JUDGMENT :

(Sugato Majumdar, J.) :

1. The instant application is filed under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973 by Dr. Rajat Bhattacharjee, Medical Officer & Gynecologist, Basirhat Sub Divisional Hospital against the State and others praying for quashing of the proceedings of Basirhat P.S. Case No. 241/07 dated 30/05/2007, corresponding to G. R. No. 864 of 2007 under Sections 304A/201/109 of the Indian Penal Code.

2. Allegations are that on 19/02/2007 the daughter of the de-facto complainant Suprava Das was admitted at Basirhat Sub Divisional Hospital and she gave birth to a female child under supervision of Dr. Sudhangshu Kumar Ghosh being Opposite Party No. 3. Allegedly some post-operative complications developed and the patient was referred to SSKM Hospital, Kolkata on 21/02/2007 where she was treated for more than two weeks. Unfortunately on 06/03/2007 at 05:00 P.M., the patient expired. The allegation is that death of the patient occurred due to medical negligence of the present Petitioner and the Opposite Party No. 3 and 4, namely, Dr. Sudhangshu Kumar Ghosh and Dr. Partha Pratim Basu and Others.

3. A complaint was filed under Section 156 of the Code of Criminal Procedure in the Court of Additional Chief Judicial Magistrate, Basirhat. The Trial Court directed the Inspector-in-Charge of Basirhat Police Station to treat the complaint as First Information Report and to investigate into the case. Accordingly, Bashirhat Police Station Case No. 241 dated 30/05/2007 under Sections 34/35/304/304A/36/109 of the Indian Penal Code was registered and investigation began. On conclusion of investigation charge sheet was filed on 08/06/2009 against the present Petitioner as well as Opposite Party No. 3 – 6 under Sections 304A/201/109 of the Indian Penal Code. Subsequently, charges were framed against the Opposite Party No. 3 to 6 under Sections 304A/201/109 of the Indian Penal Code to which they pleaded not guilty for which the trial began.

4. It is the case of the Petitioner that the trial court took cognizance of the offences on 08/06/2009 without any sanction order as contemplated in section 197 of the Code of Criminal Procedure, 1973 and proceeded with the trial. The Petitioner agitated the issue before the trial court. In terms of the order dated 28/01/2011 the trial court rejected the plea of the Petitioner against which the present Petitioner preferred a revision application under Sections 397/399 of the Code of Criminal Procedure, 1973 registered as Criminal Revision No. 30 of 2011 in the Court of Additional Sessions Judge, Basirhat. The said Criminal Revision No. 30 of 2011 was dismissed for default on 13/09/2012.

5. Mr. Datta appearing for the Petitioner made two pronged arguments. According to him, the alleged incidence related to discharge of the official duty by the Petitioner as a public officer. This is manifest from the written complaint itself. Therefore, prior sanction order, as contemplated in section 197 of the Code of Criminal Procedure, 1973 is mandatory for taking cognizance of the alleged offences. Absence of such sanction order vitiates the trial itself.

6. The second point canvassed is that the trial court directed the Investigating Officer the manner in which investigation is to be carried out. He pointed out that in terms of order dated 06/02/2009 the Additional Chief Judicial Magistrate observed that sufficient materials were collected in the case to justify filing of police report. Thereafter, he directed the Investigating Officer to file supplementary police report if expert opinion was not received within fifteen days, citing CMOH as witness. In case of availability of the expert report, police report in final form should be submitted. According to Mr. Datta, such direction shows a biasness of the Court in favour of prosecution. He further submitted that proceeding in the lower court is pending for long causing undue hardship and prejudice to the Petitioner. Accordi