A. Pasayat, J.
1. Petitioner's complaint alleging commission of offence punishable Under Section 304A read with Section 34 of the Indian Penal Code, 1860 (in short 'IPC') having been rejected by the learned Subdivisional 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 case for taking cognisance falls to scrutiny.
Petitioner as complainant filed the aforesaid case making the following allegations :
On 22-7-1992 opp. party 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 opp, 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 snowed vomitting tendency. Petitioner was apprehensive that there was something wrong in the operation. But opp. 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 tor periodic check-up. Subsequently, deceased suffered unbearable pain. She was taken to the hospital where opp. party No. 2 after checkup, 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 admiited as indoor patient in bed No. 52. When the pain did not subside, petitioner again requested opp. party No 2 to examine deceased and opp. party No 2 examined deceased and prescribed some medicines which were given to the deceased, and injections were also administered by opp. party No. 2 After taking medicines and injections, deceased slept and passed away in sleep, without regaining her consciousness Opp. party No. 2 checked up 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 opp. 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 Govarnment sarvants were protested under Sac. 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.
4. The perplexed question of applicability of Section 197 of the Code has come again and again before various Courts. Section 197 aims at protecting public servants from various proceedings. Before criminal poceedings are launched against them, it has been considered proper and desirable that well considered opinion of a superior authority is obtained. The bar imoosed by the section is absolute; the negative words used being 'No Court shall taka cognizance..........''Tha bar is peremptorily enjoined. The provisions are meant to shield public servants against frivolous prosecutions, and to afford adequate protection to them 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 they choose to exercise it, complete control of the prosecution. In order to ensure that the public servants act in a fearless manner, taw provides that acts done by them in the course of performance of their duties should not be the subject of prosecution until a superior authority, after due consideration, is of opinion that the acts may constitute an offence and sanction such prosecution. What is barred by this section is not the making of a complaint or the submitting of a police report, but the act of a Magistrate in taking cognizance of the offence on such complaint or such report, or in and other way. If is not every offence committed by a public servant that requires sanction for prosecution, nor even every act done by him while ho is actually engaged in the performance of his official duties. But, it the act complained of is directly concerned with his official duties on that, if questioned, it could be claimed to have been done by viriua of the office, then sanction would be necessary; and that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution. (See Amrik Singh v. State of Pepsu: AIR 1955 SC 309). In the classic case of Hori Ram v. Emperor: AIR 1939 PC 43, cases have been classified into three groups, as were highlighted before Courts. According to the first group, the correct test whether a public servant was a ting or purporting to act in the discharge of his official duty was that there must be something in the nature of the act complained against that attaches it to the official character of the person doing it. The second group lays stress on the official character or status of the accused which gives him the opportunity to commit the offence. In the third group of cases, stress is laid almost exclusively on the fact that the offence was committed at a time when the accused was engaged in his official duties. The test laid down in the first group is the correct test. The question whether Section 197 of the Code has application is essentially a question of fact, and is required to be determined with reference to the act complained of and the attendant circumstances, and it is neither useful nor desirable to paraphrase the language of the section or attempt to lay down any hard and fast test. There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty. What is necessary is that the offence must be in respect of an act done or purported to be done in the discharge of an official duty. Expressions such as 'capacity in which the act is performed' 'cloak of office', 'professed exercise of the office' may not always be appropriate to describe or delimit the scope of the sanction. There must be some perceptible connection between the act and the discharge of official duty It may be a case of the public servant wrongfully and negligently discharging his official duty or a case of exceeding his authority. If the 'duties as such public servant' are narrowly interpreted, every act for which a public servant is charged in a criminal case would naturally be outside the strict scope of his authority. But in day to day conduct of business, this narrow and pedantic interpretation may cause serious difficulties; that is why the section adds 'purporting to act'. In other words, the strict scope and authority of public office might be exceeded, but it might not be so far exceeded, as to be without the colour of the office being exercised in good faith. The line has to be drawn somewhere between the very narrow inner circle of official duties strictly so-called, and the very large number of acts altogether outside the scope of official duties which no reasonable man would deem to be committed under the colour of the office. Where exactly that line is to be drawn is a problem not of principle but of prudence and reasonableness varying with circumstances of each case. It has to be noticed that the section is capable of a narrow as well as wide interpretation If the words of the section are construed too narrowly, the section will be rendered altogether sterile, for, it is no part of an official duty to commit an offence, and never can be. In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purpoits to be performed. The right approach to the import of these words lies between these two extremes. There cannot be any hard and fast rule to determine whether there is a reasonable connection between the act done and the official duty, nor it is possible to lay down any such rule. One safe and sure test .in this regaid 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. In deciding the need of the sanction, Court may look to the complaint, the allegation made therein and the examination of the complaint. If it appears from the above materials that the complained act was not done or purported to have been done in discharge of the official duty, the Court may consider the facts subsequently discovered in the course of the trial, as the question of the need of the sanction may be considered from stage to stage depending on the facts established in a particular case. If cognizance has been taken of an offence, and a public servant is proceeded against, and facts come to light that the acts complained were done in the discharge of the official duties, then the trial may have to be stayed unless sanction is obtained. but at the same time, it has to be emphasised that criminal trials should not be stayed in all cases at the preliminary stag9 because that will cause great damage to the evidence (See Bakhshish Singh Brar v. Smt. Gurmaj Kaur : AIR 1988 SC 25 7). it is not always necessary that the need for sanction under this' section is to be considered as soon as the complaint is lodged and on the allegations therein contained. The question may arise at any stage o1 the proceedings. The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty : but facts subsequently coming to light on a police or judicial inquiy or even in the course of the prosecution evidence at the trial, may esiablish the necessity for sanction. Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case itself. The question of necessity of sanction to a case has to be decided when materials are available on record to determine that question, whatever the stage of the case may be.
