Point of Law: Crucial importance is lack of sanction under Section 197 Cr.P.C. As per Section 197 Cr.P.C. it is mandatory for the court to obtain prior sanction from the Government for taking cognizance in respect of an offence alleged against a public servant.

ORDER :

1. The petitioner is the accused in C.C. No. 521 of 2009 on the file of the Judicial First Class Magistrate Court-I, Kozhikode. The aforesaid case arises from Crime No. 105 of 2004 of Kozhikode Town Police Station. The said crime was registered on the basis of the information furnished by the 2nd respondent as to the death of one Bindu on 03.04.2004, while she was undergoing treatment after a Mini lap surgery which was conducted at Government Hospital, Kottaparamba. Annexure-A1 is the final report submitted by the police in the aforesaid case, wherein the petitioner, who was the duty doctor in the hospital at the relevant time, was implicated as the accused for the offence punishable under Section 304-A of IPC.

2. The facts which lead to the filing of this Crl. M.C. is as follows:

On 31.03.2004, Smt. Bindu who is a relative of the 2nd respondent/de facto complainant, was admitted at Government Hospital, Kottathaparamba for a Mini lap surgery and the said surgery was conducted on 01.04.2004 by one Dr. Nandini. After the surgery, during the night, patient developed diarrhea and vomiting and her condition became worse. It was alleged that the duty nurse informed the duty doctor, the petitioner herein, as to the critical condition of said Bindu, but the petitioner failed to attend the patient. Later, the patient was referred to Medical College Hospital, Kozhikode, where she died on 03.04.2004. After completing the investigation, police submitted Annexure-A1 charge sheet before the Judicial First Class Magistrate Court-I, Kozhikode and cognizance thereon was taken as C.C. No. 521 of 2009.

3. After appearance, the petitioner filed an application seeking discharge from the prosecution on various grounds such as, there was no sanction obtained, as contemplated under Section 197 Cr.P.C. and it was also contended that the materials available on record do not constitute the offence alleged against the petitioner. The contention of the petitioner was accepted by the learned Magistrate and accordingly, an order was passed on 11.02.2014, discharging the petitioner, mainly on the ground that no sanction as contained under Section 197 Cr.P.C. has been obtained. Prosecuting agency filed Crl. R.P. No. 23 of 2016 before the Sessions Court, Kozhikode challenging the aforesaid order and it resulted in Annexure-A4 order. In the said order, learned Sessions Judge found that the finding that the sanction was required as contemplated under Section 197 Cr.P.C. is not correct and on that ground alone the petitioner is not entitled for an acquittal. It was also found that the order passed by the learned Magistrate discharging the accused was passed by invoking powers under Section 239 Cr.P.C. which is applicable only in respect of warrant cases. As this is a summons case, said provision cannot be made applicable. In such circumstances, the order passed by the Magistrate discharging the accused under Section 239 Cr.P.C. was set aside and the matter was remanded back to the Magistrate for fresh disposal in accordance with law under Chapter 20 of Cr.P.C.

4. After remand, the petitioner filed Annexure-A5 application which is numbered as Crl. M.P. No. 1690 of 2016 under Section 258 Cr.P.C. to stop the proceedings in the matter. While the aforesaid application was pending consideration, the prosecuting agency filed Annexure-A6 petition which is numbered as C.M.P. No. 794 of 2017 under Section 173(8) Cr.P.C. seeking further investigation in the matter. Further investigation was sought mainly on two reasons. The first reason is that, they have already forwarded the relevant records for obtaining sanction for prosecution under Section 197 Cr.P.C. to the appropriate authority and the second reason is that, certain documents relating to the surgery of the deceased and also relating to the conduct of persons who were on duty during the post surgical period of the deceased, are to be produced before the court.

5. This Crl. M.C. is filed by the petitioner at that ju