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2005 DIGILAW 909 (RAJ)

State of Rajasthan v. Dr. (SMT. ) Pushpa Khilnani

2005-03-24

H.R.PANWAR

body2005
JUDGMENT 1. - By the instant revision petition, the State of Rajasthan has challenged the order dated 22.1.2001 passed by Chief Judicial Magistrate, Rajsamand (for short the trial court' hereinafter) whereby the trial court declined to review or recall the order dated 13.6.1997 passed by it discharging the respondent from the offence under section 304-A I.P.C. Aggrieved by the order impugned dated 22.1.2001, the State has filed the instant revision petition. 2. The facts giving rise to the instant revision petition are that a crime report was lodged against respondent being FIR No. 894/1996, dated 27.12.1996, inter alia, alleging therein that respondent being a Surgeon in Government Hospital, Rajsamand, operated Smt. Mangi Tel; and due to negligency of the respondent, Smt. Mangi Teli died soon after the operation. After investigation, police filed a challan against respondent for the offence under section 304-A, I.PC. The learned trial court took the cognizance of the offence. The respondent is a public servant. An application on behalf of respondent was moved to the effect that no sanction has been accorded as envisaged under section 197 CrP.C. and in absence of sanction, the cognizance was bad and, therefore, the respondent sought discharge from the case. 3. By order dated 13.6.1997, the trial court held that the act alleged to have been done by the respondent was while discharging official duty as a public servant and, therefore, no cognizance of the offence can be taken against the respondent without there being a valid sanction under section 197 Cr P.C. The order dated 13.6.1997 was not challenged by the State and allowed it to become final. However, on 11.10.2000, almost after more than 3 years from the order discharging the accused-respondent, an application was filed on behalf of the petitioner State seeking recalling of the order dated 13.6.1997 discharging the respondent on the ground that after the respondent having been discharged by the trial court, the State of Rajasthan has accorded sanction under section 197 Cr.PC. to prosecute the respondent. The trial court by order impugned, dismissed the application filed by the State seeking recalling of the order dated 13.6.1997. Hence, the instant revision petition. 4. I have heard learned Public Prosecutor for the State and the learned counsel appearing for the respondent. 5. to prosecute the respondent. The trial court by order impugned, dismissed the application filed by the State seeking recalling of the order dated 13.6.1997. Hence, the instant revision petition. 4. I have heard learned Public Prosecutor for the State and the learned counsel appearing for the respondent. 5. It is contended by the learned Public Prosecutor that after the respondent having been discharged from the offence as noticed above, the State has accorded sanction to prosecute her by order dated 16.3.2000 and, therefore, the trial court fell in error in refusing to recall the order dated 13.6.1997 discharging the respondent. 6. Learned counsel for the respondent submits that though in view of the language of section 197 Cr.PC., the sanction has to be taken before the cognizance of offence has been taken. Learned counsel for the respondent has relied on a decision of Hon'ble Supreme Court in Baijnath v. State of M.P., AIR 1966 SC 220 , wherein it was observed as under:- 'It appears that in fact a sanction under section 197 of the Code of Criminal Procedure was obtained but as this was done after cognizance had been taken, it was of no use. It is clear from the language of section 197 that the sanction has to be taken before cognizance has been taken. This indeed is not disputed. It is also clear from the facts that cognizance of the case had been taken on April 6, 1953 when witnesses were summoned on future date so that the matter might be enquired into by the Magistrate." 7. Learned counsel appearing for the respondent further submits that there is no provision of Code of Criminal Procedure empowering the criminal court or the trial curt to review or recall the order. He has relied on a decision of the Hon'ble Supreme Court in Adalat Prasad v. Rooplal Jindal & Ors., 2004(2) WLC SC (Cri.) 788; JT 2004 (7) SC 243 . He has also relied on a decision of this Court in Narendra Nalwaya v. Ishwar Lal, 2005 (3) RDD 238 '(Raj.) . 8. He has relied on a decision of the Hon'ble Supreme Court in Adalat Prasad v. Rooplal Jindal & Ors., 2004(2) WLC SC (Cri.) 788; JT 2004 (7) SC 243 . He has also relied on a decision of this Court in Narendra Nalwaya v. Ishwar Lal, 2005 (3) RDD 238 '(Raj.) . 8. By order dated 13.6.1997, the trial court held that the act of respondent has been protected by section 197 Cr.P.C. as she being a public servant, while acting or purporting to act in discharging of her official duty, she operated the deceased and therefore, without there being a previous sanction of the State to prosecute her as envisaged under section 197 Cr.P.C., no court shall take cognizance of any offence committed by a public servant while acting or purporting to act in the discharge of his/her official duty. On the date of discharging the respondent vide order dated 13.6.1997, there was no previous sanction of the Government to prosecute the respondent. The expression "previous sanction" of the State Government or the Central Government as the case may be, means the sanction to prosecute has to be accorded by the State Government prior to taking of cognizance of the offence. In Baijnath's case (supra), the sanction was obtained but it was done after the cognizance had been taken and, therefore, the Apex Court held that such a sanction was of no use and, therefore, on the relevant date of order taking cognizance, there was no sanction and the proceedings were bad. In Adalat Prasad's case (supra), the Apex Court held that the Criminal Procedure Code does not contemplate a review of an order; hence in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking section 482 of the Code.In view of the decision of the Hon'ble Supreme Court in Adalat Prasad's case (supra), I do not find any error in the order impugned declining to review or recall the order impugned.Consequently, there is no merit in the revision petition. The same is accordingly dismissed. The stay petition also stands dismissed.Revision dismissed. *******