DR. (SMT.) MANORAMA TIWARI AND OTHERS versus SURENDRA NATH RAI
[2015] 9 S.C.R. 436, Supreme Court of India, 2015
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
[2015] 9 S.C.R. 436 
A 
DR. (SMT.) MANORAMA TIWARI AND OTHERS 
B 
v. 
SURENDRANATH RAI 
(Criminal Appeal No. 1193 of 2015) 
SEPTEMBER 10, 2015 
[DIPAK MISRA AND PRAFULLA C. PANT, JJ.] 
Code of Criminal Procedure, 1973 -
s. 197 -
C 
Prosecution of judges and public servant - Sanction from 
the Government - Requirement of - Appellants-Medical 
Officers in govemment hospital performed surgery on the 
patient in the government hospital, however, the patient died 
- Criminal complaint by respondent-complainant before the 
D magistrate alleging commission of murder against the 
appellants-Application u/s. 197 by the appellants alleging 
that the prosecution against them not maintainable without 
sanction uls. 197 - Rejection of. by the magistrate as also 
·the High Court - On appeal, held: It is a clear case where 
E appellants were discharging their public duties, as they were 
performing surgery on the patient in the Government hospital 
- Appellants were Medical Officers in the Government 
Hospital -As such, the criminal prosecution of the appellants 
initiated by complainant not maintainable without the sanction 
F 
from the State Government - High Court erred in law in 
dismissing the revision filed bYappel/ants and affirming the . 
order of the Magistrate rejecting their application as to 
maintainability of the criminal complaint without sanction from 
the State Government- Thus, the order passed by High Court 
G as also magistrate set aside. 
H 
MatajogDubeyv. H.C.
BhariAIR 1956 SC44:1955 SCR 
925 - followed. 
436

DR. (SMT.) MANORAMA TIWARI v. SURENDRA NATH RAI 437 
Jacob Mathew v. ~ate of Punjab and Anr. (2005) 6 SCC A 
1: 2005 (2) Suppl. SCR 307 - referred to. 
Case Law Reference 
2005 (2) Suppl. SCR 307 
1955 SCR 925 
referred to 
followed 
Para 10 
Para 11 
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal 
No; 1193 of2015. 
From the Judgment and Order dated 16.04.2012 of the 
High Court of Judicature Chhattisgarh at Bilaspur in Criminal 
Revision No. 220 of 2002. 
B 
c 
Ra.tnakar Dash, Piyush Kumar, Samir Ali Khan for the D 
Appellants. 
The Judgment of the Court was delivered by 
PRAFULLA C. PANT, J. 1. Leave granted. 
2. This appeal is directed against order dated 16.4.2012, 
passed by the High Court of Judicature Chhattisgarh at 
Bilaspur, in Criminal Revision No. 220 of 2002 whereby/said 
Court has disposed of the criminal"revision, affirming or~er of 
E 
the Magistrate by which application under Section 197 of the 
F 
Code of Criminal Procedure, 1973 (Cr.P.C.) moved by 
appellants was rejected. 
/ 
/ 
3. Brief facts of the case are that Miss Tapsi Rai, aged 14 
years, daughter of respondent Surendra Nath Rai, underwbnt G 
surgery on 5.8.1997 in Maharani Government Hospifal, 
I 
JagdaJpur, Bastar. The operation necessitated due to pain 
developed by the patient in the abdomen, was performed by 
the appellants, namely, Dr. (Smt.) Manorama Tiwari, Dr. S.R. 
Kawdo and Dr. Pradeep Pandey. Before conducting the H 
' ,_
438 
SUPREMECOURT~EPORTS 
(2015] 9 S.C.R. 
A 
surgery, consent to operate was taken from the respondent. 
However, even after surgery, the condition of the patient did 
not improve, and she died on the same day. 
4. A First Information Report was lodged by the 
B respondent after lapse of more than five months, i.e. on 
2.2.1998 relating to offence punishable under Section 304A 
of Indian Penal Code at Police Station, Jagdalpur against Dr. 
Manorama Tiwari and Dr. Pradeep Pandey (appellant Nos. 1 
and 3 respectively). Meanwhile, enquiry was got conducted 
C on the complaint of the respondent under orders of the District 
Magistrate, in which report dated nil shows that the surgeons 
were opined to be negligent. However, subsequently another 
enquiry was held under orders of the Government, in which 
Joint Controller Health Services, Bastar, submitted his report 
D dated 11.3.1998 with the finding that there was no negligence 
on the part of the surgeons. 
5. It appears that the police did not file charge sheet, and 
the complainant (respondent) filed criminal complaint before 
E the Chief Judicial Magistrate, Jagdalpur, making allegations 
of commission of murder against the appellants. Said case 
was registered as Criminal Complaint case No. 954 of 2000. 
