Bombay High Court
Rohini D/O. Haribhau Shelke vs The State Of Maharashtra And Another on 4 September, 2025
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2025:BHC-AUG:23662-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.2506 OF 2021
Durreshhewar Ghulam Jilani
@ Dr. Samreen,
Age 31 yrs., Occ. Doctor,
R/o C/o Mohd. Shoeb,
Mominpura, Parbhani.
... Applicant
... Versus ...
1 The State of Maharashtra
Through Police Inspector,
Police Station, Nanalpeth,
Dist. Parbhani.
2 Kavita w/o Manik Zhodpe,
Age 38 yrs., Occ. Household,
R/o Amay Nagar, Near Shalimar
Functional Hall, Parbhani,
Tq. & Dist. Parbhani.
... Respondents
...
Mr. W.A. Shaikh, Advocate for applicant
Mr. S.A. Gaikwad, APP for respondent No.1
Mr. M.B. Sandanshiv, Advocate for respondent No.2
...
WITH
CRIMINAL APPLICATION NO.2642 OF 2021
2 Cri.Appln_2506_2021+1
Rohini d/o Haribhau Shelke,
Age 31 yrs., Occ. Medical Practitioner,
R/o C/o Pandurang Kagde,
Pradnya Niwas, Ajintha Nagar,
Wangi Road, Parbhani.
... Applicant
... Versus ...
1 The State of Maharashtra
Through Police Inspector,
Police Station, Nanalpeth,
Dist. Parbhani.
2 Kavita w/o Manik Zhodpe,
Age 38 yrs., Occ. Household,
R/o Amay Nagar, Near Shalimar
Functional Hall, Parbhani,
Tq. & Dist. Parbhani.
... Respondents
...
Mr. S.S. Shinde, Advocate for applicant
Mr. S.A. Gaikwad, APP for respondent No.1
Mr. M.B. Sandanshiv, Advocate for respondent No.2
...
CORAM : SMT. VIBHA KANKANWADI &
SANJAY A. DESHMUKH, JJ.
RESERVED ON : 24th JULY, 2025
PRONOUNCED ON : 04th SEPTEMBER, 2025
3 Cri.Appln_2506_2021+1
ORDER :
(PER : SMT. VIBHA KANKANWADI, J.)
1 Both these applications have been filed under Section 482 of the
Code of Criminal Procedure, 1973 for quashment of First Information Report
vide Crime No.340/2021 dated 09.07.2021 registered with Police Station,
Nanalpeth, Dist. Parbhani, for the offence punishable under Section 304-A
read with Section 34 of the Indian Penal Code, 1860.
2 Heard learned Advocate Mr. W.A. Shaikh for applicant in
Criminal Application No.2506 of 2021, learned Advocate Mr. S.S. Shinde for
applicant in Criminal Application No.2642 of 2021 as well as learned APP Mr.
S.A. Gaikwad for respondent No.1 and learned Advocate Mr. M.B. Sandanshiv
for respondent No.2 in both matters.
3 Applicants in both matters are the Medical Officers serving with
Civil Hospital, Parbhani. The informant, who is mother of deceased Kajal
Nitin Dhapse has stated that Kajal was married to Nitin on 29.04.2018. She
was admitted around 2.00 a.m. on 24.04.2019 in the Delivery Ward of Civil
Hospital, Parbhani for delivery. Nurse had examined her and asked her to
walk for a while, as the complaint was that she is having stomach pain.
Around 9.00 a.m. Kajal was examined by a Doctor and it was told that Kajal
is required to undergo C-section operation. She was taken for caesarean
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around 11.00 a.m. where the delivery was done. Around 12.00 noon Kajal
and child were brought to ward. Everybody was happy. Kajal did not inform
that she has some problem. But around 9.00 p.m. she told that there was
tingling in her head. When Sister was told about it, the Sister told that the
injection is scheduled at 10.00 p.m. Accordingly, the injection was given at
10.00 p.m., however, around 11.00 p.m. Kajal diagnosed with fever and she
had stomachache. Again one injection was given by Sister, which has no
effect. Her health deteriorated. The Sister called Doctor and again one
injection was given. The Doctor who was on duty at night time did not come
to check Kajal. Thereafter, Sister applied oxygen and other apparatus. There
was no relief to Kajal, therefore, informant went to the place of resting room
of Doctor and called Doctor. The Sister there told that no Doctor is present.
