@JUDGMENTTAG-ORDER
S.C. Parija, J.@mdashHeard learned counsel for the petitioner and learned counselor the State. None appears for opposite party No. 1 inspite of service of notice by paper publication.
2. This application u/s 482 Cr.P.C. has been filed challenging the order of cognizance dated 07.07.2005, passed by the learned S.D.J.M., Nayagarh in I.C.C. No. 58 of 2005, taking cognizance of the offences under Sections 504/304A/IPC and issuing process against the petitioner.
3. The case of the petitioner is that on 25.02.2013, at about 11.00 P.M., when the petitioner was posted at the District Headquarters Hospital, Nayagarh, as ADMO, a patient, namely, Minati Pati, W/o. Gumani Pati of village/P.O. Similisahi, P.S./Dist. Nayagarh, was admitted in the hospital for delivering a child. As the patient was not in a fit condition to give birth to her child normally, inspite of efforts of a team of doctors, the petitioner being the M.D. in Gynaecology, advised the patient and her attendant, who happened to be her brother, for her operation. An undertaking, as required before operation, was also obtained from and on behalf of the patient. On the very next day morning i.e. 26.02.2003 at 7.00 A.M., the patient was operated by the petitioner in which a team of doctors of the District Headquarters Hospital, Nayagarh, assisted. After successful operation, the patient gave birth to a child. The condition of the mother (patient) and the child were found normal by then. After some hours, the condition of the mother (patient) was found deteriorating. Not only the petitioner, but also a team of doctors of the said hospital treated the patient sincerely and to the best of their ability but due to their misfortune, the patient died on 27.02.2003 at 2.00 A.M. in the night. At no point of time, the patient was neglected in treatment either by the petitioner or by any other staff, including the other doctors of the hospital.
4. The brother of the patient (deceased) with false and baseless allegations lodged an F.I.R. in Nayagarh police Station on 27.02.2003 at 3.00 P.M., alleging therein that due to the act committed by the petitioner, his sister died after operation. In the F.I.R., the informant also made allegation against the petitioner that the petitioner demanded Rs. 10,000/- from the informant before his sister''s operation and since the amount was not paid to the petitioner, his sister was neglected in treatment at post-operation stage, for which she died. The aforesaid F.I.R. was registered vide Nayagarh P.S. Case No. 48 of 2003, u/s 304A IPC against the petitioner, corresponding to G.R. Case No. 105 of 2003, pending in the Court of learned S.D.J.M., Nayagarh, as per Annexure-1 to the application.
5. Consequent upon the registration of the F.I.R., the police investigated into the matter and found no incriminating materials against the petitioner to bring home the charge under Sections 304A, IPC. Accordingly, the Investigating Officer submitted the Final Report indicating therein that it was a case of "mistake of fact". The relevant findings in the Final Report are extracted below:
The occurrence took place at D.H.H., Nayagarh investigation disclosed that Minati Pati, Wife of Guman Pati of village Similisahi was brought to D.H.H., Nayagarh on 25.02.2003 night about 11 P.M. for her treatment and delivery. Dr. Trilochan Baral, A.D.M.O., and other Doctors attended the patient and Srimati Minati Pati gave birth a child on 26.02.2003 at 7.00 A.M. and after delivery she became serious and inspite of repeated attempts by a team of doctors she could not be survived and finally in the night of 26/27.02.2003 at about 2.00 P.M. she died while undergoing treatment.
During investigation prescriptions of doctors have been seized.
Since the doctors had not neglected in treatment they have not any criminally intention in treating the patient. It appears that it is a case of mistake of fact and I, accordingly submitted compliance to S.P., Nayagarh (T) I.I.C., Nayagarh P.S. for submission of F.I.R. M.F. and S.P. Nayagarh passed order to submit F.I.R. M.F. in this case.
So I submitted F.I.R. M.F. Under Sec. 304(1) IPC in this case.
6. On receipt of the Final Report, learned S.D.J.M., Nayagarh, vide order dated 12.10.2004, issued notice to the complainant-opposite party No. 1 to file protest petition, if any. On 15.10.2004, notice was issued to the complainant-opposite party No. 1 fixing 30.11.2004 for filing of protest petition. The complainant appeared and took several adjournments and ultimately on 21.04.2005, the complainant filed complaint petition, which was registered as I.C.C. No. 58 of 2005, reiterating the allegations made by him in the F.I.R.
7. Learned Magistrate recorded the initial statement of the complainant-opposite party No. 1 on 23.04.2005, wherein he stated as under:
On 26.02.2003 the accused operated my sister but due to his negligence my sister died.
8. Learned Magistrate also recorded the statement of witness, namely, Indumati Mohapatra, wife of Harihara Mohapatra of Machhipada, Nayagarh on 27.04.2005 u/s 202 Cr.P.C. which was as follows:
2 years and 2 months back the accused neglected the patient Minati Pati and hence she died.
9. Learned Magistrate also recorded the statement of another witness, namely, Paramananda Mohapatra, son of Raj Kishore Mohapatra of village Machhipada, Nayagarh, on 09.06.2005, wherein he stated as follows:
2 years 3 months back, the accused neglected the medical treatment of the deceased and so she died. So, she is responsible for it. The deceased has been operated.
10. Considering the complaint petition, initial statement and the statement of the witnesses, learned Magistrate vide order dated 07.07.2005 proceeded to take cognizance of the offences under Sections 504/304A IPC and issued process against the petitioner, as per Annexure-6 to the application, which is under challenge in this application.
