AS PER THE PROSECUTION CASE, AMAL KUMAR JHA (THE appellant) was in-charge of Patthalgaon Hospital, District Raigad where on 1.1.1995 L.T.D. operation of Runiabai was conducted by Dr. A.M. Gupta. Thereafter she was sent home. As Runiabai vomited Dr. A.M. Gupta was approached. He sent one Aklu Ram to administer some treatment. However on 2.2.1995 she was brought to the Primary Health Centre, Patthalgaon where she was admitted and died at 2 p.m. Her post mortem was conducted. After 25 days, First Information Report was lodged and ultimately Police filed chargesheet under section 304-A IPC on 16.10.1996 in the court of Judicial Magistrate First Class, Dharamjaigarh, as against appellant A.K. Jha, Dr. A.M. Gupta and Aklu Ram. Charges under section 304-A were framed as against Dr. A.M. Gupta and the appellant. Both of them filed an application for discharge under section 197 Cr.P.C. on the ground that sanction to prosecute was required and they could not be prosecuted without previous sanction. Vide order dated 27.6.2001 passed by the Judicial Magistrate First Class, the application filed by Dr. A.M. Garg had been allowed. However , the application filed by the appellant was rejected on the ground that he as in-charge of the Primary Health Centre and he failed to provide Government jeep for shifting the patient Mrs. Runiabai to District Hospital, Rajgad whereas the appellant himself travelled in the jeep to attend an official monthly meeting at Raigad Health Centre did not have ambulance. Thus, negligence was attributed to the appellant for not providing the said vehicle for shifting the patient to District Hospital, Raigad. A revision was preferred against the rejection of prayer and thereafter a petition was filed under section 482 Cr.P.C. before the High Court, the same having been dismissed. Against the judgement of the High Court special leave petition was filed. The Supreme Court set aside the impugned order and accepted the appeal, holding that the appellant could not have been prosecuted without sanction. It would be for the competent authority to consider the question of grant of sanction in accordance with law. In case the sanction is granted only then the appellant can be prosecuted and not otherwise.
The operative part of the judgement read as under :
It is apparent from the facts of the instant case that the allegation against the appellant is of omission in discharge of official duty in not providing Government vehicle for shifting the patient from Primary Health Centre to District Hospital, Raigad; whereas he himself travelled in the vehicle in question for attending the monthly official meeting at the District Headquarters. In our considered opinion, it was an act or omission in discharge of the official duty. The sanction to prosecute was necessary. In this case, the accused was acting in discharge of his official duty when he refused to provide the official vehicle. The refusal is directly and reasonably connected with his official duty, thus sanction is required for prosecution as provided under section 197(1) Cr.P.C.. It is not disputed that no ambulance was provided to the Primary Health Centre. The question arises whether omission to provide the official jeep which was not meant for patients, would constitute an omission in discharge of his duty. Though public servant is not entitled to indulge in criminal activities in the course of his duty but the act in question had relation to discharge of official duty of the accused. It was clearly connected to the performance sanction is required.
It is clear that the omission complained of due to which offence is stated to have been committed, was intrinsically connected with discharge of official duty of the appellant, as such the protection under section 197 Cr.P.C. from prosecution without sanction of the competent authority, is available to the appellant. Thus, he could not have been prosecuted without sanction. It would be for the competent authority to consider the question of grant of sanction in accordance with law. In case sanction is granted only then the appellant can be prosecuted and not otherwise. Resultantly, the impugned orders are set aside, the appeal is allowed.
Authorities relied upon : 1981 (Supp) SCC 12, 1967 (1) SCR 201, 1955 (1) SCR 1177, 1955 (2) SCR 925.
Reference : Supreme Court. Amal Kumar Jha v. State of Chhattisgarh & Anr., criminal appeal no. 396 of 2016.