( 1 ) HEARD ld. counsel Mr. MM Tirmizi for ld. counsel Mr. Pritesh Parikh for the petitioners -original accused nos. 5 and 6 and ld. APP Mr. HM Prachchhak for respondent No. 1 Served. Respondent No. 2, though served, has opted not to appear.

( 2 ) THE petitioners -original accused Nos. 5 and 6 have preferred the present Cri. Rev. Application challenging the legality and validity of the order passed by ld. Addl. Sessions Judge (Fast Track Court), Dhrangadhra, District : Surendranagar dated 5. 2. 2004 dismissing the application Exh. 9 for discharge submitted in Sessions Case No. 14/1999. Vide application exh. 9, the petitioners requested to drop the proceedings and discharge them as no case is made out against them and for the sake of arguments even if it is accepted that the petitioners or any of them can be prosecuted for the offences punishable under Sections 177,201 and 218 of the Indian Penal Code, even then, in absence of sanction required to be obtained under Sec. 197 of Crpc, the prosecution is bad and ld. Addl. Sessions Judge can not take cognizance in absence of any legal and valid sanction. Original accused Nos. 1 to 4 are facing charged for the offences punishable under Sec. 498-A, 501, 302 etc. of Indian Penal Code. Of course, the petitioners have been arraigned as accused for all the offences mentioned in the chargesheet by the police, but it is contended that they are innocent and they are unnecessarily dragged into serious criminal case.

( 3 ) IT is averred in para-2 of the memo of Revision Application that in view of the nature of the allegations made against the present petitioners, this Court had granted anticipatory bail and till the date they are on bail. It was specifically pleaded before the trial Court that none of these two petitioners could have been prosecuted by the agency in absence of formal sanction under Sec. 197 of Crpc and registration of a criminal offence in absence of such legal and valid sanction can be said to be an illegal institution of a criminal case.

( 4 ) BOTH the petitioners are doctors and at relevant point of time, they are serving in Government hospital and they are government or public servants. The main allegation against the petitioners is that a deadbody of deceased Madhuben was brought at Halvad Community Health Centre and petitioner No. 1 Dr. BT Malampara had informed Halvad Police Station and thereafter Halvad Police had drawn inquest panchanama in the presence of panchas. The officers who have drawn the panchanama and the panchas had examined the body of deceased Madhuben and it is recorded in the panchanama that there were no visible marks of injuries on any part of the body of the deceased. According to the prosecution, deceased Madhuben was initially examined by one Dr. Durlabhji. In the same way, Madhuben was also examined by another Doctor , but none of these two doctors have noticed any mark of violence or injury on the body of deceased Madhuben. It is the case of the prosecution that deceased Madhuben was pregnant and she had foetus of approximately 7 months and was taking treatment of Dr. Durlabhji for High Blood Pressure. Ultimately, investigating agency found that while carrying out autopsy, skull was not opened and after opening the skull during the post mortem by the panel of doctors, it was found that she had injury on her head of the nature that can be caused by a hard and blunt substance. It is opined that such injury is possible in the event when a person falls on earth having hard and blunt surface. Ld. Addl. Sessions Judge found that both the petitioners by ignoring the injury that was ultimately found on head, can not be said to be an act of discharging duty or error committed in proper discharge of the duty as a government/public servant. Ld. Addl. Sessions Judge, ultimately held that on the point of sanction, the petitioners accused does not deserve discharge and nature of the allegations against both the doctors are also serious in natur