High Court
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.2506 OF 2021Durreshhewar Ghulam Jilani@ Dr. Samreen,Age 31 yrs., Occ. Doctor,R/o C/o Mohd. Shoeb,Mominpura, Parbhani. … Applicant… Versus …1The State of MaharashtraThrough Police Inspector,Police Station, Nanalpeth,Dist. Parbhani. 2Kavita w/o Manik Zhodpe,Age 38 yrs., Occ. Household,R/o Amay Nagar, Near ShalimarFunctional Hall, Parbhani,Tq. & Dist. Parbhani. … Respondents...Mr. W.A. Shaikh, Advocate for applicantMr. S.A. Gaikwad, APP for respondent No.1Mr. M.B. Sandanshiv, Advocate for respondent No.2...WITHCRIMINAL APPLICATION NO.2642 OF 2021
Legal Reasoning
2Cri.Appln_2506_2021+1Rohini d/o Haribhau Shelke,Age 31 yrs., Occ. Medical Practitioner,R/o C/o Pandurang Kagde,Pradnya Niwas, Ajintha Nagar,Wangi Road, Parbhani. … Applicant… Versus …1The State of MaharashtraThrough Police Inspector,Police Station, Nanalpeth,Dist. Parbhani. 2Kavita w/o Manik Zhodpe,Age 38 yrs., Occ. Household,R/o Amay Nagar, Near ShalimarFunctional Hall, Parbhani,Tq. & Dist. Parbhani. … Respondents...Mr. S.S. Shinde, Advocate for applicantMr. S.A. Gaikwad, APP for respondent No.1Mr. M.B. Sandanshiv, Advocate for respondent No.2...CORAM :SMT. VIBHA KANKANWADI & SANJAY A. DESHMUKH, JJ.RESERVED ON :24th JULY, 2025PRONOUNCED ON :04th SEPTEMBER, 2025 3Cri.Appln_2506_2021+1ORDER : (PER : SMT. VIBHA KANKANWADI, J.)1Both these applications have been filed under Section 482 of theCode of Criminal Procedure, 1973 for quashment of First Information Reportvide Crime No.340/2021 dated 09.07.2021 registered with Police Station,Nanalpeth, Dist. Parbhani, for the offence punishable under Section 304-Aread with Section 34 of the Indian Penal Code, 1860. 2Heard learned Advocate Mr. W.A. Shaikh for applicant inCriminal Application No.2506 of 2021, learned Advocate Mr. S.S. Shinde forapplicant in Criminal Application No.2642 of 2021 as well as learned APP Mr.S.A. Gaikwad for respondent No.1 and learned Advocate Mr. M.B. Sandanshivfor respondent No.2 in both matters. 3Applicants in both matters are the Medical Officers serving withCivil Hospital, Parbhani. The informant, who is mother of deceased KajalNitin Dhapse has stated that Kajal was married to Nitin on 29.04.2018. Shewas admitted around 2.00 a.m. on 24.04.2019 in the Delivery Ward of CivilHospital, Parbhani for delivery. Nurse had examined her and asked her towalk for a while, as the complaint was that she is having stomach pain.Around 9.00 a.m. Kajal was examined by a Doctor and it was told that Kajalis required to undergo C-section operation. She was taken for caesarean 4Cri.Appln_2506_2021+1around 11.00 a.m. where the delivery was done. Around 12.00 noon Kajaland child were brought to ward. Everybody was happy. Kajal did not informthat she has some problem. But around 9.00 p.m. she told that there wastingling in her head. When Sister was told about it, the Sister told that theinjection is scheduled at 10.00 p.m. Accordingly, the injection was given at10.00 p.m., however, around 11.00 p.m. Kajal diagnosed with fever and shehad stomachache. Again one injection was given by Sister, which has noeffect. Her health deteriorated. The Sister called Doctor and again oneinjection was given. The Doctor who was on duty at night time did not cometo check Kajal. Thereafter, Sister applied oxygen and other apparatus. Therewas no relief to Kajal, therefore, informant went to the place of resting roomof Doctor and called Doctor. The Sister there told that no Doctor is present.Around 2.00 to 2.30 a.m. on 25.04.2019 one Doctor came and someapparatus was applied to the mouth of Kajal. Another Doctor had pressedher chest several times. Those Doctors then asked the relatives to go out.Around 3.00 a.m. the Doctors told informant’s husband that Kajal hasexpired. When they asked as to how she has expired, the Doctors told thatthey do not know. According to the informant the death has occurred due tonegligence by the Doctor. 