Around 2.00 to 2.30 a.m. on 25.04.2019 one Doctor came and some
apparatus was applied to the mouth of Kajal. Another Doctor had pressed
her chest several times. Those Doctors then asked the relatives to go out.
Around 3.00 a.m. the Doctors told informant's husband that Kajal has
expired. When they asked as to how she has expired, the Doctors told that
they do not know. According to the informant the death has occurred due to
negligence by the Doctor.
4 Learned Advocates for applicants have stated that statement of
5 Cri.Appln_2506_2021+1
husband of informant, co-wife of informant, who alleged that they were
present in the hospital are on the same line. The other witnesses including
the husband of Kajal are hearsay. In the present case Civil Surgeon, Civil
Hospital, Parbhani had conducted inquiry, however, the results of said
Committee, who had conducted the inquiry cannot be taken as the piece of
evidence of negligence. Here, the ordinary negligence is not required but
medical negligence. If we consider Postmortem Report, then the probable
cause of death is, "Cardiopulmonary oedema in a case of post LSCS (Lower
Segment Caesarean Section) for day 1 for primi with full term with cephalo
pelvic disproportion". Therefore, Hon'ble Supreme Court had given
guidelines in Jacob Mathew vs. State of Punjab and another [(2005) 6 SCC]
as to how criminal medical negligence is to be considered. The Committee's
report shows that the Doctors are required to check the patient after
operation periodically and take notes on the case paper. However, this has
not been done in the present case. The complaints made by relatives of
patient were not addressed to. At the most, these findings may give rise to
the departmental enquiry against applicants as they are the Government
servants.
5 Learned Advocates appearing for applicants rely on the decision
in Rakesh Ranjan Gupta vs. State of U.P. and another (Three Judge Bench
6 Cri.Appln_2506_2021+1
decision) [(1999) 1 SCC 188], wherein it has been held that if there was
delay on the part of Doctor to attend on the patient, that may at the worst be
a case of civil negligence and not one of culpable negligence falling under
Section 304-A of the Indian Penal Code. They then further submit that in Dr.
Suresh Gupta vs. Govt. of NCT of Delhi and another [(2004) 6 SCC 422] it
has been observed by Hon'ble Supreme Court that -
"The legal position is almost firmly established that where a patient
dies due to the negligent medical treatment of the doctor, the doctor
can be made liable in civil law for paying compensation and damages
in tort and at the same time, if the degree of negligence is so gross
and his act was so reckless as to endanger the life of the patient, he
would also be made criminally liable for offence under Section 304-A
IPC.
For fixing criminal liability on a doctor or surgeon, the standard of
negligence required to be proved should be so high as can be
described as "gross negligence" or recklessness". It is not merely lack
of necessary care, attention and skill. Thus, when a patient agrees to
go for medical treatment or surgical operation, every careless act of
the medical man cannot be termed as 'criminal'. It can be termed
'criminal' only when the medical man exhibits a gross lack of
competence or inaction and wanton indifference to his patient's safety
and which is found to have arisen from gross ignorance or gross
negligence. Where a patient's death results merely from error of
judgment or an accident, no criminal liability should be attached to it.
Mere inadvertence or some degree of want of adequate care and
caution might create civil liability but would not suffice to hold him
7 Cri.Appln_2506_2021+1
criminally liable. For every mishap or death during medical
treatment, the medical man cannot be proceeded against for
punishment. Criminal prosecutions of doctors without adequate
medical opinion pointing to their guilt would be doing great
disservice to the community at large because if the courts were to
impose criminal liability on hospitals and doctors for everything that
goes wrong, the doctors would be more worried about their own
safety than giving all best treatment to their patients. This would
lead to shaking the mutual confidence between the doctor and
patient. Every mishap or misfortune in the hospital or clinic of a
doctor is not a gross act of negligence to try him for an offence of
culpable negligence."
