Rajasthan High Court - Jodhpur
Dr. Deepak Verma vs State & Anr on 5 September, 2017
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 1318 / 2017
Dr. Deepak Verma S/o Sh. Raman Verma, Aged About 60 Years, D
78 Kamla Nehru Nagar, Jodhpur (Raj.)
----Petitioner
Versus
1. State of Rajasthan.
2. Smt. Naveen Bala Rao W/o Bhagwat Singh Rao, Jagdish Chowk,
Near Library, Udaipur (Raj.)
----Respondents
_____________________________________________________
For Petitioner(s) :Mr. MS Singhvi Sr. Advocate, Assisted by Mr.
Prakeep Shah
For Respondent(s) :Mr. VS Rajpurohit, PP
_____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 05/09/2017
1. Petitioner has preferred this misc. petition under Section 482 of Cr.P.C. against the order dated 11.11.2016 passed by Addl. Sessions Judge No.4, Udapur, in Criminal Revision No.4/2014 (CIS No.621/2014) whereby she has dismissed the revision and affirmed the order dated 03.02.2014 passed by Additional Chief Judicial Magistrate No.1, Udaipur in regular Criminal case No.234/2011 whereby he has rejected the application filed by the petitioner under Section 197 of Cr.P.C.
2. The petitioner is a professor Doctor surgeon. The complainant filed a complaint before the court of learned Judicial Magistrate (North) Udaipur, which was forwarded under Section 156 (3) of Cr.P.C. for investigation to the police. In the complaint, the allegation was a lemon size tumour on the hand of the complainant, therefore, she visited in Maharana Bhupal Government Hospital Udaipur on 20.09.2006 and she was (2 of 11) [CRLMP-1318/2017] admitted to the surgical unit in Ward No.13-C and operation was undertaken on 22.09.2006 which was conducted by the petitioner. The complainant lost her sensation and the reason for the lost of sensation was explained to her as one nerve having been cut. The allegations included assurance by the doctor that the sensation shall be regained. Since, the complainant did not gain sensation, she visited GBN American Hospital, Udaipur on 18.12.2006 wherein EMG-NC test was conducted. Thereafter, she undertook further treatment by various specialist in various speciality hospitals. The negligence was asserted by the complainant and while exercising the powers under Section 156 (3) of Cr.P.C., the matter was sent to the SHO Police Station Hathipolie, Udaipur for investigation, who registered FIR No.188/2007 on 04.11.2007.
3. At the outset, learned counsel for the petitioner has submitted that the petitioner was Government Doctor and surgeon and therefore, he was discharging his public duties as a Doctor by making such surgery in Government Hospital, Udaipur. Learned counsel for the petitioner shows us the order passed by the Government of Rajasthan on 21.01.2016, whereby a detail consideration has been made pertaining to granting of sanction under Section 197 of Cr.P.C.
4. The order dated 21.01.2016, on bare reading clearly shows that there has been proper application of mind by the State Government before coming to the conclusion that it was not a fit case where the sanction under Section 197 of Cr.P.C. could be granted. The order was communicated by the authority of the Hon'ble Governor through his Secretary. The relevant portion of (3 of 11) [CRLMP-1318/2017] the order, reads as under :-
