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CASE NO.: Appeal (crl.)  122 of 2008

PETITIONER: STATE OF MAHARASHTRA

RESPONDENT: DEVAHARI DEVASINGH PAWAR & OTHERS

DATE OF JUDGMENT: 18/01/2008

BENCH: G.P. MATHUR & AFTAB ALAM

JUDGMENT: JUDGMENT

O R D E R  (Arising out of S.L.P.(Crl.) No. 1268 of 2006) 1.           Leave granted.

2.          Heard Mr. Shekhar Naphade, learned senior counsel for the appellant, Mr.  Subramonium Prasad, learned counsel for Ku. Pradnya Sudhakar Phadnavis,   respondent No. 3 and Mr. Vivek Tankha, learned senior counsel for  Dr.  Prakashchandra, respondent No.7. None of  the other respondents are  represented before us despite service.

3.              This appeal is directed against the order dated April 20, 2005 passed by  the High Court of Bombay, Nagpur Bench in Criminal Revision Application  No. 50 of 2004  and Criminal Application No. 87 of 2004 by which the High  Court quashed the proceedings of Criminal Case No. 48 of 1994 pending  before the Additional Chief Judicial Magistrate, Nagpur on the ground that  there was   no    sanction  for   prosecution  of the accused  

(respondents before this Court) as required under Section 197 of the Criminal  Procedure Code (hereinafter referred to as \023the Code\024).

4.           It came to light that HIV contaminated blood was supplied to the  Government Medical College and Hospital, Nagpur by its blood bank and as a  result, some patients who were given blood transfusion had tested HIV  positive.  After making some preliminary inquiry, the Drugs Inspector, Nagpur  lodged a first information report with the police.  The police investigation led  to further charges of a serious nature coming to light.  It is stated on behalf of  the appellant that in the course of investigation it was found that entries in the  registers maintained at the blood bank were tampered with and \023corrections\024  were made without any initials to certify those corrections. More seriously some  pages  were missing from the Donor Register  and likewise some pages were  torn off from the Issue Register for dates 10.4.1993 to 12.5.1993. Further  investigation  revealed that the pages from the official registers were torn by  Dr. P.P. Sancheti (accused No. 1-respondent No. 7) who carried away those  pages with him on his transfer on 2.6.1993.  He did not return the torn pages  despite a number of letters sent by the  departmental  authorities.  After  some  effort,  

the police was able to find out  accused No. 1-respondent No. 7   and in course  of search of his house the documents, namely; pages from the Issue Register   for dates 10.4.1993 to 12.5.1993 and  pages from the Donor Register relating to  blood  units  2478 to 2510 were recovered.

5.            Apart from the above allegations that prima facie constitute different

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offences including   forgery, causing disappearance of evidence of offence,  destruction of documents to prevent its production as evidence etc. punishable  under the Indian Penal code (hereinafter referred to as \023I.P.C.\024), several acts  of omission and commission of culpable nature also came to light in the  working of the blood bank. On conclusion of investigation the police submitted  charge-sheet against the accused under Sections 201, 204 and 269/34 of I.P.C.  Though the investigation also revealed  interpolations in the official records, no  charge-sheet was submitted for the offence of forgery.

6.            It appears that the Drugs Inspector  took the view that the acts of omission  and commission in the working  of the blood bank also gave rise to offences  under the Drugs and Cosmetics Act, 1940  and the rules framed  thereunder   (hereinafter  referred  to as \023The  

Drugs Act\024). He, accordingly, filed a complaint under Section 21 of the Drugs  Act for prosecuting  the accused 1 to 7 (respondent Nos. 1 to 7) for offences  punishable under Sections 18(a)(i) read with Sections 27 and 17-A & C of the  Drugs Act.

7.           Here, it needs to be stated that accused Nos. 1 and 2 in the complaint case  (respondent Nos. 6 & 7)   were doctors; accused No. 1-respondent No. 7 being  the Blood Transfusion Officer and accused Nos. 3 to 7 (respondent Nos. 1 to 5)  were technicians in the Government Medical College and Hospital.

8.            On an application made by the Drugs Inspector,  the complaint filed by  him  was amalgamated with the earlier police case and resultantly the  learned Additional Chief  Judicial Magistrate  took cognizance under  Sections 269, 201 and 204 read with Section 34 I.P.C. and Sections 18(a)(i)  read with Sections 27 and 17-A & C of the Drugs Act and summoned the  seven accused to face trial.   The trial did not make any progress for  sometime and on 31.1.2001, the accused filed a petition for quashing the  proceedings as the prosecution had not produced sanction from the State  Government.  The learned Additional Chief Judicial Magistrate allowed the  petition  and  by  order dated  10.4.2001 quashed the  

proceedings of the case.  Against the order passed by the learned Additional  Chief Judicial Magistrate, the State preferred  Criminal Revision No. 445 of  2001 before the Sessions Judge, Nagpur.  The learned Sessions Judge, on  hearing the parties, allowed the revision and set-aside the order of the trial  court.  He directed  the trial court to proceed with the trial leaving the  question of sanction  open to be adjudicated at the time of conclusion of  trial.  Against the order of the Sessions Court, the respondents moved  the  Nagpur Bench of the High Court in Criminal Revision Application No. 50 of  2004.  The High Court as noted above set aside the order of the Sessions  Judge and quashed the proceedings on the ground that the prosecution had  not produced the  order of sanction  from the State Government before the  Trial Court. In taking the view that the prosecution  could not proceed  against the accused for want of Government  sanction, the High Court  mainly relied upon the decision of this Court in Abdul Wahab Ansari Vs.  State of Bihar, 2000(8) SCC 500.