4Learned Advocates for applicants have stated that statement of 5Cri.Appln_2506_2021+1husband of informant, co-wife of informant, who alleged that they werepresent in the hospital are on the same line. The other witnesses includingthe husband of Kajal are hearsay. In the present case Civil Surgeon, CivilHospital, Parbhani had conducted inquiry, however, the results of saidCommittee, who had conducted the inquiry cannot be taken as the piece ofevidence of negligence. Here, the ordinary negligence is not required butmedical negligence. If we consider Postmortem Report, then the probablecause of death is, “Cardiopulmonary oedema in a case of post LSCS (LowerSegment Caesarean Section) for day 1 for primi with full term with cephalopelvic disproportion”. Therefore, Hon’ble Supreme Court had givenguidelines in Jacob Mathew vs. State of Punjab and another [(2005) 6 SCC]as to how criminal medical negligence is to be considered. The Committee’sreport shows that the Doctors are required to check the patient afteroperation periodically and take notes on the case paper. However, this hasnot been done in the present case. The complaints made by relatives ofpatient were not addressed to. At the most, these findings may give rise tothe departmental enquiry against applicants as they are the Governmentservants. 5Learned Advocates appearing for applicants rely on the decisionin Rakesh Ranjan Gupta vs. State of U.P. and another (Three Judge Bench 6Cri.Appln_2506_2021+1decision) [(1999) 1 SCC 188], wherein it has been held that if there wasdelay on the part of Doctor to attend on the patient, that may at the worst bea case of civil negligence and not one of culpable negligence falling underSection 304-A of the Indian Penal Code. They then further submit that in Dr.Suresh Gupta vs. Govt. of NCT of Delhi and another [(2004) 6 SCC 422] ithas been observed by Hon’ble Supreme Court that - “The legal position is almost firmly established that where a patientdies due to the negligent medical treatment of the doctor, the doctorcan be made liable in civil law for paying compensation and damagesin tort and at the same time, if the degree of negligence is so grossand his act was so reckless as to endanger the life of the patient, hewould also be made criminally liable for offence under Section 304-AIPC. For fixing criminal liability on a doctor or surgeon, the standard ofnegligence required to be proved should be so high as can bedescribed as "gross negligence" or recklessness". It is not merely lackof necessary care, attention and skill. Thus, when a patient agrees togo for medical treatment or surgical operation, every careless act ofthe medical man cannot be termed as 'criminal'. It can be termed'criminal' only when the medical man exhibits a gross lack ofcompetence or inaction and wanton indifference to his patient's safetyand which is found to have arisen from gross ignorance or grossnegligence. Where a patient's death results merely from error ofjudgment or an accident, no criminal liability should be attached to it.Mere inadvertence or some degree of want of adequate care andcaution might create civil liability but would not suffice to hold him 7Cri.Appln_2506_2021+1criminally liable. For every mishap or death during medicaltreatment, the medical man cannot be proceeded against forpunishment. Criminal prosecutions of doctors without adequatemedical opinion pointing to their guilt would be doing greatdisservice to the community at large because if the courts were toimpose criminal liability on hospitals and doctors for everything thatgoes wrong, the doctors would be more worried about their ownsafety than giving all best treatment to their patients. This wouldlead to shaking the mutual confidence between the doctor andpatient. Every mishap or misfortune in the hospital or clinic of adoctor is not a gross act of negligence to try him for an offence ofculpable negligence.”Lastly, learned Advocates for applicants submit that both theapplicants were Government servants and, therefore, in order to prosecutethem the prior sanction under Section 197 of the Code of Criminal Procedurewas necessary. Perusal of charge sheet would show that no such sanction hasbeen taken. They rely on the decision by Hon’ble the Single Bench ofMadhya Pradesh High Court (Principal Seat at Jabalpur) in Dr. Smt. BeenaYadu vs. State [2003 Cri.L.J. 3402], wherein also the petitioner was MedicalOfficer serving in District Hospital. The facts are almost identical i.e. patientcoming for delivery, refused to be attended by petitioner and patient died.Petitioner was said to be on duty as an emergency Medical Officer on call,therefore, she was supposed to be discharging her duty. When the sanctionhas not been obtained the Magistrate ought not to have taken cognizance in 8Cri.Appln_2506_2021+1view