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2000 DIGILAW 277 (JK)

Rafiqa Akhtar (Dr. ) v. Ishfaq Hussain (Dr. )

2000-11-27

O.P.SHARMA

body2000
1. Chief Judicial Magistrate, Srinagar took cognizance of offence punishable u/s 304-A of Ranbir Penal Code (hereinafter RPC) on a complaint filed by the respondent and by order dated 19-12-1984 issued process against the petitioner. The allegation against the petitioner is that she refused to attend and treat a patient who had been operated in Bone and Joint Hospital Barzulla on December 8, 1984. Because of her refusal to examine and treat the patient, the latter succumbed to the injuries. This according to the complaint was a criminal negligence on the part of the petitioner who being on duty was under an obligation to examine, advice and treat the deceased who was profusely bleeding. As per facts stated in the petition of complaint, the deceased Mohd Shaban was admitted in Bone and Joint Hospital on 06-12-1984. The deceased was operated by Doctor Farooq Ashai who was head of Department of Orthopaedics on December 8, 1984. While the patient was still in the Post-Operative recovery room, his condition became serious and Doctor G.M. Wani, Assistant Prof. Bone and Joint Hospital directed the complainant to call Doctor Farooq Ashai. After examination of deceased, Dr. Farooq Ashai decided to operate the deceased once again to prevent bleeding. For this, services of Anesthetist was required and, therefore, the petitioner was summoned. However, even though she reached the Hospital in time, but refused to handle the case even though the deceased was profusely bleeding. The petitioner, it is alleged, refused to administer anesthesia in the absence of Anesthetist Resident who was not available. It is further alleged that the petitioner deliberately avoided to discharge her duty as Anesthetist and left the Hospital without examining the patient. Even though Dr. Abdul Hamid Darzi begged her to at least examine the patient who had been shifted to operation theatre and any delay in the operation may result in his death. Later on Doctor Saleema Kakroo Anesthetist posted in the Hospital came. But she also wanted the presence of Dr. Rafiqa because of the poor condition of the deceased. On her request the petitioner came and the patient was ultimately operated, but by that time, the patient had gone into shock and later expired. All these things have happened between 4.45 PM to 9.30 PM on 08-12-1984. 2. But she also wanted the presence of Dr. Rafiqa because of the poor condition of the deceased. On her request the petitioner came and the patient was ultimately operated, but by that time, the patient had gone into shock and later expired. All these things have happened between 4.45 PM to 9.30 PM on 08-12-1984. 2. It is thus an admitted case of the complainant that the petitioner was summoned to attend the emergency and arrived at 4.30 PM. She however, refused to administer anesthesia to the patient in the absence of the Anesthesia Resident. After she had left Doctor Saleema Kakroo came at 6.30 and on her request the petitioner came and the patient was operated at 7.30 PM in her presence. He however, died at 9.30. PM. 3. The Chief Judicial Magistrate took cognizance of the case and issued process against the petitioner. The order summoning the petitioner and taking cognizance of the offence u/s 304-A RPC is challenged on the ground (i) that the cognizance of the offence could not have been taken without sanction required u/s 197 of Cr. P.C. and (ii) that commission of offence punishable u/s 304-A RPC is not disclosed from the facts stated in the complaint. 4. The contention of Mr. Shah that the respondent having admitted that the petitioner was on duty, but refused to attend, advice and treat the patient, the cognizance could not be taken unless the mandate of section 197 Cr. P.C. was complied. Her action in declining to attend and treat the patient in the absence of Anesthesia Resident, it is argued was an official act in discharge of her duty, and whether her refusal was justified or not can be appreciated by the court only, after the competent authority accords sanction to her prosecution. Not otherwise. Mr. Qadri, learned Senior AAG argued that the refusal to treat a patient by a Doctor on duty is not an act done in discharge of the official duty and, therefore, no sanction is necessary. 5. As noticed above, the moment, the petitioner was first called to attend the Hospital around 4.30 PM and she reached there by 4.45 PM on December 8, 1984, she however, insisted upon the presence of Anesthesia Resident before attending the patient in Operation Theatre. When Doctor Saleema Kakroo wanted her assistance, she again returned and the patient was operated. 5. As noticed above, the moment, the petitioner was first called to attend the Hospital around 4.30 PM and she reached there by 4.45 PM on December 8, 1984, she however, insisted upon the presence of Anesthesia Resident before attending the patient in Operation Theatre. When Doctor Saleema Kakroo wanted her assistance, she again returned and the patient was operated. The question is whether her refusal to treat the patient in the absence of Anaesthesia Resident is an act in discharge of her official duty. In my opinion it is an official act in view of the law laid down in Abdul Wahab Ansari Vs. State of Bihar 2000 AIR SCW 3725 hold as under:- It is now well settled by the Constitution Bench decision of this court in Matajog Dobey Vs. H.C. Bhari, (1995) 2 SCR 925: (AIR 1956 SC 44; 1955 Cri LJ 140) that in the matter of grant of sanction under Section 197 of the Code of Criminal Procedure the absence alleged to have been committed by the accused must have something to do, or must be related in some manner, with the discharge of official duty. In otherwords, there must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable claim, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty. In the said case it had been further held that where a power is conferred or a duty imposed by statute or otherwise, and there is nothing said expressly inhibiting the exercise of the power or the performance of the duty by any limitations or restrictions, it is reasonable to hold that it carries with it the power of doing all such acts or employing such means as are reasonably necessary for such execution, because it is a rule that when the law commands a thing to be done, it authorizes the performance of whatever may be necessary for executing its command. This decision was followed by this Court in Suresh Kumar Shikamchand Jain™s case, (1998) 1 SCC 205; (1983 AIR SCW 544: AIR 1998 SC 152:1998 Cri. LJ 1242 (and in a recent judgment of this Court) in the case of Gauri Shankar Prasad Vs. This decision was followed by this Court in Suresh Kumar Shikamchand Jain™s case, (1998) 1 SCC 205; (1983 AIR SCW 544: AIR 1998 SC 152:1998 Cri. LJ 1242 (and in a recent judgment of this Court) in the case of Gauri Shankar Prasad Vs. State of Bihar, (2000) 5 SCC 15: (2000 AIR SCW 3135). The aforesaid case has full force even to the facts of the present case inasmuch as in the said case, the Court had observed (para 14 of AIR SCW): It is manifest that the appellant was present at the place of occurrence in his official capacity as Sub-Divisional Magistrate for the purpose of removal of encroachment from Government land and in exercise of such duty, he is alleged to have committed the acts which from the gravamen of the allegations contained in the complaint lodged by the respondent. In such circumstances, it cannot but he held that the acts complained of by the respondent against the appellant have a reasonable nexus with the official duty of the appellant. It follows, therefore, that the appellant is entitled to the immunity from criminal proceedings without sanction provided under section 197 Cr. P.C.� It is not necessary for us to multiply authorities on this point and bearing in mind the ratio of the aforesaid cases and applying the same to the facts of the present case as indicated in the complaint itself, we have no hesitation to come to the conclusion that the appellant had been directed by the Sub-Divisional Magistrate to be present with police force and remove the encroachment in question and in course of discharge of his duty to control the mob, when he had directed for opening of fire, it must be held that the order of opening of fire was in exercise of the power conferred upon him and the duty imposed upon him under the orders of the Magistrate and in that view of the matter the provisions of Section 197(1) applies to the facts of the present case. Admittedly, there being no sanction, the cognizance taken by the Magistrate is bad in law and unless the same is quashed qua the appellant, it will be an abuse of the process of Court. Accordingly, we allow this appeal and quash the criminal proceeding, so far as the appellant is concerned.� 6. Admittedly, there being no sanction, the cognizance taken by the Magistrate is bad in law and unless the same is quashed qua the appellant, it will be an abuse of the process of Court. Accordingly, we allow this appeal and quash the criminal proceeding, so far as the appellant is concerned.� 6. The facts of this case do not leave any doubt that the petitoner had acted in discharge of her official duty; whether her action is justified or not is a different matter, but no cognizance could be taken without sanction of the Government in terms of section 197 Cr.P.C. 7. The next question is whether from the facts disclosed in the petition of complaint commission of offence u/s 304-A RPC is made out. This section reads as under:- 304-A Causing death by negligence.- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine. Provided that where the death is caused by rash or negligent act by a person driving a motor vehicle without holding a driving licence, the minimum imprisonment under this section shall be two years.� 8. Section 32 of the Ranbir Penal Code defines an act as under:- 32. Words referring to acts include illegal omission.- In every part of this Code, except where a contrary intention appears from the context, words which refer to acts done extend also to illegal omissions.� So it includes an illegal omission to act in a particular manner. The complainant has not placed on record the postmortem report of the deceased. It appears the postmortem was not conducted in the absence of which cause of death cannot be determined. Whether cause of death was due to excessive bleeding or lack of post-operative care or the negligence of the Surgeon are all questions of fact. Since the deceased was successfully operated, but died two hours after the operation, it cannot be said with certainty that the refusal of the petitioner to discharge her duty as an Anesthesia has not "something to do or was not related in some manner with the discharge of her official duty. Since the deceased was successfully operated, but died two hours after the operation, it cannot be said with certainty that the refusal of the petitioner to discharge her duty as an Anesthesia has not "something to do or was not related in some manner with the discharge of her official duty. As a Doctor being Anesthetist, it was the duty of the petitioner to assist the surgeon in the operation her refusal to do so cannot be segregated because she may have her justification not to act in the manner suggested by the surgeon. It is in this view of the matter that sanction u/s 197 Cr. P.C. was necessary before cognizance of the complaint could be taken u/s 190 of Cr.P.C. In view of the above, this petition is allowed and the proceedings arising out of the complaint filed by the respondent against the petitioner hi the court of Chief Judicial Magistrate, Srinagar are quashed.