Lastly, learned Advocates for applicants submit that both the
applicants were Government servants and, therefore, in order to prosecute
them the prior sanction under Section 197 of the Code of Criminal Procedure
was necessary. Perusal of charge sheet would show that no such sanction has
been taken. They rely on the decision by Hon'ble the Single Bench of
Madhya Pradesh High Court (Principal Seat at Jabalpur) in Dr. Smt. Beena
Yadu vs. State [2003 Cri.L.J. 3402], wherein also the petitioner was Medical
Officer serving in District Hospital. The facts are almost identical i.e. patient
coming for delivery, refused to be attended by petitioner and patient died.
Petitioner was said to be on duty as an emergency Medical Officer on call,
therefore, she was supposed to be discharging her duty. When the sanction
has not been obtained the Magistrate ought not to have taken cognizance in
8 Cri.Appln_2506_2021+1
view of bar created under Section 197 of the Code of Criminal Procedure.
Here, also charge sheet came to be filed on 12.01.2022. Though evidence is
part heard before trial Court, this Court can still interfere as learned
Magistrate took the cognizance in spite of the statutory bar.
6 Per contra, learned APP as well as learned Advocate for
informant - respondent No.2 in both matters strongly opposed the
applications and submitted that since the matter is part heard before trial
Court, this should not be taken as a fit case where the Court should exercise
its powers under Section 482 of the Code of Criminal Procedure. The
Committee appointed as per Jacob Mathew's case (supra) has given the
findings that it was the negligence on the part of accused persons. As regards
applicant Durreshhewar Jilani @ Dr. Samreen, her statement was recorded by
Committee. She has stated that she went home after 1.00 a.m. and till that
time she was checking the new patients, who had come for delivery. As
regards applicant Dr. Rohini Shelke, she has done LSCS after all the tests
were done, but it was her duty also to see that since she had performed the
operation, she should go to the Ward and check present condition of patient.
She has never visited the Ward thereafter. Negligence of each and every staff
who was present and on duty at that time can be proved and it has been so
considered as per the duty assigned to them by the Committee. In fact, after
9 Cri.Appln_2506_2021+1
the said three member Committee had given the report to Civil Hospital, one
person Committee of Dr. Faseeha Tasnim, Associate Professor, Gynecology
Department was appointed. She has also stated that there was negligence on
the part of staff attending Kajal and Doctors on duty. Since the case is part
heard, let there be trial.
7 Most important fact in the present matters as per the charge
sheet is that it was filed in the Court of Judicial Magistrate First Class,
Parbhani on 12.01.2022. On 05.04.2022 the process was issued as against all
accused persons. In Ferist there is no order of sanction to prosecute present
applicants. It is not in dispute that present applicants are Government
servants. They were serving with Civil Hospital i.e. Government Hospital.
Even the employee on the basis of contract in the Government office would
then temporarily become the Government servant an umbrella of protection
given under Section 197 of the Code of Criminal Procedure would be
applicable or given to all such Government employees. These Doctors were
supposed to be on duty on the relevant date and it is stated that they have
not attended the patient in time. The findings of three member Committee
as well as single person Committee Dr. Faseeha would certainly show that
these two applicants were supposed to be on duty and ought to have
attended the patient, but it is then stated that they have neglected. Due to
10 Cri.Appln_2506_2021+1
which the complications worsen. Thereby the Committees are stating that it
was the part of their duty to be alert and respond. Therefore, when the act
was part of duty or in the discharge of duty, then certainly the previous
sanction under Section 197 of the Code of Criminal Procedure was
mandatory. We agree to the decision taken by Hon'ble Single Bench of
Madhya Pradesh High Court in Dr. Smt. Beena Yadu (supra). Further, on this
point, though the facts are different, that is, they are in respect of different
Government officials but the law applicable in respect of Section 197 of the
Code of Criminal Procedure is same.
