ARUNAVA BARUA,J. - (1.) THIS revisional application is for the purpose of quashing the proceedings pending before the learned Chief Judicial Magistrate, Barasat in connection with Case No. C -268 of 1992 under Section 323 of the Indian Penal Code.
(2.) THE petitioner, Tapan Kr. Bhattacharya is a Medical Officer (orthopaedic) attached to the Barasat Government Hospital, Barasat Dist. 24 Parganas (North). On 23 -3 -1992 the petitioner received summons issued by the learned Chief Judicial Magistrate North 24 -Parganas, Barasat, to appear before the learned Magistrate for committing of an alleged offence under Section 323. I.P.C. The allegations against the petitioner by way of a petition of complaint before the learned Magistrate, in short, were as follows: On 18 -3 -1992 the petitioner (accused), while he was doctor in the said Government Hospital, admitted two patients under him. On 21 -3 -1992 the petitioner asked both the patients to get discharge certificate from the hospital and to get themselves admitted in Barasat Nursing Home to which the petitioner, Dr. Bhattacharya, was attached for better treatment in the said Nursing Home. But, the complainant, one Bijoy Kr. Bose, that is the opposite party, who got the aforesaid two patients admitted in the hospital under Dr. Bhattacharya, did not agree to the petitioner's proposal because the patients were poor and were not able to meet the expenses of the nursing home. At this the petitioner, Dr. Bhattacharya, became furious and abusing the complainant in filthy language, assaulted him by fist and blows. The complainant was injured and was treated by the doctor on duty at the emergency. The complainant thereafter lodged a G.D. at the local Police Station and lodged a complaint in writing to the Sub -Divisional Medical Officer and the Chief Medical Officer. On 24 -3 - 1992 the learned Chief Judicial Magistrate, Barasat having seen the petition of complaint under Section 323/506, I.P.C. by O.P., Bijoy Kr. Bose and having examined the complainant and another witness for the complainant and also having perused their evidence and injury report found a prima facie case under Section 323, I.P.C. against the petitioner, that is the accused, took cognizance and issued process against the petitioner -accused fixing 1 -7 -1992 for SIR. According to the petitioner accused, the issuance of summons upon him by the learned Chief Judicial Magistrate was illegal. It is further alleged that taking cognizance after 3 days of the alleged occurrence without any explanation is without jurisdiction and liable to be quashed, that there was no basis of the complaint which was false, totally concocted and ill -motivated. By a supplementary application the petitioner has further alleged that the alleged act complained of against the petitioner was in the course of discharging of his official duty or purporting to be in discharge of his official duty as a Medical Officer at the hospital and hence, sanction for prosecution was a must before the Magistrate thought of taking cognizance of the alleged offence and that since no previous sanction was taken, the proceeding was bad -in -law. The Petitioner has further alleged that a departmental proceeding was initiated against the petitioner in respect of the identical occurrence, he was chargesheeted on 17 -2 -1994 and eventually the Governor was pleased to exonerate the petitioner from the charge framed against him by an order dated 20 -5 -1995 in respect of that departmental proceeding against him. According to the petitioner because of the aforesaid facts and circumstances the entire proceeding in question is bad -in -law and should be quashed and further that any further proceeding shall be an abuse of the process of Court. The learned Advocate for the petitioner has submitted that first of all, though summons were issued to the petitioner (accused) under Section 323 of the Indian Penal Code, no prima facie case under Section 323, I.P.C. against the petitioner was at all made out. He has further submitted that the complaint was false and motivated in that complainant and some other persons in order to malign and damage his social prestige had filed the false complaint. His further submission is that though a disciplinary proceeding was initiated against the petitioner, nothing was proved and he was given a clean chit and that since in a criminal trial offence against the accused has to be proved to the hilt, nothing will stand against him on proof and. Therefore, proceeding further with the criminal proceeding in question would be a sheet abuse of the process of Court. Moreover, the criminal proceeding in question is virtually rotten in its foundation because the alleged assault by the petitioner took place on the floor of the hospital at 9.30 p.m. while the petitioner, who was the Government doctor was still on duty and in the course of it he allegedly advised his patients to go to his Nursing Home. In that view of the matter sanction for prosecution was necessary before the learned Magistrate could take cognizance of the offence and since such a sanction was not taken as per provision of Section 197. Cr.P.C., the cognizance taken was bad -in -law and the entire proceeding in pursuance thereof is vitiated. The learned Advocate for the petitioner has submitted some decisions of the High Court and the Supreme Court as reported in 1997 Cri.L.J. 3288 (Mad.)1 1998 (1) S.C.C. 2052 and 2001 AIR SCW 26483.
(3.) THE learned Advocate for O.P. complainant has submitted that there are sufficient grounds for proceeding against the petitioner -accused because prima facie offence under Section 323, I.P.C. has been substantially made out in the petition of complaint. He further submitted that, admittedly the petitioner accused was on duty at the hospital when the act complained of had taken place and since there was no reasonable nexus or connection between the doctor's official duty at the hospital with the commission of offence that is the assault and since it cannot be said even that the act and the official duty are so inter -related that one can reasonably believe that it was done by the accused in the performance of official duty, though in excess of the execution of the same. And hence, no sanction was necessary and there was no bar to the criminal proceeding and issuance of process against the accused in accordance with law as rightly done by the learned Magistrate. It is further submitted that the departmental proceeding and the result thereof has nothing to do with the criminal case against the petitioner and that the criminal case shall be decided independently on its own merits. According to the learned Advocate for the complainant there are absolutely no merits in this revisional application and there is no question of any abuse of the process of the Court and. therefore, this revisional application under Section 482 of the Code of Criminal Procedure is not maintainable in support of the aforesaid submissions reliance is placed in a couple of decisions namely Bidhi Singh v. M.S. Mandyal and Anr.4 and Shambhoo Nath Misra v. State of U.P. and Ors.5.;