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Rajasthan High Court · body

2007 DIGILAW 589 (RAJ)

Narendra Pathak v. Dr. B. Sharda

2007-03-16

R.S.CHAUHAN

body2007
Honble CHAUHAN, J.–This petition challenges the Order dated 16.4.1999, passed by the Sessions Judge, Udaipur whereby the learned Judge had dismissed the revision petition filed by the petitioner. In the revision petition the petitioner had challenged the Order dated 10.11.1998, whereby the Additional Civil Judge (JD) and Judicial Magistrate No. 1, Udaipur (North) had accepted the negative Final Report filed by the police and had rejected the petitioners protest petition. (2). The brief facts of the case are that on 12.4.1996, the petitioners only son, Hitesh came down with fever and was suffering from stomachache. The petitioner took his son to the respondent No. 1. Dr. B. Sharda, for treatment. It was discovered that Harish was suffering from viral hepatitis. On 13.4.1996, Hitesh underwent some diagnostic tests. On 16.4.1996, Hitesh was admitted to the hospital. On 19.4.1996, Hitesh was discharged from the hospital. According to the respondent No. 1, Hitesh was normal, although his S.G.P.T. was 100 times higher than the normal. But still, the respondent No. 1 opined that it was ``normal. After bringing Hitesh home, his condition started deteriorating. On 20.4.1996, he was again taken to the house of respondent No. 1. Although the respondent No. 1 said the condition had worsened because of weakness, Hitesh was again admitted in the hospital. In the hospital, his condition worsened even further, doctors were called, blood was donated, but no one paid any heed to the patient. Around 3:00 AM, the doctors were called, but no one attended on the patient. In the morning the petitioner went to the residence of the respondent No. 1 and told him about the shabby treatment being meted out to his son. Upon this, the respondent No. 1 allegedly told the petitioner ``to take his son somewhere else, in case he was not pleased with the respondents services. The petitioner went to Dr. Sarin, but he was ill. He, therefore, went to Dr. B.C. Kumawat. Dr. Kumawat immediately admitted Hitesh in the I.C.U. But even there no treatment was given to Hitesh. Therefore, the respondent No. 1 discharged Hitesh and referred him to an appropriate center for further treatment. The petitioner took his son to the Rajasthan Hospital at Ahmedabad. But the doctors there told him that the patients condition had deteriorated to the point of no return. Because of wrong diagnosis and wrong treatment, they would not be able to save Hitesh. The petitioner took his son to the Rajasthan Hospital at Ahmedabad. But the doctors there told him that the patients condition had deteriorated to the point of no return. Because of wrong diagnosis and wrong treatment, they would not be able to save Hitesh. Hitesh died on 22.4.1996. (3). The petitioner made various complaints to the higher authorities. He pointed out that the respondent No. 1 had given ``Metapor tablet to Hitesh, which is only a pain killer. In fact, the said tablet adversely affects the functioning of the liver. Since Hitesh was suffering from liver problem, by prescribing the said tablet, his conditioned was made worse. However, the higher authorities did not pay any heed to the petitioners complaint. Therefore, the petitioner filed a complaint before the Superintendent of Police, Udaipur. The said complaint was sent to the Police Station Hathipol. On 6.2.96, a FIR for offence under Section 304 A IPC was registered against the respondent No. 1. After investigation, however, the police submitted a negative Final Report. The learned Magistrate issued a notice to the petitioner, who thereupon filed the protest petition. (4). Vide order dated 10.11.1998, the learned Magistrate accepted the negative Final Report. Although the learned Magistrate concluded that in the circumstances of the case, the negligence of respondent No. 1 is writ large, but he could not be prosecuted, as he is a government doctor. During the course of the treatment he was working as the Unit In-charge of Pediatrics. Therefore, he comes under the definition of ``public servant. Under Section 197 of Criminal Procedure Code, the court cannot take any cognizance against the public servant without the prior sanction of the government. Since the government had not given any sanction against the respondent No.1, therefore, the learned Magistrate could not take any cognizance against him. Hence, the learned Magistrate dismissed the protest petition. (5). The petitioner subsequently filed a revision petition before the Sessions Judge, Udaipur challenging the order dated 10.11.1998. However, vide order 16.4.1999, the learned Judge has dismissed the revision petition and has upheld the order dated 10.11.98. Hence, this petition before this Court. (6). Mr. Pradeep Shah, the learned counsel for the petitioner, has vehemently argued that a travesty of justice is being done in the present case. Initially, the petitioner had approached the Consumer Forum for the redressal of his grievance against the respondent No. 1. Hence, this petition before this Court. (6). Mr. Pradeep Shah, the learned counsel for the petitioner, has vehemently argued that a travesty of justice is being done in the present case. Initially, the petitioner had approached the Consumer Forum for the redressal of his grievance against the respondent No. 1. But the learned Forum had declined to interfere in the matter. Thereafter, the petitioner filed the criminal complaint, hoping for some justice from the