The appellants moved an application on 18.10.2001 (No. 889 
of 2002) alleging that prosecution against them is not 
F maintainable without sanction as required under Section 197 
Cr.P.C. Said application was rejected by
the Magistrate vide 
order dated 16.3.2002, against which appellants filed criminal 
revision, but no relief is granted by the High Court and the same 
was disposed of summarily without any observation. 
G Aggrieved by order of the High Court, this appeal is filed 
through special leave before us. The respondent, even after 
service of notice, did not turn up. 
6. We have heard learned counsel for the parties and 
H perused the papers on record.
DR. (SMT.) MANORAMATIWARI v. SURENDRANATH RAI 439 
[PRAFULLAC. PANT, J.] 
7. From the papers on record it appears that the A 
respondent, after his daughter developed abdomen pain, firstly 
took her to a nursing home run by one Dr. Dulhani on 4.6.1997. 
There she remained admitted for two days and underwent 
surgery of appendix. However, after her discharge, she again 
developed stomach pain on 8.6.1997, whereafterthe patient B 
was treated by one Dr. Bansal. Thereafter, in earlier round the 
patient was taken to Maharani Hospital and one Dr. (Smt.) 
Gupta treated the patient, and discharged her on 14.6.1997. 
However Miss Tapsi Rai (patient) did not get relief anq was 
taken to MMI Hospital in Raipur. In said hospital the medical C 
officers opined that surgery could be done only after pain gets 
subsided. On 23.6.1997 patient was again taken to Maharani 
Hospital where she was admitted for abdominal pain and was 
discharged on 29.6.1997 with the advice that if appendix is to 
D 
be removed, the same would be done after six weeks. On 
4.8.1997, the patient again complained of pain in her abdomen, 
and consulted Dr. (Smt.) Gupta, who told that the pain did not 
relate to appendix, and gave some medicines. When the 
condition of the patient did not improve on the same day, in 
E 
the night the patient was again taken to Maharani Hospital 
where one Dr. Jha, who was on duty, admitted the patient, and 
called Dr. Pradeep Pandey (appellant No. 3), who attended 
the patient at
midnight. It was decided that the surgery would 
be done next morning. Next day, at about 9.30 a.m., Dr. 
F 
Pradeep Pandey, during surgery, called Dr. (Smt.) Manorama 
Tiwari, Gynecologist (appellant No. 1) and she called Dr. B.F~. 
Kawdo, Surgeon and Chief Medical Officer (appellant No. 2). 
However, the doctors could not save the patient, who ultimately 
d~. 
G 
8. It is argued before us on behalf of the appellants that 
the appellants were discharging their public duties and have 
committed no negligence on their part. It is further argued that 
assuming but not admitting there was negligence in 
H
440 
SUPREME COURT REPORTS 
[2015] 9 S.C.R. 
A discharging the public duties, in view of the provisions of 
Section 197 Cr.P.C., the prosecution against the appellants is 
not maintainable without sanction from the Government. 
9. Relevant provision relating to sanction in Section 197 
B Cr.P.C. reads as under: -
c 
D 
E 
F 
G 
H 
"Section 197 - Prosecution of Judges and public 
servants-(1) 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 save as otherwise provided in 
the Lokpal and LokayuktasAct, 2013 
(a) in the case of a person who is employed or, as the case 
may be, was at the time of commission of the alleged offence 
employed, in connection with the affairs of the Union, of the 
Central Government; 
(b) in the case of a person who is employed or, as the case 
may be, was at the time of commission of the alleged offence 
employed, in connection with the affairs of a State, of the State 
Government: 
Provided that where the alleged offence was committed by 
a person referred to in clause (b) during the period while a 
Proclamation issued under clause ( 1) of Article 356 of the 
Constitution was in force in a State, clause (b) will apply as if 
forthe
expression "State Government" occurring therein, 
the expression "Central Government" were substituted. 
Explanation.-for the removal of doubts it is hereby 
declared that no sanction shall be required in case of a 
public servant acCU$ed of any offence alleged to have been
DR. (SMT.) MANORAMA TIWARI v. SUREN ORA NATH RAI 441 
[PRAFULLA C. PANT, J.] 
coml\litted under section 166A, section 1668, section A 
354, section 354A, section 3548, section 354C, section 
3540, section 370, section 375, section 376, section 
376A, section 376C, section 3760 or section 509 of the 
Indian Penal Code (45 of 1860). 
(2) 
(3) 
(3A) 
(38) 
(4) The Central Government or the State Government, as 
the case may be, may determine the person by whom, 
B 
c 
the manner in which, and the offence or offences for which, o 
the prosecution of such Judge, Magistrate or public servant 
is to be conducted, and may specify the Court before which 
the trial is to be held." 
