IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 16TH NOVEMBER 2010 / 25TH KARTHIKA 1932 Crl.MC.No. 3710 of 2010() ------------------------- ( CRP.56/2008 of SESSIONS COURT, PALAKKAD CRL. CMP.81/2008 IN SC NO.708/2005 of ASSISTANT SESSIONS COURT, PALAKKAD ). .................... PETITIONER/REVISION PETITIONER/PETITIONER/ACCUSED ---------------------------------------------------------------------------------------- DR.SABEENA NAIR, D/O.YOUSUF KOYA, CIVIL SURGEON AND GYNECOLOGIST, GOVERNMENT HOSPITAL PALAKKAD (PUTHEN VEEDU, KOTTAMUKKU) KOLLAM, NOW AT KAMALABHAVAN,COURT ROAD, PALAKKAD, NEAR KERALA NURSING HOME, PALAKKAD. BY ADVS. SRI.P.VIJAYA BHANU, SENIOR ADVOCATE SRI.M.REVIKRISHNAN SRI.VIPIN NARAYAN RESPONDENT/RESPONDENT/RESPONDENT/COMPLAINANT ----------------------------------------------------------------------------------------- STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING THE DY.S.P., PALAKKAD. ADDL. R2 IMPLEADED ----------------------------------- ADDL.R2. PARAMESWARAN, S/O.KITTU EZHUTHACHAN, THEKKEPPATTU VEEDU, KAZHANI, KAVASSERY VILLAGE, ALATHUR; IS IMPLEADED AS ADDL. 2ND RESPONDENT, VIDE ORDER DT. 13.09.10 IN CRL.MA.5595/10. BY PUBLIC PROSECUTOR, SRI.I.V.PRAMOD THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.M.C.NO.3710 OF 2010 --------------------------------------------- Dated 16th November, 2010 O R D E R Petitioner is the accused in S.C.708/2005 on the file of Assistant Sessions Court, Palakkad, taken cognizance for the offence under Section 304 of Indian Penal Code on the allegation that while functioning as Civil Surgeon and Gynacologist, District Hospital, Palakkad she conducted cesarean operation on Thatha, W/o.Rajan on 23/10/2001 at about 2.22 p.m and though due to complications she was subsequently removed to Medical College Hospital, she died on the way and petitioner thereby committed the offence under Section 304 of Indian Penal Code. Learned Magistrate committed the case and Crmc3710/10 2 learned Sessions Judge after taking the case on file, sent it for trial to Assistant Sessions Court, Palakkad. After framing charge, petitioner filed Crl.M.P.81/2008 seeking discharge contending that without sanction under Section 197(1) of Code of Criminal Procedure cognizance could have been taken. By Annexure-B order, learned Assistant Sessions Judge dismissed the petition. Petitioner challenged that order before Sessions Court, Palakkad in Crl.R.P.56/2008. By Annexure-C order, it was dismissed, finding that as the Assistant Sessions Judge could not have discharged petitioner after framing charge, there is no illegality in Annexure-B order. This petition is filed thereafter under Section 482 of Code of Criminal Procedure to quash Annexures-B and C orders and also to quash the cognizance taken. Crmc3710/10 3 2. Though second respondent, who was subsequently impleaded, as de facto complaint was served, he did not appear. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Learned counsel appearing for the petitioner pointed out that fact that petitioner being a Civil Surgeon can only be removed by the State Government was not disputed before Assistant Sessions Court or the Sessions Court and the protection claimed under Section 197(1) of the Code was denied on the finding that the question whether petitioner exceeded the powers or had shown negligence in discharge of her duty can be decided only on the evidence and not because petitioner is not entitled to the protection under Section 197(1) of Code of Criminal Procedure. It is pointed out that even the prosecution case is that Crmc3710/10 4 petitioner had undertaken the surgery in her capacity as Civil Surgeon and Gynecologist of District Hospital, Palakkad and the alleged act of commission of offence was in discharge of her duty as Civil Surgeon and therefore, without sanction as provided under Section 197(1) of Code of Criminal Procedure, learned Sessions Judge could not have taken cognizance of the offence and therefore, the cognizance taken is to be quashed. Learned counsel relied on the three Judge Bench decision of the Apex Court in Sankaran Moitra v. Sadhna Das & another (AIR 2006 SC 1599). 4. As is clear from Annexures-B and C orders, it is the prosecution case that petitioner in her capacity as, the Civil Surgeon and Gynecologist of District Government Hospital, Palakkad was attending the surgery of deceased Thatha. While so due to the Crmc3710/10 5 complications developed she died, while on the way to Medical College Hospital, Thrissur, where she was being taken. The alleged commission of the offence is definitely in the course of discharging her duty as Civil Surgeon and Gynecologist. The question therefore is, whether she is entitled to the protection provided under Sub Section 1 of Section 197 of Code of Criminal Procedure. 5. Sub Section 1 of Section 197 of the Code provides that when any person who is 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 discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction of the State Government, as provided under clause (b), in Crmc3710/10 6 the case of a person who is employed or was at the time of commission of the alleged offence employed in connection with the affairs of a State. Petitioner was admittedly employed as the Civil Surgeon of the State of Kerala who cannot be removed from the office save by or with the sanction of the Government. The act alleged against was committed by the petitioner while acting or in any case purporting to act in discharge of her official duty as the Civil Surgeon and Gynecologist. Therefore, she is definitely entitled to get protection provided under Sub Section 1 of Section 197 of Code of Criminal Procedure. The only question is whether that depends upon the evidence to be recorded. As the allegation is that while petitioner was operating the deceased due to her negligence the vein to the ovary was cut and petitioner without doing anything to stop Crmc3710/10 7 the bleeding with the knowledge that if the patient was made to undertake travel to a distance, she is likely to die and cause her death, the act alleged is only in discharge of her official duty. As settled by the Apex Court in Sankaran Moitra's case (supra) the question is not whether the act committed was in excess of the power to be exercised at the relevant time, but whether she was performing her duty. Even if, while performing the surgery she was negligent or had not taken proper care, that will not disentitle to the protection provided under Section 197(1) of Code of Criminal Procedure. Learned Sessions Judge could not have taken cognizance of the offence against the petitioner without a sanction under Section 197(1) of Code of Criminal Procedure. Though learned Assistant Sessions Judge could not have discharged petitioner, as sought for after Crmc3710/10 8 framing charge and learned Sessions Judge could not have interfered with that order as there is no illegality in dismissing that petition, and therefore, Annexures-B and C orders do not warrant interference, when sanction under Section 1 of Section 197 is a condition precedent for taking cognizance, the cognizance taken against the petitioner, for the act committed by her in discharge of her duty as the Civil Surgeon and Gynecologist, was without obtaining sanction under Section 197(1) of Code of Criminal Procedure, the cognizance taken could only be quashed. At the same time, it is made clear that petitioner could be prosecuted on getting sanction as provided under Section 197(1) of Code of Criminal Procedure. Petition is allowed. Cognizance taken in S.C.708/2005 on the file of Assistant Crmc3710/10 9 Sessions Judge, Palakkad and all further proceedings therein are quashed. It is made clear that cognizance could be taken after getting sanction as provided under Section 197 (1) of Code of Criminal Procedure. M.SASIDHARAN NAMBIAR, JUDGE. uj.