionary, means pertaining to an office, and official act or official duty means an act or duty done by an officer in his special capacity. In B.Saha and others v. M.S.Kochar (1979 (4) SCC 177), it was held : (SCC Pp.184-85, para 17): "The words 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty' employed in Section 197(1) of the Code, are capable of a narrow as well as wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, "it is no part of an official duty to commit an offence, and never can be". In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution and the said provision." Use of the expression "official duty" implies that the act or omission must have been done by the public in the course of his service and that it should have been in discharge of his duty. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty." 8. When there is nothing on record, prima facie, that there is nexus between the original accused nos. 1 to 4 and the present petitioners and when her doctor was regularly treating deceased Madhuben substantially supports the version of the present petitioners, the trial Court ought to have inferred that in absence of sanction, the prosecution against both the petitioners is bad and it would be open for the Investigating Agency to approach the State Government with all relevant record including two allegedly conflicting post mortem notes and nature of allegations levelled against both the doctors and obtain sanction. Even they can be independently prosecuted for the offence if they have committed such offence, but it would be wrong to prosecute the petitioners along with other main accused in absence of express legal and valid sanction by the State Government. It is pertinent to note that the injury found on the person of deceased Madhuben is otherwise noticed after opening of skull and such injury is also possible in a case where a person is taking treatment of High B.P. It is also pertinent to note that there was no fracture of skull. 9. It is held that the ld. Addl. Sessions Judge ought to have allowed the application exh.9 observing that prosecution can be instituted against the petitioners only after obtaining sanction, otherwise the Court has no jurisdiction to take the cognizance of the offence against both the petitioners accused. Consequently, the present Cri. Rev. Application is allowed. Impugned order passed by ld. Addl. Sessions Judge (Fast Track Court), Dhrangadhra, District : Surendranagar dated 5.2.2004 dismissing the application Exh.9 for discharge submitted in Sessions Case No.14/1999 by the petitioners being erroneous, is hereby quashed and set aside and the application exh.9 is hereby allowed and petitioners are hereby discharged from the offences with which they are charged and consequently acquitted of the offences with which they are charged. Bail bonds stand discharged. It would be open for the Investigating Agency to approach the State Government with all relevant record including two allegedly conflicting post mortem notes and nature of allegations levelled against both the doctors and obtain sanction, if so desires. Even they can be independently prosecuted on sanction for the offence be independently prosecuted on sanction for the offence if they have committed such offence. 9. Rule is made absolute subject to aforesaid observation and directions. [ C.K. BUCH, J ] *rawal