1. By this revision application, the petitioner takes exception to the judgment and order dated 27th November 1997 passed by the learned Sessions Judge, Mumbai whereby he allowed Criminal Revision Application No.219 of 1996 and set aside the order of the Additional Chief Metropolitan Magistrate dismissing the complaint of the respondent no.1.

2. The respondent no.1 (hereinafter referred to as "the complainant") filed a complaint bearing Case No.446/MISC/95 in the Court of Additional Chief Metropolitan Magistrate, 2nd Court, Mazgaon, Mumbai alleging that the petitioner and one nursing staff working under her were guilty under section 304 read with section 114 of the Indian Penal Code (for short "the I.P.C."). The allegation of the complainant is that his wife was suffering from cancer and was admitted to Jagjivan Ram Hospital, owned by the Western Railway.

At the relevant time, the petitioner was working as a doctor in the Jagjivan Ram Hospital. The complainant’s wife was referred to the Tata Memorial Hospital for a check up. Tata Memorial Hospital advised certain injections to be given to the wife of the complainant at intervals of one week. Contrary to the instructions of Tata Memorial Hospital, the petitioner and an unnamed nurse gave injections everyday instead of every week resulting in the death of the wife of the complainant. The complainant, therefore, alleged that the petitioner had committed an offence under section 304 read with section 144 of the I.P.C.

3. According to the complainant, he had gone to the police station for lodging a First Information Report, but as the police failed to take any action he moved the learned Additional Chief Metropolitan Magistrate with a private complaint. On perusal of the complaint, the learned Additional Chief Metropolitan Magistrate was of the view that the issuance of process should be postponed and he may himself conduct an enquiry under section 202 of the Code of Criminal Procedure (for short "the Cr.P.C."). He required certain documents and papers for the enquiry. Accordingly, he issued a summons to the Jagjivan Ram Hospital for production of medical case papers of the wife of the complainant. Thereupon, the petitioner became aware of the proceedings filed against her. She thereafter made an application for quashing the proceedings on the ground that she was a public servant appointed by the President of India by a notification published in the Gazette of India dated 30th September 1978 at page 1329, Part 2 thereof. She further pleaded that sanction under section 197 of Cr.P.C. was necessary prior to the filing of the complaint and as the sanction was not obtained, the complaint was not maintainable. The learned Additional Chief Metropolitan Magistrate, who heard the application made by the complainant, came to the conclusion that the petitioner was a public servant to whom section 197 of Cr.P.C. was applicable and as the necessary sanction for the prosecution was not obtained the complaint was not maintainable. He therefore dismissed the complaint.

4. Aggrieved by the decision of the learned Magistrate dismissing his complaint, the complainant filed a revision, bearing Criminal Revision Application No.219 of 1996, before the learned Sessions Judge. The learned Sessions Judge came to the conclusion that the petitioner, who was arrayed as an accused in the complaint, has no locus to appear before the Magistrate nor had any locus standi to make an application unless and until process was issued against her. He, therefore, came to the conclusion that the application made by the petitioner before the learned Magistrate for her discharge and/or dismissal of the complaint was not maintainable. He accordingly set aside the order passed by the learned Magistrate and directed him to proceed with the matter in accordance with law. He further directed the petitioner to appear before the Magistrate on 6th January 1998. That decision is impugned in this revision application.

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