criminal court. But, even here, his cause has been jettisoned. Thus, he is left high and dry hoping for some justice from some corner. Thirdly, the official duty has to be performed with efficiency and diligence. Being negligent in the performance of ones official duty would not be protected by the armor of Section 197 of the Code. For, negligent act are not ``official acts. Fourthly, the petitioner cannot be prevented from seeking justice due to the omission committed by the State in not granting the requisite sanction. Fifthly, the court could itself have directed the State to grant the sanction. Lastly, the point about sanction need not have been considered at the initial stage of taking cognizance. At this stage the Court should only see if a ``prima facie case is made out or not. Hence, the learned Magistrate has over-stepped his jurisdiction. (7). On the other hand, Mr. Rakesh Arora, the learned counsel for the respondent No. 1 and the learned Public Prosecutor, Mr. Vishnu Kacchawah have raised a plethora of contentions; firstly, they have challenged the maintainability of the petitioner. According to the learned counsels, the present petition under Section 482 of the Criminal Procedure Code (henceforth to be referred to as `the Code, for short) is nothing but a second revision petition in the garb of a miscellaneous petition under Section 482 of the Code. Since Section 397 (3) bars a second revision petition, according to the learned counsels, the present petition is a subterfuge to escape the prohibition imposed by Section 397(3) of the Code. In order to support their contention, the learned counsels have relied upon the case of Kailash Verma vs. Punjab State Civil Supplies Corporation and Ano. (2005) 2 SCC 571 . (8). Secondly, Section 197 of the Code creates an absolute bar in case of prosecution of a public servant. In order to support their contention, the learned counsels have relied upon the case of Kailash Verma vs. Punjab State Civil Supplies Corporation and Ano. (2005) 2 SCC 571 . (8). Secondly, Section 197 of the Code creates an absolute bar in case of prosecution of a public servant. The said provision prohibits the Court from taking a cognizance of such offence that has been committed by a public servant in discharge of his official duty unless a sanction has been accorded by the appropriate government. Thirdly, the responded by the appropriate government. Thirdly, the respondent committed the alleged ``offence during the course of discharging his official duty as a medical doctor. Fourthly, the issue of sanction has to be considered at the threshold of taking cognizance. Fifthly, in the case of Jacob Mathew vs. State of Punjab & Ano. (2005) 6 SCC 1 = (2005(4) RLW 2790 (SC), the Honble Supreme Court has laid down guidelines for prosecution of medical professionals. The said guidelines have to be adhered to before a prosecution can be started against the respondent No. 1.In the present case the said guidelines have not been followed. Thus, they have supported the impugned order. (9). This case raises few legal issues before this Court: firstly, about the maintainability of the petition. Is the petition maintainable or is it hit by Section 397 (3) of the Code? Secondly, about the scope and ambit of Section 197 of the Code. What is an ``official duty? Was the act complained of done in discharge of ``official duty? Thirdly, is the grant of sanction a pre-requisite before cognizance can be taken against a public officer? Fourthly, should the issue of sanction be considered at the time of taking of the cognizance? Fifthly, can this Court under its inherent power under Section 482 of the Code direct the learned trial Court to take cognizance in the absence of the sanction? (10). Many of the these issues are no longer res integra as the Honble Supreme Court has elucidated upon them in catena of cases. In the case of Kailash Verma (supra), the Apex Court had clearly held, ``the power under Section 482 of the Criminal Procedure Code has to be exercised sparingly and such power shall not be utilized as a substitute for second revision. In the case of Kailash Verma (supra), the Apex Court had clearly held, ``the power under Section 482 of the Criminal Procedure Code has to be exercised sparingly and such power shall not be utilized as a substitute for second revision. Ordinarily, when a revision has been barred under Section 397 (3) of the Code, the complainant or the accused cannot be allowed to take recourse to revision before the High Court under Section 397 (1) of the Criminal Procedure Code as it is prohibited under Section 397(3) thereof. However, the High Court can entertain a petition under Section 482 of the Criminal Procedure Code when there is serious miscarriage of justice and abuse of the process of the Court or when mandatory provisions of law are not complied with and when the High Court feels that the inherent jurisdiction is to be exercised to correct the mistake committed by the revisional court. Similarly in the case of State Though Special Cell, New Delhi vs. Navjot Sandhu @ Afshan Guru & Ors. (2003) 6 SCC 641 while dealing with the scope of Section 482 of the Code, the Honble Supreme Court held as under: Section 482 CrPC starts with the words ``Nothing in this Code. Thus the inherent jurisdiction of the High Court under Section 482 can be exercised even when there is a bar under Section 397 or some other provisions of the Criminal Procedure Code. However, this power cannot be exercised if there is a statutory bar in some other enactment. If the order assailed is purely of an