Dr. S. Sourubarani and Dr. S. Akila vs C. Selvi

M. Thanikachalam, J.—The respondents in H.R.C. No. 2/2003 on the file of the Human Rights Court-cum-Additional District Judge-cum-

Chief Judicial Magistrate, Kumbakonam, have filed this petition, for quashing the same, as not maintainable.

The respondent herein as petitioner moved the Human Rights Court for appropriate punishment against the petitioners/accused, for the alleged

offences said to have been committed by them under Sections 156, 315, 325, 503 and 509 I.P.C., in addition to claiming a sum of Rs. 5 lakhs as

compensation, for the failure and negligence said to have been committed by the accused/petitioners herein.

Facts in Brief:

The respondent herein being a pregnant lady, for third delivery, went to Aduthurai Government Hospital on 2.5.2002 at about 7.00 p.m. The

doctors therein informed the petitioner and the person accompanied her, that at present no doctor is available and therefore, they have to go to

Kumbakonam Government Hospital. Accordingly, when the respondent herein had been to Kumbakonam Government Hospital, the doctors

therein checked the respondent and found insufficiency of blood and low blood pressure, for which treatment could not be given at Kumbakonam

Hospital, advised the respondent to go to Thanjavur Hospital.

The respondent accordingly, as per the advice rendered by the Kumbakonam Doctor, when reached Thanjavur Government Hospital, the

doctors who had checked the respondent, threatened her informing that they will give treatment, if the respondent is willing to have family planning

operation. Since the respondent was suffering from pain, she had no other option, except to accept the threat made by the doctors.

The doctors, who have attended upon the respondent are the petitioners herein. The petitioners/accused have operated the respondent

unnecessarily for the purpose of family planning, which resulted the death of the child, as well as causing rupture in the uterus and its removal. Even

thereafter, for more than 15 days or so, because of the carelessness on the part of the accused/petitioners, the respondent was suffering for

urinating and in fact, urine was oozing, causing pain and suffering.

In order to have better treatment, when the respondent approached the JIP-MER Hospital, Pondicherry, it came to light that the

petitioners/accused have performed wrong operation or surgery, which is the cause for the removal of the uterus and for the loss of family life to

the respondent herein at the age of 27. The husband of the respondent was employed in foreign soil and because of the sufferings, he has to return,

thereby he had lost the income also. Under the above facts and circumstances, the petitioners had committed the offence under Sections 166, 315,

325, 503 and 509 I.P.C., for which they should be punished and for the sufferings, the respondent herein should be compensated, by awarding a

compensation of Rs. 5,00,000/- , was the case of the respondent before the Human Rights Court.

The accused/petitioners on appearance before the lower Court felt, that they are harassed, for performing their duty officially and legitimately by

the respondent by preferring a complaint, which is not even maintainable. In this view, they have filed this petition, for quashing the proceedings.

Heard the Learned Counsel for the petitioners, Mr. S. Nagamuthu. Though the respondent was served before the Principal Bench at Madras,

as well as before this Bench, she has failed to appear either in person or through counsel.

The Learned Counsel for the petitioners, Mr. S. Nagamuthu appearing for the petitioners submitted, that the proceedings pending on the file of

the Human Rights Court-cum-Additional District Judge-cum-Chief Judicial Magistrate, Kumbakonam, in H.R.C. No. 2/2003, is liable to be

quashed on the following grounds viz.,

(i) that the complaint filed by the respondent without obtaining a sanction, as contemplated u/s 197 Cr. P.C. is not maintainable, since the

petitioners are public servants, performed their duty in that capacity, who are removable only by the Government.

(ii) that since the case is pending before the Sessions Court, without the case being committed by the Judicial Magistrate, as mandated under Cr.

P.C, taking cognizance of the offence by the Sessions Court, itself is barred u/s 193 of Cr.P.C. and

(iii) that the allegations or the averments in the complaint failed to disclose even any prima facie offence under Sections 166, 315, 325, 503 and

509 I.P.C. And therefore, no useful and earthly purpose could be served, by prosecuting the case before the Court, when the complaint itself is

not maintainable and it will be a futile exercise and ordeal for the petitioners, to face the trial of the case unnecessarily.

On the above grounds, it is urged that the proceedings are liable to be quashed, invoking the inherent jurisdiction of this Court u/s 482 Cr.P.C.

since the respondent had abused the process of court, unnecessarily, without any basis.

The complaint or the petition preferred by the respondent says, that the doctors whose conduct are now questioned, were on official duty in

the hospital. According to the submission made by the Learned Counsel for the petitioners, the petitioners are public servants as contemplated u/s

197 of the Code of Criminal Procedure and therefore, as contemplated u/s 197(1)(b) Cr.P.C, the Court ought not to have taken cognizance of the

offence, except with the previous sanction by the State Government, who alone is competent to remove these petitioners from the office. Since the

petitioners are working as doctors under Government Service, there may not be any dispute to bring them within the meaning of public servants.