The offence alleged to have been committed by the public servant must be so connected with the official acts as to form part of the same transaction, as if it is inseparable from it. The act must not be unconnected with the official duty. It should be first, something that a person is under obligation to do as an administrative duty. It is the nature of the act and not the nature of duty which is relevant because an act may be in furherance or dareliction of,duty If the acts complained of are inseparable and integrally connected with the duties attached, advance sanction would be necessary. But if there is no. nexus to the official status of the acts complained, then no sanction would be necessary. 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. It should not be a pretended or fanciful claim. If in doing his official duty he acted in excess of the duty, but there is a reasonable connection between the act and the proformance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection.
5. After clearing the deck so far as the legal aspects relating to sanction are concerned, the factual antecedents present no problem. So far as opp, party Nos. 1, 3 and 4 are concerned, the complaint petition does not dispose any link to them so far as alleged commission of offence Under Section 304A, IPC is concerned. Therefore, the learned SDJM's action is not proceeding against them cannot be faulted. So far as opp. party No. 2 is concerned, the basic question is whether he was negligent or over-stepped the limits of his official duty. As pointed out above, even if that is the case, the sanction.is necessary. The learned SDJM was, therefore, justified in holding that cognizance cannot be taken without sanction of the authority.
6. Requirements of Section 304A, IPC are that death of eny person must have been caused by the accused doing any rash or negligent act. In other words, there must be proof that the rash or negligent act of the accused was the proximate cause of the death. There must be direct nexus between the death of a person and the lash or negligent act of the accused. A remote nexus is not enought. (See Suleman Rahiman Mulan; and Anr. v. State of Maharashtra: AIR 1963 SC 829). Observation of Sir Lawrence Jenkia in Emperor v. Omkar Rampratap : 4 Bom. L.R. 679, that to impse criminal liability Under Section 304A, IPC, it is necessary that the death should have been the direct result of a rash or negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another's negligence; and, it must be the cause causans, and not cause since qua non. were quoted with approval by apex Court in Kurban Hussain Mohamadatli Rangawalla v. State of Maharashtra : AIR 1965 SC 1516.
Question whether an act is a rash or negligent or not is one of fact, which has to be decided on evidence to be adduced by prosecut on and defence. When a Homoeopathic practitioner administered to a patient suffering from guinea worm, 24 drops of stramonium and a leaf of dhatura without studying its effect and the patient died of poisoning, it was held to be a case covered Under Section 304A, IPC. (See Juggan Khan v. The State of Madhya Pradesh : AIR 1965 SC 831). Criminal negligences is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of an accused to have adopted. Negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow,but in circumstances which show that the actor h3s not exercised the caution incumbent upon him and if he had, he would have had the consciousness,
7. In Debarty (1887) 15 Cox. 306. it was observed by Stephen, J. that if a man performing a surgical operation, whether from losing his head, or from forgetfulness or from some other reason, omitted to do something he ought to have done, or did something he ought not to have done, in such a case there would be negligence But if there was only the kind of forgetfulness which is common to everybody, or if there was slight want of skill, any injury which resulted may furnish a ground to claiming civil damages, but it would be wrong to proceed against a man criminally in respect to such injuries. But the position would be different it the sugeon came in an inapropriated state and because of it neglected his duty. If the possibility of the danger emerging is reasonable apparent, then to take no precautions is negligence; but if the possibility of danger emerging is only a mere possibility which would never occur to mind of a reasonable man, then there is no negligence in not having taken extraordinary precaution. (Per Lord Sunedid in Fardon v. Harcourt Rivington : (1932) 4LT 3?1.The observations were quoted by Lord du Par q in London Passenger Transport Board v. Upson : (1949) AC 155 at page 176. In order to establish criminal liability, the facts must be such that the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to crime against the State and conduct deserving punishment. (Per Lord Hewart Co. in R. v. Bateman : (1923) 94 LJKB 791 cited in Russel on Climes (1968) 11th Edition, Volume I at pages 650-57). In order to render a person liable for criminal negligence, there must be something more than mere negligence for law distinguishes between negligence which originates a civil liability and on the consequences of which is a criminal prosecution. There is, however, no radical difierence between the two. The difference is only one of degree, and in many cases it is as difficult to say where the civil liability ends and the criminal liability begins as where criminal negligence ends and wiful mischief begings.
8. The conclusions of learned SDJM that even if the acts are negligent, sanction is necessary, and allegations do not prima facie constitute any offence are contradictory in terms. If no offence was made out, question of taking cognizance, even without sanction would not arise. If there was, however, negligence, question whether acts or omissions of opp. party No. 2 constituted criminal negligence is to be considered, if sanction is accorded as set out in Section 197, Cr PC.
The revision application is accordingly disposed of.