Dr. Sharda Parihar vs State and Others

G.D. Sharma, J.—Through the medium of this petition (which has been made under the provisions of Section 561-A, Cr.P.C.) quashing of

proceedings Police Chalian No. 9/94 titled State v. Dr. Shardha Parihar offence u/s 197, Cr.P.C. initiated by the learned Chief Judicial Magistrate,

Kathua is sought. Respondent No. 2 herein is the complainant and he on 29-1-94 made the complaint before the said Chief Judicial Magistrate

alleging therein that his wife namely, Smt. Madhu Sambyal was treated as a patient by the petitioner-accused in the Sub-District Hospital,

Hiranagar, who after accepting illegal gratification of Rs. 300/-, issued the medical certificate (Annexure-K) in herfavour. The certificate is stated to

be manifestly sham as being operative retrospectively. The said certificate was issued on 29-1-94 and on the same day complaint (Annexure-J)

was filed by respondent-complainant No. 2 in the Court of learned Chief Judicial Magistrate, Kathua, who transferred the same for trial to the

Court of Judicial Magistrate First Class, Hiranagar. The said Magistrate on 2-2-1994 sent the complaint to the S.H.O. Hiranagar for inquiry. Case

under F.I.R. No. 15 of 94 was registered and after investigation it was found that petitioner-accused herein had committed an offence falling u/s

197, Cr. P.C. Final report was submitted before the Munsif Judicial Magistrate First Class, Hiranagar, who for personal reasons declined to

entertain the same and requested the learned Sessions Judge, Kathua for the transfer of the same to some other Magistrate. The learned Sessions

Judge, Kathua vide his order dated 29-4-94, transferred the said final report for trial to the learned Chief Judicial Magistrate, Kathua, who on 5-

5-94 took cognizance of the report and issued process for the infraction of Section 197, Cr. P.C.

The petitioner-accused in this petition has inter-alia pleaded that she had issued the certificate in question as a public servant and in the discharge

of her duties while acting as a public servant and for these reasons, any action under law could be taken after obtaining previous sanction for

prosecution from her employer i.e. the Government. It is admitted that Smt. Madhu Sambyal (wife of respondent-complainant No. 2) while being

an indoor patient of the petitioner-accused in Sub-Distrct Hospital, Hiranagar had delivered a live baby and was discharged from the hospital on

20-12-93. After this, said Smt. Madha Sambyal had been oftenly visiting the; said sub-Hospital for medical treatment. On January 31, 1994,

respondent-complainant No. 2 came in the hospital at a time when petitioner-accused was busy in attending a patient who was in severe labour

pains. Respondents-complainant No. 2 fervently pleaded for the issuance of a certificate in favour of her wife and created an ugly scene. The

petitioner-accused was put to great mental stress and strain and in order to avoid any further nuisance in the hospital atmosphere, she hurriedly

issued the required certificate wherein by inadvertance the date of issuance was shown as January 29, 1994. She had to give a emergency

treatment to that patient and after this she again went in the labour room but taking undue benefit of her absence respondent-complainant No. 2

affixed her seal at the place specified in the said medical certificate as the place of signature of the patient.

Heard the arguments.

Mr. A. Parihar, the learned counsel for the petitioner-accused has contended that his client had issued the certificate being a public servant and

in the discharge of her official functions and that no prosecution could be launched without obtaining prior sanction of the Government. According

to him, there was non-compliance of the provisions of Section 197, Cr.P.C. and the proceedings require to be set-aside. In support of his

contention, he has cited the case of Jagjiwan Lal v. Krishan Chand Sharma 1986 KLJ 345 : 1987 Cri LJ 1149 . Also, he has cited the case of P.

Surya Rao Vs. Hanumanthu Annapurnamma and Others, .

Mr. Reghu Mehta, the learned counsel appearing for respondent-complainant No. 2 has controverted the argument by stating that the

petitioner-accused had not issued the certificate in question by acting or purporting to act in the discharge of her official duties because she

accepted the bribe and acceptance of bribe is neither an act of discharge of public duty nor any public function of a public servant. Rather, the

petitioner-accused took undue advantage of her official position and accepted illegal gratification of Rupees 300/-.

After considering the respective, contentions of the counsel for the parties, it can safely be said that the inherent jurisdiction of the Court can be

exercised to quash the proceedings in a proper case either to prevent the abuse of the process of any Court or otherwise to secure the ends of

justice. There are some categories of cases, where the inherent jurisdiction to quash the proceedings can and should be exercised. In the caes of

R.P. Kapur Vs. The State of Punjab, the Apex Court has held that absence of the requisite sanction for the prosecution of an accused is a case of

such category, where the inherent jurisdiction should be invoked.

In the instant case, it has to be seen at the thresh-hold whether the petitioner-accused at the time of issuing the certificate in question, was

actually engaged in the performance of her official duties i.e. whether she was directly concerned to issue the certificate and the answer to this

query comes in the affirmative. Whether she had accepted illegal gratification of Rs. 300/- is the secondary question to be established by cogent

and convincing evidence. In the case of Jagjiwan Lal (supra) cited at the bar this Court has held that the object of Section 197, Cr.P.C. is primarily

to guard against vexatious proceedings against the public servants. Before such criminal proceedings are launched, it would be proper to obtain

and consider the well considered opinion of a superior authority. The apex Court in AIR 1956 SC 306 (sic) had held that it is not every offence

committed by a public servant that requires sanction for prosecution u/s 197, Cr.P.C. nor even every act done by him, while he is actually engaged

in the performance of his official duties, but if the act complained of is directly concerned with the official duty and if that is questioned, it could be

claimed to have been done by virtue of the offence and then the sanction would be necessary.

In the case of Dr. P. Surya Rao (supra), a Medical Officer in service of the Government had given postmortem certificate while discharging his

duty. It was held that if he is accused of having committed an offence or offences while issuing the postmortem certificate, there can be little doubt

that he committed offence or offences while discharging his duty as a public servant. May be his action in giving postmortem certificate which is not

true, is not strictly in accordance with his duty as may, therefore, not amount to offence committed by him while acting in the discharge of his

official duty, but it would be an offence committed by him while purporting to act in the discharge of his official duty.

Viewing the instant case from all its legal and factual perspectives, it can be said with no manner of doubt that the petitioner-accused had issued

the certificate in question while as Assistant Surgeon in Government Sub-District Hospital, Hiranagar. She thus had issued it in the discharge of her

official duties and this act requires the scrutiny of her superiors. In view of such discussion being made the prior sanction of the Government was a

sine-qua nine as per the dictates of Section 197, Cr. P.C. before any proceeding could be launched. The learned Chief Judicial Magistrate, Kathua

is found to have acted in violation of the spirit of the bar imposed by the said section which is absolute. The cognizance of the challan taken by him

is bad in the eye of law.

In this view of the matter, the petition is accpeted and the proceeding initiated by the Chief Judicial Magistrate, Kathua in Police Challan No. 9

of 1994 on the basis of F.I.R. No. 15/94 of Police Station, Hiranagar, are quashed. The accompanying Cr. M.P. No. 96/95 also stands disposed

of.