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Dr.Sabeena Nair,D/O.Yousuf Koya vs State

Of Kerala,Represented By ... on 16
November, 2010
Kerala High Court
Dr.Sabeena Nair,D/O.Yousuf Koya vs State Of Kerala,Represented By ... on 16
November, 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl.MC.No. 3710 of 2010()
1. DR.SABEENA NAIR,D/O.YOUSUF KOYA, ... Petitioner
1. STATE OF KERALA,REPRESENTED BY PUBLIC ... Respondent
For Petitioner :SRI.P.VIJAYA BHANU (SR.) For Respondent :PUBLIC
PROSECUTOR The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR Dated
:16/11/2010
ORDER
M.SASIDHARAN NAMBIAR,J.
--------------------------------------------- CRL.M.C.NO.3710 OF 2010
--------------------------------------------- Dated 16th November, 2010
ORDER
Petitioner is the accused in S.C.708/2005 on the file of Assistant Sessions Court,
Palakkad, taken cognizance for the offence under Section 304 of Indian Penal
Code on the allegation that while functioning as Civil Surgeon and Gynacologist,
District Hospital, Palakkad she conducted cesarean operation on Thatha,
W/o.Rajan on 23/10/2001 at about 2.22 p.m and though due to complications she

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was subsequently removed to Medical College Hospital, she died on the way and
petitioner thereby committed the offence under Section 304 of Indian Penal
Code. Learned Magistrate committed the case and Crmc3710/10 2
learned Sessions Judge after taking the case on file, sent it for trial to Assistant
Sessions Court, Palakkad. After framing charge, petitioner filed Crl.M.P.81/2008
seeking discharge contending that without sanction under Section 197(1) of Code
of Criminal Procedure cognizance could have been taken. By Annexure-B order,
learned Assistant Sessions Judge dismissed the petition. Petitioner challenged
that order before Sessions Court, Palakkad in Crl.R.P.56/2008. By Annexure-C
order, it was dismissed, finding that as the Assistant Sessions Judge could not
have discharged petitioner after framing charge, there is no illegality in
Annexure-B order. This petition is filed thereafter under Section 482 of Code of
Criminal Procedure to quash Annexures-B and C orders and also to quash the
cognizance taken.
Crmc3710/10 3
2. Though second respondent, who was subsequently impleaded, as de facto
complaint was served, he did not appear. Learned counsel appearing for the
petitioner and learned Public Prosecutor were heard.
3. Learned counsel appearing for the petitioner pointed out that fact that
petitioner being a Civil Surgeon can only be removed by the State Government
was not disputed before Assistant Sessions Court or the Sessions Court and the
protection claimed under Section 197(1) of the Code was denied on the finding
that the question whether petitioner exceeded the powers or had shown
negligence in discharge of her duty can be decided only on the evidence and not
because petitioner is not entitled to the protection under Section 197(1) of Code
of Criminal Procedure. It is pointed out that even the prosecution case is that
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petitioner had undertaken the surgery in her capacity as Civil Surgeon and
Gynecologist of District Hospital, Palakkad and the alleged act of commission of
offence was in discharge of her duty as Civil Surgeon and therefore, without
sanction as provided under Section 197(1) of Code of Criminal Procedure, learned
Sessions Judge could not have taken cognizance of the offence and therefore, the
cognizance taken is to be quashed. Learned counsel relied on the three Judge
Bench decision of the Apex Court in Sankaran Moitra v. Sadhna Das & [1]amp;

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another (AIR 2006 SC 1599).

4. As is clear from Annexures-B and C orders, it is the prosecution case that
petitioner in her capacity as, the Civil Surgeon and Gynecologist of District
Government Hospital, Palakkad was attending the surgery of deceased Thatha.
While so due to the Crmc3710/10 5
complications developed she died, while on the way to Medical College Hospital,
Thrissur, where she was being taken. The alleged commission of the offence is
definitely in the course of discharging her duty as Civil Surgeon and
Gynecologist. The question therefore is, whether she is entitled to the protection
provided under Sub Section 1 of Section 197 of Code of Criminal Procedure.
5. Sub Section 1 of Section 197 of the Code provides that when any person who is
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 discharge of his official duty, no Court shall
take cognizance of such offence except with the previous sanction of the State
Government, as provided under clause (b), in Crmc3710/10 6
the case of a person who is employed or was at the time of commission of the
alleged offence employed in connection with the affairs of a State. Petitioner was
admittedly employed as the Civil Surgeon of the State of Kerala who cannot be
removed from the office save by or with the sanction of the Government. The act
alleged against was committed by the petitioner while acting or in any case
purporting to act in discharge of her official duty as the Civil Surgeon and
Gynecologist. Therefore, she is definitely entitled to get protection provided
under Sub Section 1 of Section 197 of Code of Criminal Procedure. The only
question is whether that depends upon the evidence to be recorded. As the
allegation is that while petitioner was operating the deceased due to her
negligence the vein to the ovary was cut and petitioner without doing anything
to stop Crmc3710/10 7
the bleeding with the knowledge that if the patient was made to undertake travel
to a distance, she is likely to die and cause her death, the act alleged is only in
discharge of her official duty. As settled by the Apex Court in Sankaran Moitra's
case (supra) the question is not whether the act committed was in excess of the
power to be exercised at the relevant time, but whether she was performing her
duty. Even if, while performing the surgery she was negligent or had not taken
proper care, that will not disentitle to the protection provided under Section

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197(1) of Code of Criminal Procedure. Learned Sessions Judge could not have
taken cognizance of the offence against the petitioner without a sanction under
Section 197(1) of Code of Criminal Procedure. Though learned Assistant Sessions
Judge could not have discharged petitioner, as sought for after Crmc3710/10 8
framing charge and learned Sessions Judge could not have interfered with that
order as there is no illegality in dismissing that petition, and therefore,
Annexures-B and C orders do not warrant interference, when sanction under
Section 1 of Section 197 is a condition precedent for taking cognizance, the
cognizance taken against the petitioner, for the act committed by her in
discharge of her duty as the Civil Surgeon and Gynecologist, was without
obtaining sanction under Section 197(1) of Code of Criminal Procedure, the
cognizance taken could only be quashed. At the same time, it is made clear that
petitioner could be prosecuted on getting sanction as provided under Section
197(1) of Code of Criminal Procedure.
Petition is allowed. Cognizance taken in S.C.708/2005 on the file of Assistant
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Sessions Judge, Palakkad and all further proceedings therein are quashed. It is
made clear that cognizance could be taken after getting sanction as provided
under Section 197 (1) of Code of Criminal Procedure. M.SASIDHARAN NAMBIAR,
JUDGE.

1. http://indiankanoon.org/doc/1179931/

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