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2001 DIGILAW 531 (PAT)

Madan Lal Agrawal v. State Of Bihar

2001-07-05

P.K.DEB

body2001
Judgment 1. This revision petition has been preferred against the order dated 29.3.2001 passed by the Chief Judicial Magistrate, Gaya in Complaint Case No. 108/1985 (T.R. No. 11/2001) whereby and where-under the petitioners prayer for discharge on the ground of lack of sanction under Section 197 of the Code of Criminal Procedure has been rejected. 2. Farhad Ali, the son of the complainant Opposite Party No. 2 was brought at the ANMMCH, Gaya and admitted there at about 7.45 p.m. on the date of incident. Dr. M.L. Agarwal i.e. the petitioner was on emergency duty in the department of surgery but he was found absent in the emergency ward and then a call was made to him and he reached to Hospital at 8.30 p.m. after examining the injured he was put under Oxygen etc. and emergency call was given to Dr. R. Kumar, the Orthopaedic expert, in department of Orthopaedics. The other Surgeon on emergency duty was Dr. Indreshwar Tiwari, who arrived at the Hospital at 12.30 hrs. in the night. The injured Farhad Ali could not recover and died. It was alleged that due to negligence and dereliction of duties of the doctors the life of Farhad Ali could not be saved. A petition was made by the complainant-Opposite Party before the Commissioner, Magdh Range, who by order set up a Medical Board and the Medical Board found negligence and dereliction of duties of all the doctors as mentioned above and then the Opposite Party No. 2 filed a complaint before the Chief Judicial Magistrate, Gaya being complaint case No. 108 of 1985. After holding an enquiry under Section 202 of the Cr PC the complaint was dismissed holding that no case could be made out under Sections 302/304-A of the Indian Penal Code. Against such dismissal a revision petition was preferred before this Court which was rejected by a non-speaking order. The complainant then went to Apex Court wherein the order of this court was set aside and it was sent back to this Court for reconsideration of the revision petition filed being Cr. Revision No. 792 of 1989. A Bench of this Court vide Annexure-A in the counter affidavit had allowed the revision petition and found that materials are there on factual aspects to take cognizance in the case. Revision No. 792 of 1989. A Bench of this Court vide Annexure-A in the counter affidavit had allowed the revision petition and found that materials are there on factual aspects to take cognizance in the case. Accordingly cognizance was taken against the petitioner and others under Section 304-A of the IPC and other serious provisions of the IPC including that of Section 302, IPC. When the matter came up for framing of charge then the petitioner filed a petition that he should be discharged as there is no sanction for prosecution as contemplated under Section 197(1) of the Cr PC. By the impugned order the learned Chief Judicial Magistrate, Gaya has rejected the prayer. Firstly on the ground that such plea was available to the petitioner when the matter was moved before the High Court and also before the Apex Court and when no such plea was taken the petitioner is debarred from taking such plea at the belated stage. More so when there is a specific direction by this Court in the earlier revision petition to conclude the trial within three months. Regarding sanction also by referring to some judgments of this Court the learned CJM held that no sanction under Section 197(1), Cr PC is necessary in the case. 3. Mr. Rana Pratap Singh, Senior Advocate appearing for and on behalf of the petitioner has submitted that the learned CJM has committed error of law in holding that no sanction is necessary. When admittedly the petitioner is a public servant then sanction is a must, when the whole allegation is on the basis of negligence/dereliction of duty as the Assistant Professor of Surgery at the relevant time. The first allegation was that although the petitioner was on duty in the emergency ward on the relevant date, he was found absent and when call being made he appeared after one and half hour and that too, while treating the injured he was negligent when he did not see about the proper utilisation of Oxygen pump etc. It is now the settled principle of law that when the offence alleged has got a direct nexus with the duty to be performed by the public servant then sanction is a must under Section 197(1) of the Cr PC. It is admitted from the other side also that at the relevant time the petitioner was a public servant. It is now the settled principle of law that when the offence alleged has got a direct nexus with the duty to be performed by the public servant then sanction is a must under Section 197(1) of the Cr PC. It is admitted from the other side also that at the relevant