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Judgment
This is a revision preferred against the order of the IV Metropolitan Magistrate, Vijayawada, dated 24-10-1995 passed in Crl.M.P. No. 1004/90 in C.C. No. 112/90. The petitioner herein is the 2nd accused and the 1st accused is one Purnachandra Rao.
On a complaint forwarded by the Addl. Sessions Judge, Vijayawada, the learned IV Metropolitan Magistrate, Vijayawada took the case and file against Y. Purnachandra Rao (A1) for the offences u/S. 218 r/w. 109 and 471, IPC and against the petitioner herein (A2) for the offence u/S. 218, IPC. On behalf of the petitioner, Crl.M.P. No. 1004/90 was filed before the Magistrate to discharge him on the main ground that the petitioner is a public servant and acts done by him as a public servant, he is protected u/s 197(1), Cr.P.C. and as such, he is liable to be discharged.
The learned Magistrate by his order dated 24-10-1995 dismissed the said petition observing that "though Purnachandra Rao (A1) died subsequent, there is prima facie case for the offence u/s 218, I.P.C. against the petitioner and that the petitioner has to face trial and he is not entitled for discharge". Aggrieved by that order, the petitioner has come up with this revision.
The accusation against the petitioner in the complaint preferred by the Addl. Sessions Judge, is that the petitioner while working as Dy. Civil Surgeon, Jaggayyapet issued a false medical certificate, to be used in the Court of Sessions, to the effect that Purnachandra Rao had joined as inpatient in the Government Hospital, Jaggayyapet on 21-12-1988 and underwent operation for right Hydrocele and discharged on 1-1-1989. The said Purnachandra Rao was an accused in Cr. No. 233/88 for the murder of one Dr. C. Srihari Rao, Vijayawada which took place on 26-12-1988.
The accused Purnachandra Rao produced that medical certificate before the learned Addl. Sessions Judge, Vijayawada and set up a plea of "alibi" and on a consideration of that medical certificate, the learned Addl. Sessions Judge granted anticipatory bail to that accused Purnachandra Rao. It is also alleged in the complaint that while granting bail to that accused, the learned Sessions Judge ordered an enquiry by the C.I.D. Police into the truth or otherwise of the contents of that medical certificate and after enquiry, the Dy. Superintendent of Police, C.I.D. submitted his report stating that the said medical certificate has been falsely issued by the petitioner with a view to help the murder case accused Purnachandra Rao to get out of the charge of murder.
Sri C. Padmanabha Reddy, the learned Counsel for the petitioner vehemently contends that under the G.Os. issued by the Government of A.P., the Dy. Civil Surgeons and the Asst. Civil Surgeons working in Government Hospitals are authorised to issue medical certificates and therefore, issuance of medical certificate by the petitioner is an act done by him while discharging his duties as Medical Officer and that it is an official act and as such, the petitioner is protected u/s 197(1), Cr.P.C. and no prosecution shall lie against him without proper sanction from a competent authority for the offence under S. 218, I.P.C. The learned Counsel further submits that issuance of medical certificate even with incorrect particulars also falls within the ambit of S. 197(1), Cr.P.C. The learned Public Prosecutor on the other hand, submits that the issuance of a false medical certificate is not an official act by the Medical Officer and it has no nexus or relevance in discharge of his official duty and therefore, the prosecution initiated against the petitioner is maintainable even in the absence of sanction u/s 197(1), Cr.P.C.
The short point for consideration is whether a Dy. Civil Surgeon who issued a false medical certificate for being used as "alibi" by an accused to get out of the charge of murder, gets protection u/s 197(1), Cr.P.C.
For proper appreciation, it is necessary to have a look at Section 218, I.P.C. and Section 197, Cr.P.C.