interlocutory character, which could be corrected in exercise of revisional powers or appellate powers, the High Court must refuse to exercise its inherent power. The inherent power is to be used only in cases where there is an abuse of the process of the Court or where interference is absolutely necessary for securing the ends of justice. The inherent power must be exercised very sparingly as cases which require interference would be few and far between. The most common case where inherent jurisdiction is generally exercised is where criminal proceedings are required to be quashed because they are initiated illegally, vexatiously or without jurisdiction. It must be remembered that the inherent power is not be resorted to if there is a specific provision in the Code or any other enactment for redress of the grievance of the aggrieved party. It must be remembered that the inherent power is not be resorted to if there is a specific provision in the Code or any other enactment for redress of the grievance of the aggrieved party. This power should not be exercised against an express bar of law in some other enactment. (11). Thus, Section 397(3) does not totally bar the exercise of the inherent power under Section 482 of the Code. But, the inherent power is to be used sparingly as the power is a vast one. Moreover, it is to be invoked only when there is a miscarriage of justice, or when the process of the Court is being abused or to give effect to an order passed under the Code. However, it cannot be used if there is a bar in any other law for the time being in force. (12). In the present case, the learned counsel for the petitioner has pleaded that a grave injustice is being done to the petitioner. He had filed a compliant against the respondent No. 1 before the Consumer Forum, which was dismissed. He then filed a complaint before the Superintendent of Police, which was registered as a FIR. However, the learned Magistrate has refused to take cognizance on the ground that the government has not granted any sanction for prosecution of respondent No. 1. Thus, even from the criminal Court, no justice has been done to the petitioner. (13). Justice is not determined by the perception of the parties. Justice has to be done in accordance with law and equity. Law and equity are not limitless. In case the law prescribes certain limits, justice can be done only within the said limits and not beyond them. Equity also follows the law. Therefore, to go beyond the limits is to do injustice. Thus, in the present case our perception of justice would be guided by the limits established by the law. (14). In case the law prescribes certain limits, justice can be done only within the said limits and not beyond them. Equity also follows the law. Therefore, to go beyond the limits is to do injustice. Thus, in the present case our perception of justice would be guided by the limits established by the law. (14). Section 197 of the Code is as under: 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- 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, 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 the State, of the State Government: Provided... (2).... (3) .... (3-A).... (3-B)... (4).... (The rest of the provision is not being quoted, as it is immaterial for the present purpose). (15). The protection of this provision is available only if three conditions are fulfilled; the accused is (a) a public servant, (b) has allegedly committed an offence, (c) while acting or purporting to act in the discharge of his official duty. In case these three conditions are fulfilled, then the Court is prevented from taking cognizance of the offence unless the appropriate government grants a sanction against the alleged accused. (16). In the case of State of H.P. vs. M.P. Gupta (2004) 2 SCC 349 , the Honble Supreme Court had an occasion to discuss the scope and ambit of Section 197 of the Code. The Apex Court held as under: The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The Apex Court held as under: The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. it further held: ``Official according to the dictionary, means pertaining to an office, and official act or official duty means an act or duty done by an officer in his official capacity. Thus, use of expression ``official duty in Section 197 implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in the discharge of his duty. the section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty. It also observed as under: The said protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as dereliction of it. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of cold have made him answerable for a charge of dereliction of his official duty; if the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty. The Apex Court further held as under: It (Section 197 of the Code) has been widened further by the extending protection to even those acts or omissions which are done in purported exercise of official duty. That is under the colour of office. Official duty therefore implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which, further, must have been official in nature. The section has, thus not be construed strictly while determining its applicability to any act or omission in the course of service. Its operation has to be limited to those duties which are discharged in the course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far as its official nature is concerned. For instance, a public servant is not entitled to indulge in criminal activities. To that extent the section has to be