8 Here, we would like to take note of the legal position that was
carved out in Om Prakash Yadav vs. Niranjan Kumar Upadhyay and Others
[2024 SCC Online SC 3726], which reads thus -
"The legal position that emerges from the discussion of the aforesaid
case laws is that :
(i) There might arise situations where the complaint or the police
report may not disclose that the act constituting the offence was done
or purported to be done in the discharge of official duty. However, the
facts subsequently coming to light may establish the necessity for
sanction. Therefore, the question whether sanction is required or not
is one that may arise at any stage of the proceeding and it may reveal
itself in the course of the progress of the case.
11 Cri.Appln_2506_2021+1
(ii) There may also be certain cases where it may not be possible to
effectively decide the question of sanction without giving an
opportunity to the defence to establish that what the public servant
did, he did in the discharge of official duty. Therefore, it would be
open to the accused to place the necessary materials on record during
the trial to indicate the nature of his duty and to show that the acts
complained of were so interrelated to his duty in order to obtain
protection under Section 197 CrPC.
(iii) While deciding the issue of sanction, it is not necessary for the
Court to confine itself to the allegations made in the complaint. It can
take into account all the material on record available at the time
when such a question is raised and falls for the consideration of the
Court.
(iv) Courts must avoid the premature staying or quashing of criminal
trials at the preliminary stage since such a measure may cause great
damage to the evidence that may have to be adduced before the
appropriate trial court."
8.1 In Shriniwas Reddy Kankanala Vs. State of Maharashtra and
Another [2024 (4) Mh.L.J. (Cri.) 510], this Court has considered the Three
Judge Bench decision in B. Shaha and Others Vs. M/s Kochar [(1979) 4 SCC
177]. Therefore, we should take into consideration it as the law of precedent
makes it mandatory to consider the decision of a Three Judge Bench of the
Hon'ble Apex Court and in which, it is held thus -
"The words "Any offence alleged to have been committed by him
12 Cri.Appln_2506_2021+1
while acting or purporting to act in the discharge of his official duty"
employed in section 197(1) of the Code, are capable of a narrow as
well as wide interpretation. If these words 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 purports to be
performed. The right approach to the import of these words lies
between these two extremes. While it is not every offence committed
by a public servant while engaged in the performance of his official
duty, which is entitled to the protection of Section 197(1), an act
constituting an offence, directly and reasonably connected with his
official duty will require sanction for prosecution under the said
provision."
8.2 Further, in G.C. Manjunath and Others Vs. Seetaram [2025
INSC 439], also, B. Shaha and Others (supra) has been referred. We must
understand as to why the protection is given to a public servant from
prosecution, thereby making the sanction to prosecute under Section 197 of
the Code of Criminal Procedure compulsory. It has been observed in G.C.
Manjunath and Others (supra) in paragraph No.30 that -
"A careful reading of Section 197 of the Cr.P.C. unequivocally
delineates a statutory bar on the Court's jurisdiction to take
cognizance of offences alleged against public servants, save without
the prior sanction of the appropriate Government. The essential
precondition for the applicability of this provision is that the alleged
13 Cri.Appln_2506_2021+1
offence must have been committed by the public servant while acting
in the discharge of, or purported discharge of, their official duties. The
protective mantle of Section 197 of the Cr.P.C., however, is not
absolute and it does not extend to acts that are manifestly beyond the
scope of official duty or wholly unconnected thereto. Acts bereft of
any reasonable nexus to official functions fall outside the ambit of this
safeguard and do not attract the bar imposed under Section 197 of the
Cr.P.C."
8.3 The provision has been made to protect the public servants from
malicious prosecution, otherwise it will not be possible to a public servant to
discharge his duties without fear or favour. The object and purpose of this
section was also considered in Gurmeet Kaur vs. Devender Gupta [2024 SCC
Online SC 3761] and it has been noted in G.C. Manjunath and Others
(supra). It has been therefore, stated that -
"The guiding principle governing the necessity prior sanction stands
well crystallized. The pivotal inquiry is whether the impugned act is
reasonably connected to the discharge of official duty. If the act is
wholly unconnected or manifestly devoid of any nexus to the official
functions of the public servant, the requirement of the sanction is
obviated. Conversely, where there exists even a reasonable link
between act complained of and the official duties of public servant,
the protective umbrella of Section 197 of the Cr.P.C. and Section 170
of the Police Act is attracted. In such cases, prior sanction assumes the
character of a sine qua non, regardless of whether the public servant
exceeded scope of authority or acted improperly while discharging his
duty."