of bar created under Section 197 of the Code of Criminal Procedure.Here, also charge sheet came to be filed on 12.01.2022. Though evidence ispart heard before trial Court, this Court can still interfere as learnedMagistrate took the cognizance in spite of the statutory bar. 6Per contra, learned APP as well as learned Advocate forinformant - respondent No.2 in both matters strongly opposed theapplications and submitted that since the matter is part heard before trialCourt, this should not be taken as a fit case where the Court should exerciseits powers under Section 482 of the Code of Criminal Procedure. TheCommittee appointed as per Jacob Mathew’s case (supra) has given thefindings that it was the negligence on the part of accused persons. As regardsapplicant Durreshhewar Jilani @ Dr. Samreen, her statement was recorded byCommittee. She has stated that she went home after 1.00 a.m. and till thattime she was checking the new patients, who had come for delivery. Asregards applicant Dr. Rohini Shelke, she has done LSCS after all the testswere done, but it was her duty also to see that since she had performed theoperation, she should go to the Ward and check present condition of patient.She has never visited the Ward thereafter. Negligence of each and every staffwho was present and on duty at that time can be proved and it has been soconsidered as per the duty assigned to them by the Committee. In fact, after 9Cri.Appln_2506_2021+1the said three member Committee had given the report to Civil Hospital, oneperson Committee of Dr. Faseeha Tasnim, Associate Professor, GynecologyDepartment was appointed. She has also stated that there was negligence onthe part of staff attending Kajal and Doctors on duty. Since the case is partheard, let there be trial. 7Most important fact in the present matters as per the chargesheet is that it was filed in the Court of Judicial Magistrate First Class,Parbhani on 12.01.2022. On 05.04.2022 the process was issued as against allaccused persons. In Ferist there is no order of sanction to prosecute presentapplicants. It is not in dispute that present applicants are Governmentservants. They were serving with Civil Hospital i.e. Government Hospital.Even the employee on the basis of contract in the Government office wouldthen temporarily become the Government servant an umbrella of protectiongiven under Section 197 of the Code of Criminal Procedure would beapplicable or given to all such Government employees. These Doctors weresupposed to be on duty on the relevant date and it is stated that they havenot attended the patient in time. The findings of three member Committeeas well as single person Committee Dr. Faseeha would certainly show thatthese two applicants were supposed to be on duty and ought to haveattended the patient, but it is then stated that they have neglected. Due to 10Cri.Appln_2506_2021+1which the complications worsen. Thereby the Committees are stating that itwas the part of their duty to be alert and respond. Therefore, when the actwas part of duty or in the discharge of duty, then certainly the previoussanction under Section 197 of the Code of Criminal Procedure wasmandatory. We agree to the decision taken by Hon’ble Single Bench ofMadhya Pradesh High Court in Dr. Smt. Beena Yadu (supra). Further, on thispoint, though the facts are different, that is, they are in respect of differentGovernment officials but the law applicable in respect of Section 197 of theCode of Criminal Procedure is same. 8Here, we would like to take note of the legal position that wascarved out in Om Prakash Yadav vs. Niranjan Kumar Upadhyay and Others[2024 SCC Online SC 3726], which reads thus - “The legal position that emerges from the discussion of the aforesaidcase laws is that :(i) There might arise situations where the complaint or the policereport may not disclose that the act constituting the offence was doneor purported to be done in the discharge of official duty. However, thefacts subsequently coming to light may establish the necessity forsanction. Therefore, the question whether sanction is required or notis one that may arise at any stage of the proceeding and it may revealitself in the course of the progress of the case. 11Cri.Appln_2506_2021+1(ii) There may also be certain cases where it may not be possible toeffectively decide the question of sanction without