Admittedly, before filing the petition or after the filing of the petition, no sanction of the Government was obtained, in order to prosecute the public

servants, since they were performing their duty as public servants.

The fact that sanction is necessary to prosecute a public servant, who was acting or purporting to act in discharge of his official duty cannot be

doubted, in view of the ratio laid down by the Supreme Court in Director of Inspection & Audit v. C.L. Subramaniam (1995 SCC (Cri) 121). The

protection available u/s 197 Cr.P.C. for a public servant, for the act done in discharge of his official duty cannot be so lightly weighed and in the

absence of such sanction, as rightly submitted by the Learned Counsel for the petitioners, the petition for prosecuting the doctors filed by the

respondent, before the court concerned, is not maintainable. If sanction is available, then its validity cannot be decided by this Court at present and

the said duty may be given to the trial Court and this opportunity is not available in this case. In view of the admitted position, that the doctors were

performing their duties as public servants, certainly the protection given u/s 197 Cr.P.C, should be made available to the petitioners, which is not

available in this case and in this view, the complaint is liable to be quashed.

The main thrust of the Learned Counsel for the petitioners is, that the case taken by the learned Sessions Judge, who is designated under the

Human Rights Act, itself is not maintainable, in view of the fact that he has no jurisdiction to take cognizance of the offence without committal, as

contemplated u/s 193 of the Code of Criminal Procedure. In this context, to appreciate the above defence, certain provisions of the Acts, as well

as some provisions of the Code of Criminal Procedure have to be considered.

Protection of Human Rights Act 1993 (Act 10/1994) defines the ''Human Rights Court'' as follows, u/s 30:

For the purpose of providing speedy trial of offences arising out of violation of human rights, the State Government may, with the concurrence of

the Chief Justice of the High Court, by notification, specify for each district a Court of Session to be a Human Rights Court to try the said offences:

Provided that nothing in this section shall apply if-

(a) a Court of Session is already specified as a special court; or

(b) a special court is already constituted, for such offences under any other law for the time being in force.

Here, the case was taken cognizance of by the Additional District and Sessions Judge-cum-Chief Judicial Magistrate, who is a Sessions Judge, not

in dispute.

The Code of Criminal Procedure (hereinafter called ''the Code'') deals with constitution of Criminal Courts and Offices, under Chapter II,

classifying the criminal Courts, defining territorial divisions, limiting the power to impose imprisonment and fine, etc. Section 193 of the Code while

limiting the power of Courts of Sessions, in taking cognizance of offences, says:

Except as otherwise expressly provided by this Code or by any other law for time being in force, no Court of Session shall take cognizance of any

offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.

Thereby curtailing the jurisdiction of the Courts of Sessions taking cognizance of any offence, directly. In other words, the courts of session has no

original jurisdiction to take cognizance of any offences, unless committed by a Judicial Magistrate, as contemplated u/s 209 of the Code. In this

case, admittedly, the case has been filed only before the Court of Session, since that court is notified as Human Rights Court, as provided u/s 30 of

the Act. Though u/s 30 of the Act, power is given to the State Government, to specify for each district, a Court of Session to be a Human Rights

Court, to try the offences under this Act, with the concurrence of the Chief Justice of the High Court, it does not say that the Human Rights Court

shall try the offences not withstanding anything contained in Cr.P.C. No such power is conferred upon the Human Rights Courts, to try the

offences, ignoring the procedure contemplated under the Code. In this context, we have to see some other special enactments, where Court of

Sessions has been conferred with similar power, to try the cases, arising under those acts.

The Tamil Nadu Protection of Interests of Depositors (In Financial Establishments) Act, 1997 (hereinafter called the ''TNPID Act'') also

contemplates constitution of Special Court, as seen from Section 6 of the said Act, which reads:

For the purpose of this Act, the Government may, with the concurrence of the Chief Justice of the High Court, by notification, constitute one or

more Special Courts for such area or areas or such case or cases may be specified in the notification in the cadre of a District and Sessions Judge.

Though it is a State Act, the legislators realising the fact, that a Sessions Judge cannot take cognizance of the offence directly, introduced a

provision, conferring power upon the District and Sessions Judge, in Section 13 of the TNPID Act, which reads:

The Special Court may take cognizance of the offence without the accused being committed to it for trial and in trying the accused person, shall

follow the procedure prescribed in the Code of Criminal Procedure. 1973 (Central Act 2 of 1974) for the trial of warrant cases by Magistrates.

