JAGANNATH SAHU Vs. SASIBHUSAN RATH

JUDGEMENT

(1.) Petitioner's complaint alleging commission of offence punishable under Section 304A read with Section 34 of the India Penal Code, 1860 (in short, 'I.P.C.') having been rejected by the learned Sub Divisional Judicial Magistrate, Jajpur (in short, 'SDJM') in I.C.C. No. 135 of 1993, this application has been filed for interference. Petitioner had alleged that his wife (hereinafter referred to as 'deceased') lost her life on account of negligence of opposite parties.

(2.) The oft repeated question of requirement of sanction is the only question which needs adjudication in this case. Incidentally, the conclusion that no prima facie came for taking cognizance falls for scrutiny. Petitioner as complainant filed the aforesaid case making the following allegations : On 22-7-1992 opposite parties Nos. 3 and 4 suggested to petitioner that deceased should undergo family planning operation after termination of pregnancy. Petitioner agreed to such operation, which was undertaken by opposite party No. 1. On petitioner's enquiry the said opposite party told that everything was in order, and there was termination of pregnancy and deceased was successfully operated upon. After a month the petitioner came with deceased for check up, as she showed vomitting tendency. Petitioner was apprehensive that there was something wrong in the operation. But opposite party No. 1 ensured that such apprehension was unfounded and also undertook to see that there was easy delivery. He advised them to visit him for periodic check up. Subsequently deceased suffered unbearable pain. She was taken to the hospital where opposite party No. 2 after check up, informed that there was nothing wrong and it was a case of premature and false pain of delivery. He advised petitioner to take her to his residence and at petitioner's request, deceased was admitted as indoor patient in bed No. 52. When the pain did not subside, petitioner again requested opposite party No. 2 to examine deceased and opposite party No. 2 examined deceased and prescribed some medicines which were given to the deceased, and injections were also administered by opposite party No. 2. After taking medicines and injections, deceased slept and passed away in sleep, without regaining her consciousness. Opposite party No. 2 checked by and declared her to be dead. He gave out that death was due to (a) spontaneous rupture of uterus; and (b) on account of faulty family planning operation undertaken by opposite party No. 1. Attributing negligence on the part of the opposite parties and holding them responsible for death of deceased, petitioner filed the complaint and moved the learned SDJM for initiating action against them. Prayer was rejected by order dated 16-4-1993 which is impugned in this application on the ground that the allegations do not prima facie constitute an offence, and even if there was negligence by the opposite parties, they being Government servants were protected under Section 197, Code of Criminal Procedure, 1973 (in short, the 'Code') and cognizance cannot be taken without prior sanction of the Government.

(3.) Petitioner's case in essence in this Court is that the conclusions of the Magistrate are erroneous and indefensible. Learned counsel for various opposite parties have highlighted certain factual aspects, and according to them the learned SDJM was right in his conclusions.