giving anopportunity to the defence to establish that what the public servantdid, he did in the discharge of official duty. Therefore, it would beopen to the accused to place the necessary materials on record duringthe trial to indicate the nature of his duty and to show that the actscomplained of were so interrelated to his duty in order to obtainprotection under Section 197 CrPC. (iii) While deciding the issue of sanction, it is not necessary for theCourt to confine itself to the allegations made in the complaint. It cantake into account all the material on record available at the timewhen such a question is raised and falls for the consideration of theCourt. (iv) Courts must avoid the premature staying or quashing of criminaltrials at the preliminary stage since such a measure may cause greatdamage to the evidence that may have to be adduced before theappropriate trial court.”8.1In Shriniwas Reddy Kankanala Vs. State of Maharashtra andAnother [2024 (4) Mh.L.J. (Cri.) 510], this Court has considered the ThreeJudge Bench decision in B. Shaha and Others Vs. M/s Kochar [(1979) 4 SCC177]. Therefore, we should take into consideration it as the law of precedentmakes it mandatory to consider the decision of a Three Judge Bench of theHon'ble Apex Court and in which, it is held thus - “The words "Any offence alleged to have been committed by him 12Cri.Appln_2506_2021+1while acting or purporting to act in the discharge of his official duty"employed in section 197(1) of the Code, are capable of a narrow aswell as wide interpretation. If these words are construed too narrowly,the section will be rendered altogether sterile, for it is no part of anofficial duty to commit an offence, and never can be. In the widersense, these words will take under their umbrella every actconstituting an offence, committed in the course of the sametransaction in which the official duty is performed or purports to beperformed. The right approach to the import of these words liesbetween these two extremes. While it is not every offence committedby a public servant while engaged in the performance of his officialduty, which is entitled to the protection of Section 197(1), an actconstituting an offence, directly and reasonably connected with hisofficial duty will require sanction for prosecution under the saidprovision.”8.2Further, in G.C. Manjunath and Others Vs. Seetaram [2025INSC 439], also, B. Shaha and Others (supra) has been referred. We mustunderstand as to why the protection is given to a public servant fromprosecution, thereby making the sanction to prosecute under Section 197 ofthe Code of Criminal Procedure compulsory. It has been observed in G.C.Manjunath and Others (supra) in paragraph No.30 that - “A careful reading of Section 197 of the Cr.P.C. unequivocallydelineates a statutory bar on the Court's jurisdiction to takecognizance of offences alleged against public servants, save withoutthe prior sanction of the appropriate Government. The essentialprecondition for the applicability of this provision is that the alleged 13Cri.Appln_2506_2021+1offence must have been committed by the public servant while actingin the discharge of, or purported discharge of, their official duties. Theprotective mantle of Section 197 of the Cr.P.C., however, is notabsolute and it does not extend to acts that are manifestly beyond thescope of official duty or wholly unconnected thereto. Acts bereft ofany reasonable nexus to official functions fall outside the ambit of thissafeguard and do not attract the bar imposed under Section 197 of theCr.P.C.”8.3The provision has been made to protect the public servants frommalicious prosecution, otherwise it will not be possible to a public servant todischarge his duties without fear or favour. The object and purpose of thissection was also considered in Gurmeet Kaur vs. Devender Gupta [2024 SCCOnline SC 3761] and it has been noted in G.C. Manjunath and Others(supra). It has been therefore, stated that - “The guiding principle governing the necessity prior sanction standswell crystallized. The pivotal inquiry is whether the impugned act isreasonably connected to the discharge of official duty. If the act iswholly unconnected or manifestly devoid of any nexus to the officialfunctions of the public servant, the requirement of the sanction isobviated. Conversely, where there exists even a reasonable linkbetween act complained of and the official duties of public servant,the protective umbrella of Section 197 of the Cr.P.C. and Section 170of the Police Act is attracted. In such cases, prior sanction assumes thecharacter of a sine qua non, regardless of whether the public servantexceeded scope of authority or acted improperly while discharging hisduty.” 