constructed narrowly and in a restricted manner. For instance, a public servant is not entitled to indulge in criminal activities. To that extent the section has to be constructed narrowly and in a restricted manner. But once it is established that the act or omission was done by the public servant while discharging his duty then the scope of its being official should be constructed so as to advance the objective of the section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance, a police officer in discharge of his duty may have to use force which may be an offence for the prosecution of which the sanction may be necessary. But if the same officer commits an act in course of service but not in discharge of his duty then the bar under Section 197 of the Code is not attracted. It, on facts, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability of Section 197 of the Code cannot be disputed. (17). In the present case the allegation against the respondent No. 1 is that he was a medical officer and the head of the Pediatric department when Hitesh was taken to him for treatment. Secondly, he neglected to attend upon Hitesh when his condition was deteriorating. Thirdly, he prescribed certain medicines that worsened Hiteshs condition. Thus, Hitesh has died because of his negligence. Hence, the offence under Section 304 A IPC death by negligence, is made out against him. (18). It is to be noted that the respondent was discharging his duty as a government doctor. Hence, he falls within the definition of ``public servant. Moreover, he was engaged in discharging his ``official duty as a doctor. It is alleged that he omitted to act properly- a dereliction of duty. But the dereliction was in course of and in discharge of his ``official duty. He had not done any act, which was outside his ``official duty. Allegedly, he has committed an offence under Section 304 A IPC while ``acting or purporting to act in the discharge of his official duty. Therefore, clearly the protection of Section 197 of the Code would have to be extended to him. He had not done any act, which was outside his ``official duty. Allegedly, he has committed an offence under Section 304 A IPC while ``acting or purporting to act in the discharge of his official duty. Therefore, clearly the protection of Section 197 of the Code would have to be extended to him. Thus, under Section 197 of the Code, the court is prevented from taking cognizance until and unless sanction was granted by the State. (19). In the case of M.P. Gupta (supra) the Honble Supreme Court has also held as under: So far as public servants are concerned, the cognizance of any offence, by any court, is barred by Section 197 CrPC unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of official duty. The said section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression no court shall take cognizance of such offence except with the previous sanction. Use of the words ``no and ``shall makes it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence is absolute and complete. The very cognizance is barred. That is, the complaint cannot be taken notice of. The word `cognizance means `jurisdiction or `the exercise of jurisdiction or `power to try and determine causes. In common parlance, it means taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have been committed during discharge of is official duty. (20). Similarly in the case of Sankaran Moitra vs. Sadhna Das and Ano. (2006) 4 SCC 584 , it was argued that want of sanction under Section 197(1) of the Code did not affect the jurisdiction of the Court to proceed, but it was only one of the defences available to the accused and the accused can raise the defense at the appropriate time. The Honble Supreme Court held, ``This submission cannot be accepted. The Honble Supreme Court held, ``This submission cannot be accepted. Section 197(1), its opening words and the object sought to be achieved by it, and the decisions of the Supreme Court, clearly indicate that a prosecution hit by that provision cannot be launched without the contemplated sanction. It is a condition precedent, as it were, for a successful prosecution of a public servant when the provision is attracted, though the question may arise necessarily not at the inception, but even at the subsequent state. One cannot therefore accede to the request to postpone a decision on this question. (21). Likewise in the case of Ashok Mehta and Ano. vs. Ram Ashray Singh and Ors. (2004) 13 SCC 705 , where the High Court directed the learned Magistrate to take cognizance notwithstanding the fact that sanction had not been obtained and the High Court had reasoned that the cognizance could be taken even without obtaining sanction and the same could be obtained later on, the Honble Supreme Court observer. ``The reasoning of the High Court was not only fallacious, but wholly unknown to the law and it was not at all justified in interfering with the order passed by the trial Court. (22). Considering the fact that the respondent No. 1 had committed the alleged offence while discharging his ``official duty as a medical doctor, considering the fact that the government had not granted any sanction against him, the learned Magistrate was justified in refusing to take cognizance. Hence, there is no illegality in the order dated 10.11.1998 passed by the learned Magistrate Moreover, there is equally no illegality committed by the learned Judge in his order dated 16.4.1999, in upholding the order dated 10.11.1998. (23). In the result there is no merit in this petition. It is, hereby, dismissed.