DR. (SMT.) MANORAMA TIWARI AND OTHERSversusSURENDRA NATH RAI

                         [2015] 9 S.C.R. 436


A          DR. (SMT.) MANORAMA TIWARI AND OTHERS
                                  v.
                       SURENDRANATH RAI
                 (Criminal Appeal No. 1193 of 2015)
B                      SEPTEMBER 10, 2015
          [DIPAK MISRA AND PRAFULLA C. PANT, JJ.]

           Code of Criminal Procedure, 1973 - s. 197 -
C    Prosecution of judges and public servant - Sanction from
     the Government - Requirement of - Appellants-Medical
     Officers in govemment hospital performed surgery on the
     patient in the government hospital, however, the patient died
     - Criminal complaint by respondent-complainant before the
D    magistrate alleging commission of murder against the
     appellants-Application u/s. 197 by the appellants alleging
     that the prosecution against them not maintainable without
     sanction uls. 197 - Rejection of. by the magistrate as also
    ·the High Court - On appeal, held: It is a clear case where
E    appellants were discharging their public duties, as they were
     performing surgery on the patient in the Government hospital
     - Appellants were Medical Officers in the Government
     Hospital -As such, the criminal prosecution of the appellants
     initiated by complainant not maintainable without the sanction
F    from the State Government - High Court erred in law in
     dismissing the revision filed bYappel/ants and affirming the .
     order of the Magistrate rejecting their application as to
     maintainability of the criminal complaint without sanction from
     the State Government- Thus, the order passed by High Court
G    as also magistrate set aside.

        MatajogDubeyv. H.C. BhariAIR 1956 SC44:1955 SCR
    925 - followed.

H                                436
 DR. (SMT.) MANORAMA TIWARI v. SURENDRA NATH RAI 437


    Jacob Mathew v.    ~ate
                         of Punjab and Anr. (2005) 6 SCC          A
1: 2005 (2) Suppl. SCR 307 - referred to.

                      Case Law Reference

   2005 (2) Suppl. SCR 307         referred to      Para 10
                                                                  B
   1955 SCR 925                    followed         Para 11

    CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No; 1193 of2015.
                                                                  c
    From the Judgment and Order dated 16.04.2012 of the
High Court of Judicature Chhattisgarh at Bilaspur in Criminal
Revision No. 220 of 2002.

   Ra.tnakar Dash, Piyush Kumar, Samir Ali Khan for the           D
Appellants.

    The Judgment of the Court was delivered by

    PRAFULLA C. PANT, J. 1. Leave granted.
                                                                  E
     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 or~er of
the Magistrate by which application under Section 197 of the      F
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, underwbnt G
surgery on 5.8.1997 in Maharani Government Hospifal,
                                                             I
JagdaJpur, 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. S.R.
Kawdo and Dr. Pradeep Pandey. Before conducting the H
                                  ,_'
438         SUPREMECOURT~EPORTS                   (2015] 9 S.C.R.


A     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
B 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
C 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
D 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
E 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
F 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.
G 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
H perused the papers on record.
DR. (SMT.) MANORAMATIWARI v. SURENDRANATH RAI 439
                [PRAFULLAC. PANT, J.]

     7. From the papers on record it appears that the A
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, whereafterthe patient B
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 anq was
taken to MMI Hospital in Raipur. In said hospital the medical C
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 D
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 E
the night the patient was again taken to Maharani Hospital
where one Dr. Jha, who was on duty, admitted the patient, and
called Dr. Pradeep Pandey (appellant No. 3), who attended
the patient at midnight. It was decided that the surgery would
be done next morning. Next day, at about 9.30 a.m., Dr. F
Pradeep Pandey, during surgery, called Dr. (Smt.) Manorama
Tiwari, Gynecologist (appellant No. 1) and she called Dr. B.F~.
Kawdo, Surgeon and Chief Medical Officer (appellant No. 2).
However, the doctors could not save the patient, who ultimately
d~.                                                             G

     8. It is argued before us on behalf of the appellants that
the appellants were discharging their public duties and have
committed no negligence on their part. It is further argued that
assuming but not admitting there was negligence in                 H
440       SUPREME COURT REPORTS                        [2015] 9 S.C.R.


A discharging the public duties, in view of the provisions of
  Section 197 Cr.P.C., the prosecution against the appellants is
  not maintainable without sanction from the Government.

       9. Relevant provision relating to sanction in Section 197
B Cr.P.C. reads as under: -

        "Section 197 - Prosecution of Judges and public
        servants-(1) When any person who is or was a Judge or
        Magistrate or a public servant not removable from his office
c       save by or with the sanction of the Government is accused
        of any offence alleged to have been committed by him
        while acting or purporting to act in the discharge of his official
        duty, no Court shall take cognizance of such offence except
        with the previous sanction save as otherwise provided in
D       the Lokpal and LokayuktasAct, 2013

        (a) in the case of a person who is employed or, as the case
        may be, was at the time of commission of the alleged offence
        employed, in connection with the affairs of the Union, of the
 E      Central Government;

        (b) in the case of a person who is employed or, as the case
        may be, was at the time of commission of the alleged offence
        employed, in connection with the affairs of a State, of the State
        Government:
 F
        Provided that where the alleged offence was committed by
        a person referred to in clause (b) during the period while a
        Proclamation issued under clause (1) of Article 356 of the
        Constitution was in force in a State, clause (b) will apply as if
G       forthe expression "State Government" occurring therein,
        the expression "Central Government" were substituted.

