Dr. Ravinder Kohli vs State of Punjab

Surinder Gupta, J.—Petitioner Dr. Ravinder Kohli has filed this petition u/s 482 Code of Criminal Procedure (for short ''Cr.P.C.'') seeking the relief as follows:-

Petition u/s 482 Cr.P.C. praying for quashing of order dated 5.4.2008 of learned Sub Divisional Judicial Magistrate, Rajpura (Annexure P-5) whereby application u/s 197 Cr.P.C. for not taking cognizance of the case, was dismissed as well as judgment of learned Additional Sessions Judge dated 30.10.2009 (Annexure P-6) dismissing the revision petition filed by the petitioner in case FIR No. 86 dated 8.5.2005 under Sections 465, 469, 471, 193, 194, 195, 196 and 120-B IPC, Police Station City Rajpura.

At the relevant time, petitioner was posted as P.C.M.S. (doctor) at A.P. Jain Hospital (a Government hospital), Rajpura. During his posting as Medical Officer, he conducted the medical examination of one Gurnam Singh in case bearing FIR No. 68 dated 5.12.2004 under Sections 323, 324 read with Section 34 Indian Penal Code (for short ''IPC'') registered at Police Station Mullepur, District Fatehgarh Sahib. The accused in the aforesaid case made a complaint of fabrication of injury on the person of injured Gurnam Singh and a Board of Doctors was constituted which gave the report regarding the injuries on the person of Gurnam Singh as follows:

Proceeding of the medical board held in the Office of Civil Surgeon, Patiala on 27-1-05

This is with ref. to the request made by Chet Singh S/o. S. Saun Singh village Bras district Fatehgarh Sahib. He made the request of 16-12-04 to the Civil Surgeon, Patiala with the affidavit attached or a complaint against Gurnam Singh S/o. Bahadur Singh, village Bras, distt. Fatehgarh Sahib and Dr. Ravinder Kohli, AP Jain Hospital, Rajpura.

A board comprising of Dr. S.P. Sharma, ACS Patiala, Dr. Harjinder Singh, MO CHC model town and Dr. Sanjeev Sarin, MO Arya Smaj was constituted. The board held its meeting in the office of Civil Surgeon Patiala on 27-1-2005, previously patient Gurnam Singh S/o. Bahadur Singh did not appear for the board on 28-12-2004. On scrutinizing the records, the board observed that:

MLR is vague in nature.

Injury no. 3 mentioned in MLR is inconsistent with injury scar mark present over the body of injured Gurnam Singh.

Injury no. 4 and injury no. 5 mentioned in the MLR are also inconsistent with the injury scar marks present over the body of injured Gurnam Singh.

Similarly the photocopies of indoor bed head ticket checked by the undersigned is also enclosed with this letter. After going through all the documents, the board is of the opinion that injury no. 3 scar is inconsistent with the injury mark. The injury has been given grievous without substantiating the injury with the X-ray findings. Similarly the injury no. 4 and 5 mentioned in the MLR are also inconsistent with the injury scar mark present in the body of the injured. Similarly, the bed head ticked presented by Dr. Ravinder Kohli is incomplete. There is no signature/thumb impression on the bed head ticket of the patient. The notes on indoor file are incomplete and sketchy and seems to be written on a single day with the same pen. In all probability this medico legal injury seems to be self inflicted and assisted by Dr. Ravinder Kohli.

This led to registration of a case against the petitioner and Gurnam Singh vide FIR No. 86 dated 08.05.2005 for the offences punishable under Sections 465, 469, 471, 193, 194, 195, 196 and 120-B of Indian Penal Code at Police Station City Rajpura. On presentation of challan, the petitioner moved an application seeking his discharge for want of compliance u/s 197 Cr.P.C. which was declined by the trial Court vide order dated 05.04.2008 (Annexure P-5). The revision petition against that order was also dismissed by the Additional Sessions Judge, Patiala vide order dated 30.10.2009 Annexure P-6. The petitioner has sought the quashing of both the above orders.

I have heard learned counsel for the parties and have perused the paper book with their assistance.

Learned counsel for the petitioner has argued that on the basis of MLR prepared by the petitioner at the time of examination of Gurnam Singh on 05.12.2004, police filed a cancellation report while a complaint was filed by Gurnam Singh in which the accused were summoned and ultimately the complaint ended in conviction of the accused for the offences punishable under Sections 326, 324 read with Section 34 and Section 323 IPC vide judgment dated 10.01.2014 (Annexure P-10). This shows that the Court has relied upon the MLR prepared during discharge of his duty by the petitioner. As such, the provisions of Section 197 Cr.P.C. are applicable to the facts of the case and the orders of the trial Court as well as of Court of revision suffer from patent illegality on this score. He has relied upon the observations in case Dr. B.T. Malampara Vs. State of Gujarat, .

