JUDGMENT Deepak Gupta, C.J. 1. The short question which arises in this petition is whether the complaint filed by the private respondent should fail because of the fact that no sanction under section 197 of the Code of Criminal Procedure (Cr.P.C.) has been obtained before filing of the said complaint. Section 197(1) of the Cr.P.C. is relevant for the purpose of this discussion and reads as follows:- "197. 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." 2. The stand of the petitioners is that they are all public servants and the offence is alleged to have been committed by them while acting or purporting to act in discharge of their official duties and, therefore, the trial Court could not take cognizance of such offence except with the previous sanction of the Government of Tripura. 3. To understand the dispute, it would be relevant to give a few facts. The complainant (respondent herein) is the widow of Late Sri Yogabrata Kar Purkayestha. The husband of the respondent was admitted in the G.B.P. Hospital, Agartala on 05.11.2005 at about 2 p.m. He was taken to the casualty block where one of the petitioners Swapan Kumar Das was the doctor. The husband of the respondent was suffering from acute respiratory problem and the grievances of the respondent may be summarized as follows:- (i) The petitioners are the doctors and nurses who are alleged to have been negligent in the performance of their duties and thus committed criminal offence within the meaning of section 304A of the Indian Penal Code; (ii) That, though a Nebulizer machine was available in the hospital, the same was not used; (iii) It is also contended that Intravenous high dose steroids should have been administered but were not used; (iv) The deceased was given one injection of Deriphyllin stat. and IV Aminophylline without checking the blood levels and this had an adverse affect on the health of the deceased; (v) The most important contention is that though the patient was referred to ICU at about 4-45 p.m., he could not be taken to ICU as no place was available in the ICU but no doctor or nurse attended upon the patient for more than three hours till he died at about 7-50 p.m. 4. The fact that the petitioners are all government servants is admitted. The petitioners filed the petition alleging that this was not a case of negligence and also alleging that they could not be criminally prosecuted without sanction being obtained. The learned trial Court held that there was prima facie evidence of negligence and further held that such gross negligence is not expected of a government doctor and cannot be said to be a part of his/her duties and, therefore, no sanction was required. 5. Mr. D. Chakraborty, learned Sr. Counsel appearing for the petitioners, has challenged the order passed by the learned trial Court and has drawn my attention to certain judgments of the Apex Court. 6. In State of Orissa vs. Ganesh Chandra Jew, ( (2004) 8 SCC 40 ), the Apex Court discussed the provisions of the purpose of section 197 and held as follows:- 7. 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. This 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. This 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 a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been 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 in 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 could have made him answerable for a charge of dereliction of his official duty. If the answer to his 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 of the public servant. If the answer to his 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 of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case." 7. The Apex Court further went on to hold that if the conditions mentioned in section 197 are not made out or are absent, then no prosecution can be set in motion. Dealing with the expression "official duty", the Apex Court observed as follows:- "10. xxx xxx xxx Use of the expression, "official duty" 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 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." 8. Further, the Apex Court held as follows:- "11. xxx xxx xxx Official duty therefore implies that the act or omission must have been done by the public servant in the 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, to 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." 9. My attention has also been drawn to the judgment of the Apex Court in Rakesh Kumar Mishra vs. State of Bihar & Ors., ( (2006) 1 SCC 557 ) wherein a similar view has been taken. 10. My attention has also been drawn to the judgment of the Apex Court in Rakesh Kumar Mishra vs. State of Bihar & Ors., ( (2006) 1 SCC 557 ) wherein a similar view has been taken. 10. Lastly, Sri Chakraborty has referred to the judgment of the Apex Court in State of Madhya Pradesh vs. Sheetla Sahai & Ors., ( (2009) 8 SCC 617 ) wherein the Apex Court held as follows:- "59. For the purpose of attracting the provisions of Section 197 of the Code of Criminal Procedure, it is not necessary that they must act in their official capacity but even where public servants purport to act in their official capacity, the same would attract the provisions of Section 197 of the Code of Criminal Procedure. xxxxxxxxx" 11. On the other hand, Mr. Somik Deb, learned counsel for the respondent, has placed reliance on the judgment of the Apex Court in B. Saha & Ors. vs. M.S. Kochar, ( (1979) 4 SCC 177 ) wherein the Apex Court held that the objection with regard to sanction can be raised at any stage of the proceedings and while deciding the issue as to whether the act was done or purported to be done during the official duty, the Court has to look only at the allegations made in the complaint and is not to look at the defence of the accused. 12. Relying upon the Constitution Bench judgment in Matajog Dobey vs. H.C. Bhari, ( AIR 1956 SC 44 ) the Court held that section 197 of the Code will become applicable and the issue of grant of sanction arises when the offence is alleged to have been committed in the discharge of official duty and the offence must have some reasonable connection between the act and the discharge of official duty. 13. Mr. Deb has also placed reliance on the judgment of the Apex Court in State of Maharashtra vs. Devahari Devasingh Pawar & Ors., ( (2008) 2 SCC 540 ) wherein the Court held that with regard to some of the offences sanction was not required but with regard to some it may be required but the Court could at the stage of recording evidence decide whether the sanction was required or not and what would be the effect of no sanction being obtained? 