(2) The provisions of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) shall, so for as may be, apply to the proceedings before a

Special Court and for the purpose of the said provisions, a Special Court shall be deemed to be a Magistrate.

Section 12-A of the Essential Commodities Act, 1955, contemplates Constitution of Special Courts, which says:

A person shall not be qualified for appointment as a Judge of a Special Court unless-

(a) he is qualified for appointment as a Judge of a High Court, or

(b) he has, for a period of not less than one year, been a Sessions Judge or an Additional Sessions Judge.

Then, realising the difficulty, a special provision is introduced empowering the Special Courts, to take cognizance of the offences, without

committal, which says :

Notwithstanding anything contained in the Code-

(a) all offences under this Act shall be triable only by the Special Court constituted for the area in which the offence has been committed or where

there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the High Court.

Only by virtue of this special empowerment of power, though Code prohibits taking cognizance of the offence directly by the Sessions Judge, the

Special Courts, presided over by a Sessions Judges is conferred upon the power of taking cognizance of the offence, directly.

The Prevention of Corruption Act (Act 49/1988), (hereinafter called ''the PC Act''), a Central enactment, confers power upon the Central

Government or the State Government, to appoint Special Judges, to try the offences under this Act, u/s 3. Section 4(1) of the said Act reads:

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or in any other law for the time being in force, the

offences specified in sub-section (1) of Section 3 shall be tried by Special Judges only.

Then Section 5(1) of the PC Act, while dealing with the procedure and powers of Special Judges says:

(1) A Special Judge may take cognizance of offences without the accused being committed to him for trial and, in trying the accused persons, shall

follow the procedure prescribed by the Code of Criminal Procedure, 1973 (2 of 1974), for the trial of warrant cases by the Magistrates.

thereby removed the bar imposed u/s 193 of the Code.

The Schedule Castes & The Schedule Tribes (Prevention of Atrocities) Act, 1989, a central enactment also contemplates constitution of

Special Court for the purpose of providing for speedy trial, empowering the State Government to specify for each District, a Court of Sessions to

be a Special Court, to try the offences under this Act, with the concurrence of the Chief Justice of the High Court concerned. Section 14 of the SC

& ST 1989 and the first part of Section 30 of the Human Rights Act are more or less similar in nature, expect a few words, denoting the names of

the Court. Section 14 of the SC & ST Act reads:

For the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by

notification in the Official Gazette, specify for each district a Court of Session, to be a Special Court to try the offences under this Act.

Similar wordings are deployed in Section 30 of the Protection of the Human Rights Act, 1993, except the words ''Human Rights''.

The provisions of Section 14 of the SC & ST Act, the effect of Section 193 of the Code came to the consideration of the Apex Court in

Gangula Ashok v. State of A.P. (2000 SCC (Cri) 488), in order to decide, whether a Court of Sessions could take cognizance of the offence

directly, u/s 14 of the SC & ST Act, ignoring section 193 of the Code. The Hon''ble Apex Court, while considering whether the Special Judge

could take cognizance of the offence straight away, without the case being committed to him, came to the conclusion, analysing the provisions, that

a complaint or charge sheet cannot straight away be laid down before the Special Court under the Act.

Section 4 of the Code contemplates trial of offences under the Indian Penal Code and Section 5 provides the deviation from the code for

trying certain offences, on the basis of special jurisdiction or power conferred upon any special Court, to follow the separate procedure, even

ignoring the procedure contemplated under this Code. Therefore, in order to invoke Section 5 of the Code and try the offences by the Court of

Sessions, taking cognizance of the case directly, the special enactment viz., in this case, the Human Rights Act, should empower power upon the

Human Rights Court, depending upon the classification of the Judicial Officers, who are presiding over the Court. Admittedly, there is no provision

either in the SC & ST Act or in the Protection of Human Rights Act. Therefore, the procedure contemplated for trying the offences under SC &

ST Act has to be necessarily followed, while trying the offences under the Human Rights Act, which is clear from the ratio laid down by the Apex

Court in Gangula Ashok''s case. The Hon''ble Supreme Court has considered Sections 4 and 5 of the Code also, while analysing whether the

Special Court constituted under the special enactments, could by pass the procedure contemplated under the Code. Thus considering Sections 4,

5 and 193 of the Code, as well as Section 14 of the SC & ST Act, 1989, the Apex Court has ruled as follows:

Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the

case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot

straight away be laid down before the Special Court under the Act.