Section 218, I.P.C. under which the petitioner has been summoned reads as follows :
"218. Public servant framing incorrect record or writing with intent to save person from punishment or property from forfeiture. - Whoever, being a public servant, and being as such public servant, charged with the preparation of any record or other writing, frames that record or writing, which he knows to be incorrect, with intent to cause, or knowing it to be likely that he will thereby cause, loss or injury to the public or to any person, or with intent thereby to save, or knowing it to be likely that he will thereby save, any person from legal punishment, or with intent to save, or knowing that he is likely thereby to save, any property from forfeiture or other charge to which it is liable by law, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
Section 197, Cr.P.C. reads as follows :
"197. (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, of the State Government."
(The other portion of the section is not quoted as it is not relevant in this context).
As seen from this section, there can be two categories of acts that fall u/s 197, Cr.P.C. They read : (1) The act complained of is one authorised by a statute or law, but became questionable on account of the fact that it was done with fraudulent or dishonest intention and (2) the act complained of, though not authorised by statute or law, is intimately and integrally connected with his official or statutory duties and it has thus, a reasonable nexus to the discharge of duty. In finding whether or not, the complained act falls (in) either or neither of the two categories, the facts and circumstances of the case have to be appreciated so as to arrive at a balance between the protection available u/s 197, Cr.P.C. and the protection of a private citizen from on - slaught from the colour of his office. In case it falls (in) either one of the two categories, the sanction contemplated u/s 197(1), Cr.P.C. is necessary.
The learned Counsel for the petitioner submits that even if the contents of a medical certificate are false, the petitioner is entitled for protection u/s 197(1), Cr.P.C. as he issued that certificate while discharging his official duty. The learned Counsel for the petitioner also relied on the decision in Madan Lal Lamba Vs. Inderjit Mehta, , wherein it is held thus :
"Whether the act is done rightly or wrongly, correctly or incorrectly if it is done in the discharge of his official duty, it will be covered by Section 197(1), Cr.P.C."
There is no dispute with regard to the said proposition of law. There should be an act done by a public officer in the discharge of his official duty. The issuance of a medical certificate is definitely an official act of a Dy. Civil Surgeon working in the Government Hospital. It is ancillary to the official act done by him as a Medical Officer. The medical certificate should be based on an act done by him as a Medical Officer. It is not disputed that the petitioner while working as a Dy. Civil Surgeon, Jaggayyapet issued the medical certificate under question. It has come to light through the report submitted by the C.I.D. Police that the petitioner issued the said medical certificate falsely stating that Y. Purnachandra Rao (A1) was admitted by him in the hospital as in patient on 21-12-1988 and underwent operation for the right Hydrocele and later discharged on 1-1-1989. It follows that the petitioner issued the said medical certificate without admitting Y. Purnachandra Rao in the hospital and without effecting operation, on the right Hydrocele on the said Purnachandra Rao. A Medical Officer can issue a medical certificate based on act done by him while discharging his duty as a Medical Officer. He cannot issue a medical certificate without performing his duties as a Medical Officer. Issuance of a medical certificate without performing his duty as Medical Officer i.e., with false allegations does not amount to an act done while discharging his official duty. As seen from the allegations in the complaint, the petitioner issued the medical certificate without admitting in the hospital and without effecting operation on the right Hydrocele of the said Purnachandra Rao. If the petitioner had admitted and effected operation on Purnachandra Rao and had issued the medical certificate, definitely it can be said that he had done that act in his official capacity. But, without admitting and effecting operation, he had issued a false medical certificate and this act of the petitioner does not fall within the ambit of Section 197(1), Cr.P.C.
By doing such an act of issuing a false certificate, the petitioner facilitated the accused in a murder case to set up the plea of alibi and get out of the charge of murder. It definitely attracts the charge u/s 218, I.P.C. against the petitioner.
In the light of my above discussions, I hold on the point that the Dy. Civil Surgeon who issued a false medical certificate for being used as alibi by an accused to get out of charge of murder, gets no protection u/s 197(1), Cr.P.C. The prosecution of the petitioner in the instant case for the offence punishable u/s 218, I.P.C. without obtaining sanction u/s 197(1), Cr.P.C. is maintainable.
In the result, I do not find any merits in the petition and the petition is dismissed.
Petition dismissed.