"jkT; ljdkj }kjk vijk/k la[;k 188@2017 dh i=koyh ,oa vfHkys[k] C;wjks }kjk izLrqwr vuqla/kku fjiksVZ ,oa layXu nLrkostksa dk ijh{k.k fd, tkus ij vjksiksa ds laca/k esa oLrqfLFkfr fuEukuqlkj ikbZ xbZ gS& ¼1½ ifjokfn;k ds nkghus gkFk esa uhacw ds vkdkj dh xkaB ¼U;wjks Qkbczksek½ gksus ij Mk- nhid oekZ }kjk vkWijs'ku dj xkaB dks fudkyk x;kA ¼2½ fnukad 22-9-2006 dks vkWijs'ku ds N% ?kaVs ckn gks'k esa vkus ij ifjokfn;k us gkFk dk lqUu gksuk eglwl fd;kA ifjokfn;k dh fLFkfr esa lq/kku ugha vkus ij mldh igyh tkap 18-12-2006 dks thch,p vesfjdu gkWLihVy] mn;iqj esa dh xbZ vkSj jsfM;y uoZ ds {kfrxzLr gksus dh laHkkouk O;Dr dh xbZA ¼4½ ifjokfn;k dh tkap U;wjksykWth ;wfuV] esfMdy dkWyst] mn;iqj ds izks0 ,-,- lSQh }kjk 4-1-2007 ls 11-1-2007 ds e/; dh xbZA fjiksVZ esa ifjokfn;k dh n'kk 3 ekg ls ,d tSlh jguk vkSj jsfM;y uoZ ds V~;wej dks fudyrs gq, {kfrxzLr gks tkus dh laHkkouk O;Dr dh xbZA ¼5½ fnukad 11-1-2007 dks izkpk;Z ,oa fu;a=d vkj ,.M Vh esfMdy dkWyst] mn;iqj }kjk Jherh uohuckyk dk bykt jkT; ea laHko ugha gksus ds dkj.k mUgsa vf[ky Hkkjrh; vk;qfoZKku laLFkku] ubZ fnYyh jsQj dj fn;k x;kA ¼6½ iqfyl Fkkuk gkFkhiksy] mn;iqj ds fuosnu ij v/kh{kd] egkjk.kk Hkwiky jktdh; fpfdRlky;] mn;iqj us vkns'k fnukad 31-12-2007 }kjk pkj lnL;h; esfMdy cksMZ dk xBu fd;k] ftlus viuh fjiksVZ 22-1-2008 dks izLrqr dhA fjiksVZ esa (4 of 11) [CRLMP-1318/2017] Li"V vafdr gS fd jksxh dks ltZjh ls iwoZ dksbZ U;wjksyksftdy O;kf/k ugha FkhA ltZjh ls lacaf/kr dksbZ foLr`r uksV miyC/k ugah gSA jksxh dh nk;h jsfM;y ,oa nk;ha eLD;wykD;wVsul uoZ {kfrxzLr gks pqdh gSA ¼7½ v/kh{kd] egkjk.kk Hkwiky jktdh; fpfdRlky;] mn;iqj ds funsZ'k ij mDr cksMZ us vius i= 3-4-2008 }kjk iqu% Li"V fd;k fd ifjokfn;k dh uoZ {kfrxzLr gks tkus dk dkj.k foLr`r vkWijsfVo uksV ugha gksus ds dkj.k crk;k tkuk laHko ugha gSA ¼8½ ifjokfn;k dk ,El] ubZ fnYyh esa 2-5-2007 ls 7-5-2007 ds chp ijh{k.k fd;k x;k vkSj fMLpktZ lejh vuqlkj nk;h jsfM;y ,oa nk;h eLD;wyksD;wVsul nksuksa gh uoZ fpfUgr ugha gqbZ vkSj buds fjdaLVªD'ku laHko ugha gksuk o jksxh ds fjdojh dh laHkkouk cgqr gh {kh.k vafdr dh xbZA izdj.k dk esfMdksyhxy dsl ds O;kid ifjizs{; esa ijh{k.k fd;k tkus ij ik;k x;k fd ,El] ubZ fnYyh o esfMdy dkWyst] mn;iqj dh fo'ks"kK desVh dh fjiksVZ esa MkW nhid oekZ }kjk ykijokgh crjus ;k vkijkf/kd ea'kk ls dksbZ d`R; djus dk vadu ugha gSA MkW nhid oekZ }kjk ltZjh ls iwoZ ifjokfn;k ds fj'rsnkj dks ltZjh ds [krjksa ls voxr djk fn;k x;k Fkk vkSj muds }kjk lgefriwoZd leLr ftEesokjh yh xbZ FkhA jksxh dh nk;h jsfM;y ,oa nk;h eLD;wyksD;Vsul nksuksa gh uoZ {kfrxzLr gks tkus dk vadu fo'ks"kK esfMdy cksMZ dh fjiksVZ esa fd;k x;k gS ijUrq uoZ {kfrxzzLr gksus ds dkj.kks ij dksbZ fVIi.kh ughs dh xbZ gSA ltZjh ds nkSjku ?kfVr fdlh Hkh nq?kZVuk ds fy;s fpfdRld dks rc rd nks"kh ugh ekuk tk ldrk tc rd fd ;g rF; izekf.kr uk gks tk;s fd mlds }kjk vius drZO;ksa esa ykijokghs cjry xbZ gS ;k mldh ekufld fLFkfr tkucw>dj jksxh dks uqdlku (5 of 11) [CRLMP-1318/2017] igqWpkus dh Fkh A vr% jkT; ljdkj /kkjk 197 n.M izfZdz;k lafgrk esa iznRr 'kfDr;ksa dk iz;ksx djrs gq;s MkW- nhid oekZ lgvkpk;Z ltZjh. Egkjk.kk Hkwiky jktdh; fpfdRlk; mn;iqj ds fo:} vfHk;kstu Lohdjrh ugha fn;s tksu ds ,rn}kjk vkns'k iznku djrh gS A"
5. Learned counsel for the petitioner has therefore, made a categorical submission that in light of a speaking order passed by the State of Rajasthan in which, it has been concluded that the doctor concerned cannot be held to be guilty of negligence unless it is proved that he was negligent while performing such duty or worked with an intention to cause damage to the patient, the sanction was not granted.
6. Learned counsel for the petitioner has relied upon the judgment of Manorama Tiwari & Ors. Vs. Surendra Nath Rai reported in (2016) 1 Supreme Court Cases 594, the relevant portion of this judgment, reads as under :-
"9. Relevant provision relating to sanction in Section 197 Code of Criminal Procedure reads as under:
Section 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 save as otherwise provided in the Lokpal and Lokayuktas Act, 2013.