This procedure alone has to be followed in this case, unless the Act is amended, empowering or conferring power upon the Court of Sessions to

take cognizance of the offence directly, as indicated by me comparing the provisions available in other Acts viz., the Prevention of Corruption Act,

Essential Commodities Act, TNPID Act. In this case, admittedly, as on this date, the Special Court, which is a Court of Sessions, has not been

conferred with any special power, to take cognizance of the offence directly, not withstanding anything contained in Cr.P.C. and in this view, a

committal is an absolute one, as contemplated u/s 209 Cr.P.C. Therefore, as such taking of the case on file by the Court of Sessions, which is

designated as Human Rights Court, ignoring 193 is bad in law and on this ground, I should conclude that the case before the Additional District

Judge-cum-Chief Judicial Magistrate (as it was) is not maintainable.

This view is supported by a decision rendered by a division Bench of Andhra Pradesh High Court in A. Goverdhan Reddy Vs. Superintendent

of Police, Allahabad and Others, . In the case involved in the above decision, it seems, the accused was assaulted by the police, for which he

sought for an appropriate direction, for registration of a case against the police, which was negatived. When the same was challenged before the

Single Judge, he has not accepted the case of the accused, concluding that it was not the duty of the Magistrate to have caused enquiry and if at all,

he should approach the Human Rights Court constituted, to give protection for this kind of alleged violation. That order was challenged before the

Division bench and while considering the effect of Section 30 of the Human Rights Act, the Division Bench of Andhra Pradesh High Court has

held:

...that the Human Rights Court, being a Court of Session for trial of offences violative of Human Rights, does not have the power to take

cognizance of any off ence as a Court of original jurisdiction unless the case is committed to it by a Magistrate. A Magistrate of the first class or a

Magistrate of the second class, as the case may be, when empowered in this behalf, can take cognizance of any offence upon receiving a complaint

of facts, upon a police report or upon information received from any person other than a police officer or upon his own knowledge. Court of

Session, however, cannot do so and accordingly Human Rights Courts also cannot take cognizance of the offence as the Court of the first instance.

There is, thus an error in the impugned judgment in thinking that petitioner-appellant has the remedy in the Human Rights Court.

The above ratio is squarely applicable by all force, to the case on hand, since the dispute is only under the Human Rights Act.

22-A. On this ground alone, quashing the proceedings may not be possible and if at all, a direction could be given to the court concerned, to send

the complaint to the judicial magistrate concerned, having jurisdiction, to commit the case, if offences are made out. But considering the facts and

circumstances of the case and other attending circumstances, in this case, this procedure need not be followed and the proceedings could be

quashed, since there are other materials available, for adopting the latter course.

The offences reported in the complaint are under Sections 166, 315, 325, 503 and 509 I.P.C. Section 166 I.P.C. contemplates punishment,

where a public servant disobeyed the law, with intent to cause injury to any person, which is not available in this case, even prima facie, as per the

pleadings and therefore, taking cognizance of this offence and compelling the accused to face the trial is unnecessary.

Section 315 I.P.C. prescribes punishment for the act done, with an intention to child being born alive or to cause it to die after birth. The

averments in the petition has not disclosed the ingredients required under this section also.

Section 325 I.P.C. contemplates punishment for causing grievous hurt voluntarily with an intention to do the same. Here, the doctors at the

request of the patient viz., the petitioner/respondent, performed operation and there might have been some negligence, and it certainly would not

come, even prima facie, within the four walls of Section 325 I.P.C.

Section 503 I.P.C. only defines the criminal intimidation and this Section by itself is not an offence and therefore, taking cognizance of the

alleged offence u/s 503 I.P.C. is also an impossibility.

The last section that remains is 509 I.P.C, which aims to punish a person who had insulted the modesty of a woman, uttering any word or

making any gesture, etc., which is not made out, by going through the petition, how this offence is sought to be imposed against the doctors, who

had no axe to grind against the patient, since even as per the averments in the petition, the petitioner came to this hospital on her own, that too on

reference from some other hospital. Hence the question of outraging the modesty of the petitioner does not arise at all for consideration. Probably

from the attending circumstances, what could be inferred is, by the delay in not coming to the doctors in time, the petitioner had suffered some

physical inability, causing operation with other consequential sufferings, for which a prosecution certainly will not lie. Without considering these

facts also, taking cognizance of the offence is not proper. For the foregoing reasons, I am of the considered opinion that the filing of the private

complaint before the Human Rights Court is an abuse of process of court and the same should be prevented and curtailed, by quashing the same,

by the interference of this Court, invoking the extraordinary jurisdiction u/s 482 Cr.P.C.

27-A. In the result, the petition is allowed and the complaint in H.R.C. No. 2/2003 on the file of the Human Rights Court-cum-Chief Judicial

Magistrate, Thanjavur at Kumbakonam is quashed. CRL. M.P. No. 4323 of 2003 is closed.