11. Learned counsel for the petitioner submits that as the initial statement of the complainant and the statement of the witnesses recorded u/s 202 Cr.P.C. does not make out any offence against the petitioner, learned Magistrate was not justified in taking cognizance in a mechanical manner and directing issue of process. In this regard, it is submitted that even accepting the allegations made in the complaint petition and the initial statement of the complainant and the evidence of the witnesses to be true, as no offence is made out against the present petitioner u/s 304A/504 IPC, the impugned order of cognizance cannot be sustained. It is further submitted that as the petitioner is a Government servant, working as A.D.M.O. in the District Headquarters Hospital, Nayagarh, and the offence is alleged to have been committed by him while performing his official duty, no cognizance could have been taken without prior sanction of the State Government, as required u/s 197 Cr.P.C.
12. Learned counsel for the petitioner further submits that as the deceased patient was treated by the petitioner and other team of doctors and all adequate care and caution had been taken and inspite of best efforts, as the patient could not be saved, no criminal liability could have been brought against the petitioner, as per Sections 80 and 88 IPC.
13. Sections 80 and 88 read as under:
80. Accident in doing a lawful act--Nothing is an offence which is done by accident or misfortune and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.
88. Act not intended to cause death, done by consent in good faith for person''s benefit--Nothing which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm.
14. In this regard, learned counsel for the petitioner has relied upon a decision of the apex Court in
Learned Court further held as under:
This approach of the Courts in the matter of fixing criminal liability on the doctors, in course of medical treatment given by them to their patients, is necessary so that the hazards of medical men in medical profession being exposed to civil liability, may not unreasonably extend to criminal liability and expose them to risk of landing themselves in prison for alleged criminal negligence.
For every mishap or death during medical treatment, the medical man cannot be proceeded against for punishment. Criminal prosecutions of doctors without adequate medical opinion pointing to their guilt would be doing great disservice to the community at large because if the Courts were to impose criminal liability on the hospitals and doctors for everything that goes wrong, the doctors would be more worried about their own safety than giving all best treatment to their patients. This would lead to shaking the mutual confidence between the doctor and patient. Every mishap or misfortune in the hospital or clinic of a doctor is not a gross act of negligence to try him for an offence of culpable negligence.
xxx xxx xxx xxx
Between civil and criminal liability of a doctor causing death of his patient the Court has a difficult task of weighing the decree of carelessness and negligence alleged on the part of the doctor. For conviction of a doctor for alleged criminal offence, the standard should be proof of recklessness and deliberate wrong doing i.e. a higher degree of morally blameworthy conduct.
To convict, therefore, a doctor, the prosecution has to come out with a case of high degree of negligence on the part of the doctor. Mere lack of proper care, precaution and attention or inadvertence might create civil liability but not a criminal one. The Courts have, therefore, always insisted in the case of alleged criminal offence against doctor causing death of his patient during treatment, that the act complained against the doctor must show negligence or rashness of such a hither degree as to indicate a mental state which can be described as totally apathetic towards the patient. Such gross negligence alone is punishable.
15. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the tests to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. Section 482 does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any flexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All Courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quanto lex aliauid alicui concedit, concedere videtur et id sine guo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the Court does not function as a Court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone Courts exist. Authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent abuse. It would be an abuse of the process of Court, to allow any action which would result in injustice and prevent promotion of justice and in exercise of such powers, Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the report or the complaint, the Court may examine the question of fact. When a report or complaint is sought to be quashed, it is permissible to look into the materials to assess what the report has alleged and whether any offence is made out even if the allegations are accepted into toto.
16. The scope of exercise of power under Article 226 of the Constitution of and Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of the process of any Court or otherwise to secure that ends of justice were set out in some detail by the Supreme Court in
(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under S. 156(1) of the Code except under an order of a Magistrate within the purview of S. 155(2) of the Code.
(3) Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under S. 155(2) of the Code.
(5) Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where the criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
17. In the case of
18. In the present case, the complainant had lodged an F.I.R., which was registered as Nayagarh P.S. Case No. 48 of 2003, u/s 304A, IPC, alleging therein that his sister Minati Pati died after delivering the child, due to gross negligence of the petitioner. After completion of investigation, the Investigating Officer submitted Final Report as a mistake of fact, as no incriminating material was found to establish any recklessness and deliberate wrong doing in treating the patient.
19. In the protest petition, the complainant has merely reiterated the allegations of criminal negligence against the petitioner. The initial statement of the complainant recorded u/s 200 Cr.P.C. and the evidence of the witnesses recorded u/s 202 Cr.P.C. are mere bald allegations without any basis and do not make out a prima facie case of gross negligence or recklessness against the petitioner. Therefore, allowing continuance of the criminal proceeding against the present petitioner would be an abuse of the process of Court.
20. Coming to the question regarding requirement of sanction for prosecution u/s 197(1) Cr.P.C., it is now well settled that the protection given u/s 197 of the Code 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. 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 from 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 the 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.
21. In
The protection given u/s 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 it chooses 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. 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 from 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 quantity 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 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 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.
22. In the present case, as the petitioner was a Government servant, working as ADMO at District Headquarters Hospital, Nayagarh and the offence is alleged to have been committed by him while performing his official duty as a doctor in the said hospital, the protection envisaged u/s 197(1) Cr.P.C. is attracted and he cannot be prosecuted without previous sanction of the State Government.
23. For the reasons as aforestated, the impugned order of cognizance dated 07.07.2005, passed by the learned S.D.J.M., Nayagarh is quashed and the protest petition registered as ICC No. 58 of 2005 is hereby dismissed.
24. CRLMC is accordingly allowed.