14. 14. Since heavy reliance has been placed on the last judgment, I think it pertinent to give the background of this case. The accused was a Doctor in the blood bank. From this blood bank HIV contaminated blood was supplied to the Government Medical College and Hospital. As a result, some patients who were given blood transfusion tested positive for HTV. An inquiry was ordered. The Drugs Inspector investigated the matter and during course of investigation it was found that some entries in the registers maintained in the blood bank had been tampered with and corrections were made. Some pages had been torn from the registers and some pages were missing. The investigation revealed that the pages were torn by the accused who carried away the pages with him on his transfer from the post which he was holding. However, on search of the house of the accused these documents were recovered from his house. Another allegation was that the acts of the accused doctor also gave rise to offences under the Drugs and Cosmetics Act, 1940 and the Rules framed thereunder. A composite complaint was filed both in respect of the offences under the Indian Penal Code and the Drugs and Cosmetics Act. The Apex Court held that tearing the pages of the register or making false entries therein or removing the pages of the register was no part of the duty of the doctor and, therefore, no sanction was required in regard to the offences arising from these actions. However, with regard to the offences under the Drugs and Cosmetics Act, the Apex Court held that those offences would have direct relation with discharge of the duties of doctors and, therefore, sanction was required. However, the Apex Court held that since it was a composite case and trial of one portion for which no sanction could carry on, it permitted the prosecution to continue with regard to all the offences. The Apex Court clearly held that piecemeal quashing of the discharge of the accused would not be preferred in the facts and circumstances of the case and, therefore, it was appropriate that the trial of the accused should be allowed against all the offences. The Apex Court clearly held that piecemeal quashing of the discharge of the accused would not be preferred in the facts and circumstances of the case and, therefore, it was appropriate that the trial of the accused should be allowed against all the offences. With regard to the offences under the Drugs Act, the Apex Court held that if those offences were made out after trial, the trial Court would decide whether the offences were committed in the discharge of the official duties and what would be the effect of non-production of sanction by the prosecution. 15. I am afraid that this judgment has no applicability to the facts of the present case. Each case has to be decided on its own facts. The allegation of the complainant (respondent herein) is that the petitioners were grossly negligent in the discharge or performance of their duties and, therefore, since it is a case of gross negligence amounting to criminal negligence, they should be prosecuted. The negligence has direct nexus with the discharge of the duties. The allegation of the complainant is that the petitioners herein, i.e. the doctors and nurses did not perform their duties properly and, therefore, they had committed a criminal offence. This allegation by itself clearly indicates that the offence has a direct nexus and connection with the official duties of these petitioners. Therefore, this judgment is not at all applicable. 16. Mr. Somik Deb has contended that sanction under section 197 of the Cr.P.C. is required only when the government servant acts or purports to act in discharge of his duties. His submission is that if the government servant does not act and does not perform his duty, then no sanction is required. In this behalf, Mr. Deb has specifically referred to the last allegation in the complaint that right from 4-45 p.m. when the patient was referred to ICU till 7-50 p.m. when he died, none of the petitioners, i.e. the doctors and nurses attended upon. If the allegations are true, this is a case of grossest negligence. However, the question still arises whether this negligence has connection with the official duties or not. If the allegations are true, this is a case of grossest negligence. However, the question still arises whether this negligence has connection with the official duties or not. If reference is made to the various judgments of the Supreme Court, especially the judgments of the Apex Court in State of Orissa vs. Ganesh Chandra Jew, ( (2004) 8 SCC 40 ) and Rakesh Kumar Mishra vs. State of Bihar & Ors., ( (2006) 1 SCC 557 ), it is apparent that the Apex Court has held that official duty implies the act or omission to act in the discharge of the duties. The alleged negligence in this case of the doctors in not attending the patient may be an act of omission but that act of omission also amounts to dereliction of duty because the petitioners were otherwise duty bound to look after the patient. The failure to treat is as much a negligent act as the treatment being done in a negligent manner. Both amount to negligence and if the action or the omission to act takes place in connection with the discharge of the official duties, then sanction would be required. 17. It is true that keeping in view the allegations made in this case, one is tempted to take a different view of the matter, but cases have to be decided in accordance with law and not in accordance with the facts alleged. The allegations made are very serious and, in my view, if correct, would amount to criminal negligence but all these actions have direct connection with the discharge of the duties and, therefore, without sanction of the Government under section 197 of the Cr.P.C. no prosecution could be launched and no complaint entertained. 18. Therefore, the petition is allowed, but liberty is reserved to the respondent to approach the Government for grant of sanction in accordance with law and if such request is made, the Government shall consider prayer for the grant of sanction in light of the observations made hereinabove. Send down the lower court records forthwith.