14Cri.Appln_2506_2021+19Therefore, whether there is a previous sanction as contemplatedunder Section 197 of the Code of Criminal Procedure or not should beconsidered by any Magistrate before taking cognizance of offence. There is astatutory bar for taking cognizance in absence of such sanction. Under suchcircumstance, when the cognizance itself is illegally taken, it would be anabuse of process of law if present applicants are then asked to face theremaining trial. In ordinary circumstances if the case would have progressedand it is part heard, then we would not have interfered, but, here, when basicfact has been overlooked and cognizance has been taken in spite of statutorybar, we take this to be a fit case for exercise of powers under Section 482 ofthe Code of Criminal Procedure, which is exceptional in nature. 10Now, as regards whether action or inaction on the part ofapplicants was medical negligence or not, need not be gone into. Certainly,we are then guided by the decisions in Rakesh Ranjan Gupta (supra), JacobMathew (supra) and Dr. Suresh Gupta (supra). In fact, these points wereavailable to the applicants to be raised at the time of framing of charge, but itappears that no such application for discharge was ever filed. The reasonthat has been tried to be given is that present applications have been filed in2021, when charge sheet was not filed, but the charge sheet came to be filedin 2022 and since the applications were pending, no such application for 15Cri.Appln_2506_2021+1discharge was filed. We may not fully agree to learned Advocates forapplicants in this respect, there is no necessity to file a written application fordischarge. But there is a stage as per Section 239 of the Code of CriminalProcedure, which makes provision for, when accused shall be discharged. Itprovides that - “If, upon considering the police report and the documents sent with itunder section 173 and making such examination, if any, of theaccused as the Magistrate thinks necessary and after giving theprosecution and the accused an opportunity of being heard, theMagistrate considers the charge against the accused to be groundless,he shall discharge the accused, and record his reasons for so doing.”Section 240 of the Code of Criminal Procedure provides forframing of charge. If, upon such consideration, examination, if any, andhearing, the Magistrate is of opinion that there is ground for presuming thatthe accused has committed an offence triable under this Chapter, then heshall frame in writing a charge against the accused. That means, for both i.e.Sections 239 and 240 of the Code of Criminal Procedure submissions can bemade on behalf of accused orally and it can be demonstrated as to how thecharge cannot be framed or accused needs to be discharged, for whichoffence the charge cannot be framed and whether it can be framed etc. and,therefore, we refrain ourselves now from going into the aspect as to whetherit was the criminal negligence of present applicants or not. Even if we take 16Cri.Appln_2506_2021+1that there was a criminal negligence; yet the previous sanction has not beenobtained as contemplated under Section 197 of the Code of CriminalProcedure. This is sufficient for us to exercise our powers under Section 482of the Code of Criminal Procedure to protect the party from abuse of processof law. Hence, following order. ORDERi)Both Criminal Applications stand allowed.ii)The proceedings in Summary Criminal Case No.604/2022pending before learned Judicial Magistrate First Class, Parbhani arising out ofFirst Information Report vide Crime No.340/2021 dated 09.07.2021registered with Police Station, Nanalpeth, Dist. Parbhani, for the offencepunishable under Section 304-A read with Section 34 of the Indian PenalCode, 1860, stands quashed and set aside as against applicant DurreshhewarGhulam Jilani in Criminal Application No.2506 of 2021 and applicant Rohinid/o Haribhau Shelke in Criminal Application No.2642 of 2021. ( SANJAY A. DESHMUKH, J. ) ( SMT. VIBHA KANKANWADI, J. ) agd