time the petitioner was a public servant. But regarding the nexus it has been stated that because of negligence of the doctor if patient dies then definitely it cannot be said that such negligence can be a part or having nexus with the duty cast upon him. I am not convinced with such submission. On the basis of it the allegation against the petitioner it is of negligence/dereliction of duty and this Court while deciding the revision petition earlier had held that such action or negligence/dereliction of duty or inaction of the petitioner and the other accused also constitute a criminal offence but no where it is there that the allegation which had been made are having no nexus with the duty cast upon the petitioner as a public servant. In that way definitely sanction is necessary under Section 197(1) of the Cr PC. In this respect the decision of the Supreme Court are very clear. Reference may be made to 1998 (1) SCC 205 : 1998 (1) East Cr C 461 (SC), Suresh Kr. Bhikham Chand Jain V/s. Pandey Ajay, 2000 (8) SCC 500 ; Abdul Wahab Ansari V/s. State of Bihar and, 2000 (5) SCC 15 : 2000 (2) East Cr C 604 (SC); Gouri Shankar Prasad V/s. State of Bihar. It has been enunciated as a principle by the Apex Court that the test to determine as to whether the alleged action which constituted an offence has a reasonable and rational nexus with the official duties to be discharged by the public servant or not. Here I have already said that all allegations are made having direct nexus with the official duties of the petitioner. In that way sanction is definitely necessary under Section 197(1) of the Cr PC and for lack of sanction cognizance against the petitioner is definitely bad. 4. Here I have already said that all allegations are made having direct nexus with the official duties of the petitioner. In that way sanction is definitely necessary under Section 197(1) of the Cr PC and for lack of sanction cognizance against the petitioner is definitely bad. 4. Learned Counsel for the Opposite Party No. 2 has strenuously argued that this point of sanction has been raised for the first time by the petitioner when he had the opportunity to raise so when the matter was being fought before this court and before the Apex Court and when against the order passed by this Court in the criminal revision after being remanded by the Apex Court the petitioner went in SLP before the Supreme Court but still then this point was not raised. I do not find much force in the submission. Once it was held by the Apex Court that the plea of sanction can be raised only at the stage of framing of charge and not after that. Two of the judgments as referred above by the Apex Court had now come to the finding that the plea of sanction under Section 197(1) of the Cr PC touches the jurisdiction of the Court and as such, the plea can be taken at any stage. Here in the present case, such plea has been taken at the time of framing of charge and I do not find any impediment in not entertaining such plea at that stage. Regarding non-taking of this plea before this Court on earlier occasion or before the Apex Court has got no bearing on the face of it. Dismissal was recorded initially by the Magistrate and against that dismissal order revision was preferred by the complainant. At that stage the petitioner had no opportunity to say as contemplated under the proviso of Section 398 of the Cr PC. So the question does not arise of non-taking of plea by the petitioner. Moreover in the Apex Court also after the dismissal was confirmed by this Court the Apex Court had just remanded it as the dismissal was recorded by a non-speaking order. Before this Court the only factual aspects were considered after remand by a Bench of this Court. So the question does not arise of non-taking of plea by the petitioner. Moreover in the Apex Court also after the dismissal was confirmed by this Court the Apex Court had just remanded it as the dismissal was recorded by a non-speaking order. Before this Court the only factual aspects were considered after remand by a Bench of this Court. The plea of Section 197, Cr PC was neither pleaded nor adjudicated and such plea was not to be raised also from the side of the petitioner as he had legally no opportunity to raise so as contemplated under the proviso of Section 398 of the Cr PC. In my view, the plea has been raised on a right point of time and when lack of sanction touches on the jurisdiction then such plea can be raised as observed by the Apex Court at any time of the proceeding. On legal aspect regarding sanction under Section 197(1), Cr PC. I find force that cognizance is bad against the petitioner for lack of sanction.Hence the impugned order is set aside and the criminal proceeding is quashed for lack of sanction against the petitioner alone arising out of complaint case No. 108/1985 (T.R. No. 118/1988).