Learned counsel for the petitioner has further argued that the departmental action was also initiated against the petitioner and after the inquiry, he has been exonerated vide order Annexure P-7.

Learned State counsel has argued that the petitioner had conducted the medico-legal examination of injured Gurnam Singh and the injuries mentioned in the MLR were found by the Board of Doctors to be self inflicted and assisted by Dr. Ravinder Kohli i.e. the petitioner. The provisions of Section 197 Cr.P.C. are not applicable in this case as by no stretch of imagination, the preparation of false, forged and fabricated MLR, it can be termed as discharge of official duty of the petitioner. The Court of revision has rightly relied upon the observations in the case of Parkash Singh Badal and others Vs. State of Punjab and others 2007(1) RCR (Cri) 1 and observed that provisions of Section 197 Cr.P.C. would not attracted in the present case.

Regarding the judgment passed in Criminal Complaint No. 80-RBT of 5.4.2005/2012 Annexure P-10, wherein the accused have been convicted for the offences punishable under Sections 326, 324 read with Section 34 IPC and Section 323 IPC, it has been argued by learned State counsel that learned trial Court has not looked into the aspect of forging of MLR and ignored the defence evidence on the ground that original record was not produced and none of the member of the board, who was signatory to the report dated 27.01.2005 (Annexure P-3) was examined in defence. Learned trial Court has not taken the report into consideration at all. As such, the petitioner cannot draw any benefit of that judgment. Even otherwise, while examining the matter as to whether the sanction u/s 197 Cr.P.C. is required for prosecuting the petitioner, the conviction of the accused in criminal complaint vide judgment (Annexure P-10) is not relevant. The order passed by the trial Court dated 5.4.2008 and Court of revision dated 30.10.2009 suffer from no legal infirmity.

The petitioner has challenged the orders Annexures P-5 and P-6 in this petition. Vide order Annexure P-5, the trial Court dismissed the application filed by the petitioner for his discharge for want of sanction u/s 197 Cr.P.C. The other application disposed of was filed by accused Gurnam Singh in that case calling for second medical board report.

Admittedly, the petitioner is a public servant who is not removable from the office saved with all by the sanction of State Government.

Section 197 Cr.P.C. reads as follows:-

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 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-

(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 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, or the State Government:

[Provided that where the alleged offence was committed by a person referred to in Cl. (b) during the period while a proclamation issued under Cl. (1) of Art. 356 of the Constitution was in force in a State, Cl. (b) will apply as if for the expression ''State Government'' occurring therein, the expression ''Central Government'' was substituted.]

[Explanation.--For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under Sec. 166-A, Sec. 166-B, Sec. 354, Sec. 354-A, Sec. 376, Sec. 376-A, Sec. 376-C, Sec. 376-D or Sec. 509 of the Indian Penal Code.]

(2) xxx

(3) xxx

(4) xxx.

To attract provisions of Section 197 Cr.P.C., there must be a reasonable connection between the act and the discharge of official duty. If the act complained of is directly concerned with the official duties, so that if questioned, it would be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and would not arise at the stage of the grant of sanction, which must precede the institution of the prosecution.

In Baijnath Gupta and Others Vs. The State of Madhya Pradesh, , Hon''ble Apex Court has observed that it is the quality of the act that is important and if it falls within the scope and range of official duties of the public servant concerned, the protection contemplated by Section 197 Cr.P.C. will be attracted.

In the case of Dr. B.T. Malampara & anr. (supra) referred by learned counsel for the petitioner, the doctors while examining the dead body had not observed any injury. It was body of a female having seven months pregnancy. The investigating agency had found that while carrying out the autopsy, the skull was not opened. A penal of doctors examined the dead body again and after opening the skull during postmortem examination, it was found that she had injury on her head. This led to the prosecution of the doctors who had initially examined and ignored the head injury. It was in these circumstances that the Gujarat High Court had observed that in the absence of any evidence of nexus between the doctors and the accused, the main fact that the some injury did not find mentioned in the medical report do not call for prosecution of those two doctors without sanction as required u/s 197 Cr.P.C. It was further observed in that case that even after the sanction of the Government u/s 197 Cr.P.C., doctor can be prosecuted separately and not along with the accused in the main case. The Court was of the view that the lapse on the part of the doctor was not prima facie deliberate as the injury which was not mentioned in their medical report was noticed only after opening of the skull.

