JUDGMENT :

Prafulla C. Pant, J.

Leave granted.

2. This appeal is directed against order dated 16.4.2012, passed by the High Court of Judicature Chhattisgarh at Bilaspur, in Criminal Revision No. 220 of 2002 whereby said Court has disposed of the criminal revision, affirming order of the Magistrate by which application under Section 197 of the Code of Criminal Procedure, 1973 (Cr.P.C.) moved by appellants was rejected.

3. Brief facts of the case are that Miss Tapsi Rai, aged 14 years, daughter of respondent Surendra Nath Rai, underwent surgery on 5.8.1997 in Maharani Government Hospital, Jagdalpur, Bastar. The operation necessitated due to pain developed by the patient in the abdomen, was performed by the appellants, namely, Dr. (Smt.) Manorama Tiwari, Dr. B.R. Kawdo and Dr. Pradeep Pandey. Before conducting the surgery, consent to operate was taken from the respondent. However, even after surgery, the condition of the patient did not improve, and she died on the same day.

4. A First Information Report was lodged by the respondent after lapse of more than five months, i.e. on 2.2.1998 relating to offence punishable under Section 304A of Indian Penal Code at Police Station, Jagdalpur against Dr. Manorama Tiwari and Dr. Pradeep Pandey (appellant Nos. 1 and 3 respectively). Meanwhile, enquiry was got conducted on the complaint of the respondent under orders of the District Magistrate, in which report dated nil shows that the surgeons were opined to be negligent. However, subsequently another enquiry was held under orders of the Government, in which Joint Controller Health Services, Bastar, submitted his report dated 11.3.1998 with the finding that there was no negligence on the part of the surgeons.

5. It appears that the police did not file charge sheet, and the complainant (respondent) filed criminal complaint before the Chief Judicial Magistrate, Jagdalpur, making allegations of commission of murder against the appellants. Said case was registered as Criminal Complaint case No. 954 of 2000. The appellants moved an application on 18.10.2001 (No. 889 of 2002) alleging that prosecution against them is not maintainable without sanction as required under Section 197 Cr.P.C. Said application was rejected by the Magistrate vide order dated 16.3.2002, against which appellants filed criminal revision, but no relief is granted by the High Court and the same was disposed of summarily without any observation. Aggrieved by order of the High Court, this appeal is filed through special leave before us. The respondent, even after service of notice, did not turn up.

6. We have heard learned counsel for the parties and perused the papers on record.

7. From the papers on record it appears that the respondent, after his daughter developed abdomen pain, firstly took her to a nursing home run by one Dr. Dulhani on 4.6.1997. There she remained admitted for two days and underwent surgery of appendix. However, after her discharge, she again developed stomach pain on 8.6.1997, where after the patient was treated by one Dr. Bansal. Thereafter, in earlier round the patient was taken to Maharani Hospital and one Dr. (Smt.) Gupta treated the patient, and discharged her on 14.6.1997. However Miss Tapsi Rai (patient) did not get relief and was taken to MMI Hospital in Raipur. In said hospital the medical officers opined that surgery could be done only after pain gets subsided. On 23.6.1997 patient was again taken to Maharani Hospital where she was admitted for abdominal pain and was discharged on 29.6.1997 with the advice that if appendix is to be removed, the same would be done after six weeks. On 4.8.1997, the patient again complained of pain in her abdomen, and consulted Dr. (Smt.) Gupta, who told that the pain did not relate to appendix, and gave some medicines. When the condition of the patient did not improve on the same day, in the night the patient was again taken to Maharani Hospital where one Dr. Jha, who was on duty, admitted the patient, and called Dr. Pr