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2022 DIGILAW 1021 (CAL)

Rajat Bhattacharjee v. State of West Bengal

2022-07-14

SUGATO MAJUMDAR

body2022
JUDGMENT : (Sugato Majumdar, J.) : 1. The instant application is filed under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973 by Dr. Rajat Bhattacharjee, Medical Officer & Gynecologist, Basirhat Sub Divisional Hospital against the State and others praying for quashing of the proceedings of Basirhat P.S. Case No. 241/07 dated 30/05/2007, corresponding to G. R. No. 864 of 2007 under Sections 304A/201/109 of the Indian Penal Code. 2. Allegations are that on 19/02/2007 the daughter of the de-facto complainant Suprava Das was admitted at Basirhat Sub Divisional Hospital and she gave birth to a female child under supervision of Dr. Sudhangshu Kumar Ghosh being Opposite Party No. 3. Allegedly some post-operative complications developed and the patient was referred to SSKM Hospital, Kolkata on 21/02/2007 where she was treated for more than two weeks. Unfortunately on 06/03/2007 at 05:00 P.M., the patient expired. The allegation is that death of the patient occurred due to medical negligence of the present Petitioner and the Opposite Party No. 3 and 4, namely, Dr. Sudhangshu Kumar Ghosh and Dr. Partha Pratim Basu and Others. 3. A complaint was filed under Section 156 of the Code of Criminal Procedure in the Court of Additional Chief Judicial Magistrate, Basirhat. The Trial Court directed the Inspector-in-Charge of Basirhat Police Station to treat the complaint as First Information Report and to investigate into the case. Accordingly, Bashirhat Police Station Case No. 241 dated 30/05/2007 under Sections 34/35/304/304A/36/109 of the Indian Penal Code was registered and investigation began. On conclusion of investigation charge sheet was filed on 08/06/2009 against the present Petitioner as well as Opposite Party No. 3 – 6 under Sections 304A/201/109 of the Indian Penal Code. Subsequently, charges were framed against the Opposite Party No. 3 to 6 under Sections 304A/201/109 of the Indian Penal Code to which they pleaded not guilty for which the trial began. 4. It is the case of the Petitioner that the trial court took cognizance of the offences on 08/06/2009 without any sanction order as contemplated in section 197 of the Code of Criminal Procedure, 1973 and proceeded with the trial. The Petitioner agitated the issue before the trial court. 4. It is the case of the Petitioner that the trial court took cognizance of the offences on 08/06/2009 without any sanction order as contemplated in section 197 of the Code of Criminal Procedure, 1973 and proceeded with the trial. The Petitioner agitated the issue before the trial court. In terms of the order dated 28/01/2011 the trial court rejected the plea of the Petitioner against which the present Petitioner preferred a revision application under Sections 397/399 of the Code of Criminal Procedure, 1973 registered as Criminal Revision No. 30 of 2011 in the Court of Additional Sessions Judge, Basirhat. The said Criminal Revision No. 30 of 2011 was dismissed for default on 13/09/2012. 5. Mr. Datta appearing for the Petitioner made two pronged arguments. According to him, the alleged incidence related to discharge of the official duty by the Petitioner as a public officer. This is manifest from the written complaint itself. Therefore, prior sanction order, as contemplated in section 197 of the Code of Criminal Procedure, 1973 is mandatory for taking cognizance of the alleged offences. Absence of such sanction order vitiates the trial itself. 6. The second point canvassed is that the trial court directed the Investigating Officer the manner in which investigation is to be carried out. He pointed out that in terms of order dated 06/02/2009 the Additional Chief Judicial Magistrate observed that sufficient materials were collected in the case to justify filing of police report. Thereafter, he directed the Investigating Officer to file supplementary police report if expert opinion was not received within fifteen days, citing CMOH as witness. In case of availability of the expert report, police report in final form should be submitted. According to Mr. Datta, such direction shows a biasness of the Court in favour of prosecution. He further submitted that proceeding in the lower court is pending for long causing undue hardship and prejudice to the Petitioner. According to him, in absence of the sanction order under section 197 of the Code of Criminal Procedure, 1973, the prosecution is liable to be quashed against the present Petitioner. 7. Per contra, Mr. N. P. Agarwala appearing for the State submitted that since the prosecution was initiated as a complaint case, sanction order, contemplated in Section 197 of the Code of Criminal Procedure, 1973 is not necessary. 8. I heard rival submissions. 7. Per contra, Mr. N. P. Agarwala appearing for the State submitted that since the prosecution was initiated as a complaint case, sanction order, contemplated in Section 197 of the Code of Criminal Procedure, 1973 is not necessary. 8. I heard rival submissions. Section 197 of Code of Criminal Procedure, 1973 provides: 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- (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, of 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 a State, of the State Government : Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression" State Government" occurring therein, the expression" Central Government" were substituted. ………. 9. The underlying principle of Section 197 is that public servants are treated as special class of person enjoying the protection that they can perform their duties without fear and favour and threats of malicious prosecution. In Manorama Tiwari and Ors. Vs. Surendra Nath Rai [ (2016) 1 SCC 594 ] a criminal complaint was filed against the doctors of a government hospital alleging medical negligence causing death of the patient concerned. Application was moved on behalf of the doctors who were accused therein before the Chief Judicial Magistrate alleging that prosecution against them is not maintainable in absence of sanction order under section 197 of the Code of Criminal Procedure, 1973. The plea was rejected by the Chief Judicial Magistrate. Criminal Revision was filed before the High Court but no relief was given to them. The plea was rejected by the Chief Judicial Magistrate. Criminal Revision was filed before the High Court but no relief was given to them. The accused filed appeal to the Supreme Court of India through special leave. Relying on the Constitutional Bench judgment passed in Matajog Dobey vs. H. C. Bhari [ AIR 1956 SC 44 ] the Supreme Court of India held : “12. In view of the above-settled position of law, we are of the opinion that in the present case, the High Court has erred in law in dismissing the criminal revision filed by the appellants and affirming the order of the Magistrate rejecting their application as to maintainability of the criminal complaint without sanction from the State Government. In our opinion, it is a clear case where the appellants were discharging their public duties, as they were performing surgery on the patient in the Government Hospital. It is not disputed that the appellants were the medical officers in the Government Hospital. As such, the criminal prosecution of the appellants initiated by the respondent (complainant) is not maintainable without the sanction from the State Government. That being so, we are inclined to allow this appeal.” 10. Section 197 makes no distinction between a prosecution initiated on the basis of a first information report and a prosecution initiated on the basis of complaint lodged by a complainant. In view of ratio of the case, the submission made by Mr. Agarwala holds no ground. 11. In the instant case, it is not in dispute that the Petitioner was discharging his public duty in a government hospital. Therefore, taking cognizance of the offence against the Petitioner without sanction order is barred. Therefore, prosecution against the present Petitioner is liable to be quashed. 12. In nutshell, the instant Revision application is allowed. 13. Prosecution against the Petitioner, as aforesaid, stands quashed. 14. The instant Revision application stands disposed of along with the pending petitions, if any. 15. Copy of this order be forthwith communicated to the trial court.