While discussing the scope of Section 197 Cr.P.C. in case Urmila Devi Vs. Yudhvir Singh, , Hon''ble Apex Court has observed as follows:-

The High Court has taken the view that the prosecution launched by the Appellant against the Respondent was legally impermissible without the sanction of the State Government. That view has been assailed before us primarily on the ground that the Respondent was neither acting nor could be said to be acting in the purported discharge of his official duty so as to entitle him to the protection of Section 197, Code of Criminal Procedure which to the extent the same is relevant for our purposes read as under:-

Prosecution of Judges and public servants.-

(1) When any person who is or was a Judge or a Magistrate or a public servant not removable from his office 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-

(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 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.

(2) xxx

(3) xxx

(4) xxx.

A careful reading of the above would show that protection against prosecution will be available only if the following ingredients are satisfied:

(a) The person concerned is or was a judge or magistrate or public servant.

(b) Such person is not removable from his office save by the sanction of the Government.

(c) Such person is accused of commission of an offence and

(d) Such offence is committed while the person concerned was acting or purporting to act in the discharge of his official duties.

The Court of revision has also relied upon the observations of Hon''ble Supreme Court in case of Parkash Singh Badal and others (supra) and has committed no error of law and fact while observing as follows:-

As per case of prosecution, the allegation against the petitioner is that he has assisted Gurnam Singh in fabricating the injuries. The aforesaid act by no stretch of imagination can be said to be an official duty of a Doctor. In-fact this is not even, remotely connected with the discharge of the duty of a doctor. The official duty implies and covers only legal and justified action and does not authorize the public servant to commit an illegal act not expected of him. Assisting a person to fabricate an injury so as to cover the same under the stringent provisions of law is not the official duty of any government doctor. In fact the official duty is otherwise. Thus, to my mind, the provisions of Section 197 of the Cr.P.C. would not be attracted in the present case as the act complained of against the petitioner is not within the scope or reasonably connected with a discharge of his official duty.

In the case of State of Maharashtra Vs. Devahari Devasingh Pawar and Others, , Hon''ble Supreme Court has observed that for the act not related to the discharge of the official duties like tampering with the entries made in the official record, tearing of pages from different official registers and stowing them away in ones house, there is no need of any sanction u/s 197 Cr.P.C.

In case Raghunath Anant Govilkar Vs. State of Maharashtra and Others, Hon''ble Supreme Court has observed as follows:-

The protection given u/s 197 Criminal Procedure Code is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or adequate protection to public servants to ensure that they are not prosecuted for anything done by them, in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if it chooses to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 Criminal Procedure Code can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official capacity. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of the section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty: if the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 Criminal Procedure Code does not get immediately attracted on institution of the complaint case.

The question which arises for consideration in this case is as to whether the act of the petitioner preparing MLR showing the injury which in the opinion of the Board of Doctors were not suffered by the injured is an act in discharge of his official duty. The answer to this question is not in affirmative. The report of the Board of Doctors is detailed one and clearly make out a case against the petitioner to proceed against him in the Court of law. I find no illegality or infirmity in the order of the trial Court or Court of revision, so as to interfere the same by invoking the inherent powers of this Court u/s 482 Cr.P.C.

The fact that the accused in the complaint filed by Gurnam Singh have been convicted by the trial Court is also not helpful to the petitioner because the trial Court has ignored the report of the Board of Doctors as the original record was not before it and none of the doctors constituting the medical board, was not examined.

Learned State counsel submits that the original record is in this file and the members of the medical board are also cited witnesses.

Learned counsel for the petitioner has also referred the observations of Hon''ble Supreme Court in P.S. Rajya Vs. State of Bihar, and Lokesh Kumar Jain Vs. State of Rajasthan, and has argued that after the exoneration of the petitioner in the departmental proceedings, the FIR registered against the petitioner can be quashed.

The above argument of learned counsel for the petitioner cannot be appreciated or looked into in this petition as the relief sought by the petitioner is not of quashing of the FIR. He has only sought protection of Section 197 Cr.P.C. which is not made out.

This petition has no merits and hence, the same is dismissed.

The FIR in this case was registered on 05.12.2004. It is a very old case. The trial Court is directed to expedite the trial and dispose of this case by taking the proceedings on day to day basis and preferably within six months of the receipt of copy of this order.