14 Cri.Appln_2506_2021+1
9 Therefore, whether there is a previous sanction as contemplated
under Section 197 of the Code of Criminal Procedure or not should be
considered by any Magistrate before taking cognizance of offence. There is a
statutory bar for taking cognizance in absence of such sanction. Under such
circumstance, when the cognizance itself is illegally taken, it would be an
abuse of process of law if present applicants are then asked to face the
remaining trial. In ordinary circumstances if the case would have progressed
and it is part heard, then we would not have interfered, but, here, when basic
fact has been overlooked and cognizance has been taken in spite of statutory
bar, we take this to be a fit case for exercise of powers under Section 482 of
the Code of Criminal Procedure, which is exceptional in nature.
10 Now, as regards whether action or inaction on the part of
applicants was medical negligence or not, need not be gone into. Certainly,
we are then guided by the decisions in Rakesh Ranjan Gupta (supra), Jacob
Mathew (supra) and Dr. Suresh Gupta (supra). In fact, these points were
available to the applicants to be raised at the time of framing of charge, but it
appears that no such application for discharge was ever filed. The reason
that has been tried to be given is that present applications have been filed in
2021, when charge sheet was not filed, but the charge sheet came to be filed
in 2022 and since the applications were pending, no such application for
15 Cri.Appln_2506_2021+1
discharge was filed. We may not fully agree to learned Advocates for
applicants in this respect, there is no necessity to file a written application for
discharge. But there is a stage as per Section 239 of the Code of Criminal
Procedure, which makes provision for, when accused shall be discharged. It
provides that -
"If, upon considering the police report and the documents sent with it
under section 173 and making such examination, if any, of the
accused as the Magistrate thinks necessary and after giving the
prosecution and the accused an opportunity of being heard, the
Magistrate considers the charge against the accused to be groundless,
he shall discharge the accused, and record his reasons for so doing."
Section 240 of the Code of Criminal Procedure provides for
framing of charge. If, upon such consideration, examination, if any, and
hearing, the Magistrate is of opinion that there is ground for presuming that
the accused has committed an offence triable under this Chapter, then he
shall frame in writing a charge against the accused. That means, for both i.e.
Sections 239 and 240 of the Code of Criminal Procedure submissions can be
made on behalf of accused orally and it can be demonstrated as to how the
charge cannot be framed or accused needs to be discharged, for which
offence the charge cannot be framed and whether it can be framed etc. and,
therefore, we refrain ourselves now from going into the aspect as to whether
it was the criminal negligence of present applicants or not. Even if we take
16 Cri.Appln_2506_2021+1
that there was a criminal negligence; yet the previous sanction has not been
obtained as contemplated under Section 197 of the Code of Criminal
Procedure. This is sufficient for us to exercise our powers under Section 482
of the Code of Criminal Procedure to protect the party from abuse of process
of law. Hence, following order.
ORDER
i) Both Criminal Applications stand allowed.
ii) The proceedings in Summary Criminal Case No.604/2022
pending before learned Judicial Magistrate First Class, Parbhani arising out of
First Information Report vide Crime No.340/2021 dated 09.07.2021
registered with Police Station, Nanalpeth, Dist. Parbhani, for the offence
punishable under Section 304-A read with Section 34 of the Indian Penal
Code, 1860, stands quashed and set aside as against applicant Durreshhewar
Ghulam Jilani in Criminal Application No.2506 of 2021 and applicant Rohini
d/o Haribhau Shelke in Criminal Application No.2642 of 2021.
( SANJAY A. DESHMUKH, J. ) ( SMT. VIBHA KANKANWADI, J. )
agd