10. A three-Judge Bench of this Court in Jacob Mathew E 
v. State of Punjab and another1, has laid down guidelines 
for prosecution of medical professionals as under: -
"50. As we have noticed hereinabove that the cases of 
doctors (surgeons and physicians) being subjected to 
F 
criminal prosecution are on an increase. Sometimes such 
prosecutions are filed by private complainants and 
sometimes by the police on an FIR being lodged and 
cognizance taken. The investigating officer and the private 
complainant cannot always be supposed to have G 
knowledge of medical science so as to determine whether 
the act of the accused medical professional amounts to a 
rash or negligent act within the domain of criminal law 
1 (2005) 6 sec 1 
H
p 
~) 
c 
f) 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2015] 9 S.C.R. 
under Section 304-A IPC. The criminal process once 
initiated subjects the medical professional to serious 
embarrassment and sometimes harassment. He has to 
seek bail to escape arrest, which may or may not be 
granted to him. At the end he may be exonerated by 
acquittal or discharge but the loss which he has suffered 
to his reputation cannot be compensated by any 
standards. 
51. We may not be understood as holding that doctors 
can never be prosecuted for an offence of which rashness 
or negligence is an essential ingredient. All that we are 
doing is to ernphasise the need for care and caution in 
the interest of society; for, the service which the medical 
profession renders to human beings is probably the 
noblest of all, and hence there is a need for protecting 
doctors from frivolous or unjust prosecutions. Many a 
complainant prefer recourse to criminal process as a tool 
for pressurising the medical professional for extracting 
uncalled for or unjust compensation. Such malicious 
proceedings have to be guarded against. 
52. Statutory rules or executive instructions incorporating 
certain guidelines need to be framed and issued by the 
Government of India and/or the State Governments in 
consultation with the Medical Council of India. So long as 
it is not done, we propose to lay down certain guidelines 
for the future which should govern the prosecution of 
doctors for offences of which criminal
rashness or criminal 
negligence is an ingredient. A private complaint may not 
be entertained unless the complainant has produced 
prima facie evidence before the court in the form of a 
credible opinion given by another competent doctor to 
support the charge of rashness or negligence on the part 
of the accused doctor. The investigating officer should, 
before proceeding against the doctor accused of rash or
DR. (SMT.) MANORAMATIWARI v. SURENDRANATH RAI 443 
[PRAFULLAC. PANT, J.] 
negligent act or omission, obtain an independent and A 
competent medical opinion preferably from a doctor in 
government service, qualified in that branch of medical 
practice who can normally be expected to give an impartial 
and unbiased opinion applying the Bo/am2 test to the facts 
collected in the investigation. A doctor accused of rashness. B 
or negligence, may not be arrested in a routine manner 
(simply because a charge has been levelled against him). 
Unless his arrest is necessary for furthering the 
investigation or for collecting evidence or unless the 
investigating officer feels satisfied that the doctor C 
proceeded against would not make himself available to 
face the prosecution unless arrested, the arrest may be 
withheld." 
11. In Matajog Dubeyv. H. C. BharP, a Constitution Bench D 
of this Court in the matters of prosecution of public servants 
has held as under: -
"15 ......... Public servants have to be protected from 
harassment in the discharge of official duties while E 
ordinary citizens not so engaged do not require this 
safeguard. It was argued that Section 197, Criminal 
Procedure Code vested an absolutely arbitrary power in 
the Government to grant or withhold sanction at their sweet 
will and pleasure, and the legislature did not lay down or F 
even indicate any guiding principles to control the exercise 
of the discretion. There is no question of any discrimination
between one person and another in the matter of taking 
proceedings against a public servant for an act done or 
purporting to be done by the public servant in the discharge G 
of his official duties. No one can take such proceedings 
without such sanction ............. " 
' Bolam v. Frein Hospital Management Committee, (1957) 1 WLR 582: 
(1957) 2 All ER 118 (QBD) 
' AIR 195fi SC 44 
H
444 
SUPREME COURT REPORTS 
[2015) 9 S.C.R. 
A 
12. In view ofthe above settled position of law, we are of 
the opinion that in the present case, the High Court has erred 
in law in dismissing the criminal revision filed by the appellants 
and affirming the order of the Magistrate rejecting their 
application as to maintainability of the criminal complaint 
B without sanction from the State Government. In our opinion, it 
is a clear case where appellants were discharging their public 
duties, as they were performing surgery on the patient in the 
Government hospital. It is not disputed that the appellants were 
the Medical Officers in the Government Hospital. As such, the 
C criminal prosecution of the appellants initiated by the 
respondent (complainant) is not maintainable without the 
sanction from the State Government. That being so, we are 
inclined to allow this appeal. 
D 
13. Accordingly, the appeal is allowed. The impugned 
order passed by the High Court dismissing the criminal 
revision, and the one passed by the Magistrate on 16.3.2002 
rejecting the application under Section 197 Cr.P.C., are set 
aside. The application under Section 197 Cr.P.C., moved by 
E the appellants before the trial court, stands allowed. 
/ 
Nidhi Jain 
Appeal allowed.