9.          Mr. Shekhar Naphade, learned senior counsel for the appellant submitted  that the order of the High Court was not sustainable in law for more reasons  than  

one. He stated that respondents 1 to 5 (accused Nos. 3 to 7) before the trial  court were technicians and for their removal from service, there was no  requirement of sanction of the State Government. They could simply be  removed by the Dean of the Medical College and Hospital who was their  appointing authority. The High Court, thus, overlooked that insofar as  respondent Nos. 1 to 5 are concerned, there was no application of Section  197 of the Code.

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10.           Mr. Subramonium Prasad, learned counsel appearing for respondent  No. 3 submitted that his client though  a technician  was nevertheless  entitled to the protection of Section 197 of the Code if that protection was  extended to the two doctors, accused in the case.  Learned counsel also  submitted that insofar as respondent No. 3 was concerned, there was no  allegation against her in regard to any offence under the Penal Code and as a  matter of fact, she was not even an accused in the police case.  She was  named as one of the accused only in the complaint filed by the Drugs  Inspector relating to the offences under the Drugs Act.  In that regard,  learned counsel submitted that she was not acting individually on her own  but she  was  part of  a team  head by Dr. P.P. Sancheti,

accused No. 1-respondent No. 7 and in case the protection of Section 197 of  the Code  was given to  Dr. P.P. Sancheti, having regard to the object and  purpose of the  provision, there was no reason why the same protection  should not be made available to her and to other technicians who were  simply members of the team.

11.        We do not wish to make any comment on the submissions made by Mr.  Subramonium Prasad as in our considered opinion, the provisions of Section  197 of the Code had no application even in regard to the  two accused  doctors (respondent Nos. 6 & 7)  at least insofar as the offences under the  Penal Code are concerned.  As noted above, the High Court has primarily  relied upon the decision of this Court in the case of Abdul Ansari (supra).  In  that case, in the course of removal of encroachments, the Duty Magistrate  had given orders for opening fire in order to disperse a fully  armed mob  threatening to overrun the police party.  In the police firing some casualities  had taken place and prosecution was initiated under  different  sections of  Penal Code including Section 302 of I.P.C. and Section 27 of the Arms Act.   It was in those facts that this Court held that the  occurrence had taken place  in the discharge

of official duties of the accused and hence, the prosecution could not proceed  for want of sanction by the State Government.  Here the facts  are entirely  different and we see no application of the decision in the case of Abdul  Ansari (supra).

12.     In Romesh Lal Jain Vs. Naginder Singh Rana and others (2006) 1 SCC  294, this Court held and observed as under: \02333. The upshot of the aforementioned discussions is that whereas  an order of sanction in terms of Section 197 Cr.P.C. is required to be  obtained when the offence complained of against the public servant is  attributable to the discharge of his public duty or has a direct nexus  therewith, but the same would not be necessary when the offence  complained of has nothing to do with the same.  A plea relating to want  of sanction although desirably should be considered at an early stage of  the proceedings, but the same would not mean that the accused cannot  take the said plea or the court cannot consider the same at a later stage.   Each case has to be considered on its own facts.  Furthermore, there may  be cases where the question as to whether the sanction was required to be  obtained or not would not be possible to be determined unless some  evidence is taken, and in such an event, the said question may have to be  considered even after the witnesses are examined.\024

13.            In  light of the above passage, we fail to see how tampering with the  entries made in  official registers, tearing of pages from different official  registers and  stowing  them away in one’s house   can

be related to the discharge of official duties.  We do not have the slightest

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doubt that the allegations made against the accused related to acts that had no  nexus or connection  to the discharge of their official duties and, therefore,  their prosecution on those allegations had no need of any sanction under  Section 197 of the Code.

14.             Mr. Tankha, learned senior counsel, however, submitted that  other  alleged offences under the Drugs  Act undoubtedly related to the discharge  of official duties by accused No.1-respondent No. 7 and, therefore, the  prosecution for those offences was not permissible in the absence of sanction  under Section 197 of the Code.

15.          As shown above, a substantial part of cases against the accused does  not require any sanction for their prosecution.  The facts of the case do not  warrant any piecemeal quashing or discharge of the accused. We, therefore,  consider it appropriate and just that the trial of the accused should be  allowed to proceed without any hindrance.  After the evidence of two the  sides are led, the trial court will be in a better position to judge whether or  not any offences are made out  under  the  Drugs Act  and; whether or not  any offences, if are made out, could  

be said to have been committed by the accused in discharge of their official  duties and whether or not any sanction of the State Government was  required  for their prosecution for those offences and what would be the  effect of non-production of sanction by the prosecution.  The question of  sanction for prosecution under the Drugs Act is thus left open to be decided   by the trial court at the end of the trial.  In the result, the order of the High  Court coming under appeal is set-aside and the matter is remitted  to the  trial court with the aforesaid directions and observations.  In the result, this  appeal stands  allowed.