Madhya Pradesh High Court
Dr. Archana Mishra vs The State Of Madhya Pradesh on 26 April, 2022
Author: Rajendra Kumar Verma
Bench: Rajendra Kumar Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE RAJENDRA KUMAR (VERMA)
ON THE 26th OF APRIL, 2022
MISC. CRIMINAL CASE No. 3977 of 2022
Between:-
DR. ARCHANA MISHRA D/O YOGENDRA MISHRA ,
AGED ABOUT 40 YEARS, OCCUPATION: GOVT.
SERVANT PERMANENT ADDRESS : WARD NO. 13,
GANGA NAGAR, BOODI, BALAGHAT, PRESENT
ADDRESS : 612, BLOCK C SATYAMITRA
RAJLAXMI, NEAR TREASURE FANTASY, RAJA
RAMANNA CENTRE FOR ADVANCE TECHNOLOGY
ROAD (MADHYA PRADESH)
.....PETITIONER
(BY SHRI SURENDRA KUMAR GUPTA, ADVOCATE )
AND
THE STATE OF MADHYA PRADESH STATION
HOUSE OFFICER THROUGH POLICE STATION
SATWAS (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI RAJENDRA KUMAR RAGHUWANSHI, DY. GA FOR THE
STATE)
T h is application coming on for ADMISSION ON this day, the court
passed the following:
ORDER
The petitioner, who is a gazetted medical officer has filed the present petition under Section 482 of Cr.P.C. for quashing the charge-sheet and subsequent proceedings of RCT No.783/2016 arisen out of FIR No.339 dated 06.08.2016 registered at Police station Stawas District Dewas under Section 304-A of IPC for want of sanction of prosecution.
The petitioner, who is a lady and a medical officer was posted in District Dewas in the year 2016. On 25.07.2016, the petitioner has conducted Tubectomy operation of one Sangeta Bai. On 28.07.2016, her family members discharged her and admitted her in MGH Hospital, Dewas and thereafter admitted her to SMS Energy Hospital, Devguradia, Indore. But she died during treatment on 30.07.2016 Signature Not VerifiedDigitally signed by SAN AMIT KUMAR Date: 2022.04.29 and Merg No.03/2016 was registered. Thereafter, on 06.08.2016, an FIR No.339 18:14:01 IST was registered against the petitioner.
2After investigation, challan no.347/2016 was filed before the Court of Judicial Magistrate First Class, Kannod District Dewas on 29.09.2016 (Annexure A/1).
Counsel for the petitioner has submitted that after receiving the charge-sheet, the learned JMFC has taken the cognizance against the petitioner vide order dated 27.02.2017 and fixed the case for receipt of sanction of prosecution. Thereafter, on 10.11.2021, vide letter No.714/SW/F 17/2021 submitted through Superintendent of Police, Dewas before the learned trial Court by which the Public health and Family Welfare Department, Vallabah Bhawan, Govt. of M.P. vide order dated 16.03.2021 has refused to grant sanction of prosecution against the petitioner. After receiving the refusal of sanction of prosecution, the learned JMFC, Kannod has refused to drop the proceedings against the petitioner on the ground that as the cognizance has already been taken against the petitioner, therefore, the Court is having no power to review its own order and fixed the case for arguments on charge.
It is further submitted by learned counsel for the petitioner that it is settled law that no Government servant can be prosecuted until and unless sanction of prosecution is granted against the servant as required under Section 197 of Cr.P.C. The sanction of prosecution was denied by the State Government after considering and receiving the report of the Committee of expert/specialist doctors framed by Directorate of Health Services. The Committee of experts have clearly opined that death of Sangeeta Bai was due to complexity arisen after the tubectomy/sterilization operation and no negligence has been done by the petitioner. It is further submitted that on the date of operation, the petitioner was discharging her official duties and she did the operation only during her official duty. It is also submitted that in the case of Jacob Mathew vs. State of Punjab, decided on 05.08.2005 in Criminal Appeal No.144-145 of 2004, it has been held that "to prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the Signature Not VerifiedDigitally signed by SAN AMIT KUMAR given facts and circumstances, no medical professional in his ordinary senses and Date: 2022.04.29 18:14:01 IST prudence would have been done or failed to do so. The learned trial court has not 3 at all considered this aspect while taking cognizance against the petitioner as to why sanction under Section 197 of the Cr.P.C. was not applicable to the petitioner and continuation of prosecution against the petitioner who is a Government servant, without sanction of prosecution, is sheer abuse of process of law. Hence, the petition is liable to be allowed and the proceedings may be quashed.