(6 of 11) [CRLMP-1318/2017]
(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.
Explanation.--for the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed Under Section 166A, Section 166B, Section 354, Section 354A, Section 354B, Section 354C, Section 354D, Section 370, Section 375, Section 376, Section 376A, Section 376C, Section 376D or Section 509 of the Indian Penal Code (45 of 1860).
(2)...
(3)...
(3A)...
(3B)...
(4) The Central Government or the State Government, (7 of 11) [CRLMP-1318/2017] as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.
10. A three-Judge Bench of this Court in Jacob Mathew v. State of Punjab and Anr.
MANU/SC/0457/2005 : (2005) 6 SCC 1, has laid down guidelines for prosecution of medical professionals as under:
50. As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase.
Sometimes such prosecutions are filed by private complainants and sometimes by the police on an FIR being lodged and cognizance taken. The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to a rash or negligent act within the domain of criminal law Under Section 304-A Indian Penal Code. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered to his reputation cannot be compensated by any standards.
51. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasise the need for care and caution in the interest of society; for, the service which the medical profession renders (8 of 11) [CRLMP-1318/2017] to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefer recourse to criminal process as a tool for pressurising the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.
52. Statutory rules or executive instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service, qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying the Bolam v. Frein Hospital Management Committee (1957) 1 WLR 582 : (1957) 2 All ER 118 (QBD) test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would (9 of 11) [CRLMP-1318/2017] not make himself available to face the prosecution unless arrested, the arrest may be withheld.
11. In Matajog Dubey v. H.C. Bhari MANU/SC/0071/1955 : AIR 1956 SC 44, a Constitution Bench of this Court in the matters of prosecution of public servants has held as under:
15. .....Public servants have to be protected from harassment in the discharge of official duties while ordinary citizens not so engaged do not require this safeguard. It was argued that Section 197, Code of Criminal Procedure vested an absolutely arbitrary power in the Government to grant or withhold sanction at their sweet will and pleasure, and the legislature did not lay down or even indicate any guiding principles to control the exercise of the discretion. There is no question of any discrimination between one person and another in the matter of taking proceedings against a public servant for an act done or purporting to be done by the public servant in the discharge of his official duties. No one can take such proceedings without such sanction....
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 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 (10 of 11) [CRLMP-1318/2017] so, we are inclined to allow this appeal.
7. Learned counsel for the petitioner has also relied upon the judgment passed by this Court in the matter of Lal Singh Vs. State of Rajasthan (S.B Criminal Misc. Petition No.1508/2017, decided on 25.05.2017), in which this court has held that without previous sanction, cognizance could not have been taken.
8. Learned counsel for the petitioner has also cited the precedent law in Satish Kumar Vs. State of Rajasthan & Anr. (S.B. Criminal Misc. Petition No.16/2016 decided on 27.07.2017, where the same proposition has been upheld.
9. Learned Public Prosecutor has opposed and submitted that a detail investigation had been conducted and prima facie offence has been made out against the present petitioner and hence, at this belated stage, indulgence ought not to be granted by this court in the constrained jurisdiction of Section 482 of Cr.P.C.
10. After hearing counsel for the parties and perusing the record of the case as well as precedent law cited by the counsel for the petitioner, which clearly shows that on the face of it, the criminal proceeding cannot be maintained against the present petitioner as the purport of Section 197 of Cr.P.C. is very clear so as to protect the public servant who are removable only with the sanction of the Government. The language of Section 197 of Cr.P.C. dealt in the precedent law is that the sanction is required when the accused of any offence as alleged to have committed, (11 of 11) [CRLMP-1318/2017] was acting or purporting to act in discharge of his official duty. All Courts are barred for taking cognizance of such offence except with the previous sanction. Admittedly, in the present facts and circumstances, the petitioner is a public servant and was supposed to discharge his duty as a surgeon in Government Hospital and was therefore, acting in discharge of his official duty and thus, cognizance cannot be taken against him without crossing the protective shield of Section 197 of Cr.P.C.
11. On a bare reading of the Section 197 of Cr.P.C. and the precedent law of the Hon'ble Apex Court and this Court as well as the afore-quoted order of the State of Rajasthan dated 21.01.2016, whereby the sanction has been expressly rejected by a speaking order and a detailed consideration, this court deems it appropriate to allow the present misc. petition.
12. Resultantly, the order dated 11.11.2016 passed by the learned Addl. Sessions Judge No.4, Udaipur in Revision No.4/2014 and the order dated 03.02.2014 passed by learned Additional Chief Judicial Magistrate No.1 in criminal case No.234/2011 rejecting the application filed by the petitioner under Section 197 of Cr.P.C. is quashed and set aside and all proceedings against the present petition arising out of the criminal regular case No.237/2011 ( Deepak Verms Vs. State of Rajasthan) are hereby quashed and set aside.
(DR. PUSHPENDRA SINGH BHATI)J. sudheer