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2005 DIGILAW 93 (PAT)

Manoj Kumar Jha v. State of Bihar

2005-01-31

body2005
ORDER 1. Heard learned counsel for the petitioner and the learned counsel for the State. The O.P. No.2 complainant, did not appear, despite service of notice. 2. Petitioner has filed this petition u/s 482 Cr. P.C. praying for quashing the order dated 10.3.2004 passed in Complaint Case No. 48 of 1989 by Judicial Magistrate, 1st class, whereby cognizance of offence u/s 304A I.P.C. has been taken against the petitioner and some other doctors. 3. The case of the complainant who happens to be an advocate was that he took his friend Om Prakash, (the deceased) who was also an advocate to Bhagalpur Medical College & Hospital for operation of hydrocele and that he was admitted in the unit of co-accused Dr. S.N. Jha on Bed No.5. About the petitioner, it was alleged that at the time of admission, he had persuaded the complainant and the patient (deceased) for getting the operation done in the private clinic of said Dr. S.N. Jha but when they insisted for getting the operation done in the Hospital, the petitioner had become annoyed. It is further alleged that the operation was conducted on 24.12.1988 and the deceased had entered into the O.T. hale and hearty at 11.30 A.M. and that when he was not brought out till 1 O'clock, the complainant became anxious and that at that time some of the staff of the hospital came out of the O.T. in confounded state. The complainant peeped into the O.T. and he saw that Dr. S.N. Jha had administered anaesthesia to the patient (deceased) and that thereafter he also left the O.T. It was also alleged that before going into the O.T. in presence of Dr. S.N. Jha, one Nurse had also administered one injection to the patient and then he had been taken into the O.T. The complainant further alleged that the doctors left the O.T. and he went there and found that the patient was dead. The dead body of the deceased was handed over to the deceased's family without any P.M. and the dead body was cremated by deceased's family members. 4. Learned counsel for the petitioner submits that the two witnesses were examined during the enquiry in the court and on consideration of materials and the evidence of witnesses, cognizance of the offence was taken. 4. Learned counsel for the petitioner submits that the two witnesses were examined during the enquiry in the court and on consideration of materials and the evidence of witnesses, cognizance of the offence was taken. During hearing, learned counsel submitted that in this case, the complaint has been filed for causing death by rash and negligence. It is submitted that in the whole complaint petition nothing specific is alleged against the petitioner as to any overt acts done by the petitioner during the course of operation. He further submitted that the only allegation on he petitioner is that he had tried to persuade the complainant and the deceased for getting the operation done in the private clinic of Dr. S.N. Jha in whose ward the patient (deceased) had been admitted and who had headed the operation. He continued to submit that even if it be accepted for argument sake that the petitioner had tried to persuade the complainant for taking the patient to the private clinic of Dr. S.N. Jha for operation this will not form part of or indicate or constitute the alleged negligence committed during operation, carried on in the hospital. Learned counsel further submitted that admittedly operation was being done in the Hospital and in the ward of Dr. S.N. Jha, H.O.D. who had headed the operation and the petitioner had assisted him. Hence, the operation was being done in course of performance of official duty. 5. Learned A.P.P. was not able to controvert the submission of the petitioners counsel that the operation was being done in course of official duty. 6. Petitioner's counsel further argued that since operation was being done in course of performance of official duty and the petitioner being a doctor under the employment of the Government liable to be removed by the orders of the Governor is protected under the provisions of Section 197 Cr. P.C. with respect to his acts performed in the performance of official duty. Section 197 Cr. P.C. prohibits the prosecution of public servants with regard to any offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty, without the previous sanction of the Union or the State Government in whose employment the public servant is. In this case, any sanction has not been produced. 7. P.C. prohibits the prosecution of public servants with regard to any offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty, without the previous sanction of the Union or the State Government in whose employment the public servant is. In this case, any sanction has not been produced. 7. During hearing learned A.P.P. was not able to show that sanction has been procured for prosecution. 8. Thus, hearing both sides and considering that any specific allegation of any rashness or negligence committed by the petitioner during operation is not there in the complaint petition and any sanction for prosecution u/s 197 Cr. P.C. has also not been produced, the taking of cognizance and then prosecuting the petitioner for the alleged offence would be an abuse of process of the Court. In such view of the matters, there is no reason to allow the proceedings to continue and hence, the impugned order of cognizance and the consequential prosecution is hereby quashed. 9. In the result, this petition is allowed.