Per contra, counsel for the applicant opposed the prayer. It is argued that against the order, whereby cognizance was taken, the petitioner can avail the remedy of criminal revision and the present petition is not maintainable. He further submits that no case is made out by the petitioner for interference at this stage.
I have heard the learned counsel for the parties at length and perused the record.
I deem it apposite to first deal with the preliminary objection of learned counsel for the state about the maintainability of this petition against the order, whereby cognizance is taken. This aspect is no more res integra. In Adalat Prasad vs. Rooplal Jindal and others, reported in (2004) 7 SCC 338, the Apex Court held that under the Code of Criminal Procedure (Code) there exists no provision of review of an order. Thus, remedy lies in invoking Section 482 CrPC. The jurisdiction of this Court under Sec. 482 is wide enough to interfere to secure the ends of justice. In (2012) 9 SCC 460 (Amit Kapoor vs. Ramesh Chander and another), it is held that Section 482 CrPC is based upon the maxim quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest i.e. when the law gives anything to anyone, it also gives all those things without which the thing itself would be unavoidable. Section 482 Cr.PC confers very wide power on the Court to do justice and to ensure that the process of the court is not permitted to be abused. Thus, the preliminary objection stands overruled.
The point reaised by the petitioner is that he was a public servant and the allegations mentioned in the FIR is relating to the and arising out of her official duties. Hence, she was protected under Section 197 of Cr.P.C. In the absence of permission under Section 197 of Cr.P.C., the court below has erred in taking Signature Not VerifiedDigitally signed by cognizance.
SAN AMIT KUMAR
Date: 2022.04.29
18:14:01 IST
The Apex Court in catena of decisions has considered the language employed in Sec. 197, CrPC. In (2009) 6 SCC 372 (State of Uttar Pradesh vs. 4 Paras Nath Singh), the Apex Court opined that 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 the official duty. The 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' make it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence is absolute and complete. Very cognizance is barred.
On the above discussion, it is clear that finally, Hon'ble the Supreme Court in (2013) 10- SCC 705 (Anil Kumar and others vs. M.K.Aiyappa and another) settled the law and found that the court below was not justified in entertaining the complaint without there being a sanction order.
The averments of charge-sheet clearly show that the allegations made against the petitioner are related to and arising out of her official duties. This aspect is considered by Supreme Court in AIR 1967 SC 776 (P. Arulswami v. State of Madras).
At the cost of repetition, it is noted that as per the averments of charge- sheet, it is clear that the allegations against the petitioner are arising out of his official duties. In the present case, the respondent No.2 has not filed any reply. The petitioner has shown to this Court's satisfaction that the allegations mentioned in the charge-sheet are arising out of and connected with her official duties. Thus, she is entitled to enjoy protective umbrella of Sec. 197, CrPC,. It is apt to quote 41st Report of Law Commission in para 15.123, which reads as under:-
"it appears to us that protection under the Section is needed as much after retirement of the public servant as before retirement. The protection afforded by the Section would be rendered illusory if it were open to a private Signature Not VerifiedDigitally signed by SAN AMIT KUMAR Date: 2022.04.29 18:14:01 IST person harbouring a grievance to wait until the public servant ceased to hold his 5 official position, and then to lodge a complaint. The ultimate justification for the protection conferred by Section 197 the public interest in seeing that official acts do not lead to needless or vexatious prosecution. It should be left to the Government to determine from that point of view the question of the expediency of prosecuting any public servant". (Emphasis Supplied) The protective cover is wide enough to protect the petitioner in the facts and circumstances of this case.
Thus, in my view, the court below has erred in taking cognizance without there being any sanction under Sec. 197, CrPC. Thus, I find force in the argument of learned counsel for the petitioner that the court below has erred in taking cognizance even after refusal of sanction of prosecution against the petitioner. Resultantly, the proceedings of RCT No.783/2016 pending before the JMFC, Kannod District Dewas which has been arisen out of the FIR No.339/2016 registered at Police Station Satwas District Dewas is set aside. Petition is allowed.
Certified copy as per rules.
(RAJENDRA KUMAR (VERMA))
JUDGE
amit
Signature Not Verified
VerifiedDigitally
Digitally signed by
SAN AMIT KUMAR
Date: 2022.04.29
18:14:01 IST