        Explanation.-for the removal of doubts it is hereby
        declared that no sanction shall be required in case of a
H       public servant acCU$ed of any offence alleged to have been
    DR. (SMT.) MANORAMA TIWARI v. SUREN ORA NATH RAI 441
                   [PRAFULLA C. PANT, J.]

       coml\litted under section 166A, section 1668, section         A
       354, section 354A, section 3548, section 354C, section
       3540, section 370, section 375, section 376, section
       376A, section 376C, section 3760 or section 509 of the
       Indian Penal Code (45 of 1860).
                                                                     B
       (2)

       (3)
       (3A)
                                                                     c
       (38)

       (4) The Central Government or the State Government, as
       the case may be, may determine the person by whom,
       the manner in which, and the offence or offences for which,   o
       the prosecution of such Judge, Magistrate or public servant
       is to be conducted, and may specify the Court before which
       the trial is to be held."

     10. A three-Judge Bench of this Court in Jacob Mathew           E
v. State of Punjab and another1, has laid down guidelines
for prosecution of medical professionals as under: -

       "50. As we have noticed hereinabove that the cases of
       doctors (surgeons and physicians) being subjected to F
       criminal prosecution are on an increase. Sometimes such
       prosecutions are filed by private complainants and
       sometimes by the police on an FIR being lodged and
       cognizance taken. The investigating officer and the private
       complainant cannot always be supposed to have G
       knowledge of medical science so as to determine whether
       the act of the accused medical professional amounts to a
       rash or negligent act within the domain of criminal law
1
    (2005) 6 sec 1
                                                                     H
       SUPREME COURT REPORTS                   [2015] 9 S.C.R.


     under Section 304-A IPC. The criminal process once
     initiated subjects the medical professional to serious
     embarrassment and sometimes harassment. He has to
     seek bail to escape arrest, which may or may not be
     granted to him. At the end he may be exonerated by
p
~)
     acquittal or discharge but the loss which he has suffered
     to his reputation cannot be compensated by any
     standards.

     51. We may not be understood as holding that doctors
c    can never be prosecuted for an offence of which rashness
     or negligence is an essential ingredient. All that we are
     doing is to ernphasise the need for care and caution in
     the interest of society; for, the service which the medical
     profession renders to human beings is probably the
f)
     noblest of all, and hence there is a need for protecting
     doctors from frivolous or unjust prosecutions. Many a
     complainant prefer recourse to criminal process as a tool
     for pressurising the medical professional for extracting
     uncalled for or unjust compensation. Such malicious
E    proceedings have to be guarded against.

     52. Statutory rules or executive instructions incorporating
     certain guidelines need to be framed and issued by the
     Government of India and/or the State Governments in
F    consultation with the Medical Council of India. So long as
     it is not done, we propose to lay down certain guidelines
     for the future which should govern the prosecution of
     doctors for offences of which criminal rashness or criminal
     negligence is an ingredient. A private complaint may not
G    be entertained unless the complainant has produced
     prima facie evidence before the court in the form of a
     credible opinion given by another competent doctor to
     support the charge of rashness or negligence on the part
     of the accused doctor. The investigating officer should,
H
     before proceeding against the doctor accused of rash or
 DR. (SMT.) MANORAMATIWARI v. SURENDRANATH RAI 443
                [PRAFULLAC. PANT, J.]

     negligent act or omission, obtain an independent and A
     competent medical opinion preferably from a doctor in
     government service, qualified in that branch of medical
     practice who can normally be expected to give an impartial
     and unbiased opinion applying the Bo/am 2 test to the facts
     collected in the investigation. A doctor accused of rashness. B
     or negligence, may not be arrested in a routine manner
     (simply because a charge has been levelled against him).
     Unless his arrest is necessary for furthering the
     investigation or for collecting evidence or unless the
     investigating officer feels satisfied that the doctor C
     proceeded against would not make himself available to
     face the prosecution unless arrested, the arrest may be
     withheld."

     11. In Matajog Dubeyv. H. C. BharP, a Constitution Bench       D
of this Court in the matters of prosecution of public servants
has held as under: -

     "15 ......... Public servants have to be protected from
     harassment in the discharge of official duties while E
     ordinary citizens not so engaged do not require this
     safeguard. It was argued that Section 197, Criminal
     Procedure Code vested an absolutely arbitrary power in
     the Government to grant or withhold sanction at their sweet
     will and pleasure, and the legislature did not lay down or F
     even indicate any guiding principles to control the exercise
     of the discretion. There is no question of any discrimination
     between one person and another in the matter of taking
     proceedings against a public servant for an act done or
     purporting to be done by the public servant in the discharge G
     of his official duties. No one can take such proceedings
     without such sanction ............. "
' Bolam v. Frein Hospital Management Committee, (1957) 1 WLR 582:
  (1957) 2 All ER 118 (QBD)
' AIR 195fi SC 44                                                   H
444          SUPREME COURT REPORTS                [2015) 9 S.C.R.


A       12. In view ofthe above settled position of law, we are of
  the opinion that in the present case, the High Court has erred
  in law in dismissing the criminal revision filed by the appellants
  and affirming the order of the Magistrate rejecting their
  application as to maintainability of the criminal complaint
B without sanction from the State Government. In our opinion, it
  is a clear case where appellants were discharging their public
  duties, as they were performing surgery on the patient in the
  Government hospital. It is not disputed that the appellants were
  the Medical Officers in the Government Hospital. As such, the
C criminal prosecution of the appellants initiated by the
  respondent (complainant) is not maintainable without the
  sanction from the State Government. That being so, we are
  inclined to allow this appeal.

D      13. Accordingly, the appeal is allowed. The impugned
  order passed by the High Court dismissing the criminal
  revision, and the one passed by the Magistrate on 16.3.2002
  rejecting the application under Section 197 Cr.P.C., are set
  aside. The application under Section 197 Cr.P.C., moved by
E the appellants before the trial court, stands allowed.
                               /
      Nidhi Jain                                     Appeal allowed.